#153 | Legal Case Study #2 with Attorney Hermine Hayes-Klein: Injured by Obstetrics with Nowhere Else To Turn

March 23, 2022

"You'll never get sued for doing a C-section. You'll only get sued for the C-section you didn’t do." This is the narrative in obstetrics and the lens through which hospital birth is viewed. Litigation is feared in obstetrics but for the wrong reasons. What if, instead of resorting to C-sections to prevent liability exposure, doctors were rewarded for avoiding unnecessary C-sections? United States law as it's practiced today actually incentivizes OBs to perform C-sections, and this system plays a role in today’s high maternal mortality rates in the U.S. Further, obstetricians get paid more from their hospital administrators for cesarean sections. 

You may remember Hermine Hayes-Klein, the women's healthcare and human rights attorney who joined us in December for Down To Birth Episode #138 for Legal Case Study #1. Hermine is back today to tell us of one woman whose bladder was permanently damaged by her birth management team. Our discussion demonstrates how U.S. law protects providers in such cases, not the patient, and how true informed consent is routinely and repeatedly neglected in obstetrics.

Hermine Hayes-Klein

* * * * * * * * * *

Connect with us on Instagram @DownToBirthShow or email Contact@DownToBirthShow.com. We are always happy to hear from our listeners and appreciate questions for our monthly Q&A episodes.

This show is sponsored by:
Silverette USA*
NOM Maternity*
Serenity Kids*
Beautiful Births and Beyond*
Postpartum Soothe*
*Use promo code DOWNTOBIRTH

Connect with Cynthia and Trisha at:

  • Instagram: @downtobirthshow on Instagram
  • Email: Contact@DownToBirthShow.com
  • Call: (802) 438-3696 (802-GET-DOWN)

Work with Cynthia:

  • Email: Cynthia@HypnoBirthingCT.com 
  • Text: 203-952-7299 to RSVP to attend a free information session live on Zoom. Upcoming dates are posted at HypnoBirthingCT.com. You can also sign up for our Fourth Trimester Workshop,  Breastfeeding Workshop or Cynthia's HypnoBirthing classes and weekly postpartum support groups at HypnoBirthing of Connecticut

Work with Trisha at:

  • Email: Trisha.Ludwig@gmail.com for online breastfeeding consulting services or text 734-649-6294 for more info.

Remember - we're in CT but you can be anywhere. We serve women and couples coast to coast with our live, online monthly HypnoBirthing classes, support groups and prenatal/postpartum workshops. 

We are so grateful for your reviews and shares - we love what we do and thank you all for your support! 

Please remember we don’t provide medical advice, and to speak with your licensed medical provider related to all your healthcare matters. Thanks so much for joining in the conversation, and see you next week!

Support the show (https://www.paypal.com/paypalme/cynthiaovergard)

View Episode Transcript

What if the law is working? Well, then lawsuits should do nothing more than incentivize safe care. You know, if we had a healthy legal system, then a lawsuit would only ever hold a provider accountable for genuine negligence, and would incentivize them to be more careful in the future so that they don't make that mistake. Again, that should be the only time that somebody is really held accountable. But what's happened in our system is that OBS have been left with the story, you'll never get sued for a C section, you'll only get sued for the C section you didn't do and when in doubt, kind of C section. So the law is incentivizing them to cut a surgery on a woman that increases her risk of dying in childbirth, and increases her baby's risk of dying. Again, if the law were working. If these were not perverse liability incentives, if the law were creating appropriate liability incentives, then the law would incentivize an OB or their employers the hospital to make a C section happen when it is necessary, but don't make it happen when it's not necessary, because then you're increasing risk.

I'm Cynthia Overgard, owner of HypnoBirthing of Connecticut, childbirth advocate and postpartum support specialist. And I'm Trisha Ludwig, certified nurse midwife and international board certified lactation consultant. And this is the Down To Birth Podcast. Childbirth is something we're made to do. But how do we have our safest and most satisfying experience in today's medical culture? Let's dispel the myths and get down to birth.

Thank you, Cynthia and Trisha for having me. On your show. Again, I really enjoyed our conversation and your episode 138. In case your listeners didn't hear us in that one, I'll introduce myself, I'm a lawyer. I'm based out of Portland, Oregon, and my focus is human rights in childbirth and advocacy on that topic. My name is Herman Hayes Klein, I grew up in Massachusetts, I went to the University of Chicago. And I taught law in The Hague for four years, where I got to sort of look at the issue of how women are being treated around the world when they give birth. And through that experience, I came to understand that, that women need accountability for the violation of their rights and childbirth, in order for those rights to become meaningful, and in order for them to be able to know that they can rely on their rights when they in any setting where they are giving birth, and when they are in a vulnerable medical condition. So I advocate for those rights to be enforced and enforceable. And I love to do it. And I'm very excited to come on your show and talk with you about it.

So normally, in our society, it's sort of frowned upon to be considered a litigious person, you know, we think about frivolous lawsuits. And we think that this system gets abused. And what we're going to talk about today is that this system is in place for a reason. And we actually have a moral obligation to utilize that system when injustices are being perpetrated against humans against, you know, human violations against women in childbirth against against any person. And that is what we're going to talk about today. And as uncomfortable as it is, to think about taking legal action, we want to talk today about when it should be considered and why it is actually a principled approach.

And I think on that note, Cynthia, that makes me think of a a quote from Martin Luther King about, you know, that's, I think, relevant to the comments you were just making about how we use the law. And it is power without love is reckless and abusive. And love without power is sentimental, and anemic. Power, at its best is love implementing the demands of justice. And justice, at its best is power correcting everything that stands against love. So I think what we all want to see is a maternal health care system that is fundamentally loving toward everybody involved, the providers, the patients, the babies, and in which, you know, everybody can basically feel safe. And what it is sometimes necessary to rely on the law in order to make those kinds of things happen.

This is going to be an interesting conversation, because there really is quite a lot of there's quite a lot of suing that goes on in obstetrics, and it's a huge fear for providers, and it's a very litigious environment, but it seems that the cases are mostly for the wrong thing. But what we're going to talk about today is what you what you really should be suing for and that's around women's rights, human rights and how they're treated. How they're mistreated in labor. That's right, dive in.

So we dive in. Okay, so I think maybe it's it's worth first speaking to this issue of a litigious society and what is the role of lawsuits and trying to ensure that every person who goes into give birth in a hospital or any other setting is going to have their rights of informed consent respective is going to have their dignity respected their rights to privacy and just to be treated with respect. So as you mentioned, Trisha, you know, obstetrics is famous for being a litigious area. And I think the reason why it's an area of litigiousness is that when babies die, and especially when babies come out of childbirth with a disability, the lawsuits that are brought that have claimed that the reason for the death of the disability is the negligence of the provider can be very financially renew motive for the lawyers. So, you know, one one way that I did a conference, one of the things that I've done in my work in this area, is that I founded an organization called human rights and childbirth. And from 2012 to 2017. I organized, you know, six international conferences on that would bring together just different stakeholders from different maternal health systems to talk about what are the rights at stake in birth? And how are they playing out in reality, one of those conferences was in South Africa. And I remember, we had a lawyer, litigator from South Africa that was speaking on one of our panels, and one of the comments that she made was assigning sort of value to lawsuits. And she said, here in South Africa, a lawsuit for a baby that came out of childbirth with cerebral palsy can be valued at a million dollars, a lawsuit for dead baby $100,000, a lawsuit for a dead mother of $50,000. And that is a result of some really complicated and problematic way that valuation as assigned in in damages and tort suits. So the result of the current status of litigiousness and maternal health care is that it has it has caused what we call the law perverse liability incentives. Right. So So actually, I'm talking about the incentives that the lawsuits have created for the providers, what if the law is working? Well, then lawsuits should do nothing more than incentivize safe care, right. So a lawsuit, you know, if we had a healthy legal system, then a lawsuit would only ever hold a provider accountable for genuine negligence, and would incentivize them to be more careful in the future so that they don't make that mistake. Again, that should be the only time that somebody is really held accountable, as for actual negligence, but what's happened in our system is that the lawsuits that have been brought are basically all about all claiming that more intervention should have happened. And a lot of that is based on legal developments that came around the electronic fetal monitor, you know, and there's, there's actually a lawyer named Thomas sartwell, out of Texas, who spent his whole career working on EFM. And he has published a number of articles, and even has been on some podcasts in which he describes the way that EFM was abused within the law. And that essentially, is that if there was a bad outcome, you know, something that we know now is that, for example, cerebral palsy, the lit we're not used to be believed that if a child came out with cerebral palsy, it was because of something that happened in the birth and oxygen deprivation. Now, that's not as clear at all. And it seems like there's more that contributes to cerebral palsy. But as he explained, it was very easy legally, to just put up the strip, which the jury never understands, showing the blip, blip blip, bring in what he would call junk scientist, or someone who's going to present some junk science to just point at some moment on that strip and say, here's the moment here's the moment, if they'd cut a C section, that baby wouldn't be in a wheelchair, or that baby would still be here today. And that's such an emotionally simple story for a jury. And there's so much empathy for the family that suffering that $25 million verdicts 50 million verdicts can result from that. And so and that even in the you know, in general, sort of what we know about EFM, for example, is that it's, it's, it has a lot of false positives in predicting fetal distress. In fact, as Thomas Sowell put it, it's wrong 99% of the time, that's what the studies show at predicting fetal distress in a low risk, normal pregnancy. It's more useful if you have a uterine scar or other kinds of risk factors. But if you're having a normal, low risk pregnancy, it's wrong the vast majority of the time and telling you that something's wrong,

not only is it wrong, but it also puts you and your baby at increased risk.

And well, the increased risk it puts you at increased risk of an unnecessary surgery. That's right, right, because itself isn't returning you well, it itself is hurting you because it you can't move. So that already is a massive intervention and interference with the normal physical assault. And I know that there are some walking monitors and stuff like that. But the vast majority of women I speak to are told you have to lie on the bed for the monitor. They're not offering a walk and monitor.

Let's circle back You had said that part of the problem with litigation is that it's so financially renumerated I thought you were saying for the attorneys,

I am saying for the attorney. So can you explain that? Well, so So what has been fun Naturally renumerated are the lawsuits that basically say, the negligence is a failure to intervene, that you should have intervened faster. And so there have been so many high price lawsuits that are based on junk science on the EFM that have resulted in verdicts, that where they say you should have kind of C section, when in doubt, cut a C section, that obese have been left with the story, you'll never get sued for a C section, you'll only get sued for the C section you didn't do and when in doubt, kind of C section. So the law is incentivizing them to cut a surgery on a woman that increases her risk of dying in childbirth, and increases her baby's risk of dying. Again, if the law were working. If these were not perverse liability incentives, if the law were creating appropriate liability incentives, then the law would incentivize an OB or their employers the hospital to make a C section happen when it is necessary, but don't make it happen when it's not necessary, because then you're increasing risk. So we have had no litigation that does that backside. You know, for example, one symptom of that is that when women who have experienced say for C sections that they survived and their baby survived, go to a regular Birth Injury Lawyer, they'll they won't take the case, they'll say, is your baby dead? Are you did? No. Maybe you should think your OB I've heard women that were told that by the lawyer, you know, thank you, you're lucky that you came through, I hear the sad stories, they say, you know, and so they don't anticipate back to that valuation that was mentioned by the African attorney, you know, that if they anticipate that the that there's there, they anticipate cultural barriers around a jury being willing to recognize that these kinds of harms were unnecessary, and were actually caused. But, but back to why bring lawsuits. Now in a system that's already too litigious, right, there's a really a great valuable point to start. And it is because only lawsuits will correct the perverse incentives. Right now, maternal health care is running with the story, when in doubt, cut a C section. And as we know, unnecessary C sections cause harm. And the only reason we've had you know, and you know, judges come out with these bad decisions like when in doubt cut a C section or you shouldn't have allowed her to have a VBAC to the extent that there has been any judge in America who came out with a decision that said, you shouldn't have allowed her to have a VBAC or a breach or whatever. That's because there was no lawyer on the other side, making clear for that judge that you should have allowed her, the law says you must allow her as a matter of fact, and that there's no negligence ever committed for respecting a client's right of informed consent. But those voices have been absent from advocacy in maternal health care with the result that the the that maternal health care is incentive driven, liability incentive driven, we hear this all the time, I'm sure you guys do. They talk about liability incentives driving practice. But the the incentives that it creates happen to be ones that also profit the providers, it's very convenient to say, liability incentives force me to impose a surgery on you, that is also more profitable to me. And also more convenient to me from a time perspective, the only thing that's going to shift that is if the harm caused by these unnecessary interventions is brought to the attention of the courts and the medical providers, and we request accountability for that harm.

So what we really want to talk about today is more doctors should be sued for doing C sections, then for the opposite of what has been happening is that they avoid being sued for during the C section. Now we're saying, Actually, you the lawsuit should be brought against the doctor when the C section is unnecessary, the epidural is unnecessary. The Pitocin is used, you know, push too high. And all these other unnecessary interventions that are causing women to have traumatic birth experiences to be treated disparate, disrespectfully to be treated without dignity to not have basically proper informed consent or and and to even have their rights denied in birth.

Yes, I mean, so perhaps it would be helpful to dive into a couple of stories and case studies that would illuminate you know what this looks like in practice. Would that help? No? Yes, please. All right. So, in our last, you know, podcast together, what we talked about that time, was trying to pursue a non litigated route going straight to the providers to talk about the abuse, we you know, you guys had my clients Lily, and George on the show to talk about their experience of having been traumatized and pretty violently abused, know, very violently abused during the birth of Lily's child. And but they didn't want to sue they wanted to go straight to the providers and yeah, and share their story and to be heard and and for them to get it and and say, Okay, we got to change some things around here so that we don't do this kind of thing, because it was very clear in that case, as it usually is that what happened was not about one one doctor and one patient. It was a system failure in which everybody in that room seemed confused about what the client's rights were. And as we learned in that story, the hospital came back basically like so sue us. If you have a problem with this. They were not link to, you know, basically I think what we talked about was that they said every, all the hospitals treat all the women like this. So even though we get that it's a violation of the law, technically speaking, and the law that was being violated as a law of informed consent. So I live in Oregon, although I'm also licensed in Connecticut and New York, I'm licensed to practice law in Oregon, and we lawyers can only really file lawsuits in the places where we are licensed to practice law, unless we're working in partnership with a lawyer in another jurisdiction. So because I'm live based in Oregon, this is the place where I'm most comfortable to file lawsuits. And so I represent several women here in lawsuits filed against local hospitals for different kinds of harm caused by their providers to them during the birth of their child. So a few of these, I think, are worth talking about on the show a little bit, because they're really lawsuits for things that I think those that, that that that are pretty regular, in maternal health care, and yet, I would call abusive, and, you know, and and, and the which violate the rights of the patients on a regular basis. So, for example, one of my clients, these are all first time moms first time births that went into the system with a lot of trust and a lot of faith in their providers. And so in this case, my client was to, you know, late, she was postdates. She was around 41 weeks, or between 40 and 41.

You know, her OB said, Well, you know, maybe we should plan on induction. He said you're low on fluid, or maybe it was high on fluid. And so they schedule, he said he wanted her to get induced the next day, or maybe that night, they call the hospital and the hospital nurse says, No, we don't have room for her till tomorrow, center and tomorrow. But then she goes into labor naturally that night. So she calls the OB, I'm having regular contractions, he says go in the nurses kind of annoyed when she gets there, like you're too early, you know, I mean, so there's this way in which this, a lot of what we're addressing in these abuses is like, one size fits all care doesn't, it ends up being abusive, you know, like, so when they want you there on their time. That doesn't make sense for childbirth. That's not how childbirth works, unless you're going to deliver the baby artificially, rather than allow for physiological labor. But this patient, like all these clients had been told all through the pregnancy, we're going to support you and having a physiological birth. And we're going to save the interventions for the event, they're actually needed. Most women going into have a baby, that's what they want, they don't mind a C section, they don't mind the Pitocin. But they want to know that it's going to be used judiciously, that it's going to be used when they know when they need it, they're expecting that their body will have a chance to do its thing and try to get their baby out. And that in the event, their body needs help, they'll get that help. Because it's right, they're quote unquote, right, that's why they're at the hospital. But then, you know, what makes so many of them come out the other side of that birth, like what just happened to me, like all of these clients is like, what just happened to me, they promised that that support but now when I look back at it, I just see how that was chipped away at from the moment I walked in the door to like, came out the other side. You know, with an injured body, that's going to take quite some time to recover and with an injured spirit that's going to take even longer to recover. So you know, in this case, she goes in and labor. She's laboring, you know, she's she, her the OB her prenatal OB comes in what he sees her twice that day, it's New Year's Day. I mean, it's New Year's Eve day. And as you know, we know sometimes quality care goes down on holidays, because the providers have their own agenda for the holiday. So it's New Year's Eve, the OB comes in first time. He says, okay, everything looks great. Yeah, you're still on track for your low risk birth. Comes in a few hours later, and says okay, so we're gonna start the pit. Now we're gonna augment your rope, because it's not happening fast enough, you know, no explanation, like or like you need it. There wasn't even like, it's not happening fast enough, but you need it, no explanation why you need it. So we're gonna start the pit. And, you know, clients laboring, she's in pain. She's like, okay, you know, but that's not consent. That's not consent. That's not how informed consent was working, we can circle back to that. And so then they started the pit, the pit, you know, OB number two stops by that night. And it's like, so I'm sure you know, and she's just laboring, there's no sign at this point that she should need us his area. There's no reason to excuse this conversation. But the OB is like so I'm sure your other doctor talk to you about C sections. And she's like, well, he mentioned at the 36 week appointment that many women need them. But we didn't he didn't tell me more and you're like, Okay, so you know, we'll I'll see you tomorrow. And so then leaves turns up the pit does it a vaginal exam writes down I think the baby is oh a osteopath anterior and I think that that will be missed that either that will be missed that the baby was Opie The Aussie put posterior at that point, or baby got stuck Aussie, but posterior subsequent to that moment, but OB leaves for the night nurses in charge of just the pit. And so the pit is up all night and the client by midnight is like in excruciating pain that the nurse says is abnormal. And then but she says but her solution is epidural get an epidural. So she gets the epidural, the pit keeps going.

She Labor's all night, that same OB from the night before stops, by early morning says you know, we'll give you some more time at 10 o'clock that morning OB number three stops by OB number three does another vaginal exam and says your baby's op put or maybe doesn't tell her but writes it your baby's op orders the nurse to do position changes. And the nurse does not do position changes. Four hours later, they come in and say nothing's changed time for your C section. And then you know there's no there's not really Yeah, she agrees to the C section. And, and after the C section she was in the hospital for three or four days. And during that whole day, she was in excruciating pain in her pelvis and she could not feel her the need to void in her bladder anymore. And so she you know, she had to. And there was a couple times when she was catheterized in it like like the one time two leaders came out of her bladder when it was catheterized. And so something that I understand now that I didn't understand before this case and my other Opie case, like I didn't really understand that this is a thing where the combination of Pitocin and the epidural than my nerves experts have explained to me, it increases the likelihood of the baby getting malpositioned because mom and Trisha you'll be able to, you know, help us understand this. But you know, mom's supposed to be able to move her body mom, you know, physiologically, if you're going through the process, every one of those pains you feel is making you move in response to the pain and all of that moving in response to the pain is moving in concert with your baby that then does the rotation needed to come down. When mom who is on piton an epidural, the uterus is still pressing baby to come down. But she can't move her body in response in a way that will help baby to get through and turn. And so then what the nurse has explained to me is that it's their job to monitor and labor for whether op has happened among other things. And when that mom gets stuck at six to seven centimeters for hours on end, or she's when when labor stalls at six or seven and she's on pet in an epidural, they should think oh P and they should you know look into it, bring in the provider figure it out. And that position changes can get that baby unstuck and that but that doesn't that doesn't mean one time we come in and we lie you on your left side. And then we say oh baby doesn't like that. Let's turn you back over. It means actual position changes in getting that mom's pelvis moving.

So first, first of all, in op baby does not necessarily mean a baby can't be born vaginally. Yes, it's a little bit more difficult. But babies come out op all the time. That means that when they come out, the back of the head is actually against the spine instead of the opposite. So you want your baby's face facing your backside. That's the optimal way that babies fit through the pelvis when the back of the head is on the spine. Number one labor can be more uncomfortable, which is what she was experiencing. But also the fit through the pelvis can be a little bit more difficult. And sometimes they can get a little. Sometimes they can get stuck at six centimeters. We're not even talking about pelvic outlet yet, you know, the baby's still high. And the solution for a baby that's OP is to rotate and babies go through a normal process of rotation in an undisturbed birth. But when you are having an epidural and you're on your back and the Pitocin is too high, and that baby is unable to work, as you said with your body to make the necessary changes to properly put pressure on the cervix to help the cervix fully open and then make their descent that's the negligent care. The negligent care here is that they didn't give the mother and the baby an opportunity to have a safe vaginal birth. They kept her in a position of high Pitocin and poor maternal positioning that made her baby gets stuck.

Right. And I think women are often told afterward Oh, your baby was opiate never would have come out vaginally and I felt alive. It's a lie and applied so like why why do I do the work I'm doing women shouldn't be getting lied to by their providers when what is at stake underneath that lie is whether they're going to have a major abdominal surgery that's going to impact their health, their baby's health and their future pregnancies like this is not right. And it's also not legal. So I mean to close the loop on what happened to my client. You know, she in her four days postpartum, she was in excruciating pain. She couldn't feel her bladder. She had other issues too. You know, they weren't help her nurse. She was never able to successfully nurse her baby, which for her was devastating and didn't really have any support around that and and the providers really just seemed like that, you know that she was told, Oh, it'll heal on its own, that the same OB that had said, I'm sure your doctor talk to you about C sections came in postpartum to say when she said oh, well, you know, I still can't feel my bladder and they're discharging me today. What should I expect her that she was like, Oh, it'll heal on its own, just drink less water. And so what I've which, of course is a crazy thing to tell the press plus water. Yes, drink less water three days after having a baby when your body needs water. And, you know, basically nobody ever sort of blew off the injury to her baby, even postpartum. She came in and talked about it. And they were like, Oh, it'll be fine. Nobody followed up. Nobody has sent her to go examine whether she was fine. And it's over two years since the birth. She you know, basically what happened was that op baby grinding on her pelvis, messed up nerves in her pelvis. She lives that she has permanent pelvic pain that is severe, like, like no more normal sex life kind of pain. And, and then she can't feel her bladder anymore. And then her they say that her solution is to self Cath five times a day. That's what her doctors tell her to catheter a cast. She's like, I can't even do it. Once I almost fainted the first time. I can only just keep peeing on the timer.

A person can give themselves a catheter?

Yes. But it's not fun. And you have to go over and

comfortable. You put it in the urethra, right? And you just

oh my gosh, I'm thinkable an example.

I mean, she shouldn't have to do that.

Exactly. And so yeah, so let's let's just talk about this birth, right, because again, the way the birth looked, was not unusual, you know what I mean? That the Pitocin is casually started without, you know, a lot of discussion around it. And then, you know, tick, tick tick, it wasn't she wasn't even there. 24 hours, you know, like it was like, before the baby was delivered. And so

not to mention also that they called the baby posterior, and they called the C section C section at six centimeters, which is only the beginning of active labor, by definition now, so she didn't even get a chance to be inactive labor before they made this call. Well, I

mean, I think she was stalled at six to seven because I think from what I understand what happens and I think different hos I don't know if it's one policy or different policies, but it's like, once you've had no change, no cervical change for X number of hours, we can section you. So once she saw us on the OP, instead of doing what they should do, which is, let's Okay, so our negligence has got her baby malposition. Let's help her out. It's like, let's just give her a C section. And why would they do that, because in their perspective, a C section is just another way for a baby to be born. It's not that big a deal. Because what we know if there's any group that actually does requests these sections for themselves for the delivery of their child, it's all BS, because OB his perception of birth is often such that there's not really a perception of an additional value of having gone through the physiological process. And the end says Aryans are considered to not be that big a deal from their perspective as the provider. And that's fine for them that, you know, it's fine for them to be able to choose a Syrian if they're giving birth in a system that has the resources to offer a cesarean. But

they're also unwilling to break hospital protocol. So hospital protocol says once you start the Pitocin, it has to go up and up and up for a certain period of time. And the you know, the solution would have been that you kind of turn the pit off for a little while, let things calm down, maybe turn down her epidural, let her have some freedom of movement, and see if she could get her labor

progressing. There's something wrong with a system where obstetricians even if they go to medical school, because they love surgery, as so many profess to there is something so lacking in that obstetrical individual, that doctor, when they don't understand that a C section is absolutely devastating to some women, if they can't appreciate that some women are completely averse to it for whatever reasons they choose. And for that, it doesn't matter if they want it for themselves, and that they know how to do it. And they do it all day long. It's not a big deal to them, because it's their lifestyle. It is not the lifestyle of a woman who wants to avoid unnecessary major surgery. Never mind the risks. The recovery, never mind that some men and women actually longed to experience childbirth despite the fear that they have of giving birth. So it just feels so unfair. I don't know the word but it's very concerning if they don't have a full understanding of their clients and how they feel about the C sections.

We can I think your point Cynthia goes to what the law of informed consent really asks them to do, which is to recognize the variability of their clients and their clients choices and to be prepared to meet their clients in their uniqueness and get and to honor and respect them, which is the opposite of one size fits all care where this is the way we do it around here and it doesn't really matter. What your clinical condition is, it doesn't really matter what your personal values are, this is just what's going to happen because of our values. Like what informed consent requires is that the patient gets to make the decision on the basis of their own values. And what that would therefore mandate if it were being respected is, you know, what it's asking of the system is that it recognizes that you can have 10 Different women with similar clinical charts, but they're going to make 10 different sets of decisions about epidurals about Pitocin about the C section. So What's radical about these lawsuits I'm bringing is it they're actually asking OB is to do what the law says that they were supposed to do. So when each of these cases so I have another case, with that, that is like the one I just told you about in that there was induction with Pitocin moms doll that six to seven C section and babies delivered O P. In that case, the O P for hours did not cause the permanent pelvic damage. But mom did experience to two miscarriages after that scenario. And she had never experienced any fertility problems before this is Aryan. And so what this is all sort of getting to is asking the legal system to recognize that this is not a risk free procedure, and that it actually creates risks that sometimes actually manifest for some patients, but also that the way that that conversation was supposed to happen, it might look typical, we might know this happens every day. And that's like we talked about in our last episode of their defense, but it is not what the law says. So here in Oregon, we have a statute that says exactly what the doctor is supposed to do. And in none of my cases, did the doctor do this what it says it's supposed to do. And this just reflects the bioethical you know, bioethics and law of informed consent, really, which is that there was they're supposed to tell you what they're proposing to do, the way that the law is written here in Oregon, this is the order of how the doctor supposed to do it, tell you the nature of the treatment that they're proposing, tell you that there may be risks if there are risks as there are necessary and or induction that there may be risks to this proposed treatment, and tell you that there are alternatives to it, and then ask if you want more information. If the patient says yes, in Oregon, the doctor has to tell them all the information about the risks and alternatives. If the patient says no, only then does the doctor not have to tell you evaluate your risks and alternatives. But if the doctor does not ask the question, Do you want more information? The law of Oregon actually has that doctor, the obligation on the doctor moves straight to part two, if you didn't ask, Do you want more information than the doctor has an obligation to go ahead and tell you all your risks and alternatives, which I really appreciate the Oregon Supreme Court made that holding, they did not say, Oh, they didn't mention it, then then I guess it never came up the alternatives. They put that burden on the doctor to make sure that the patient has the opportunity to hear all that information. Did that happen in this case? Absolutely not. Was there any discussion of the alternatives of a turning on the pit? Absolutely not not even mentioned not even mentioned what we could do instead of using Pitocin? Right now,

this is why you and I talked last time about the power of culture because it's become culturally accepted. We've stopped asking those questions.

So I feel that we can make very powerful change, like my feeling with with women's rights in childbirth and human rights in childbirth has been, we don't need new laws, we don't need to write new laws of obstetric violence, for example, and make it a crime or anything like that, like women have tried to do in other countries where the rights are being routinely violated. And in childbirth, we've got the law, the law of informed consent, the law of equal treatment and the right to not be subjected to discrimination during during medical care, we just need those things to be enforceable, because it doesn't matter if the law is written down. It doesn't matter because every single one of these hospitals, they've got a patient rights patient bill of rights literally on the wall of the hospital room, literally on their website that says you have the right to make all the decisions about your care, you have the right to refuse treatment. But what happens if they don't do that? Until now? Nothing. Very rarely does anything happen when women's rights to consent and autonomy are violated in childbirth? Legally, what actually happens is that women are left traumatized. The entire cost is borne by the women.

One other component to the law of informed consent, I believe, correct me if I'm wrong is that once you make your decision, they must support your decision. Of course,

consent is the most important part of informed consent. Right. So an informed inform is your right to information, which is your right to information about the actual risks of what's being proposed, why it's being proposed, why it's being proposed, women don't even know I can't tell you how many women I've talked to who come out, I'm like, why was your baby in the NICU for a week? They're like to him to find out. Literally, you know, so like, they don't know why they had a C section. They don't know why they you know, so why, what's it going to involve and then what are your alternatives and what we see happening in obstetrics is that is alternatives being literally removed from the table by the obstetricians. So you know, like, or the hospital, but we're by the hospital policy. So you've had a prior to zero, and we're going to take vaginal birth off the table and pretend it's not even an alternative option. And not only not tell you about it, but if you ask about it tell you it's not an option. And then is every kind of illegal

and just being mistreated? If you say no, so they don't actually support, they may have gone through the other steps of consent, and you say no, and then you were treated so poorly.

That's coercion, of use. So again, if the two prongs of informed consent are informed consent, informed is your right to information, and to really be making a decision on the basis of, okay, I know, I have all the information, I need to decide what's best for me. But then consent means you have to make that decision, and they have to support your decision, they cannot do it without your meaningful consent on the basis of information, which means you have the right to decline, or choose the alternative.

So in a situation like the case that you just explained to us, many women have been through a scenario like that, what would be the case brought against the doctor? How would you approach that?

Thank you for asking. So. So the way that the that lawsuits work is that you write a complaint, right, and your complaint basically tells the story of why you're bringing this lawsuit. And so you write down your facts, which is what happened. And that should include, not every fact that happened, you know, like that, you'll bring in all the details later, if you go to a jury trial, or whatever other moment, but really the key legal facts that make it so that a judge could read this complaint and see, okay, there are some facts here that support an action for medical malpractice. Because, you know, there's elements of each claim. So like basically telling your story, and then you figure out what are the legal? What are the laws that were broken? You know, and for each of those legal violations, you articulate a different claim or cause of action 1234, however many want, that are saying how that story that you just told, violated the law. And so in these cases, I'm alleging violation of informed consent, which here in Oregon, I can do under both the statute and under what we call the common law that exists everywhere of informed consent. And in one of my cases, battery, you know, so non consented touching, like after the person's actually said, No, if you actually said no, or they didn't ask you for your consent at all, so that there was just no consent given like in these in the case. I just described it. It's misinformed consent. So the client didn't say no, the client said yes, but the doctor hadn't fulfilled their statutory obligation prior to that moment. But sometimes the client doesn't know I don't want that and they do it anyway, then you can bring an action for battery or assault. But in these cases of the misinformed consent, I'm alleging negligence, medical malpractice. And, you know, I'm alleging that the violation of informed consent is itself a medical malpractice, because informed consent is an aspect of the standard of care for the provision of any kind of medical treatment, whether I'm setting your leg or giving you brain surgery, or helping you birth your child. I have anything I do in order to do it appropriately, and it needs to involve informed consent. So if I don't do that, I've been negligent. But also negligence and negligence on the part of the hospital system, which I'm already I'm litigating this issue right now, this month, with one of my hospital defendants, whether I can say that the hospital is negligent for failing to train its employees in informed consent, and how to because as I pointed out in my briefing on this topic, in these cases, every single person in the room participated in the violation of informed consent. So that case, is my case where I'm suing a hospital for telling my client because your baby is breech, you are having a C section. And then and there is no other option. And then she had the C section. And the anesthesiologist, you know, apparently there's a lot of anesthesia accidents, and C sections. It's an underreported phenomenon. But in this case, the anesthesiologist put the needle in too high, jabbed her in a nerve. And she is it's two and a half years since the birth she lives with permanent chronic back pain. That's like a mild pain of just all the time but excruciating pain if she moves her spine like cat cow, and constant tingling in her hands and feet. So it's just like, you know, again, this is a risk free ces area and we're talking about right so this is Aryans are sold to women like it's no big deal. Why wouldn't you do it? Why are you complaining about having a C section? What you just that's idea some women don't want them for good reason. Okay, you know what? That you know, what gets me the whole tone of let's not take any chances. Let's just write exactly how dare you phrase it that way. It increases the risk. It's so manipulative and risk data is it's increasing the risk so it's straight up with the baby and the mother. Yeah, it's the old non by many fold.

Not and not just with the first C section, it puts them on at zero significant increased risk for subsequent pregnancies.

Precisely and so that's another One of the most one of the claims that I've brought in these last lawsuits that my client ended up with a cesarean following these kinds of events is failed negligent failure to prevent an unnecessary primary cesarean. And I'm excited about this, because I think I don't think I've ever

I don't think I've ever heard anybody say that before. And it is so powerful, right? Oh, incredibly important.

It will. And I feel like there's lots I can draw on lots of, there's been lots of stuff from the providers themselves, the ACOG types, folks saying we need to do this, we need to prevent unnecessary primary Syrians, but they're not doing it at all. And so since I have them acknowledging that it's important because you're causing harm with all these unnecessary surgeries, when I can show a reckless indifference to the unnecessary surgery that that was shown in these cases. Yeah, I think that I'm going to argue that that is itself negligence, because it did, in fact cause harm. And so in my other case, you know, talking about the downstream risks Trisha you know, one of the things that is so problematic about the way informed consent happens, forces Aryans in the moment, is that those downstream risks are rarely if ever discussed, and the if they're discussed at all, the way that it's, I usually hear it frame to the woman as it might mean you need a C section for your future births, right. So they focus on mode of delivery, they don't focus on actual risks to her and her baby, you might die, your baby might die, you may die from accreta, where your placenta grows through the scar that we are about to give you, you know, like those actual risks, you know, increased risk of Azurion of miscarriage increased risk of preterm birth, intrauterine growth restriction for the next absolute exotic leisure length, postpartum hemorrhage is top of the list. Right?

So those things are like, not, you know, not discussed and, and yet the women live with those downstream risks, you know, the OB is really generally their concern is this birth today, I want everybody to you know, they say they love to say, you know, we're just looking out, we all Leaguers care about a live baby, we just want your baby to be okay. And what they're really looking at is at the end of the day, my shift goes off this baby's okay, this mom's okay, I go home. And that's understandable and admirable, but it doesn't look at how she doing a week later, six weeks later, a year later.

One of the interesting things that Dr. Su has said when we interviewed him is that in obstetrics, they care about a live baby at the end, that is their threshold for whether the birth went survival, that's that's the that's where the bar is live baby alga.

At a minimum, what they should immediately be responsible for is the full recovery of the mother and baby post birth. So if she has pelvic floor dysfunction, it should be their problem. If she has postpartum depression, it should be explored whether it was linked to her experience in the birth environment environment, this bladder dysfunction, this should be on them, and then maybe they would take more precautions, because their liability would be expanded a bit. Right? And not just like, Well, do you have a live baby? Alright, get on with your life now? No, until they're fully recovered from any potential harm that they experienced. If, if, if the birth provider isn't responsible for that harm, who is well go see a pelvic floor specialist will go see, go see a psychotherapist, right go to the bladder Doctor, this is put on the mother, it's not their problem. And this happens all throughout healthcare, all throughout healthcare. You know, the doctor who specializes in this doesn't care if the medicine they give you causes a completely different problem down the line. It won't be their problem by them.

Right. And I think that what you got and Trisha are talking about gets to this strange, like the perception of the who is the patient, you know what I mean? And it seemed like the birthing woman's kind of the patient before Labor maybe. But then once labor starts, the perception is the baby's now my patient on the part of the providers and that I am serving the baby. And, you know, again, if there was a perception that mother respect for Mother, baby dyad, that might turn out okay, but it seems when the shift that happens is I'm delivering the baby out of the object. And then the mother becomes the object. And so their needs, their health, their internal external experience is irrelevant. And of course, the way that the baby is pulled out of them, like, treats them like they're an object and not a human being. And I'm not just talking psychologically, I'm talking about those cases where the baby has come to crowning at a VBAC bad hospital, and they say, No, no, this is not allowed. And they push the baby all the way back up through her vagina with their hand back up through a C section wounds. And it's like, wait a second, did anybody study the effect on the female pelvic floor of pushing a baby back up it? It wasn't supposed to. It wasn't built for that, you know, and so yeah,

can we also acknowledge all the babies that are now in the hands you know, in this country with absolutely no Postpartum Support? All the newborns at home in the arms of a depressed mother of a mother in pain of a mother You can't even go to the bathroom or function normally anymore. Now that baby is completely dependent on that person who isn't emotionally and physically well, there's a risk to the baby right there.

It makes a mockery out of the idea that they're looking out for the health of the baby.

Absolutely, yeah, it's a society that isn't valuing babies, as we know, it's not valuing women and mothers, but it's not even if they pretend to be valuing that live baby at the end, you're sending that baby home with someone who isn't well enough to fully focus on it and take care of

it. In a way, what we're talking about here is like, what are all the risks that stage the second the situation and the choice to only look at some of the risks, right, so like, I'm only gonna focus on these risks. And I'm gonna call that looking out for the baby. And but what we're talking about is, it there's like a constellation of risks, you know, and the risks. It's simply the way that C section is served up in the USA and other maternal health systems that also abuse it is like vaginal birth is risky, and zerion is risk free. And that's not true, either for the baby or the mother. So the to say, we're just, you know, would want to take a risk of the baby. Whereas looking at Oh, live baby, we're so happy is to ignore the risks that we know have just been put on that baby. You know what I mean? So like, it's not just we're prioritizing the baby, we're doing what we do with the mother to which we're only going to look at the data that gets us where we want to go, you know, so we're going to ignore the fact that we've now increased this baby's risk of asthma and allergies and obesity, for example, which we know that's documented. And call it we're looking out for the baby. I mean, so So okay, so thinking about these? Yeah, I mean, I think my three sort of everyday abuse cases that I have posing in Oregon right now are two cases where mom was put on the Pitocin baby ground on opiate six to seven for hours. And she was given us His Arian, both, every single one of these clients came to me for their emotional trauma, none of them came to me for their physical injury. And because they're remote, and they were all injured. One of them had two miscarriages after her Severian, which was a major injury, this mom wanted another baby. One of them lives with the permanent back pain, one of them can't feel her bladder and had permanent pain. And yet their emotional trauma eclipsed that physical harm, which tells you a lot about their emotional trauma, you know, they were coming like, and all of them come. Their motivation is to prevent harm to other women, all over them, that is more their motivation than it is accountability for themselves. At all of them. The only reason we're suing is because they tried everything for direct communication, and it wasn't good. They were blown off. So my so so two of them are for the OP. And one of them is for the C section for breach, which is, you know, challenging a hospital under the principle that hospital policies don't get to eclipse human rights.

I think one thing that's really exciting in your industry that a lot of the rest of us don't understand and appreciate is that you know, it sounds like law is written in stone. The constitution is right. But the interpretation of law is not and law is a living, breathing, evolving organism. Amen. And until women like you bring these to court, until you can get a verdict on how did you phrase it the negligent reckless negligence, but the risk to the future pregnant failure

to prevent the unnecessary primary cesarean and re creating all the downstream risks.

Once that becomes acknowledged, and it's written into law and there's a verdict on it, then it becomes it's a new law born. I mean, that's why this is so important, then that's how the world can change. These things have to happen to progress us. And again, you would examine rights

within the law where that's happened that I draw upon for inspiration, I think about the law of the sexual harassment of working women. All right, so we had the Civil Rights Act of 1964. That was passed in the 60s. By the dawn of the 70s. It was definitely the case in the working in the workforce that women were sexually blackmailed all the time by their colleagues and their bosses. And when women would try to address this in any way, sometimes it came up as fax and other kinds of legal proceedings, judges would say things like, What are you talking about? This is just natural. This is just men like, you know, if you don't like it be a big girl panties up that stuff. And then a group of feminists started to have these consciousness raising, you know, this was in the 70s, there was all these women coming together to tell their stories to each other, just like we do with birth. They're working, they got together to tell their stories. And when they were getting together at Cornell, and sharing their stories of work, they were noticing every single one of them had stories of being abused and sexually blackmailed by the males. And so a couple of like one professor and a couple of her students started to look into challenging this as a civil rights violation. And they they did all this work about naming it what do we name this, you know, and they just they came up with such for harassment, and when I think about in terms of like obstetric violence or other naming that we've tried to bring to try to explain these abuses, and then they started bringing lawsuits with with this lawyer named Catherine MacKinnon, who's an incredible, incredible lawyer, who has changed the world. And she changed the world for the launch. First, she wrote up her thesis at Yale, called the sexual harassment of working women. Then she started filing lawsuits, and they filed lawsuits, they kept losing and losing and losing through the 70s until they won. And then once they won, once they got one core to recognize, you know, what, now we get what you're saying. This is It's discrimination, not sexuality. It it's a way that women are being prevented from being able to, to ever get anywhere in the workforce and to be safe while they're working. And, and then once like, I look at the show Mad Men to look at the before and after I love madmen. Oh, yeah, it's a great look for this generation and how things yes, we're in the workforce and like, what's the difference between that workforce and it's not like sexual harassment is a totally solved problem, of course, but the workplace has transformed.

It was overt now, it's covert? If it hasn't, it was overused to be legit. What every day, and it changed in a decade, y'all one decade of legal action challenging and as and so for me, I look to that as an example of what we can do in birth. Because what we're doing is taking dynamics between providers and birthing patients that are that are so common that have been going on for a century, patronizing, condescending, paternalistic, and we're challenging it as a violation of the law, which it is, and at first, we're gonna face that cultural barrier of like, What are you talking about? This is normal, but I truly believe the law is on our side. And that once we get the courts to start telling the providers that they have to shift the way they're doing things and those liability incentives can come back into balance, and only when they're in balance and the law incentivizes providers to do the act carefully. When those providers know I will never be held liable for supporting a client's informed decision. They're informed VBAC breech are twins, I'm protected legally, if I do that, only then is everybody working in that system and giving birth in that system going to be able to relax and have a nice time. I'm just trying to envision in my mind and imagine how different birth would be if truly every provider entered it with this idea that they were negligent if they didn't, if they failed to prevent that first C section, how different would birth look?

And Trisha How different would birth look if everybody in that room knew that nothing can be done to that birthing person until they somebody has looked them in the eyes explain what they want to do discussed the risks and discuss the alternatives listened you know, asked what do you want to do? Do you feel good about this plan? What do you want listened you know, and made sure that that person was totally cool with it before they went forward. It would transform the room and the fact that it would transform the room when that is what the law requires tells you about the gap in my practice and we can close that gap just by helping women to use their voices to describe their experiences and asking for the law to be enforced.

Thank you for joining us at the Down To Birth Show. You can reach us @downtobirthshow on Instagram or email us at Contact@DownToBirthShow.com. All of Cynthia’s classes and Trisha’s breastfeeding services are offered live online, serving women and couples everywhere. Please remember this information is made available to you for educational and informational purposes only. It is in no way a substitute for medical advice. For our full disclaimer visit downtobirthshow.com/disclaimer. Thanks for tuning in, and as always, hear everyone and listen to yourself.

I don't know how you do what you do so much is riding on every case. So exciting, you guys.

It is exciting. It is really exciting.

It's so like i I'm going to have a hearing which I could send you guys the link it's going to be a virtual hearing. I'm gonna have a hearing on the 18th of this month on the law of informed consent this state

If you enjoyed this podcast episode of the Down To Birth Show, please share with your pregnant and postpartum friends.

Share this episode: 

Between episodes, connect with us on Instagram @DownToBirthShow to see behind-the-scenes production clips and join the conversation by responding to our questions and polls related to pregnancy, childbirth and early motherhood.

You can reach us at Contact@DownToBirthShow.com or call (802) 438-3696 (802-GET-DOWN). 

To join our monthly newsletter, text “downtobirth” to 22828.

About Cynthia Overgard

Cynthia is a published writer, advocate, childbirth educator and postpartum support specialist in prenatal/postpartum healthcare and has served thousands of clients since 2007. 

About Trisha Ludwig

Trisha is a Yale-educated Certified Nurse Midwife and International Board Certified Lactation Counselor. She has worked in women's health for more than 15 years.

Want to be on the show?

We'd love to hear your story. 
Please fill out the form if you are interested in being on the show.

screen linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram