VBAC should not be a woman’s right

VBAC activists are clinging to their resentment and aggressively ignoring reality.

Amy Romano at Science & Sensibility asks the bizarre question: Do women need to know the uterine rupture rate to make informed choices about VBAC? It’s bizarre because she implies that this is a medical question and that the answer is unknown. However, this is a legal question and the answer has been clearly established by the courts. Not only is knowing the rupture rate required, it isn’t even enough. Women must “understand” the rupture rate and many women have successfully argued that they are incapable of understanding.

Don’t believe me? Consider what the Syracuse NY Birth Injury Lawyers have to say on the subject:

For an expectant mother to give meaningful and informed consent she must be specifically told and understand that “IF HER UTERUS RUPTURES DURING HER VBAC, THERE MAY NOT BE SUFFICIENT TIME TO OPERATE AND TO PREVENT THE DEATH OF, OR PERMANENT BRAIN INJURY TO, HER BABY.” (emphasis in the original)

Courtroom Mama, writing on The Unnecesarean, helpfully illustrates how VBAC activists desperately cling to their resentment. In her post NIH VBAC Consensus Development Conference: Gift Horse or Trojan Horse? she is most excited about the fact that an activist aggressively challenged a panel member, presumably “speaking truth to power.” Courtroom Mama (a self described “law geek”) utterly ignores the medico-legal issues that restrict availability of VBAC.

Most egregious, though, is the penchant of VBAC activists to invent rights that don’t exist. Henci Goer’s bemoans the “[f]ailure to recognize that VBAC is a right.” Yet there is no legal right to VBAC. Indeed, there is no legal right to healthcare of any kind, let alone a right to a specific procedure. A “right” to VBAC implies an obligation on the part of doctors and hospitals to preside over VBACs, justifying resentment of obstetricians for depriving women of their “rights.” However, since there is no “right” to VBAC, doctors and hospitals cannot be accused of violating anyone’s rights.

Asserting a non-existent right is worse than pointless. It demonstrates an inability to understand and frame the real situation in favor of a make-believe world where evil obstetricians control everything. In the real world, women have only the right to refuse medical treatment, not a right to demand a specific treatment. Moreover, doctors and hospitals have no legal obligation to comply with patients who refuse medical advice or demand procedures that the doctors or hospitals do not provide.

And speaking of “procedures,” activists who attended the conference impressed themselves with their clever observations on semantics. According to Goer, “VBAC … is not a procedure. Labor is what inevitably happens at the end of pregnancy.”

That point, currently bouncing its way around the Twitter universe, is simultaneously inane and irrelevant. Are doctors supposed to bang themselves upside the head and suddenly realize that VBACs don’t pose additional risks because they aren’t “procedures”? Are lawyers supposed to have a sudden epiphany that detailed consents aren’t required for VBACs because they aren’t “procedures”? Why don’t VBAC activists notice that no one beside themselves is impressed with their “cleverness”?

VBACs have been dramatically restricted because of legal and insurance concerns. There’s no one to “blame” because everyone involved is doing their job within medical and legal constraints that we all must acknowledge. Unfortunately, being deprived of the opportunity to blame obstetricians appears to be insupportable to VBAC activists. They demonstrate a greater commitment to made up reasons for resentment than to practical solutions for making VBAC more widely available. Indeed, they are so committed to resentment that they appear incapable of addressing reality.

Amy Tuteur is an obstetrician-gynecologist who blogs at The Skeptical OB.

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  • SarahW

    On the contrary, women have a right to refuse ANY medical procedure, just as any man does.

    She has a right to refuse a c-section, period.

  • eRobin

    Unless some structure is put in place now to help doctors and patients communicate productively, we are headed for a very high-stress and unhappy period in American medicine. Costs are too high – preventable errors are too many – patients stupidly threaten docs with legal action when it’s not even a realistic option. All that has to be figured out. I’m not optimistic although I really try to be.

  • http://fertilityfile.com IVF-MD

    The legal climate has really changed things (for the worse, in my opinion).

    Nowadays it is not deemed legally possible for a doctor to give informed consent to an egg donor unless you pay money to a lawyer to represent her. To my knowledge, it hasn’t advanced beyond that. I would shudder to think of a day where every patient needs to pay a lawyer to represent her in order to consent for any procedure.

    It’s actually quite insulting to say to a patient (other than a child or one with MR or psych issues) that they are too unsophisticated to engage in an informed decision.

    • bp

      Don’t flatter yourself. It’s not that patients are dumb. It’s that the doctor holds all the cards. Patients can be manipulated through skewed or biased “informed consent” into things that benefit the doctor. These are smart people, they just relie on you for all the info. The lawyer is supposed to see through the BS — how they do completely this without being an MD/JD in the relevant field is in question. But I imagine they could learn the standard things pulled on patients in certain circumstances.

      If you want to return to the days without lawyers, then we need to return to the days when doctors were more of straight shooters.

      How about a conflict of interest disclosure? The doctor tells her that repeat C is within his/her expericence and doing that keeps the revenue in his/her practice. VBAC is outside his/her experience and s/he and the hospital don’t have the resources nor the skills to do it safely. It they do it, they are really just betting that you won’t be one of the ones that has problems.

  • http://www.skepticalob.com Amy Tuteur, MD

    “She has a right to refuse a c-section, period.”

    But she has no right to demand that an obstetrician attend a VBAC or that the hospital admit her for the purposes of having a VBAC.

    So while a woman may have a right to refuse a C-section, she may not be able to find a provider to tend to her and provide the care she prefers.

  • http://momstinfoilhat.wordpress.com/ MomTFH

    Why don’t you link to scientific evidence instead of blogs and websites of malpractice lawyers? Using inflammatory words like “bizarre” and pretending women don’t have the right to be active decision makers in their medical care is doing nothing to improve communication between physicians and their patients.

    Here is the evidence report of the NIH conference on VBACs. VBAC activists are not a small group of blog writers. This is a mainstream medical cause.

    Also, the pattern of obstetricians not offering VBAC has a lot more to do with the wording of a specific ACOG position statement and less to do with real medicolegal pressures. I am in Miami, which has one of if not the highest cesarean rates in the country, one of the lowest if not the lowest VBAC rates in the country, some of the worst malpractice rates and payouts in obstetrics, some of the highest malpractice insurance premiums, and really revolutionary tort reform, in that obstetricians can and mostly do “go bare”, which means that they don’t carry malpractice insurance, and effectively limit awards $250,000.

    So, the only thing these docs have in common with obs throughout the country is the rocketing trend to refuse VBAC since the ACOG position statement change in 1999. They have their tort reform. They have their low VBAC rates. Their malpractice premiums haven’t gone down. Their malpractice awards and frequency of being sued hasn’t gone down. Our maternal mortality is horrendous. I can provide citations for any of that, by the way. ACOG does a yearly survey on malpractice, and they print numbers for Florida every year.

    Here are two scholarly articles one and two that indicate that refusing VBAC isn’t the key to malpractice. It’s proper documentation and evidence based standards of care. And, the AHRQ statement out of the NIH conference is the most recent, comprehensive evidence review on VBAC.

    There is already good literature on risk and decision making during pregnancy if you want to talk about the rights of the pregnant patient. It reads: “. These tendencies in the perception, communication, and management of risk can lead to care that is neither evidence-based nor patient-centered, often to the detriment of both women and infants.” The section on VBAC is enlightening, and calls your type of scare tactics unethical. Do you have a similarly well documented discussion published in an equally reputable journal written by practicing obstetricians that takes your point of view, that women don’t have the right to refuse elective repeat cesarean, when the most recent evidence review calls it perfectly reasonable?

    I think we all know you don’t, because I have been linking to the Lyerly et al article for about a year now, and you have yet to come up with anything other than your own writing to support this point of view. Why don’t you use well established bioethical principles, and quote ACOG committee opinions on balancing the rights of women to refuse surgeries? Because they support the fundamental bioethical principles of non-malfeasance, beneficence, and autonomy of the patient. I don’t remember seeing CYA listed as a bioethical principle on weighing the rights of patients.

    Calling people who are consistent with ACOG bioethics teams and the NIH “irrelevant”, “bizarre”, “Inane”, “egregious” and and “committed to resentment” is, well, bizarre, egregious, inane and committed to resentment. And, it completely ignores the basic fact that a repeat cesarean IS a procedure, and a trial of labor is the REFUSAL of a procedure. That basic inarguable “semantic” fact is the center of why women DO have the right to refuse an elective repeat cesarean. Using inflammatory insulting words doesn’t make your reasoning right NOR ethical, and when discussing rights, that is what is key.

    The NIH report concludes “This report adds stronger evidence that VBAC is a reasonable and safe choice for the majority of women with prior cesarean. Moreover, there is emerging evidence of serious harms relating to multiple cesareans.”

    Why don’t you work with activists AND the medical establishment to get the ACOG position statement on this, and the presentation of risks, both TO obstetricians about malpractice and TO patients about all risks in pregnancy and delivery in line with evidence and bioethics?

  • http://www.skepticalob.com Amy Tuteur, MD

    “”Dr. Amy, when you say “should” and talk about the right to refuse a medical procedure, you are not just talking about legal liability, which is not the same things as legal rights.”

    I’m not even sure what that means.

    If VBAC activists believe that VBAC is a legal right, why haven’t they mounted a successful legal challenge to current VBAC policies? What piece of legislation or court decision would they cite as precedent for claiming that VBAC is a legal right?

    “a journal article about the relationship between malpractice litigation and VBAC rates. It concludes that the effect is modest if at all present, less than 2%.”

    The authors of the article used insurance premiums as the primary measure of “malpractice pressure.” I have argued elsewhere that insurance premiums, number of malpractice cases and size of judgments should not be considered as proxies for malpractice pressure. That’s because at this point, virtually every obstetrician will be sued at least once, and many will be sued more than once.

    When you expect to be sued, it doesn’t matter who else is sued or what you are being charged for insurance. The most important consideration is how to successfully defend against a malpractice suit. Fully 6 of the 9 most common reasons for an obstetric malpractice suit allege failure to perform a C-section or failure to perform one sooner. That included lawsuits filed for failure to perform an elective repeat C-section. C-section is the most effective legal defense.

    In the current legal climate, there is no possible legal justification for not doing a C-section, regardless of how tiny the risk posed by vaginal delivery may be. You cannot say to obstetricians, “Give me a perfect baby or I will sue you for failure to perform a C-section” and then express shock and dismay that obstetricians will perform C-sections in order to guarantee that you will have a perfect baby.

  • http://www.skepticalob.com Amy Tuteur, MD

    “Why don’t you link to scientific evidence”

    Because this is not a scientific question, it is a legal question. There is no legal right to a VBAC because there is no legal right to demand a specific treatment course. You can refuse the medical care that is offered, but no one has a l legal obligation to provide the care that you want.

    One of the central points of my post is that VBAC activists seem so wedded to their resentment of obstetricians that they have difficulty appreciating the real issues involved.

    No one is arguing that VBAC is “too dangerous,” merely that the liability risk is so high that many providers don’t want to undertake it or their institutions refuse to provide the personnel and support necessary to make VBAC safe.

    Many obstetricians want to offer VBAC but can no longer do so. It seems foolish for VBAC activists to reject working together with those physicians in favor of bad mouthing every obstetrician. It is even more foolish to insist on a “right” that does not exist in law.

    • natalieushka

      I can imagine how you would react if a lawyer tried to answer a medical or scientific question, Dr. Amy, so why do you think you are qualified to answer what you have characterized as a legal question?

  • ninguem

    “………..retrospective analysis of obstetrics lawsuits indicates that it isn’t just allowing VBAC that leads to malpractice suits. Most stem from substandard care…….”

    I should hope all of them stem from substandard care, by definition.

  • Doc99

    ACOG should also rethink its “Immediately Available” language.

  • http://momstinfoilhat.wordpress.com/ MomTFH

    I agree Doc99. Also, their statement on inductions states “Although trained nursing personnel can monitor labor induction, a physician capable of performing a cesarean delivery should be readily available.” They should clarify what that means in each case, discuss practice patterns, liability, maternal and fetal / neonatal risk, bioethics, and the whole shebang. It’s long overdue.

    Also, as recommended by Amnesty International, we should have an Office of Maternal Health at the Dept. of Health and Human Services.

    Dr. Amy, when you say “should” and talk about the right to refuse a medical procedure, you are not just talking about legal liability, which is not the same things as legal rights. Beside, I linked to several sources that address legal aspects of the issue, along with discussing the bioethics and the evidence behind what would constitute informed consent. All relevant to the original post.

    Here’s another: a journal article about the relationship between malpractice litigation and VBAC rates. It concludes that the effect is modest if at all present, less than 2%.

    Proponents of VBAC did show up at the NIH conference to work with physicians. You mock them and call them names, and then somehow think that makes them resentful.

  • alex

    “So, the only thing these docs have in common with obs throughout the country is the rocketing trend to refuse VBAC since the ACOG position statement change in 1999. They have their tort reform. They have their low VBAC rates. Their malpractice premiums haven’t gone down. Their malpractice awards and frequency of being sued hasn’t gone down. ”

    What in the world is your argument? That since they stopped doing VBAC and still get sued, adding vbac wouldn’t cause even more lawsuits? That really doesn’t make sense.

    Furthermore, in your description of medical paradise you omitted the fact that three lawsuit losses equals loss of medical license (and career). That would make Florida just about the most malpractice hostile place in the country.

    • Doc99

      Over time, disuse atrophy sets in. As newer Obs enter practice, never having followed a Trial of Labor, they naturally will avoid the practice. Unfamiliarity breeds avoidance.

      Concerning the liability situation, the common thread is the neurologically-impaired infant. Were the state to remove the compensation for neurologically-impaired infants out of the Tort System, more such infants could be adequately cared for. Moreover, removing the Lotto Jackpot Judgements would reduce med mal premiums, perhaps resulting in a rethinking of many practices done for CYA.

    • http://momstinfoilhat.wordpress.com/ MomTFH

      One of the links I posted in my first comment showed that retrospective analysis of obstetrics lawsuits indicates that it isn’t just allowing VBAC that leads to malpractice suits. Most stem from substandard care. In the case of VBACs, the evidence seems to point to LESS poor outcomes than repeat elective cesareans. (That’s the NIH report). So, even if you assume a doc will get sued with every poor outcome, which isn’t necessarily the case, poor outcomes may be more likely with elective repeat cesarean than with VBAC.

      One of the other links showed following evidence based protocols can decrease cesarean rates, adverse outcomes and obstetric malpractice suits all at once.

      I am saying we need to stop telling each other scary stories, and look at the evidence.

      Also, you only lose your license if you go to trial three times and lose, not if you settle. Most obstetricians get sued twice in their careers. Most win lawsuits if there wasn’t outright negligence. Most settle lawsuits rather than go to trial.

      • Primary Care Internist

        just the prospect of being sued is enough to deter an ob-gyn from doing a VBAC, or even doing obstetrics in general. It’s a wonder ANYONE is doing it these days, with such open resentment and claiming of “rights” that theoretically enslaved highly educated people to work at all hours for people like you, MomTFH.

        My wife had a VBAC, done by a very nice understanding, underpaid, overworked, and oversued OB-gyn about 7 yrs ago.

        Doctors are smart and hard-working people. When useless middlemen and lawyers get in the way of the imperfect but essential doctor-patient relationship, only unhappiness will result. And since society needs doctors more than vice-versa, society WILL lose out in the end, all for “law geeks” and types who aspire to be useless middlemen and lawyers, but are too little to do even that.

      • alex

        “Also, you only lose your license if you go to trial three times and lose, not if you settle. Most obstetricians get sued twice in their careers. Most win lawsuits if there wasn’t outright negligence. Most settle lawsuits rather than go to trial.”

        Well, yes, but the increased pressure to settle regardless of the merits (since you cannot afford a “strike”) leads to higher settlements and more reason to file a lawsuit (higher odds of getting $$$). I, and pretty much every other doctor, would find that far more concerning than the possibility of large punitive damages.

      • Doc99

        If I wanted to go to court, I’d have gone to law school.

  • David

    Most settle because the risk and expense of a trial is too great. And like you said, most obstetricians that do go to court win which indicates that there wasn’t substandard care. Whatever happens the physician ends up paying a higher malpractice premium.

    At our hospital we actually give mother’s the chance to VBAC after one or even two previous c-sections, however we have a teaching facility with 24 hour on call staffing which allows this. Otherwise, in the rare event that a VBAC turns south, the ob needs to have airtight documentation that the patient knew and understood the potential risks of doing a VBAC and chose the trial of labor. Additionally, it is also important that the family of the patient understands the VBAC and it’s potential complications.

    The NIH study basically says there is an increased risk of maternal mortality with C/S (although the confidence intervals were huge) and an increase in perinatal death with VBAC. They also cited numerous studies which show that physician’s will choose situations in which they have perceived control (C/S) over a situation where they have little control (vaginal birth).

    • JL

      >>most obstetricians that do go to court win which indicates that there wasn’t substandard care>>

      Um, no, since cases are decided by lay juries who tend to believe whoever purchased the most convincing expert witnesses and attorneys.

      Physicians in general tend to win lawsuits that go to trial because people want to believe physicians try to do their best and plaintiffs are greedy opportunists. This is true even in cases where the physician did provide substandard care resulting in harm. It’s a crazy system.

      In cases of birth injury, plaintiffs go to trial because they have no other immediately obvious means of obtaining the huge amount of money required to care for the long term (or lifetime) care of a damaged child.

      The malpractice system at the moment serves no one well… not physicians unfairly sued, and not patients who were actually harmed by poor care. And that special class of people who give birth to permanently damaged children currently face financial ruin, even though I absolutely agree that OBs are usually not at fault when it’s an “act of God” – VBAC or not. If you look at awards, dead babies generally don’t garner as much money as damaged babies.

      (I’m not a past, present or future VBAC candidate, as I do not ever plan to give birth by any method, at any time because I am childless by choice.)

  • Aly

    Apparently, Dr. Amy would rather see vbacs done at home alone rather than have an obstetrician delivering. So what does a doctor at a rural hospital do when a woman refuses a c-section in labor? Send her home? Transfer her? Get a court order?

    • bp

      Transfer. Like the law says. It’s comical that people who don’t know the basic rules that govern this situtation keep dominating the debate.

  • anon

    What about a physician’s right not to get sued? If he/she doesn’t want to risk a VBAC, then the patient can always find another doctor willing to risk it. Are these VBAC proponents insinuating that they have a right to a VBAC from any OB-GYN? Good luck with that…..Physicians have every right to reduce their legal exposure and that means denying or refusing care.

    • Donna

      Physicians have every right to reduce their legal exposure and that means denying or refusing care.

      That statement is only one part of the picture. Here, allow me to add a few facts to yours.

      “It is not a settled matter of ethics or law that informed refusal applies to pregnant patients,” said a panelist (who is a medical professional) at the NIH VBAC conference.

      Women may not refuse care which they believe is of no productive use and care providers are able to provide whatever level of care they wish when they obtain a court order.

      So, here are the resulting perceptions: care providers have the impression that women are apt to go off half-cocked and sue them. Women have the impression that care providers will treat them as less than human and incapable of making their own decisions.

      Seems to be that the best outcomes I’ve heard or experienced have been ones in which decision-making was a shared process which involved the mother and her chosen care provider (if applicable). Ultimately, if the guidelines of informed consent/refusal are followed, the outcome of the decision is a realistic one which is almost always acceptable to both the mother and care provider.

      I’m certainly not saying that care providers should or should not provide care to mothers seeking VBACs. I’m just saying that everyone is benefited when things like informed consent/refusal is pursued, because there’s a more realistic and individualized kind of care being provided, and that seems to result in avoidance of negative legal ramifications.

  • ninguem

    “…..So what does a doctor at a rural hospital do when a woman refuses a c-section in labor? Send her home? Transfer her? Get a court order?…..”

    I **AM** in a rural area. We transfer. A VBAC is not happening at our hospital, period. She wants a VBAC, she goes to a regional center 75 miles away. She wants to stay local, she gets a C-section.

    It was made quite clear to the obstetricians. I suspect the obstetricians did not mind the ruling, mind you, but in this case, the hospital made it quite clear. Risk management and insurance precluded any VBAC’s.

    If they want to deliver on their own, or with the local midwives, that’s their problem.

  • bp

    There is a right, whether you like it or not, whether you know about it or not.

    A woman has a right to medical help in labor until the delivery of the placenta. That is EMTALA or the Emergency Medical Treatment and LABOR Act. (it boggles my mind how many OBs are oblivious to this).

    That being said, there still need is the right of informed consent to refuse, if there is a party able to give it and the time constraints of the emergency would not put the mom or baby in jeopardy.

    If your hospital is no good at VBAC, doesn’t have the docs who can hang around all night? Transfer to somewhere else. Say bye-bye to the reimbursement that goes with her.

    That’s the law.

  • http://www.skepticalob.com Amy Tuteur, MD

    “That is EMTALA or the Emergency Medical Treatment and LABOR Act.”

    EMTALA only entitles a patient to care, not to a specific course of care.

    Can you find any court decisions that ruled that EMTALA means there is a right to a VBAC? If you can’t, the “right” doesn’t exist.

    As I said above, if VBAC activists believe there is a “right” to a VBAC, why have they failed to mount a successful legal challenge to VBAC policies?

    • bp

      “EMTALA only entitles a patient to care, not to a specific course of care. ”

      It entitles them to care within the facility’s capabilities. If VBAC is outside of that and the patient refuses c-section, that refusal puts her outside. The legal obligation to offer transfer then kicks in.

      “Can you find any court decisions that ruled that EMTALA means there is a right to a VBAC? If you can’t, the “right” doesn’t exist”

      That was completely illogical. But the Supreme court in Roberts vs. Galen stated that the strict language of the law of EMTALA had to be followed . Since it grows out of the strict language therefore…. That’s logic.

      By extension, the “relaxing” of standards by ACOG is irrelevant. As is informed consent agreement with “relaxed” (READ: negligent) standards. These will not relieve any doc or hospital of responsibility when things go wrong because they grow out of EMTALA, not liability.

      The law says, a person comes to your hospital, you figure out if they have an emergency and you attempt to stabilize before they go south. They don’t tell you how to do it, but if you are late to the scene, you are cooked.

      You had best treat a VBAC like any other patient with risk of rapid deterioration — like have a doctor there. Or I guess the alternative would be to remove doctors from your ER, your ICU, etc, so it’s all equally negligent. Otherwise, you’d better have someone competent there at all times. Again, they don’t tell you how to do it, they just slam you if it isn’t done or done equally for all types of patients.

      This isn’t malpractice law stopping it, it is basic Emergency Medicine Rights. Pregnant women can’t be treated like second class citizen. Men get their emergencies treated in a timely fashion, pregnant women — when we get to it?!

      The hospital lawyers read the law and ban the procedure at their facility if there is lack of resources. The only snag is the small town OBs trying to hang on to the reimbursement of the case, by manipulating their patients into something that is within their facility’s capabilities instead of referring out. to VBAC capable larger hospitals.

  • Anonymous

    Some of the comments to this posting, presumably attempting to refute the author’s position, have only furthered the author’s position, and dramatically. Laughable, really.

  • Brooke

    “They demonstrate a greater commitment to made up reasons for resentment than to practical solutions for making VBAC more widely available.”

    So here’s my question: What ARE the practical solutions for making VBAC more widely available, in your opinion, Dr. Amy?

    • Doc99

      Medical courts would be a good first step.

  • ninguem

    “…..If your hospital is no good at VBAC, doesn’t have the docs who can hang around all night? Transfer to somewhere else. Say bye-bye to the reimbursement that goes with her…..”

    They do just that, including saying good-bye to the reimbursement. They also say good-bye to the risk. Trust me, they don’t mind a bit. They’ve transferred this headache to someone else.

  • http://www.skepticalob.com Amy Tuteur, MD

    “What ARE the practical solutions for making VBAC more widely available, in your opinion, Dr. Amy?”

    Since the proximate cause of the problem is women consenting to VBAC and then suing claiming that they didn’t “understand” the risks, the most effective solution would be for women to accept responsibility for their own decisions. Unfortunately that’s not happening any time soon.

    The falling VBAC rate is just a subset of a larger problem: the ever rising C-section rate. As I said above, there is simply no legal justification for not doing a C-section. Fully 6 of the 9 most common claims in obstetric malpractice involve failing to perform a C-section, of failing to perform one sooner.

    This is not a medical problem, but a public policy problem involving the unrealistic belief that all babies should be perfectly healthy and, if they’re not, that a doctor is to blame. Since is is a public policy problem, it will require a public policy solution.

    Personally, I favor a system of no fault compensation similar to the vaccine courts. Parents should be compensated for injuries to or deaths of babies without having to prove medical negligence. That would almost certainly return the C-section rate to more reasonable levels.

    • Anonymous

      “Since the proximate cause of the problem is women consenting to VBAC and then suing claiming that they didn’t “understand” the risks”

      That’s about as logical as saying the proximate cause of autism are vaccines

      “Personally, I favor a system of no fault compensation similar to the vaccine courts. Parents should be compensated for injuries to or deaths of babies without having to prove medical negligence”

      Then you will get exactly what the vaccines courts have!!! Stupid claims that vaccine/birth caused any problem the parents needs funding for!!! You still have to prove it was related to birth, so it is not far from proving neglience.

      And unlike vaccine makers, the regulation of doctors is almost entirely through litigation. Either you’d need the medical equal of the FDA preapproving every thing docs do and requiring strict proof in large randomized controlled studies. Or you’d turn OBs into a form of upper middle class welfare — the taxpayers subsidize them whether they work or not.

  • docguy

    I will give up the reimbursement in a second, in fact that’s exactly what I do. I had one this week who wanted to do a vbac, prev c/s due to arrest of dilation at 8 cms for 3 hours for a baby that weighed 6 1/2 lbs. really you want to try that again? I told her that she was welcome to look around.

  • http://momstinfoilhat.wordpress.com/ MomTFH

    @Shana (and the others who claim poor outcomes from VBAC are too numerous and will lead to malpractice claims) – please look at the literature I linked to above:

    According to Lyerly et al:
    “Although rates of delivery-related perinatal death are indistinguishable between VBAC and primary vaginal delivery, there is a genuine differential in the rate of uterine rupture–related hypoxicischemic encephalopathy. Such perinatal morbidity is indeed devastating. It is also extremely rare. In a recent large prospective study, the probability of this outcome was 0.00046 in infants whose mothers underwent a VBAC trial at term compared with no cases in infants whose mothers underwent repeat cesarean delivery.”

    This is not worth the scare mongering, sarcasm, and refusal or care we are seeing across the country, much on the two threads about VBAC here.

    • bp

      Do the math.

      If it costs $20,000,000 for a lifetime of care (a conservative estimate) for that one child then it is costing each and every woman a premium of about $9,000 per attempt. That’s on top of the normal care of about $4000.

      Would VBACers (doc or moms) like to pony up for that?

  • Shana

    “You still have to prove it was related to birth, so it is not far from proving neglience.”

    Bad outcome from birth does not equal negligence. This is the fundamental problem.

    • bp

      Likewise, bad outcome does not equal God’s will either.

      This groupthink that they are never responsible for what happens is what leads to malpractice.

      It enables those who aren’t available and don’t know how to assess fetal well-being and aren’t skilled technically to believe their great and victims of the legal world.

      • Shana

        “Likewise, bad outcome does not equal God’s will either.”

        I agree. But until the legal climate isn’t such that the doctor/hospital is to blame for a bad outcome – especially in bad births where losses are tremendous – physicians are going to choose what they perceive as the least risky, even if that is not what the patient wants. And I don’t blame them. If one is comfortable that it is so safe, why not just have a midwife attend your VBAC at home? Heck, I might even choose that if I decided to take that risk.

        • Shana

          That should say “doctor/hospital is ALWAYS to blame” – because let’s face it, sometimes they are.

  • http://www.skepticalob.com Amy Tuteur, MD

    ” It is also extremely rare. In a recent large prospective study, the probability of this outcome was 0.00046 in infants whose mothers underwent a VBAC trial at term compared with no cases in infants whose mothers underwent repeat cesarean delivery.”

    As a medical student, you should realize that if that’s how you counselled a patient, she’d be entitled to complain that she didn’t understand the risks of VBAC. That number means that if there were 100,000 VBACs per year (as there were in the mid 1990′s) 46 babies would be brain damaged as a result. And that would be repeated each and every year.

    In counselling patients, it is wrong to imply that a small risk means that the bad outcome won’t happen. It means that for a small number of women, the bad outcome WILL happen and they need to understand that it could definitely happen to ANY woman who chooses VBAC.

  • http://www.eleventhhourllc.com Laura NP

    I had a VBAC. I must admit I was a little nervous about the risks, but I felt I was physically “ready” to VBAC. As a nurse practitioner, I was fully aware of what could happen. Of course I had to sign a dozen waivers and the staff was “on edge.” But what I want to tell practitioners is this…there is always time to explain things to a patient. And there are techniques to determine if that patient has the capacity to understand. After you explain the risks and benefits to a patient, simply ask them to verbalize their understanding of what you just said. If they are able to adequately verbalize the whole scenario, then you are good to go and you should document that the patient verbalized understanding of risks and benefits. If the patient can’t adequately explain it, then you may need a psych consult to determine capacity at that point. It seems many practitioners use the risks as excuses for not doing a procedure because they are afraid to communicate with their patients. Don’t be afraid of the legal piece, if you are clear in your communication and documentation, you will prevail. It’s not ok to treat your patients as if they are stupid and incapable of understanding medical issues. It’s no different than going to the auto mechanic and expecting a full explanation of what services are being done and why. We all have the right to refuse or accept any service…and most of us have the capacity to understand what you are explaining. People in the health care field are no smarter than the rest of society. So get out of the ivory tower and explain what’s going on and get the task done.

    • http://www.skepticalob.com Amy Tuteur, MD

      “Don’t be afraid of the legal piece, if you are clear in your communication and documentation, you will prevail.”

      That is simply untrue. Moreover, obstetricians don’t want to “prevail.” They want to make sure that they aren’t sued.

      Consider the case of Duffy et. al v. Flagg:

      Although the obstetrician had told the patient that not only could a uterine rupture happen, she had seen one happen, the patient asserted that she wasn’t adequately informed because the doctor did not mention that the baby in that case died:

      ” … Flagg advised the plaintiff that, statistically, there were risks associated with the procedure, including uterine rupture and even a small chance of death of the child. Flagg reassured the plaintiff that all necessary steps would be taken to minimize or eliminate the risk to either the plaintiff or the plaintiff’s decedent and that the risk was “very, very small . . . .” … [T]he plaintiff asked … whether Flagg had had any negative outcomes. In response, Flagg stated that one of her previous patients suffered a uterine rupture as a result of a VBAC delivery. She did not mention, however, that the uterine rupture had caused the infant’s death and had placed the mother’s health at risk.”

      When patient lost her original lawsuit against the doctor, she was appealed using a new theory.

      “The plaintiff’s informed consent claim rested on the allegation that Flagg had given an incomplete and misleading response to the plaintiff’s inquiry about prior experience with VBAC deliveries. The plaintiff maintained that Flagg told the plaintiff that, in a prior VBAC delivery, she had one complication that resulted in a uterine rupture, but failed to tell the plaintiff that the uterine rupture resulted in an infant’s death. The plaintiff asserted that this evidence supported her claim that Flagg had not provided her with adequate information required for informed consent … The plaintiff also claimed that if Flagg had informed her that the prior VBAC delivery resulted in the death of the infant, she would not have elected the VBAC procedure.”

      The Appeals Court agreed with the mother and granted a new trial on the theory that the mother had not given informed consent.

      Ultimately, the doctor won … after ten years and three separate legal proceedings. This is precisely what obstetricians want to avoid.

      • http://momstinfoilhat.wordpress.com/ MomTFH

        Yes, one case, and the doctor eventually won. It’s not enough to shape obstetrical practice.

        Also, obstetricians get sued for other things. The tone of some of these comments makes it seem that some people are suggesting that avoiding VBAC patients is an iron clad way to prevent a malpractice suit. I trained at a freestanding birth center that did a fair share of VBACs. They got sued twice that I know of. For shoulder dystocia, both times, and neither was a VBAC client.

        Becoming hysterical (OK, pun intended) about a rare, less than 1% risk of fetal demise as completely unacceptable as either a litigation risk or as a possible outcome can actually increase the climate that can cause litigation. Yes, birth is inherently risky. But there are other potential poor outcomes, including to the elective cesarean patients, and plenty of literature to support this. Which I linked to above.

        Almost every case of maternal mortality in Amnesty International’s new report on maternal mortality includes a cesarean. The Florida Pregnancy Associated Mortality Review notes that the cesarean section itself, not the condition indicating the need for a cesarean, was often the cause of death. Fluid embolism, hemorrhage, infection, anesthesia reactions, the list goes on.

        I am sure people sue physicians over maternal deaths, too. Let’s not pretend VBAC —>rupture—>fetal demise is a likely malpractice scenario since it is a very rare event, that it is a guaranteed win for the plaintiff if the labor and consent were handled correctly, or that there are no other reasons why obstetrician / gynecologists get sued.

        • http://www.skepticalob.com Amy Tuteur, MD

          “It’s not enough to shape obstetrical practice.”

          Great. So why not write to malpractice insurers and explain it to them? Do you think they will be persuaded?

      • natalieushka

        “Moreover, obstetricians don’t want to “prevail.” They want to make sure that they aren’t sued.”

        Then they should leave medicine. Getting sued is a risk of being a doctor, especially an OB/GYN. Winning is what matters.

        I am a civil defence lawyer; I defend against frivolous lawsuits all the time. My clients often ask me “well, but can I get sued for that?” and the answer is “yes, you can get sued for anything.”

  • ninguem

    Laura NP – “……Don’t be afraid of the legal piece, if you are clear in your communication and documentation, you will prevail……”

    And you’re prepared to indemnify any practitioner who follows your “advice” and loses in court when they parade the bad baby and mother cries she didn’t understand?

    I didn’t think so.

    • http://momstinfoilhat.wordpress.com/ MomTFH

      No, just like we don’t indemnify practitioners for shoulder dystocia. Or hemorrhage.

      How common do you think the “bad baby” outcome is? It’s an absolute risk of 0.00046. According to the NIH report I linked to above, you would already be sued for more poor maternal outcomes from elective repeat cesareans by the time the fetal demise from rupture case came around.

  • ninguem

    The first word says it all. “No”. Goodbye.

  • Gigi

    I am sorry, but people HAVE the right to choose. Are OB’s evil? They can be…In my case they coerced me to a c section with NO need and wrote on my medical report that it was maternal choice, when they tried to scare me beyond belief the last days. During the c section they also caused me ilio inguinal nerve trauma that 15 months after I am still struggling with. Shall I sue him and remove his licence??? as they also failed to let me sign a consent form- they missed that.
    I am sorry, but things have gone TOO far with cesarians and someone MUST put a stop. At the hospital that I had mine I found out later and 80% c section rate….Are OB’s? evil in that hosptial. On an average YES. For me my trust in damaged.

    Do they inform women of the 0.1 per cent rate of rupture following a c section or the 10% CHANCE OF CHRONIC PAIN.
    NO. Tell me…. that I have to live in pain for all these months,,,who will pay for my suffering?

    I am sorry, but yes it is a woman’r right to chose her mode of delivery and the obligation of the doctor to follow ethical practice that does not include bullying coercion and unecessary interventions. It is a shame.

    Thanks.

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