Update: The ACOG's New Opinion on Obstetric Violence

The term “obstetric violence” is primarily used outside of the United States, and there is no uniform definition, but the term refers generally to the concept of maternal autonomy over the birthing process and the right to be free from unwanted health-care-provider interference in any respect during pregnancy and childbirth. The term recognizes the attraction of natural physiologic and unaided childbirth in light of rising assisted and surgical delivery rates, and the need for basic human rights for childbearing women. Venezuela's obstetric violence law enumerates such acts as “the appropriation of a woman's body and reproductive processes by health personnel, in the form of dehumanizing treatment” and “abusive medicalization and pathologization of natural processes.” Article 15(13) of Venezuela's Organic Law on Women's Right to a Violence-free Life. This includes physical violence, excessive force on the fetus, lack of informed consent, misinformation about delivery options and methods, and disrespect for non-medical deliveries such as the use of a doula or water births.

Although these things may sound archaic, the World Health Organization (WHO) reported that at least 19 countries fell well short of the mark. Obstetric Care Consensus ' Safe Prevention of the Primary Cesarean Delivery, The American College of Obstetricians and Gynecologists and Society for Maternal and Fetal Medicine, Number 1, March 2014; World Health Organization, Caesarean Sections Should Only Be Performed When Medically Necessary, http://bit.ly/2cdPZNx.

ACOG's Committee Opinion Number 664

In June 2016, ACOG issued its comprehensive Committee Opinion on Refusal of Medically Recommended Treatment During Pregnancy. Although the Opinion does not address the medico-legal issues that could arise with informed refusal, it does represent a clear expression of the primacy of the mother's autonomy at all points during pregnancy and childbirth. Apparently, ACOG has never previously expressed this opinion. It represents a quantum leap away from the traditional emphasis on the fetus and newborn, seemingly to the exclusion of the mother, in previous bulletins and opinion statements.

The Committee begins by recognizing the “ethical dilemma” that arises when a pregnant woman refuses recommended treatment: This sets up a conflict between the mother's autonomy and the provider's desire to optimize the health of the fetus. The Committee further frames the question in light of the provider's “professional obligation” to respect informed refusal and the provider's “personal values.” Finally, the Committee introduces its opinion in opposition to “forced compliance” against the backdrop of “profoundly important issues about patient rights, respect for autonomy, violations of bodily integrity, power differentials, and gender equality.”

The Committee's Opinion includes: 1) Recognition of the mother's right to refuse treatment; 2) A clear statement against coercion as both ethically impermissible and medically inadvisable “because of the realities of prognostic uncertainty and the limitations of medical knowledge”; and 3) A recommendation that patient and provider engage in open dialogue about values when there is refusal, including through a non-confrontational dispute resolution process using a team approach.

If we pause here, it is easy for medico-legal litigators to see the potential impact this ACOG Opinion can have on obstetric cases.

The most common litigated obstetric malpractice issue is the failure to perform a surgical delivery in a timely manner. The underlying claimant's theme is the importance of fetal health, above all else. However, in its Opinion Number 664, the Committee addressed the idea that fetuses are “independent patients with treatment options and decisions separate from those of the pregnant woman.” The Committee pointed out that, taken to the extreme, this concept can lead to the impression of the pregnant woman as a “fetal container.” It then goes on to reject the fetus-centered outlook, stating that the “most suitable ethical approach ' is one that recognizes the pregnant woman's freedom to make decisions.” The idea is that women will typically make decisions in the best interests of the fetus and that focus on maternal health will usually inure to the benefit of the fetus. The Committee concludes by urging practitioners to think of their roles as “having beneficence-based motivations toward the fetus ' and a beneficence-based obligation to the pregnant woman who is the patient” because all fetal intervention “must be undertaken through the pregnant woman's body.” In sum, this is a quantum shift away from the primacy of fetal health in favor of maternal health.

Medical Liability Issues

For those involved in medico-legal practice, the evolution of this issue presents a number of conceptual (not to mention, evidentiary) questions. How does a practitioner balance patient autonomy with fetal safety? If a practitioner puts maternal health and choice over the health of the fetus, with a resulting poor fetal outcome, are they legally protected? Will juries embrace the primacy of maternal health when evaluating a poor fetal outcome?

Taking it a step further, what will juries do when faced with informed refusal? Think of the case in which a mother refuses medically recommended treatment, the father and provider want to intervene, and there is a poor fetal outcome after intervention. Can the mother recover? Can the provider ask the jury to apportion damages to the mother for contributing to the delay, and will a jury care?

What about the converse? Suppose the provider proceeds to aid in the birth but without intervening in a way that the mother rejected, and there is a poor fetal outcome. Will a jury apportion damages to the mother in such a case? Does the father put mother on the verdict form in states with apportionment?

We can only anticipate that the law, as a lagging indicator, will eventually catch up with this quickly changing aspect of medicine. In the meantime, questions will lead to dilemmas for patients, co-parents and medical care providers.

Eric Frisch, a member of this newsletter's Board of Editors, is a partner with Carlock, Copeland & Stair in Atlanta, Georgia. Mr. Frisch has focused his practice on the defense of medical professionals for the last 15 years, particularly maternal-fetal claims.