A life or death decision


A life or death decision

What should a risk manager do when faced with a patient who refuses an emergency cesarean section? Eric Stryker, of counsel in the Las Vegas office of national law firm Wilson Elser, gives his perspective.

“I’d rather let my baby die.” Chilling words, repeated by an exasperated staff obstetrician as he stood in the hospital’s risk management office doorway. He’d just heard those words from a patient in active labor at the end of frustrating hours of treatment. There was a lack of progress and obvious signs of distress on the fetal monitor strip.

"Efforts to use the legal system specifically to protect the fetus by constraining women’s decision-making or punishing them for their behavior erode a woman’s basic rights to privacy." 

In his medical opinion, the baby would die unless a cesarean section delivery was undertaken within the hour. The doctor had explained all of this to the expectant mother, imploring her to sign the consent form so she could be prepared for surgery, but she refused.

The reason wasn’t her religious faith, or fear of the risks of a surgical procedure, but rather that the scar from a c-section would harm her earnings as an exotic dancer. She plainly stated that she would rather let her baby die than have a scar on her body. Dumbfounded by the patient’s intransigence, the obstetrician hurried to the risk management office: “We only have one hour before the fetus dies—what do I do?”

A classic Catch 22

When a pregnant patient withholds consent to cesarean section delivery, or other medical care essential to the preservation of her unborn fetus, it presents a classic Catch 22 for the treating physician and hospital involved.

If medical or surgical care is forcibly undertaken against the expressed will of the patient, in the interest of saving the life of a viable fetus, then the healthcare providers could be sued for medical assault and battery.

A c-section delivery is major surgery, with attendant risks of death and injury. On the other hand, if the healthcare providers respect the stated desire of the patient and abstain from any medical intervention, they may be vulnerable to a medical malpractice claim.

The patient may later assert she lacked mental competency to provide her informed withholding of consent to cesarean section delivery, which in turn tragically resulted in the death of her unborn child.

Her lawyers may argue that healthcare professionals should know that some reasons given by a patent for withholding of consent are objectively questionable and call into doubt the patient’s medical decision-making capacity.

In these situations, it may be alleged that it was the duty of the physician and hospital, as patient advocates, to move quickly to obtain surrogate consent for the procedure. But where is the line drawn, and how is emergency surrogate consent obtained in cases like these?

A vague legal landscape

Whether an unborn fetus has any legal rights to medically necessary healthcare, and how any such rights may have to be balanced against an expectant mother’s legal right, are hotly contested ethical issues.

Further, the state may have an interest in protecting the health of an unborn fetus which, depending on case-specific circumstances, may or may not supersede maternal rights.

In deciding whether a competent decision to refuse medical care may be overridden, courts generally consider (1) the preservation of life; (2) the prevention of suicide; (3) the protection of third parties (such as children who may be orphaned by a patient’s decision); and (4) the ethical integrity of the medical profession.

Courts sometimes selectively intervene only if the physical intrusion on the patient is relatively minimal, such as a blood transfusion, but decline judicial intervention if the intrusion is as extensive as surgery. There are no easy answers, and valid moral arguments have been made on each side of the debate. Making matters worse, the answer to this difficult question varies from state to state, and many states have not yet definitively decided these issues either by statute or published court decision.

Some states have held that the competent decision of an expectant mother must be respected in all instances, and that no balancing of her interests with the interests of an unborn fetus or the state should be undertaken. These courts have ruled a patient’s fundamental rights to autonomy and self-determination are personal liberties protected by the Fourteenth Amendment, and are not lost when one becomes pregnant.
In 1994, an Illinois appellate court upheld a patient’s refusal of an emergency cesarean section delivery, finding that “no such balancing should be employed, and that a woman’s competent choice to refuse medical treatment as invasive as a cesarean section during pregnancy must be honored, even in circumstances where the choice may be harmful to her fetus.”

In reaching its decision, the Illinois court embraced the reasoning of an appellate court in the District of Columbia, which had held in 1990 that “if a patient is competent and has made an informed decision regarding the course of her medical treatment, that decision will control in virtually all cases.”

Other courts have reached the opposite conclusion and have favored balancing the rights of the unborn fetus with the rights of the patient and the interests of the state. In 1981, the Supreme Court of Georgia ordered a medically necessary cesarean section delivery of a viable fetus despite the mother’s refusal of consent due to her religious beliefs.

Noting that the relative risk of injury to the mother posed by the operation was minor compared with the risk of certain death of the fetus if operative delivery was denied, the court concluded, “The state’s compelling interest in preserving the life of this fetus is beyond dispute.” A similar decision imposed a judicially ordered cesarean section delivery in Florida.

Medical societies and professional associations have weighed in on this moral dilemma. The American College of Obstetrics and Gynecology has concluded: “Efforts to use the legal system specifically to protect the fetus by constraining women’s decision-making or punishing them for their behavior erode a woman’s basic rights to privacy and bodily integrity and are neither legally nor morally justified.”

It also noted: “in the absence of extraordinary circumstances, circumstances that, in fact, the committee on ethics cannot currently imagine, judicial authority should not be used to implement treatment regimens aimed at protecting the fetus, for such actions violate the pregnant woman’s autonomy.”

The American Academy of Pediatrics has acknowledged the need for judicial action in rare cases. “Under limited circumstances when fetal therapy would be effective in preventing irrevocable and substantial fetal harm with negligible risk to the health and wellbeing of the pregnant woman, should the pregnant woman be opposed to the intervention, physicians should engage in a process of communication and conflict resolution that may require consultation from an ethics committee and, in rare cases, require judicial review. A physician should never intervene without the woman’s explicit consent before judicial review.”

Steps to protect 
healthcare workers

As a risk manager posed with the above opening scenario, what can one do? Forewarned is forearmed, and familiarity with your jurisdiction’s legal position and the protocol for obtaining the assistance of outside legal counsel can be key to the safe navigation of a patient’s withholding of consent to a medically necessary cesarean section delivery.

Documentation is crucial because following a healthcare crisis it is not uncommon for memories to fade and stories to change about the events that transpired. To minimize liability exposure at the outset of a patient’s refusal to consent to medical treatment necessary to preserve the health of a fetus, detailed documentation should be preserved of:

The patient’s stated reasons for refusal, including her past obstetrical history and any specific religious beliefs or fears that provide a basis for the refusal. Reasons for refusal may be based on the patient’s personal finances, and the patient should be made aware of any available assistive resources. Collaboration with social workers and the facility’s ethics committee may be productive if time allows, and their findings should be noted.

Confirmation that a discussion of all risks and benefits of the proposed medical intervention has taken place with the patient in a language she understands without difficulty. The relative risks to the mother and fetus should be noted, as well as the availability of any less invasive methods of treatment. 
Specific risks, including possible death of the fetus and/or patient, where appropriate, should be noted, as well as the identity and positions of those who have engaged in the discussions. Potential short-term and long-term ramifications of informed refusal should be discussed, because a potential outcome may include a surviving child with profound neurological impairment.

Ultimately, the factual basis for the patient’s informed refusal should be charted without moral judgement.

The position of the patient’s spouse or any acknowledged father of the unborn child, as well as other immediate family members. The number and ages of the patient’s children, if any, should also be documented, along with the resources available to provide for their care if the patient should not survive the recommended treatment. These factors have been considered by courts when weighing the interests of the state in a petition to medically intervene. 

Review of the patient’s medical and psychiatric history also should be undertaken, as well as identification of any licit or illicit drugs that may impair the patient’s decision-making capacity.

In cases in which objectively questionable reasons for the withholding of consent have been given, a psychiatric evaluation should be undertaken to determine the patient’s capacity to provide an informed refusal. Such a consultation may reveal contributing factors a laboratory study cannot, such as a mental disorder, family coercion or prolonged sleep deprivation, the treatment or removal of which could result in a decision change.

If the stated explanation for a patient’s refusal appears objectively questionable, as a last resort healthcare providers and the medical facility can reach out to an attorney who may assist in obtaining surrogate consent to medically necessary treatment from the court.

Depending on the jurisdiction, this process may include an emergency guardianship or a declaratory relief action.

Legal advice

Healthcare providers and facilities can benefit from the engagement of legal counsel to assist with this litigation risk. Familiarity with the facility’s protocol for engagement of legal counsel can reduce delays in getting sound legal advice and, when necessary, judicial intervention. Issues surrounding the legal rights of an unborn fetus typically present unexpectedly. Simply knowing who to call when this situation arises and what prior authorization may be required can reduce significant delays when time is of the essence.

It is preferable to engage counsel experienced with not only the substantive law of the jurisdiction but also the procedural route to take with the appropriate court. When every minute counts, it is preferable to rapidly obtain an expedited application of the law from the proper court rather than lose time getting up to speed on the applicable state law or where to file an application for emergency relief.

Petitions seeking relief in these matters can be politically sensitive, and elected judges may be resistant to accepting such a case. Again, experienced counsel can be valuable not only for guiding the healthcare practitioners through the applicable laws but also for getting the matter ruled on by a court before it is too late. Counsel can also recommend a plan for addressing these issues during overnight hours, weekends and holidays when courts and law offices are not available for emergency calls or hearings.

If the court is available to hear the issue on an emergency basis, there can be logistical challenges to presenting the matter.

Speakerphones at the patient’s bedside are often used to facilitate expression of both practitioner and patient viewpoints to the court. The patient should be offered the opportunity to consult with her own legal counsel, and if she so elects, her counsel should be included in any judicial proceedings. The time and date of any judicial order should be noted on the patient’s chart, and whenever possible a copy of the order should be added to the chart.

Fortunately, patient withholding of consent to a medically necessary cesarean section delivery is a rare occurrence. However, when it arises, it almost always allows very little time for resolution before injury occurs to the patient, the fetus or both. Preparation for these unexpected events through proper planning and education of staff members on the facility’s protocols can greatly reduce the stress and confusion of this emergency situation. 

Eric Stryker, of counsel in the Las Vegas office of national law firm Wilson Elser, is a member of the firm’s Medical Malpractice group. He can be contacted at: eric.stryker@wilsonelser.com

Eric Stryker, Wilson Elser, US, Crisis management