Rinat Dray is Not Alone, Part 3

Introduction

In Rinat Dray is Not Alone, Part 1 and Rinat Dray is Not Alone, Part 2, we share the basic facts of Rinat Dray’s forced c-section and legal action, and the sections of our amicus brief on the right to informed consent and refusal.  In Section III of the brief, we discussed the barriers that women face to accessing redress and accountability for non-consented interventions in childbirth.

III.  Most Women who Experience Unconsented Maternity Care Cannot Access Accountability or Redress for Their Harms.

Ms. Dray’s case describes events similar to many other instances of unconsented interventions in maternity care. What is unusual here is not that a pregnant woman was operated on against her explicit non-consent, but that the case has come before a court. Few of the women who relate instances of forced interventions to Amici have been able to obtain redress or accountability for their harms, a fact that plays into the perverse liability incentives discussed in Section IV, below. Access to justice is curbed for many would-be litigants; those who have been threatened with force in childbirth or who have suffered such violations face additional barriers, whether from family, friends, doctors, or lawyers.

A.  Access to the Civil Justice System is Inadequate for Women Harmed in Childbirth.

While access to the civil justice system is far from secure for the general population, women who have suffered violations of informed consent and refusal during childbirth are particularly challenged, all the more so if they are economically or racially disadvantaged. Access requires availability of a public attorney, funds to retain a private attorney, or reliance on the contingency fee structure. Public attorney availability tends to be piecemeal;[1] private attorneys, while abundant in number, charge fees that few new parents can afford.

The contingency fee structure has long been defended as the solution to access problems: attorneys take on cases for the promise of a share of a potential damage award, thereby assisting clients of limited means. However, the contingency fee structure’s efficacy is predicated on a case’s promise to return sufficient damages to cover the costs of bringing the case, the attorney’s usual fee, and the client award. With average case costs alone estimated at $30,000-$50,000, the potential award must be large indeed. Attorneys’ ability to take on cases like the one described in this brief can therefore be expected to turn on the anticipation of courts’ willingness to award significant damages for violations of informed consent in maternity care.

Just as women of color and other marginalized communities face inequitable access to health care, they also suffer from inequitable access to redress and accountability for violations like forced surgery. Although privilege and socio-economic status may not protect women from experiencing force and abuse in childbirth, it does help them later to find lawyers willing to advocate on their behalf. The Brennan Center for Justice reports that 80% of low-income people experience problems obtaining access to civil justice system.[2]

Whatever the reasons, studies show that the instances of medical negligence vastly outnumber claims that are brought, much less any successful awards: “…just about 2% of the overall population that experiences negligent injury appears to make a claim, about half of those receive any compensation for damages, and most of the payouts appear to go to legal expenses rather than plaintiffs.”[3] It is fair to say that patients are generally not being compensated for their injuries, with victims of obstetric violence facing more hurdles than most.

B.  The Medical Malpractice System Discourages Claims for Violations of Rights in Childbirth.

Restrictions on access are further hampered by findings in medical malpractice cases that downgrade maternal injury, the consequent anticipated and real limitations on potential damages, as well as the impact of statutes of limitation on these cases.

Courts tend to privilege claims for damages to fetuses or babies over those of mothers:

In the few cases where birthing women have prevailed in maternal harms cases, it is generally through a fetal injury derivative claim where-even in these cases-courts still have to press heavily to maintain the viability of a stand-alone maternal harms claim and defense counsel remains incredulous.[4]

In fact, mothers themselves tend to downplay their own physical injuries:

I have not sought any legal action because I don’t have serious medical complications from the birth, unless you count a scarred, torn urethra….. – Anonymous 1 (TN)

A mother who seeks representation for her own physical injury will have difficulty finding counsel, whereas birth injury attorneys – those who address fetal harm – abound. The lasting damage many women incur from forced treatment is emotional trauma,[5] but tort remedies for infliction of emotional distress are still evolving.[6]

The postpartum period is generally a busy and exhausting time for mothers. Physical recovery from birth is taxing enough, as is newborn care. When there is additional emotional trauma, that experience is likely to render women less able to undertake resolution of the issue afterwards.

I did not take any legal action. I was busy healing and nursing round the clock and I was so so so angry and sad about the whole thing that I could barely even talk about it without crying. … I still don’t think anyone at the hospital would care how I was treated. I was a home birth transfer, some ignorant hippy or whatever, so clearly the Dr was just doing what needed to be done and I was hindering his care for myself and my baby, who I had placed in grave danger by not coming straight to the hospital when I began labor. – P. B. (NV)

Like many patients who have suffered injuries, most women who have been coerced or harmed in childbirth look to litigation only as a last resort. They turn first to discussions with their providers, then to formal complaints, and finally, in desperation, to litigation in order to uncover the facts of their experience and to make sure that what happened to them does not happen to others.[7] The women who speak through this brief do so not because they can thus secure redress for themselves, but in order to help ensure that other women may be protected from similar abusive treatment in the future.

I’ve tried to write my story to my state’s medical board. Every time I try though, I hear [the doctor’s] voice jeering at me telling me I’m just a baby crying for not getting her way. If writing my story helps just one woman avoid the abuse I’ve experienced, it was worth the pain of remembering. – Anonymous 3 (TX)

I hope change is made in how doctors treat women during childbirth. It is an absolute disgrace what is happening now. – M. H. (IL)

One Florida mother took her concerns all the way from the Labor and Delivery nurses up to her state’s hospital regulatory agency – with no success:

…[I] was belittled, laughed at, ignored and told I had “issues” by L&D nurses, the hospitals’ risk manager, the hospitals’ CEO, and AHCA , the board that is supposed to regulate hospitals. These people DID NOTHING. – V. M. (FL)

A New York woman was forcibly twisted from her position on her hands and knees onto her back for no medical reason, just as her baby’s head was emerging. She pursued accountability directly with her providers, but her treatment was condoned as hospital policy:

Several months afterward, I asked to meet with the doctor and nurse(s) who attended my birth, but the hospital denied my request. The hospital did allow me to meet with the head of OB/GYN and head of L&D nursing. … Both of the hospital officials expressed sympathy for my trauma and said they were sorry I was unhappy with my care. However, they firmly stated that all women deliver on their backs in that hospital, and if a woman is not on her back when the doctor wants her to be, she will be forcibly moved into that position. They said they were sorry there had not been time for the doctor to explain that this was the way their hospital worked. They promised to implement new training to help nurses be more gentle when they forced women on to their backs. I did follow up to see what sort of new training they had implemented, but they did not give me any information. – J. R. (NY)

Forced medical treatment is a clear-cut violations of informed consent, actionable under a tort negligence theory. One would expect the fundamental autonomy rule expressed in Schloendorff to have the medical malpractice plaintiffs’ bar leaping to represent victims of unconsented obstetrical surgeries.[8] But few attorneys are willing to bring cases for violation of informed consent and refusal, their reluctance reflecting a cultural assumption that injury during childbirth is inevitable, and that a mother should be grateful to have a healthy baby.[9]

I talked to my husband about it, and while he was so supportive and kind, he ultimately told me I got my healthy baby and that we were all ok, and that was what I needed to focus on. Everyone told me that. – M.H. (IL)

Both medical and legal actors maintain a curious reluctance to acknowledge that unwanted cesarean surgery, even when perfectly and expertly performed, constitutes an injury. If no meaningful “damage” is perceived, juries will not be instructed with formula to translate significant harms to bodily integrity into dollar values, beyond the professional and facility fees for the surgery itself. While these costs are significant for many families, they are insufficient to cover the costs expended by an attorney to win a compensatory award, let alone the real value of the wrongdoing. Attorneys cannot be expected to mount cases without both clear precedent and the prospect of adequate reimbursement. Ms. Dray herself faced these hurdles. As she recalled, “I was turned down by several attorneys before Silverstein & Bast agreed to take my case.”[10]

Broader systemic restraints also act against birth violence plaintiffs. Tort reform is a favorite political undertaking of states to reign in perceived excesses of the civil justice system. Of the measures under that umbrella, caps on non-economic damages are the favored approach.[11] Strictures vary among states, but some are so extreme that recovery is considerably hampered.

Health professionals have often actively lobbied for caps on non-economic damages, whereas consumer advocates have generally held that such limits … are unfair to injured parties and especially create burdens for those with more serious injury. Further, caps may provide a disincentive for lawyers to take clients with meritorious cases and reduce incentives for deterring harm.[12]

I called over one hundred attorneys and only one took my case. He said the same thing the others did. That Florida is an impossible state to recover damages from medical malpractice, that he would have to try it as a battery… He went ahead, and my case was dismissed on “summary judgment” that my medical malpractice claim was couched as a battery! – V. M. (FL)

In the end, it matters very little whether attorneys turn away clients because they predict insufficient damages, or because courts have actually refused to recognize certain injuries as damages. Attorneys play the same role of assuming dysfunction from the tort system as physicians do from perverse malpractice liability incentives. (See Section IV) In addition, most attorneys share physicians’ cultural misbelief that doctor knows best, so patients should defer to medical expertise. The result is that women whose legal rights have been violated are told everywhere they turn that what happened to them was actually acceptable. Their rights are meaningless, because nobody expects them to be legally enforced.

References

[1]In 2011, the American Bar Association’s Civil Justice Mapping Project found the overall picture to be “one of a great diversity of programs and provision models, with very little coordination at either the state or the national level.” American Bar Association, Access Across America: First Report of the Civil Justice Mapping Project (Oct. 7, 2011), http://www.americanbarfoundation.org/research/A2J.html.

[2]Brennan Center for Justice at New York University School of Law, Closing the Justice Gap, http://www.brennancenter.org/issues/closing-justice-gap.

[3]Carol Sakala et al., Maternity Care and Liability: Pressing Problems, Substantive Solutions, Childbirth Connection, 6 (January 2013), http://transform.childbirthconnection.org/wp-content/uploads/2013/02/Maternity-Care-and-Liability.pdf.

[4] Jamie R. Abrams, Distorted and Diminished Tort Claims for Women, 34 Cardozo L. Rev. 1955, 1980 (2012-13). http://www.cardozolawreview.com/content/34-5/ABRAMS.34.5.pdf

[5]A 2009 study identified between 1.7%-9% of the postpartum mothers studied as meeting clinical criteria for Post Traumatic Stress Disorder. Cheryl Tatano Beck et al., Posttraumatic Stress Disorder in New Mothers: Results from a Two-Stage U.S. National Survey, 38 Birth: Issues in Perinatal Care 216, 217 (2011). http://www.ncbi.nlm.nih.gov/pubmed/21884230

[6]Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum. L. Rev. 42, 44-60 (1982). http://www.jstor.org/stable/1122238

[7]Richard C. Boothman et al., A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, 2 J. Health & Life Sci. L. 125, 133 (2009). http://www.med.umich.edu/news/newsroom/Boothman%20et%20al.pdf

[8]105 N.E. at 93.

[9]See, e.g., Cheryl Beck, Birth trauma: in the eye of the beholder, 53 Nursing Res. 28-35 (2004). http://www.ncbi.nlm.nih.gov/pubmed/14726774

[10] Pl.’s Aff., Dray v. Staten Island Univ. Hosp., No. 500510/2014 (Sup. Ct. Kings County 2014).

[11]National Conference of State Legislatures, Medical Liability/Medical Malpractice Laws (Aug. 15, 2011), http://www.ncsl.org/research/financial-services-and-commerce/medical-liability-medical-malpractice-laws.aspx.

[12] Carol Sakala et al., Maternity Care and Liability: Least Promising Policy Strategies for Improvement, 23 Women’s Health Issues e15, e17-18 (Jan. 2013) [hereinafter Sakala, Least Promising]. http://www.ncbi.nlm.nih.gov/pubmed/23312710

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