The birth community is buzzing with news of a $16 million dollar judgement in an Alabama obstetric case.
According to the Yahoo article Mom Who Sued Hospital for Traumatic Birth Wins $16 Million by Beth Greenfield:
[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]The jury did not find anyone guilty of obstetric violence.[/pullquote]
Malatesta was 32 years old and halfway through her fourth pregnancy when she switched hospitals, lured from one that had taken a typically medicalized approach to her three previous births … to Brookwood Medical Center in Birmingham, which used a new marketing campaign that offered women “autonomy,” birthing tubs, and cushy suites, and promised to honor their birth plan.
But what Malatesta experienced on the night she gave birth to her son at Brookwood in 2012 could not have been further from the picture the hospital had laid out. Instead … she was met with a staggering series of aggressive medical interventions — including being forced onto her back by nurses who held her son’s crowning head inside her for six minutes as they waited for a doctor to arrive. It left the mother of four (ages 10, 9, 6, and 4) with a rare and debilitating nerve injury, pudendal neuralgia, which causes her severe and chronic pain to this day — not to mention lingering psychological trauma for both Malatesta and her husband, J.T., an attorney.
Cristen Pascucci of ImprovingBirth.org has spun this as a victory against obstetric violence, going so far as to provide the jury verdict form on the organization’s Facebook page.
Other websites, Facebook pages and Tweets have echoed Pascucci’s spin.
There’s just one problem: As you can see from the verdict form, the jury did not find anyone guilty of obstetric violence. The jury found for Malatesta on two counts: the hospital nurses violated the standard of care and the hospital was guilty of false advertising.
According medical anthropologist Lola Ruiz-Berdun, the definition of obstetric violence is:
… the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.
In other words, it is positioned as distinct from harming the patient or her baby (malpractice) defying the patient’s expressed refusal of treatment (medical battery) or failing to inform the patient of risks and benefits (informed consent).
As Law Journal Newsletters explains:
Reports of the types of acts that fall under the larger umbrella of obstetric violence include:
physical violence during labor and delivery, including slapping, pushing on the abdomen to force the baby out, and excessive force on the fetus;
lack of informed consent;
misinformation about delivery options and methods;
disrespect for non-medical delivery methods such as water births, use of a doula, and home delivery;
lack of confidentiality; or
forced sterilization.The initial reaction is that tort claims based on problems such as these are unlikely to be as prevalent in the United States as in countries with a less robust health care system. Likewise, it is easy to fit many of these issues into traditional tort categories — assault and battery, violation of informed consent statutes, invasion of privacy or administrative claims for violation of the HIPAA Privacy Rule or state confidentiality regulations, or traditional medical malpractice cases. But, as we explore below, the concept of “obstetric violence” may ripen into new claims under American tort law.
Obstetric violence does not exist as a tort in American law.
…[W]e searched the “All States and All Federal” database on Westlaw for the term “obstetric /2 violence.” There were no reported cases in the results and no secondary sources that specifically discussed “obstetric violence” as a concept. A broader Internet search yielded three state trial level cases: 1) Caroline Malatesta’s case against Brookwood Medical Center in Alabama; 2) Kimberly Turbin v. Alex Abbassi, M.D., Superior Court of California, County of Los Angeles (http://bit.ly/1O5zvSt); and 3) Michelle Mitchell v. Mark Brooks, M.D., Augusta County, VA (http://bit.ly/1ObsRYS).
In Mitchell v. Brooks, the plaintiff lost.
According to the news articles, Ms. Mitchell alleged that Dr. Brooks forced her to have a C-section based on concerns of gestational diabetes and fetal macrosomia (larger than normal-sized) (http://bit.ly/1ObsRYS). Although Mitchell consented to the C-section, she claimed she signed the consent form under duress because Dr. Brooks threatened to call child protective services. The issue appeared to be the unwanted surgery because, according to the article, both mother and baby were “fine.” Ms. Mitchell initially sought $2.5 million in damages, but reduced her claim to $200,000. An Augusta County, VA, jury returned a defense verdict for Dr. Brooks.
Turbin v. Abbassi is the case of the forced episiotomy discussed several times on this blog. The plaintiff has been featured repeatedly on ImprovingBirth.org., which produced a press release at the time the lawsuit was filed.
The incident involved the outdated use of episiotomy—vaginal cutting that has been discredited for decades as harmful to women and not beneficial to babies when performed routinely (link). Despite the weight of medical evidence, episiotomy is still sometimes imposed on women without medical need and often without consent (link), apparently for provider convenience. Such treatment is characterized as obstetric violence, which has now been criminalized in a handful of other countries.
But Turbin filed a case of battery an established cause in law, not obstetric violence. The claim is that the doctor performed a medical procedure against the patient’s expressed wishes. That procedure could have been ANY procedure. The issue is not the episiotomy but the lack of consent.
The Malatesta case is not a case of obstetric violence, either. It’s just a straightfoward malpractice case alleging a violation of medical standards by nurses applying pressure to the baby’s head in an attempt to prevent delivery and the nerve injury to the mother that resulted. It was malpractice; and malpractice should never be tolerated and ought to be punished.
It was also a case of false advertising. The hospital advertised the availability of waterbirth more than a year after they had banned it. That, too, is unacceptable and should be punished.
Cristen Pascucci is insisting that Malatesta’s victory strikes a great blow against obstetric violence and for women everywhere; she’s wrong on both counts. It yet another one of a myriad of victories against nursing malpractice and has nothing to do with obstetric violence. It’s a victory for Malatesta personally, but does nothing for any other woman.
