|Medical boon or lawsuit shield? Benefits, risks debated
Story By Mary Beth Pfeiffer
Two weeks before Kristi Ashley gave birth to a son in 2007, an ultrasound exam estimated the baby at a hefty 12 pounds, 10 ounces — too big, her doctor believed, for a safe vaginal delivery. After the child weighed in at 9 pounds, 4 ounces in the delivery room, Ashley came to believe that the planned cesarean section she had, with its attendant pain, long recovery and what she called “emotional damage,” may have been a rush to judgment.
“It’s very hard to go up against your physician, especially at the 12th hour,” said Ashley, 38, of Hopewell Junction. “I think doctors are very quick these days to get scared. They would rather opt for the surgical solution.”
Determined to avoid another surgical birth and aided by a supportive doctor, hospital and birthing coach, Ashley last month did something that has become increasingly rare for post-cesarean women today: She gave birth vaginally, to another son.
In an era of soaring malpractice premiums, technology that sometimes sets off false alarms, physicians pressed for time and mothers-to-be conflicted by fear, cesarean-section birth is soaring to its highest http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_12.pdf“>levels ever.
From 1999 to 2007, the proportion of New York babies born by cesarean section skyrocketed 42 percent. In 1999, just under 1 in 4 babies was born surgically. By 2007, the figure was 1 in 3 — or 34 percent of births — and there is nothing to suggest that the relentless uptick, evident locally as well, is showing any sign of slowing.
In Ulster and Dutchess counties, with cesarean rates in the top sixth of counties statewide, surgical birth rates increased from 1999 to 2007 by 64 percent and 36 percent respectively. Orange ranks in the middle of counties statewide but also saw its section rate rise by 36 percent in that time.
At Vassar Brothers Medical Center in Poughkeepsie, 1,072 babies were delivered via cesarean section in 2008 — two of every five births, for a rate of 40 percent. In Ulster County, Kingston Hospital had a cesarean rate of 40 percent in 2007, the latest figure available, while Benedictine Hospital’s was 35 percent, nearly double what it was in 1999.
Even Northern Dutchess Hospital in Rhinebeck, with a reputation for progressive natural-birthing practices, saw its surgical birth rate soar by 52 percent since 1999 — to 29 percent of all births in 2008.
The World Health Organization calls for a maximum cesarean section rate of http://www.unicef.org/sowc/“>15 percent in any nation in the world. Anything above that “seems to result in more harm than good,” according to a 2006 research summary in the British medical journal Lancet.
Factors hotly debated
Physicians, midwives, childbirth experts and researchers point to a confluence of factors behind the growing rate of cesarean section — factors that are hotly debated both in medical literature and hospital corridors. Some say that more mothers are older, obese, more prone to multiple births and, in particular at Kingston and Vassar Brothers hospitals, less healthy, increasing risks of surgical measures. Others contend that overused interventions to induce and augment labor, manage pain and monitor for fetal distress have driven cesarean rates to unnecessary heights.
All agree that fewer women are opting for once-popular vaginal birth after cesarean, or VBAC, as Ashley did. But some believe doctors emphasize its risk – that the scarred uterus could tear – while minimizing the drawbacks of surgery. VBACs have declined precipitously at five local maternity hospitals; at Northern Dutchess, 17 percent of women who had a previous cesarean gave birth vaginally in 2008, compared to 41 percent in 1999. In 2007, just 3 percent of post-cesarean women birthed vaginally at Kingston Hospital, where the procedure is officially banned. The figure was 33 percent in 1999.
Amid the debate, there is widespread agreement that medical factors are only a part of the story. Cesareans have become so common and accepted that first-time mothers – frightened by societal depictions of overwrought laboring women — sometimes request them simply to avoid labor; doctors, hospitals and insurance companies acquiesce. Moreover, obstetricians, who pay $84,500 a year for malpractice insurance in Ulster and Dutchess and $137,600 in Orange, may see cesareans as a way to avoid lawsuits over injuries to infants from vaginal birth — as well to manage precious time. Obstetricians must attend 54 births just to cover annual malpractice premiums in Westchester County, a medical society study showed; cesareans are undoubtedly quicker and more convenient.
“I see colleagues around me who seem to operate out of fear,” said Dr. Ira Jaffe, a Rhinebeck obstetrician who estimated his cesarean rate at less than 20 percent. “They always have in the back of their mind, ‘How is it going to look in court?’ It’s the defensive medicine.”
“It’s not in the best interest of women and babies to do this many C-sections,” he said.
And the more common cesareans become, the more accepted they are as an alternative way to have a baby. “When you talk to co-workers and friends, so many people have had C-sections,” said Kimberly Revak, 37, of Fishkill, who has had two cesareans, the last with twins in February. “We’re kind of losing that experience” of vaginal birth.
As in Ashley’s case, an ultrasound overestimated the size of Revak’s first baby, putting her at 12 pounds while she delivered at under 9. “It’s easier to go along than to choose the other way and have a problem,” she said.
Telling both sides
For a community of activists who say the cesarean section rate is out of control, the question is whether women like Revak are getting both sides of the story – on one hand that cesarean sections no doubt save lives in high-risk circumstances and are generally safe, but that they contribute in other cases to prematurity, cause respiratory problems in babies and increase maternal bleeding and infection.
“Women are getting cheated by not being encouraged to believe both in their ability to birth and that birth can be a positive experience,” said Christie Craigie-Carter, Hudson Valley coordinator of the International Cesarean Awareness Network, or ICAN, who echoes other mothers who believe they’ve had needless or questionable cesareans at the expense of a core maternal experience: vaginal birth.
Assemblywoman Amy Paulin, a Democrat from Scarsdale in Westchester County, said she is “very alarmed” by the rising cesarean rate.
A Paulin http://www.amypaulin.com/press_rel_detl.asp?id=50“>bill, signed into law last year, requires the state to educate women on birthing procedures, such as the induction of labor and use of pain-numbing techniques like epidurals, that increase risk of cesarean section. Paulin, a three-time mother who had two midwife-attended babies at home, believes that cesareans are often performed for reasons of convenience, fear and liability. “We have a huge problem,” she said.
But while physicians acknowledge room for debate, many accept and even embrace rising cesarean rates, in particular for women having just one or two children, when cesareans are safest. Some noted that planned cesareans generally produced better outcomes than emergency procedures performed after problems arise.
“Is it wrong?” asked Dr. Carla Eng, an obstetrician who delivers babies at Vassar Brothers Medical Center. “It’s hard for me to answer that. The final outcome is to have a healthy baby and a healthy mom.”
“It’s not necessarily a bad trend,” said Dr. Cornelius Verhoest, an obstetrician for 25 years who practices in Fishkill and Poughkeepsie and specializes in urinary disorders. Verhoest, who recently married and is considering fatherhood, said he would encourage his wife to have a cesarean section. He and other obstetricians said the procedure helps avoid potential “pelvic floor disorders” such as urinary incontinence that sometimes follows vaginal childbirth.
“There’s more fevers, wound infections associated with C-section,” acknowledged Dr. John McAndrew, chairman of obstetrics and gynecology at Kingston Hospital, where the cesarean rate hit 43 percent in 2006. “However, it’s safer for the baby.”
Weighing surgical risks
Physicians and researchers concerned with rising cesarean rates take issue with that assertion, which they say fails to weigh the risk that a baby will be damaged or die in vaginal delivery – what drives many decisions to operate – against surgical risks to mother and child.
“In low-risk or no-risk mothers, studies have consistently shown higher morbidity (illness) in infants delivered by cesarean section,” said Dr. Lucky Jain, a pediatrics professor at Emory University School of Medicine in Atlanta who has studied respiratory problems in C-section http://www.ncbi.nlm.nih.gov/pubmed/16549212“>babies. “We have created a monster here without knowing what the long-term impact is.”
“There is no evidence that cesarean is safer for the baby,” said Dr. Jed Turk, newly appointed obstetrics and gynecology chairman at Vassar Brothers Medical Center and a proponent of lower cesarean rates. “It is not a good trend.”
To be sure, every obstetrician knows of or has experienced a vaginal birth gone bad; some said that they and other colleagues had been sued more than once. “If anything goes wrong, the first question you’re asked is, ‘Why wasn’t a C-section done?’ ” said Dr. Scott Hayworth, chairman of the New York district of the American College of Obstetricians and Gynecologists, who calls lawsuit fears “the leading cause” of rising cesareans.
In one case reported on VerdictSearch.com, a legal research service, a Suffolk County jury awarded $212 million in 2005 to a boy born in 1998 with brain damage after a delayed cesarean section (the award was later reduced to $10.6 million). In another, a Bronx jury awarded $64 million in 2002 to an 18-year-old woman who suffered cerebral palsy during her vaginal birth.
Locally, an Ulster County case was settled for $3 million in 2006 after a baby boy allegedly suffered brain damage during a vacuum extraction birth in 2001 at the former Mid-Hudson Family Health Institute in Kingston, which had been licensed to perform births.
“Physicians are less risk-tolerant,” said Dr. Michael Rosenberg, president of the 25,000-member Medical Society of the State of New York, echoing several local obstetricians who acknowledged the role of litigation fear. “When a physician is forced to make clinical decisions influenced by the threat of lawsuits, they are not rendering the best medical care to their patients.”
Vaginal birth undoubtedly has risks. One in 5,000 to 10,000 babies suffers permanent shoulder damage, and one in 1,000 suffers moderate to severe brain damage, according to a 2006 http://cat.inist.fr/?aModele=afficheN=18208466“>article in the professional journal Seminars in Perinatology. These injuries, as well as 6,000 stillbirths, could be avoided nationwide if the nation’s 3 million annual vaginal births were performed surgically at term — but that would mean additional costs and maternal and infant complications.
While researchers do not suggest universal cesarean section, momentum currently favors surgical birth – with troubling implications. At least two of New York’s 146 maternity hospitals have rates above 50 percent, and 23 are in the 40s; the state’s rising rates worry health officials.
“C-section is major surgery, which involves a longer recovery time for the mother and can have other significant consequences,” said Barbara McTague, family health director for the state Health Department.
The cost of cesareans in a cash-starved health-care system is just one consequence. A cesarean birth cost the state Medicaid program $7,200 on average for hospital care in 2007 – 49 percent more than a vaginal delivery. The state’s cesarean price tag was $189 million.
Of greater concern may be the effect of cesareans on babies that are increasingly being delivered early. Thirty-six percent of elective cesareans were performed before 38 weeks, according to a http://content.nejm.org/cgi/content/short/360/2/111“>study published in January in the New England Journal of Medicine, producing infants who had high rates of breathing problems, prolonged hospitalization and sepsis, a severe bacterial infection.
As significant, the study found that 10.2 percent of all cesarean-born babies were admitted to neonatal intensive care units, and 4.4 percent suffered from respiratory distress syndrome caused by fluids that are normally wrung from infant lungs during labor and vaginal delivery. Twenty-thousand babies delivered near-term by cesarean section suffer respiratory distress each year, according to a 2006 http://www.ncbi.nlm.nih.gov/pubmed/16549212“>article in Seminars in Perinatology, while death rates of C-section babies before 28 days were nearly triple those of vaginal deliveries, according to a 2006 http://www.ncbi.nlm.nih.gov/pubmed/16948717“>study by researchers at the U.S. Centers for Disease Control in Birth: Issues in Perinatal Care.
Studies have also found 20 percent higher incidence in both childhood-onset http://www.ncbi.nlm.nih.gov/pubmed/18292986“>diabetes and http://www.ncbi.nlm.nih.gov/pubmed/18352976“>asthma among cesarean babies, who have one-third to three-quarters the level of healthy http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1774211“>bacteria in their intestines as vaginally born babies.
“When a baby comes out the normal way, they swallow vaginal mucus en route and get a nice dose of healthy bacteria to jump start their digestion,” said Dr. Joseph Malak, a Poughkeepsie pediatrician who called “surreal” the number of cesarean babies he sees on hospital rounds. “This doesn’t happen when babies come out through an abdominal incision.”
Malak believes that the rising cesarean rate may be linked to “a dramatic increase” in recent years in infants with colic, acid reflux, eczema and milk allergies – effects that, some say, obstetricians do not consider when weighing vaginal versus cesarean birth.
“You hand the baby to the pediatrician and you release the mother from your care,” said Dr. Carol Sakala, who has a doctorate degree in public health and is program director for the research and advocacy group Childbirth Connection, based in New York City. “There’s very little thought to the ongoing consequences.”
While cesarean delivery is safer than ever for the mother, it is not risk-free. According to a 2008 http://www.ajog.org/article/S0002-9378(08)00268-8/abstract”>report in the American Journal of Obstetrics and Gynecology, 2.2 women died for every 100,000 cesarean births – 10 times higher than for vaginal births. “Cesarean delivery is associated with an increased risk of postpartum maternal death,” concluded a 2006 http://journals.lww.com/greenjournal/Abstract/2006/09000/Postpartum_Maternal_Mortality_and_Cesarean.12.aspx“>report in the same journal.
In New York, the rate of maternal mortality rose 70 percent from 1997 to 2007, when 40 women died as a consequence of pregnancy. Researchers say the rise, seen nationally as well, may be related in part to better reporting as well as to rising rates of obesity; one http://www.childbirthconnection.org/pdf.asp?PDFDownload=LTMII_report“>survey found that a quarter of pregnant women were obese. While no link has been proven between rising maternal deaths and rising cesarean rates, a state-sponsored study in 2004 identified three of the major causes of maternal death as embolism, hemorrhage and infection – all of which occur at higher rates in cesarean section.
Indeed, serious obstetrical complications increased by 27 percent from 1998-99 to 2004-05, according to a 2008 report in http://www.ncbi.nlm.nih.gov/pubmed/19155897“>Obstetrics and Gynecology. These included renal failure, pulmonary blood clots, shock, blood transfusion and ventilation — upticks that parallel rising cesarean rates.
“It looks like there’s an association,” said the study’s author, Dr. Susan Meikle, an obstetrician and medical officer at the National Institutes of Child Health and Human Development. She and others argue that indicators like maternal mortality and illness should be dropping if, indeed, more cesareans are a good thing. “Where’s the benefit from the increase?” she asked.
In its 2006 review of optimal cesarean rates, the British medical journal Lancet, for one, showed “no reductions” in mother or child illness or death in populations with cesarean rates above 15 percent.
“There is an awful lot of lying to women about cesarean,” said Dr. Marsden Wagner, former director of women’s and children’s health for the World Health Organization and author of several books on childbirth. “All of those thousands of women who are getting unnecessary cesareans in New York state are at double or more risk of dying and the babies are at risk of dying.”
The argument over cesarean’s benefits is perhaps most pointed when it comes to vaginal birth after cesarean; many doctors fear that the scarred uterus will tear, resulting in hemorrhage and loss of oxygen to the infant.
“There’s a real risk,” said Dr. Maureen Terranova, obstetrics chief at Northern Dutchess Hospital. “They have to be willing to accept that 1 percent risk of uterine rupture.”
“When it occurs, it can be catastrophic,” said Kingston Hospital’s McAndrew, who has seen uteruses so thin in surgery that the baby is visible. “That’s the thing that makes us reluctant to tread in that water.”
Melissa Ptacek, 47, of Garrison in Putnam County, said it took her years to recover from a uterine rupture from which her daughter – now a normal 11-year-old – had to be resuscitated. “I wouldn’t want anyone to go through what I had to go through,” she said.
In a study published in the http://content.nejm.org/cgi/content/abstract/351/25/2581“>New England Journal of Medicine in 2004, 124 women suffered uterine rupture among 17,898 who attempted vaginal birth after cesarean — a rate of 0.7 percent. Seven babies suffered brain damage, including two who died. A 2000 research http://www.google.com/search?hl=en&q=%22Evaluation+of+Cesarean+Delivery%22&b”>summary by the American College of Obstetricians and Gynecologists put the risk of rupture in vaginal birth at 0.2 to 1.5 percent for most women with one prior cesarean. In an advisory that subsequently sent cesarean rates climbing, the organization recommended that post-cesarean vaginal births only be attempted in hospitals “with physicians immediately available to provide emergency care.”
Proponents of vaginal birth after cesarean say the risks of rupture must be balanced against the downsides of surgical birth. “The conversation about VBAC doesn’t touch on dozens of other concerning outcomes that favor vaginal birth,” said Sakala of Childbirth Connection, noting that cesareans make breastfeeding difficult, lead to adhesions and cause significant pain for up to six months. More than 7,000 repeat cesareans would be needed to save the life of one baby from a ruptured uterus, she said, citing a 2004 British Medical Journal http://www.bmj.com/cgi/content/abstract/bmj.38160.634352.55v1“>study.
Other proponents argue that not all ruptures are catastrophic and some have actually been caused by labor-enhancing medications, called http://content.nejm.org/cgi/content/abstract/345/1/3“>prostaglandins, whose dangers for post-cesarean women are now recognized.
I was finally able to get some figures to try and determine what the cesarean section rate is running with my local hospital. It’s difficult to get an exact number because of the way they have their figures broken down. You have to get the actual birth rate from one site for a calendar year and the hospital gives you its cesarean rate for a calendar year, but between the two it looks like we are running around a 50% cesarean rate here. A surgical nurse told me recently he t hought it might even be higher because he saw so many of them.
Either way….that is criminal. HALF of the women in this area are not allowed to birth their babies vaginally? High intervention rates, high induction rates, high epidural rates, and across the board denial of VBACs have resulted in this soaring rate.
My childbirth classes are geared to those intending to have a hospital birth. I try to teach them how to avoid an unnecessary cesarean birth, coping techniques for a natural birth and the many advantages of natural birth. If I can save a few women from the trauma, recovery from major surgery and psychological scarring of surgical birth, it’s worth my time. Some of them learn too late the consequences of their choices in birth.
I recently tried to help an expectant mom achieve a vaginal birth after a cesarean birth for her first child. I’ve never seen a mom want something so much and work so hard to attain it. She was a warrior and as long as she and the baby were both fine, I continued to fight with her for her goal. But ruptured membranes for too many hours, a posterior baby that wouldn’t turn anterior, a large baby and a marginal pelvis combined with a dysfunctional labor were more odds against us than we could fight. She ended up in a transfer with her uterus still intact and baby still in good shape. But she had another cesarean. It was hard emotionally on us both. I knew she had done everything she could possibly do and I knew I had also, but it just wasn’t going to happen. I know that the cesarean was necessary and I’m glad that eventually she will know it was the only way to safely deliver her child.
When she and her family arrived at the hospital they were treated as criminals for having attempted a VBAC. Every person they encountered was rude and misinformed about the statistics concerning VBAC safety (a nurse told them there was a 99% rupture rate!). The OB on call lied to her and said her uterus was ruptured and that’s what you get when you use an illegal midwife. When she was finally able to get her actual surgical records, she discovered there was no rupture at all. This same OB told another VBAC homebirth transfer several years previous to this that he had done a vertical incision just so she would never try something that stupid again. Again, she was smart enough to request her actual surgical records and discovered only the external incision was vertical, the actual uterine incision was transverse. This same hospital was doing VBACs themselves until just a year and a half ago, when pressure was put on them by other hospitals in the region, and insurance companies. It had nothing to do with good science or the vast body of medical studies that have shown us there is only a 0.05% chance of rupture, meaning there is a 99.05% chance of NOT rupturing! It had everything to do with community standards, which are frequently not based on medical evidence.
Is it any wonder some women want to run away?
This article, featured in the New York Times, June 1, 2008 online edition, tells of the latest frustration with our county’s rising and epidemic cesarean rates. Women who have experienced a cesarean birth may either be turned down for health care coverage or their current coverage may raise their premiums and consider them to be high risk.
Add this to the decision of more hospitals deciding (contrary to all the evidence-based medicine) they won’t continue to offer women the choice of a VBAC (vaginal birth after cesarean), and our country’s 31% cesarean rate (MUCH higher in many areas of the country) and you have another simmering healthcare crisis.
So what is a woman to do? She has become another cesarean statistic, her hospital has quit offering VBACs and now her insurance coverage is in jeopardy.
One thing every pregnancy woman can do is educate herself with her very first pregnancy so she won’t become a victim of an “unneccesarean” (an unnecessary cesarean). Working in the field of births for many years, I can honestly say that when a cesarean is truly needed, you are very grateful they are available. They save lives and that’s the truth. But one-third (or more) of this generation’s women are not “broken” and unable to give birth vaginally. Not that many emergencies happen. Something has gone very wrong with the system, not women’s bodies.
Here are a few suggestions that have been shown to lower your statistical risk of delivering by cesarean:
- Don’t allow an induction for any reason other than an immediate crisis for mother or baby. These do NOT include caretaker going on vacation, you want the baby born on someone’s birthday, you are uncomfortable and ready to get this over with, or baby seems to be getting a ‘little large’. Especially in first-time moms, you will considerably raise your risk of a cesarean outcome.
- Avoid pain management that interferes with your mobility. Staying upright and mobile not only assists greatly with the management of discomforts during labor, it can make all the difference in getting a baby to maneuver more easily through the contours of your pelvis. Once you choose an epidural, you are confined to the bed and usually to laying on your back in order for them to provide good coverage and to work well.
- Research the use of electronic fetal monitoring. Medical research has shown that continuous electronic fetal monitoring can increase the risk of cesarean without related improvement in outcome for the baby. It can be used as a screen, but should not be considered a diagnostic tool without errors. Request intermittent monitoring instead.
- Avoid pitocin augmentation for a slow labor. It can cause fetal distress which would lead to a cesarean.
- If your baby approaches your upcoming delivery with a less-than-optimal position for birth, check out Spinning Babies website. Lots of information there on encouraging a better position for baby, which could not only spare you a cesarean, but make for an easier, less painful vaginal birth!
- If you have already experienced a cesarean birth, see my previous entry on “Protesting a VBAC denial“. Join ICAN (International Cesarean Awareness Network) and visit their website for lots of information about cesarean prevention and VBAC safety.
- Interview different care providers. Find out their philosophy of normal birth, induction rate, interventions used, and cesarean rate. Find out how long they will usually allow the second stage of labor to occur without interventions or cesarean if baby is coping well.
- Hire a professional support person (doula). Studies have shown having a support person reduces cesarean rates.
- Educate yourself with more than your typical hospital childbirth classes. Read, ask questions, research, learn. Most people put more time and effort into choosing a new computer or car than they do the birth of their child. Learn what your rights are as a pregnant patient, both informed consent and informed refusal.
Here are some great places to check out:
This is a copy of an article included in a previous issue of Midwifery Today and included on their website. Because VBAC denials and hospitals who are continuing to deny women this important choice in their healthcare, I felt it was important to make this information spotlighted again.
50 Ways to Protest a VBAC Denial
by Barbara Stratton
© 2006 Midwifery Today, Inc. All rights reserved.
[Editor’s note: This article first appeared in Midwifery Today Issue 78, Summer 2006.]
In 1999, the American College of Obstetrics and Gynecology (ACOG) issued new, restrictive guidelines for physicians and hospitals that handle vaginal birth after cesarean (VBAC). At first small, rural hospitals stopped offering VBAC; then larger, metropolitan ones followed suit. Now over 300 hospitals in our country no longer allow women to choose their method of birth.
If you have been denied a VBAC simply because of hospital or physician policy, you can fight the issue in many ways. Okay, so I really only have 11 approaches to try (not 50). But hopefully that will be enough! In Maryland, I am currently trying all of the approaches at once but you need not be such a zealot. Just pick whatever you can manage and go for it. Women in this country have never had to force a reversal of VBAC bans, so things are a bit experimental in terms of what will eventually work. I favor a comprehensive approach of harassing the physicians and hospitals from all angles. Here are the approaches you can try:
1. Hold a rally at the hospital. Contact the International Cesarean Awareness Network (www.ICAN-online.org) to be matched with a “rally mentor” who can help you with the details. Prior to the rally, establish a letter-writing campaign directed at the hospital and perhaps a petition to present as well. When women rallied in November 2003 against a newly instituted VBAC ban in Santa Cruz, California, the hospital administrators met with the protesters and reversed the ban on the spot!
2. File a complaint with your health insurance carrier on the grounds that they are paying extra money for unnecessary cesareans. Also, if your hospital meets the ACOG VBAC criteria (Obstetrics & Gynecology. 2004; 104(1): 203212), then ACOG’s practice guidelines do not say to ban VBAC. Rather, the woman and her physician should come to a mutually acceptable decision. Therefore, if they prohibit VBACs, your OB and your hospital are not following the national “standard of care” set forth by ACOG and you can use that in your complaint.
3. File a complaint with your state medical board against the physician. Again, if the hospital where he/she has privileges meets the ACOG guidelines, then use the standard of care argument. Also point out that your physician is violating your right to refuse treatment. For more information on these rights, see the essay created by Katie Prown based on her research of the illegality of VBAC bans, at www.birthpolicy.org/primer.html.
Katie also covers how denying a patient the right to refuse treatment violates ACOG’s own ethics guidelines. Throw that in, too!
In situations where you were literally forced into surgery, use the blue pages of the telephone book to contact your state’s attorney general and pursue criminal assault and battery charges against the physician.
4. File a complaint with your state agency that regulates hospitals. In Maryland, this is the Office of Hospital Quality Assurance (comes under of Department of Mental Health and Hygiene). They have an official complaint process for consumers. Again, use the ACOG standard of care argument if your hospital meets the VBAC guidelines and include that you are being denied your right to refusal of treatment. Then, pull a copy of your hospital’s patient bill of rights (found on many hospital Web pages) and see if the ban is a direct violation of their own document! In Maryland, all hospitals are required to have a bill of rights.
5. Heck, while you are at it, write a letter to ACOG about their failure to update the VBAC guidelines after the New England Journal of Medicine study came out in December 2004. That study reported that the rupture rate in a non-induced or augmented labor is only 0.4%. Since only a portion of those cases will be catastrophic, the study summarized that 588 elective repeat cesareans would be required to prevent “one poor perinatal (meaning, around the time of birth) outcome.” ACOG has a committee that reviews all practice guidelines every 18 months or sooner “if new information is presented.” Why haven’t they re-addressed the VBAC guidelines in light of that study? Address letters to:
Dr. Michael Mennuti, President
409 12th St., SW
Washington, DC 20024
Send a copy to the man who heads the committee that updates practice guidelines Dr. Stanley Zinberg, Vice President of Practice Activities, at the same address. Give them two weeks, then start calling! ACOG’s main number is (202) 638-5577.
6. One of the most promising routes to reversing the VBAC bans that we probably have is to file complaints through the Medicaid system. Women who file the complaints don’t have be on Medicaid themselves in order to complainjust make sure that the hospital itself receives federal funding. Here, in Katie’s words (referenced previously), is the rundown on how and why to approach Medicaid:
All hospitals that receive federal funding (approximately 80% of them do) must adhere to the Center for Medicare and Medicaid Service’s (CMS) Conditions of Participation (CoP), which require hospitals to honor patient rights as defined by the Patient Self-Determination Act, the Consumer Bill of Rights and Responsibilities, the Emergency Medical Treatment and Active Labor Act (EMTALA) and the large body of case law upholding the right to refuse treatment, to be fully informed of the risks, benefits, and alternatives of any proposed treatment and to participate in all treatment decisions.Hospitals that fail to adhere to the CoP are subject to heavy fines and risk losing their right to qualify for Medicare and Medicaid funding. In addition, the CoP requires that hospitals institute an internal grievance process and give patients the information they need to know about how to file a complaint and where to appeal in the case of an unfavorable ruling.
Pregnant women who plan to give birth at a hospital that performs repeat cesareans on all VBAC mothers should start first by filing a complaint with the Chief Compliance Officer, whose job it is to ensure that the CoP are met. If the hospital has no Chief Compliance Officer, then call and ask to receive the necessary information to file a complaint for a violation of the Center for Medicare and Medicaid Service’s Conditions of Participation.
The hospital must respond to an initial complaint within one week or else offer an explanation of the reasons for the delay and an estimated time frame for a response; failure to do so is in itself a violation of the CoP. If the hospital’s Chief Compliance Officer or other designated agent issues an unfavorable ruling, then the next step is to appeal to the Office of the Inspector General at the Department of Health and Human Services. If HHS also rules in favor of the hospital, then you may appeal to the Department of Justice, which is authorized to bring litigation against hospitals on behalf of their patients.
Ideally, I’d like to have several of these cases filed across the country in the near future. Please contact me if you are planning to pursue this route.
7. Find a lawyer who will help you sue your banning hospital. Make sure you give him or her the link to Katie’s essay because most lawyers don’t seem to know the ins and outs of the patient rights issue. Tell them about the violation of standard of care if that pertains. To find a lawyer, write to your state chapter of the ACLU or contact your local law school and ask for someone who deals with health law. Try your state’s bar association for referrals as well. In a case from Massachusetts a woman was awarded $1.5 million for the post traumatic stress disorder and medical complications resulting from her coerced cesarean.(Meador v. Stahler and Gheridian (Middlesex Superior Court C.A. No. 88-6450, Mass. 1993)) Many lawyers won’t know about that case until you tell them.
8. Write to the attorney general (AG) who deals with your state’s department of health. If attempts at convincing your state’s hospital regulatory agency fail, you can try a different route. Find out which specific AG advises your state’s department of health (Maryland has an entire group of attorneys that advise our health department so I directed my efforts at the head of that group). Write a letter outlining the legal issues surrounding the VBAC bans (I can provide you with a sample based on the one I’m sending) and ask him or her to write a legal opinion on the issue. If the AG does not agree to help, contact your state elected officials requesting that they ask again for you. Find your elected officials by typing “(your state) state government” into Google or another search engine.
9. Complain to JCAHO. Have you heard of The Joint Commission on Accreditation of Hospitals (JCAHO)? They are an organization that accredits 80–85% of the hospitals in our country. One of the standards for accreditation is patient rights. Their home page is www.jcaho.org.
Because they provide an opportunity for consumers to file complaints against hospitals accredited by them (www.jointcommission.org/GeneralPublic/Complaint), I requested that they process a complaint for me against Maryland’s VBAC-banning Frederick Memorial Hospital as a patient rights issue.
[Editor’s Note: Consumers without Internet access can call the JCAHO customer service department at (630) 792-5800 to find out if an organization is accredited and request a copy of the latest Quality Report.]
The example I provided JCAHO involved a Frederick woman who previously had a cesarean followed by three VBACs. She was newly pregnant with another child when a Frederick Memorial OB advised her that she would have to have a cesarean per hospital policy. JCAHO’s unhelpful response was that unless a woman has already had a forced cesarean, her rights have not been violated.
As a result of my telephone call, JCAHO agreed to process complaints in cases where the forced surgery already had occurred. I would like to see as many complaints as possible regarding such cases. To determine whether your hospital is accredited by them prior to filing a complaint, go to www.qualitycheck.org.
Complaints should include the full name and address of the hospital at issue, and you can choose to have your name kept confidential. Remember, complaints have to be about patient rights. Just stating that the hospital is bad for banning VBAC isn’t enough. JCAHO, like many other agencies I’m working on, immediately gave the answer “We can’t force any hospital to offer any specific procedure.” Yes, I’ve told them that cesarean is the procedure, not VBAC, but they didn’t care.
Give them two weeks to process your complaint and then start calling! Their number is (630) 792-5900.
Not getting a satisfactory response? Write to the president:
Dr. O’Leary, President and CEO
1 Renaissance Blvd
Oakbrook Terrace, IL 60181
Please send me a copy at the e-mail or address below so that I can track this activity and determine how this approach is going.
10. If the hospital that is denying your VBAC claims they don’t meet ACOG’s VBAC guideline relating to “immediately available” anesthesia during labors, call your local newspaper and pitch the following story: “Women go to hospitals to give birth because they often feel that a hospital is best equipped to handle birth emergencies. Did you know that XYZ Hospital handles 1400 births a year but doesn’t actually have the ability to perform an emergency cesarean 24 hours a day/seven days a week? They also offer heart procedures/gastric bypass/other risky treatments, but if those patients need emergency surgery overnight no anesthesiologist may be available to handle the case. Don’t you think that birthing women and other health consumers in our area have a right to know this?”
11. Call your state representatives and request a personal meeting. Tell them about the VBAC ban and ask them to introduce a bill during the next legislative session that specifically prohibits VBAC bans and requires informed consent for all VBAC women. Maryland has some great laws already pertaining to breast cancer treatment that can be used as an example. Nearly everyone I’ve ever told about these forced cesareans gets completely bug-eyed with disbelief. Your elected officials will probably be no different and may be very willing to help. For the informed consent portion of the bill, I suggest requiring caregivers to provide copies of Childbirth Connection’s (formerly the Maternity Center Association) publication titled What Every Pregnant Woman Should Know About Cesarean Section 2004. You can order this publication at app.etapestry.com/hosted/ChildbirthConnection/OnlineStore.html for $4.00, by mail at Childbirth Connection, 281 Park Avenue South, 5th Floor, New York, NY 10010 or by phone at (212) 777-5000. You can receive a discount on bulk orders.
Lastly, you can probably expect that the first response you are going to hear from many of these approaches is that no one can “force a hospital or physician to offer a specific procedure.” Be ready for that and keep hitting hard with the other aspects I’ve mentioned regarding battery, patients’ right to refuse treatment, etc. Feel free to e-mail me if you’d like any further help and please let me know what your results are.
Barbara Stratton is a mother, doula and birth activist who lives in Baltimore, Maryland. She was voted one of the United States’ top 30 women’s health activists of 2005 by the National Women’s Health Network. She can be reached at WomancareDoula@comcast.net.