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| New York hospital's secret policy led to woman being given C-section against her will | New York hospital's secret policy led to woman being given C-section against her will |
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| A New York hospital accused of forcing a mother to undergo a caesarean section against her will used an internal policy permitting doctors to overrule a pregnant woman’s medical decisions, the Guardian has learned. | A New York hospital accused of forcing a mother to undergo a caesarean section against her will used an internal policy permitting doctors to overrule a pregnant woman’s medical decisions, the Guardian has learned. |
| The Staten Island University hospital (SIUH) policy offers doctors step-by-step instructions for performing procedures and surgeries without a pregnant woman’s consent if they can’t persuade her to give permission and several doctors agree that the treatment carries a “reasonable possibility of significant benefit” for her fetus that “outweigh[s] the possible risks to the woman”. | The Staten Island University hospital (SIUH) policy offers doctors step-by-step instructions for performing procedures and surgeries without a pregnant woman’s consent if they can’t persuade her to give permission and several doctors agree that the treatment carries a “reasonable possibility of significant benefit” for her fetus that “outweigh[s] the possible risks to the woman”. |
| When there is an emergency that threatens the fetus, the policy gives her doctor even more power, allowing him or her to override a pregnant woman’s wishes on the spot and without consulting anyone else. | When there is an emergency that threatens the fetus, the policy gives her doctor even more power, allowing him or her to override a pregnant woman’s wishes on the spot and without consulting anyone else. |
| The policy flies in the face of ethical recommendations by groups such as the American Academy of Pediatrics (AAP) and the American College of Obstetricians and Gynecologists (ACOG), both of which condemn procedures performed without a mother’s consent for the benefit of her fetus. | The policy flies in the face of ethical recommendations by groups such as the American Academy of Pediatrics (AAP) and the American College of Obstetricians and Gynecologists (ACOG), both of which condemn procedures performed without a mother’s consent for the benefit of her fetus. |
| “Pregnancy is not an exception to the principle that a decisionally capable patient has the right to refuse treatment, even treatment needed to maintain life,” read a set of guidelines that ACOG’s ethics committee issued last year. A 2014 statement from ACOG and AAP said: “Even the strongest evidence for fetal benefit would not be sufficient ethically to ever override a pregnant woman’s decision to forgo fetal treatment.” | “Pregnancy is not an exception to the principle that a decisionally capable patient has the right to refuse treatment, even treatment needed to maintain life,” read a set of guidelines that ACOG’s ethics committee issued last year. A 2014 statement from ACOG and AAP said: “Even the strongest evidence for fetal benefit would not be sufficient ethically to ever override a pregnant woman’s decision to forgo fetal treatment.” |
| The policy’s existence helps explain why doctors at SIUH forced a Brooklyn woman, Rinat Dray, to have a C-section without her consent. The incident took place in 2011. According to a lawsuit Dray filed, while doctors were making preparations to operate, Dray, who wanted to deliver naturally, was begging them to give her more time. | The policy’s existence helps explain why doctors at SIUH forced a Brooklyn woman, Rinat Dray, to have a C-section without her consent. The incident took place in 2011. According to a lawsuit Dray filed, while doctors were making preparations to operate, Dray, who wanted to deliver naturally, was begging them to give her more time. |
| “The experience was frightening and degrading,” she recalled in the court papers. | “The experience was frightening and degrading,” she recalled in the court papers. |
| SIUH does not deny it forced Dray to have unwanted surgery. In filings, it claims the surgery likely saved her newborn son’s life. In her chart, just before the operation, the head of obstetrics at the hospital wrote: “The probable benefits of C-section significantly outweigh the possible risk to the woman … I have decided to override her refusal to have a C-section.” | SIUH does not deny it forced Dray to have unwanted surgery. In filings, it claims the surgery likely saved her newborn son’s life. In her chart, just before the operation, the head of obstetrics at the hospital wrote: “The probable benefits of C-section significantly outweigh the possible risk to the woman … I have decided to override her refusal to have a C-section.” |
| The policy surfaced as part of Dray’s lawsuit and has not previously been made public. It provides a rare degree of insight into the concerns that have motivated some doctors, in exceptional cases, to overrule medical decisions made by patients who are pregnant. | The policy surfaced as part of Dray’s lawsuit and has not previously been made public. It provides a rare degree of insight into the concerns that have motivated some doctors, in exceptional cases, to overrule medical decisions made by patients who are pregnant. |
| In an attempt to compare it with other hospitals’ protocols, the Guardian reviewed public and sent open records requests to several of the country’s largest medical centers. Several hospitals had no policy for a when a pregnant woman refuses to follow a doctor’s recommendations. But a few did have such a policy, none of which gave doctors complete decision-making power in cases of conflict. | In an attempt to compare it with other hospitals’ protocols, the Guardian reviewed public and sent open records requests to several of the country’s largest medical centers. Several hospitals had no policy for a when a pregnant woman refuses to follow a doctor’s recommendations. But a few did have such a policy, none of which gave doctors complete decision-making power in cases of conflict. |
| Dray is far from the first woman to claim doctors used threats and coercion trying to force her to have a C-section. In 2003, researchers surveyed the maternal-fetal medicine directors at 42 hospitals and learned of nine cases in which a hospital forced a pregnant woman to undergo treatment using a court order. One year later, a Pennsylvania hospital obtained a court order allowing doctors to perform a C-section on a woman over her objections. The woman checked out of the hospital and delivered her daughter vaginally, without any complications, at another hospital. | Dray is far from the first woman to claim doctors used threats and coercion trying to force her to have a C-section. In 2003, researchers surveyed the maternal-fetal medicine directors at 42 hospitals and learned of nine cases in which a hospital forced a pregnant woman to undergo treatment using a court order. One year later, a Pennsylvania hospital obtained a court order allowing doctors to perform a C-section on a woman over her objections. The woman checked out of the hospital and delivered her daughter vaginally, without any complications, at another hospital. |
| Caesareans can be live-saving, but in the US, a majority are avoidable. More than one in three infants here is delivered via C-section, while leading experts say that most countries’ rates ought to fall between 10% to 19%. | Caesareans can be live-saving, but in the US, a majority are avoidable. More than one in three infants here is delivered via C-section, while leading experts say that most countries’ rates ought to fall between 10% to 19%. |
| “Sometimes, very reasonably, there are disagreements about whether a C-section is necessary,” said Maggie Little, the director of the Kennedy Institute of Ethics at Georgetown University, who frequently writes about ethics in obstetric care. “Then you can get these circumstances where the conversation becomes very directive, even punitive.” | “Sometimes, very reasonably, there are disagreements about whether a C-section is necessary,” said Maggie Little, the director of the Kennedy Institute of Ethics at Georgetown University, who frequently writes about ethics in obstetric care. “Then you can get these circumstances where the conversation becomes very directive, even punitive.” |
| SIUH’s policy reveals the power of individual hospitals to answer such morally fraught questions out of the public eye and without input from the women who will be affected. | SIUH’s policy reveals the power of individual hospitals to answer such morally fraught questions out of the public eye and without input from the women who will be affected. |
| “I don’t think [the policy] is legal,” said Michael Bast, Dray’s attorney. “I don’t think it’s ethical.” | “I don’t think [the policy] is legal,” said Michael Bast, Dray’s attorney. “I don’t think it’s ethical.” |
| A spokesman for SIUH declined to answer a series of detailed questions for this article citing “pending litigation and patient privacy”. Several of the questions were not specific to Dray’s case, including questions about what prompted SIUH to write the policy and whether patients are told about the policy. | A spokesman for SIUH declined to answer a series of detailed questions for this article citing “pending litigation and patient privacy”. Several of the questions were not specific to Dray’s case, including questions about what prompted SIUH to write the policy and whether patients are told about the policy. |
| Lynn Paltrow, the director of the National Advocates for Pregnant Women, which is supporting Dray’s lawsuit, characterized SIUH’s policy as a “secret” policy that the hospital does not disclose to pregnant women. | Lynn Paltrow, the director of the National Advocates for Pregnant Women, which is supporting Dray’s lawsuit, characterized SIUH’s policy as a “secret” policy that the hospital does not disclose to pregnant women. |
| SIUH also refused to say whether the policy is still in effect today. A copy recently filed in court and seen by the Guardian is dated May 2008, and legal proceedings show that Dray’s doctors referenced these protocols when they forced her to have a C-section. | SIUH also refused to say whether the policy is still in effect today. A copy recently filed in court and seen by the Guardian is dated May 2008, and legal proceedings show that Dray’s doctors referenced these protocols when they forced her to have a C-section. |
| “Every reasonable effort shall be made to respect the rights and wishes of the woman, but also to protect the welfare of the fetus,” the policy reads. “Because of the physiologic dependence of the fetus on the pregnant woman, the burden of consequences of her actions on the fetus should be taken into account by her doctors and staff. | “Every reasonable effort shall be made to respect the rights and wishes of the woman, but also to protect the welfare of the fetus,” the policy reads. “Because of the physiologic dependence of the fetus on the pregnant woman, the burden of consequences of her actions on the fetus should be taken into account by her doctors and staff. |
| “In some circumstances, the significance of the potential benefits to the fetus of medically indicated treatment may justify using the means necessary to override a maternal refusal of the treatment.” | “In some circumstances, the significance of the potential benefits to the fetus of medically indicated treatment may justify using the means necessary to override a maternal refusal of the treatment.” |
| Those circumstances are met if there is a risk of serious harm to the fetus without the treatment, the fetus is viable, the risks to the woman are “relatively small”, the benefits for the fetus “significantly outweigh” the potential risks to the woman, and the doctor has made “reasonable efforts to persuade the pregnant woman to change her mind”. | Those circumstances are met if there is a risk of serious harm to the fetus without the treatment, the fetus is viable, the risks to the woman are “relatively small”, the benefits for the fetus “significantly outweigh” the potential risks to the woman, and the doctor has made “reasonable efforts to persuade the pregnant woman to change her mind”. |
| If she continues to refuse, the woman’s attending physician, the hospital’s director of obstetrics, and the hospital’s department of legal affairs may decide to perform the treatment without her permission. The policy encourages doctors to seek a court order “when time permits”. (ACOG “strongly discourages” court-ordered medical interventions.) | If she continues to refuse, the woman’s attending physician, the hospital’s director of obstetrics, and the hospital’s department of legal affairs may decide to perform the treatment without her permission. The policy encourages doctors to seek a court order “when time permits”. (ACOG “strongly discourages” court-ordered medical interventions.) |
| In an emergency, a woman’s physician can override her objections on his or her own, the policy states. | In an emergency, a woman’s physician can override her objections on his or her own, the policy states. |
| “If the Attending Physician judges that there is emergent need to treat the fetus, and reasonably determines that waiting for consultation … could pose significant additional risk to the fetus, the Attending Physician may choose to take the measures necessary to override the refusal and protect the medical welfare of the fetus without further delay.” | “If the Attending Physician judges that there is emergent need to treat the fetus, and reasonably determines that waiting for consultation … could pose significant additional risk to the fetus, the Attending Physician may choose to take the measures necessary to override the refusal and protect the medical welfare of the fetus without further delay.” |
| ‘We can’t strap you down and force you’ | ‘We can’t strap you down and force you’ |
| By the time she was expecting her third child, Dray had already undergone two punishing C-sections and wanted to avoid another. After her first caesarean, she struggled to walk or hold her child for the next eight months. “I cried as I was wheeled into the operating room,” she recalled. | By the time she was expecting her third child, Dray had already undergone two punishing C-sections and wanted to avoid another. After her first caesarean, she struggled to walk or hold her child for the next eight months. “I cried as I was wheeled into the operating room,” she recalled. |
| Not all hospitals permit women who have previously had C-sections to give birth vaginally, known as a VBAC. Dray chose to have her baby at SIUH because it supports VBACs, and because its C-section rate was low compared with the statewide average – 18.7% compared with the New York average of 34.4%, according to a hospital spokesman. | Not all hospitals permit women who have previously had C-sections to give birth vaginally, known as a VBAC. Dray chose to have her baby at SIUH because it supports VBACs, and because its C-section rate was low compared with the statewide average – 18.7% compared with the New York average of 34.4%, according to a hospital spokesman. |
| But once Dray was in labor, she claims, her doctor immediately pressured her to have another caesarean. “I don’t have all day for you,” she recalled her doctor saying. “If you don’t let me do a caesarean section, the state is going to take your baby away.” (The hospital declined to comment on whether her doctor made this statement.) | But once Dray was in labor, she claims, her doctor immediately pressured her to have another caesarean. “I don’t have all day for you,” she recalled her doctor saying. “If you don’t let me do a caesarean section, the state is going to take your baby away.” (The hospital declined to comment on whether her doctor made this statement.) |
| Dray didn’t want to hurt her child, but she didn’t think the doctors were giving her a chance to have a VBAC. “You had two before, why not have another one?” she claims one said. She doesn’t remember them explaining that her baby was in danger. | Dray didn’t want to hurt her child, but she didn’t think the doctors were giving her a chance to have a VBAC. “You had two before, why not have another one?” she claims one said. She doesn’t remember them explaining that her baby was in danger. |
| Eventually, a doctor ordered the staff to wheel Dray’s bed into an operating room. As she begged for more time, she claims, they delivered her son by caesarean, and, according to Dray, caused permanent damage to her bladder. | Eventually, a doctor ordered the staff to wheel Dray’s bed into an operating room. As she begged for more time, she claims, they delivered her son by caesarean, and, according to Dray, caused permanent damage to her bladder. |
| “I was psychologically distraught and physically injured,” Dray, who declined to be interviewed, wrote in an affidavit. “In our community, there are many large families, and we hoped to have the same joy … I wish to have more children, but I fear getting pregnant again.” | “I was psychologically distraught and physically injured,” Dray, who declined to be interviewed, wrote in an affidavit. “In our community, there are many large families, and we hoped to have the same joy … I wish to have more children, but I fear getting pregnant again.” |
| An expert witness for Dray claims her medical records contain no evidence she or the fetus required a C-section or that it would have been unsafe for Dray to continue trying to VBAC. | An expert witness for Dray claims her medical records contain no evidence she or the fetus required a C-section or that it would have been unsafe for Dray to continue trying to VBAC. |
| SIUH wouldn’t comment on Dray’s assertions. In legal filings, it claims the operation likely saved her son’s life; by preventing a uterine rupture that would have placed him “at immediate risk of death”. The risk was described to Dray repeatedly and at length, the hospital claims, and Dray was given more time than is typical – 34 hours – to try to deliver vaginally. | SIUH wouldn’t comment on Dray’s assertions. In legal filings, it claims the operation likely saved her son’s life; by preventing a uterine rupture that would have placed him “at immediate risk of death”. The risk was described to Dray repeatedly and at length, the hospital claims, and Dray was given more time than is typical – 34 hours – to try to deliver vaginally. |
| The hospital doubted that Dray’s doctor threatened her or was rude, adding, “even assuming that he was ‘rude’ it is not clear what injury Mrs Dray suffered because of his ‘threats’ and rudeness.” | The hospital doubted that Dray’s doctor threatened her or was rude, adding, “even assuming that he was ‘rude’ it is not clear what injury Mrs Dray suffered because of his ‘threats’ and rudeness.” |
| Finally, it says the opinion of Dray’s expert is based on a misreading of her medical chart. “There is no viable alternative to C-section,” reads the note in her medical file. In an affidavit, her treating physician says he observed signs that “could but not necessarily” be an indication of fetal distress and that a C-section “could be in the fetus’ best interests”. | Finally, it says the opinion of Dray’s expert is based on a misreading of her medical chart. “There is no viable alternative to C-section,” reads the note in her medical file. In an affidavit, her treating physician says he observed signs that “could but not necessarily” be an indication of fetal distress and that a C-section “could be in the fetus’ best interests”. |
| But none of this, Dray’s attorney says, actually matters in the shadow of a larger principle. | But none of this, Dray’s attorney says, actually matters in the shadow of a larger principle. |
| “A patient in a New York hospital has an absolute legal right to refuse treatment,” Bast said. Any hospital policy that says otherwise, he told the Guardian, is illegal. | “A patient in a New York hospital has an absolute legal right to refuse treatment,” Bast said. Any hospital policy that says otherwise, he told the Guardian, is illegal. |
| “One of the things that catches my eye about this hospital’s protocols is how nebulous they are, how loaded with opinion and moral judgment, how squishy-soft they are,” Bast said. “They’re written with all these sort-ofs and probablies and qualifiers and most-likelies. You can’t deprive somebody of their constitutional rights based on, ‘I think so, probably.’” | “One of the things that catches my eye about this hospital’s protocols is how nebulous they are, how loaded with opinion and moral judgment, how squishy-soft they are,” Bast said. “They’re written with all these sort-ofs and probablies and qualifiers and most-likelies. You can’t deprive somebody of their constitutional rights based on, ‘I think so, probably.’” |
| Women’s rights advocates believe that forcing treatment on a pregnant woman is a violation of the law. | Women’s rights advocates believe that forcing treatment on a pregnant woman is a violation of the law. |
| “Every human being of adult years and sound mind has a right to decide what should be done with her or his own body,” said Nancy Rosenbloom, an attorney for the NAPW. Courts have repeatedly ruled that adults can’t be forced to undergo surgeries, such as organ and bone marrow transplants, even when they are necessary to save another individual, she said. “There is no exception for pregnant women.” | “Every human being of adult years and sound mind has a right to decide what should be done with her or his own body,” said Nancy Rosenbloom, an attorney for the NAPW. Courts have repeatedly ruled that adults can’t be forced to undergo surgeries, such as organ and bone marrow transplants, even when they are necessary to save another individual, she said. “There is no exception for pregnant women.” |
| At least two courts, the appellate court of Illinois and the DC court of appeals, have ruled against lower courts that gave hospitals permission to perform C-sections without the woman’s consent. | At least two courts, the appellate court of Illinois and the DC court of appeals, have ruled against lower courts that gave hospitals permission to perform C-sections without the woman’s consent. |
| But in most states, the law has yet to be tested. | But in most states, the law has yet to be tested. |
| Dray’s lawsuit is the first of its kind in New York. In late 2015, a judge denied a preliminary motion to rule in her favor, saying Dray had an absolute right to refuse medical care for herself but not for her fetus. (The trial is on hold while the hospital argues that her accusations don’t meet the legal definition of malpractice.) As evidence that Dray did not have absolute decision power, the judge invoked the state’s ban on abortion after 24 weeks. | Dray’s lawsuit is the first of its kind in New York. In late 2015, a judge denied a preliminary motion to rule in her favor, saying Dray had an absolute right to refuse medical care for herself but not for her fetus. (The trial is on hold while the hospital argues that her accusations don’t meet the legal definition of malpractice.) As evidence that Dray did not have absolute decision power, the judge invoked the state’s ban on abortion after 24 weeks. |
| An expert witness for SIUH claimed its doctors’ actions were ethically justified because the surgery probably saved the fetus’s life and because Dray, who was anesthetized, was not physically resisting the medical staff. | An expert witness for SIUH claimed its doctors’ actions were ethically justified because the surgery probably saved the fetus’s life and because Dray, who was anesthetized, was not physically resisting the medical staff. |
| On this question, however, many medical ethicists disagree. Because it is impossible to treat a fetus without treating its mother or, in some cases, physically penetrating her body, the logic goes, you can’t treat a fetus without first getting the mother’s consent. | On this question, however, many medical ethicists disagree. Because it is impossible to treat a fetus without treating its mother or, in some cases, physically penetrating her body, the logic goes, you can’t treat a fetus without first getting the mother’s consent. |
| “Sometimes there are principles that really do reach the level of near-complete medical and legal consensus,” said Little. “‘We can’t strap you down and force you to have surgery’ is one of them.” | “Sometimes there are principles that really do reach the level of near-complete medical and legal consensus,” said Little. “‘We can’t strap you down and force you to have surgery’ is one of them.” |
| Little was troubled that SIUH’s policy allows doctors to sometimes act without having to deliberate with colleagues or get a court order, which a woman could appeal. | Little was troubled that SIUH’s policy allows doctors to sometimes act without having to deliberate with colleagues or get a court order, which a woman could appeal. |
| “It basically says, ‘If you don’t have time to [take these steps], you can just strap her down,’” Little said. “This policy doesn’t mention any tension between the medical outcomes and bodily autonomy. And that’s really problematic, thinking you can reduce it to, ‘the risk to the woman is minor and the benefit to the fetus is great.’ You also have to say: what about her constitutional rights?” | “It basically says, ‘If you don’t have time to [take these steps], you can just strap her down,’” Little said. “This policy doesn’t mention any tension between the medical outcomes and bodily autonomy. And that’s really problematic, thinking you can reduce it to, ‘the risk to the woman is minor and the benefit to the fetus is great.’ You also have to say: what about her constitutional rights?” |
| “There’s a big emotional component,” said Janet Malek, who teaches medical ethics at Baylor College of Medicine. “Maybe the physician is sitting there, and there’s this baby they can save, but they don’t think the mother is making a good choice.” It’s no excuse for bending the law, “but between the mother’s autonomy and the baby’s life, I could see from some people’s perspective the reasons for saying, well, life is always more important.” | “There’s a big emotional component,” said Janet Malek, who teaches medical ethics at Baylor College of Medicine. “Maybe the physician is sitting there, and there’s this baby they can save, but they don’t think the mother is making a good choice.” It’s no excuse for bending the law, “but between the mother’s autonomy and the baby’s life, I could see from some people’s perspective the reasons for saying, well, life is always more important.” |
| SIUH’s policy appears to be unusual. | SIUH’s policy appears to be unusual. |
| George Washington University hospital in Washington DC gives patients the right to “determine the course of medical treatment for yourself and, if you are a pregnant woman, for your fetus”. The policy was the result of a 1987 lawsuit filed after a woman who was forced to have a C-section died as a result. | George Washington University hospital in Washington DC gives patients the right to “determine the course of medical treatment for yourself and, if you are a pregnant woman, for your fetus”. The policy was the result of a 1987 lawsuit filed after a woman who was forced to have a C-section died as a result. |
| The Memorial Healthcare System of southern Florida, one of the largest public hospital systems in the country, has a policy which allows “an adult patient who is conscious and has the capacity to make healthcare decisions and who does not have minor children or other dependents”, which does not include a fetus, to “refuse medical treatment … regardless of the reason”. | |
| Other hospitals’ policies, however, seemed to leave the door open for overriding pregnant patients’ decisions. | Other hospitals’ policies, however, seemed to leave the door open for overriding pregnant patients’ decisions. |
| The policy handbook for the University of Texas Medical Branch says medical staff should respect a patient’s refusal to receive treatment – but that doctors should contact the hospital’s legal department if the patient “is pregnant with a viable fetus, and the refusal of treatment endangers the fetus”. | The policy handbook for the University of Texas Medical Branch says medical staff should respect a patient’s refusal to receive treatment – but that doctors should contact the hospital’s legal department if the patient “is pregnant with a viable fetus, and the refusal of treatment endangers the fetus”. |
| Malek said she would never advocate for treating a pregnant woman without her consent. But she believes a pregnant woman would have an ethical obligation to her future child to undergo the treatments recommended by her doctor. | Malek said she would never advocate for treating a pregnant woman without her consent. But she believes a pregnant woman would have an ethical obligation to her future child to undergo the treatments recommended by her doctor. |
| “That authorizes physicians, to some degree, to be directive and persuasive and use whatever tools they have at their disposal to change women’s minds,” Malek said. “The limits of how far that goes? That’s the really tough question.” | “That authorizes physicians, to some degree, to be directive and persuasive and use whatever tools they have at their disposal to change women’s minds,” Malek said. “The limits of how far that goes? That’s the really tough question.” |