How is this legal
July 1, 2019 10:13 AM   Subscribe

This is a question about traumatic childbirth, involuntary surgery, and what legal rights a mother has when giving birth in a hospital.

I have heard numerous stories of women in the US going through labor and at some point being forced to undergo an emergency C section without any pain medication. I don’t understand why it would ever be necessary for a patient to essentially be tortured by a surgeon in this way, and I’m wondering what the mother’s options would be in this scenario (if she is allowed any options).

1. My understanding is that patients who are cognitively sound have the right to refuse any medical treatment. Could a mother who needs an emergency C section refuse one until she has first been given adequate pain medication/anesthesia/epidural/etc?
2. What are the possible medical scenarios that would lead to a patient needing a C section *so urgently* that there isn’t enough time to anesthetize them first?
3. Does a mother have a right to tell hospital staff to prioritize her own pain management over the baby’s safety? For example if the baby’s life was in danger and the surgeon wanted to do a C section with no anesthesia, could the mother demand anesthesia regardless?
4. Are there other types of emergency surgeries (besides C sections) where a surgeon might begin a surgery before a patient has been given pain medication or anesthesia and the patient has refused consent for the procedure?
5. Does a mother who has undergone this against her will have the right to sue for malpractice? Is there some legal protection for the hospital staff in this type of situation?
6. Does the fact that a mother shows up at a hospital in labor mean she forfeits her legal rights to bodily autonomy?
posted by a strong female character to Law & Government (28 answers total) 5 users marked this as a favorite
Sometimes the survival of both mom and baby require drastic measures. Imagine now, docs charged with murder over death during delivery, especially if the baby has birth anomalies. From personal experience, it might have been better not to have a 55 hour labor and sepsis in both my baby and me, because I had to have it my way.
posted by Oyéah at 10:19 AM on July 1, 2019 [5 favorites]

If a patient is dilated beyond an 8, they can't put in an epidural. If the baby's heartbeat stops, baby comes out, period.
posted by Oyéah at 10:22 AM on July 1, 2019 [2 favorites]

Not to derail but that’s not true about dilation/epidural. I personally had a voluntary epidural at 10 cm dilated.
posted by whitewall at 10:25 AM on July 1, 2019 [12 favorites]

I have been involved in various groups with a focus at least partially on birth-related trauma and I have never even heard rumors of caesarian without anesthesia. Vaginal birth without pain management even when requested, absolutely. C-sections with general anesthesia when the person giving birth wanted an epidural or vice versa, definitely. Episiotomy and similar procedures without pain management, yep.

But even googling this turns up a single lawsuit republished over and over again. It would be incredibly difficult to complete the surgery without regional or general anesthesia, because the patient would be moving. Emergency general anesthesia is fast, there would be no reason not to do it unless you were not in a hospital.

It's not that I don't believe it's feasible because shit is real messed up here, but I would be surprised it's such a secret if this were happening pretty much ever, and I'm curious where this is being discussed that it's completely ungooglable.
posted by Lyn Never at 10:27 AM on July 1, 2019 [46 favorites]

Response by poster: I have directly talked to women who have said this has happened to them.
posted by a strong female character at 10:34 AM on July 1, 2019 [1 favorite]

Without anything? HELLP can rule out an epidural because of the bleeding risk (or it did when I had it) but other pain medication is doable.
posted by frumiousb at 10:46 AM on July 1, 2019 [2 favorites]

I have heard anecdotes of C-sections where an epidural didn't work, or at least worked imperfectly, but not where it wasn't attempted.
posted by LizardBreath at 10:51 AM on July 1, 2019 [7 favorites]

I have total and complete confidence that there have been C-sections performed with insufficient anesthesia that was only minimally effective and the pregnant person was still in significant physical pain (in addition to emotional trauma), but I'm with Lyn Never in thinking that it would be nearly impossible to perform surgery on someone who was not at all anesthetized. Which is, unfortunately, basically how it's legal. Insufficient pain management, especially in a medical emergency, is definitely not ideal but is legal.
posted by Kpele at 10:51 AM on July 1, 2019 [10 favorites]

My epidural was not strong enough and I could feel them cutting when they started my c-section, but when I hollered, they stopped, and upped the dose. I can't imagine any OB wanting the patient screaming (and possibly thrashing) while they try to operate.

(My OB was a real asshole btw but I guess not as bad as that).
posted by emjaybee at 11:10 AM on July 1, 2019 [4 favorites]

Response by poster: I googled and found a meta study on this topic. Apparently it is very common for certain anesthesia methods to fail during surgery. “The study found a 20% conversion rate from regional to general anaesthesia in category 1 C-section; the failure rate for pain-free surgery was 6% with spinal anaesthesia, 24% with peridural, and 18% with combined spinal-peridural anaesthesia.”
So, from the perspective of a patient, this would be surgery without anesthetic.
posted by a strong female character at 11:11 AM on July 1, 2019 [1 favorite]

Unless necessary, this is a cruel and disturbing practice and doctors should seek to avoid it if at all possible. I do not think that you can assume that doctors who do this need to do it. There is a long tradition in American medical "care" for women in pregnancy and childbirth which involves being abusive and disregarding their valid decisions in favor of lesser considerations. Also, I am not a doctor or a medical ethicist or lawyer, so these are all informed but amateur opinions. Onto your questions:

1. She could try, and likely has the legal right to refuse consent if she is conscious and competent, but that does not mean that she will succeed. A very pregnant woman who is likely exhausted and in a lot of pain will not necessarily be listened to, which is sad and unethical. There are also circumstances that might occur in which any physician would be justified in pursuing emergency care without consent. For example, the pregnant woman might be rapidly bleeding to death, at severe risk of brain damage due to eclampsia, etc. In this circumstance, the pregnant woman's ability to make decisions may be compromised by various factors (or may not---hard to tell) and the time pressure requires quick and decisive action to save her life and/or major organ function. Your example seems to assume cognitive soundness, so I'm not sure how much that scenario is relevant to your question, but I thought I'd mention it.

2. Uncontrolled bleeding (as with placental abruption) and rapidly worsening preeclampsia/eclampsia are the two scenarios I can think of. I am not a doctor and there may be more.

3. The mother probably has the right to do this in the legal sense; I don't know if she can actually accomplish it and it might vary from state to state, but generally women are legally allowed to refuse medical care even while pregnant and even if it endangers the fetus. That might be changing because of fetal personhood laws. The other way to ask this question is whether doctors are allowed to perform surgery without consent except in specific circumstances, and the answer is that they technically are not and can be sued for it in many places, or even potentially face criminal charges (e.g. for battery). The problem there is enforcement; many women would be unwilling to sue and many prosecutors would be reluctant to press charges. So realistically, OBs can probably do this and get away with it even though it's not allowed except in specific circumstances.

4.Yes, this happens with major traumas, although I can't say how often. You might say that in those cases people are not completely aware/competent to consent, but it does happen that they are lucid but in distress and asking to die etc.

5. It probably depends on the state. You could potentially sue for malpractice, battery, or other common law torts. The defense would probably be that the doctor thought that the mother's competence was questionable and the circumstances warranted emergency surgery and/or rendered anesthesia unnecessarily risky.

6. Ideally, no. Practically, I think so. Some of this is abusive, cruel paternalism. Some of it is likely due to labor and childbirth itself; women in labor and giving birth may not be capable of acting autonomously, meaning that respecting their autonomy would be a form of abandonment.
posted by internet fraud detective squad, station number 9 at 11:13 AM on July 1, 2019

My wife had an emergency C-section without an epidural. I'm not entirely clear on the "how", but she has a blood disease that's otherwise not a factor in her life, but sometimes interacts with an epidural in a way that could cause paralysis. She was on a fentanyl drip for pain management, although she said its effect was minimal, and she endured a great amount of pain.
posted by kevinbelt at 11:22 AM on July 1, 2019 [2 favorites]

Best answer: It is definitely not impossible to perform surgery on unanesthetized patients--before the discovery of ether, every surgery was performed that way. Brute force was employed to hold the patient still.

I was a labor and delivery nurse from 2006 - 2018. I have been present for the births of literally thousands of babies. I never once saw a c-section performed without any anesthesia whatsoever.

I have definitely seen cesareans during which the initial chosen form of anesthesia was insufficient (such as a labor epidural that wasn't effective for surgical levels of anesthesia, requiring a quick conversion to general anesthesia mid-surgery), and I'm sure that the experience was terrifying, traumatic, and very, very painful.

But even in the most emergent of cases (such as a women walking onto the unit from home, fully dressed in her street clothes, with an umbilical cord prolapse), adequate general anesthesia using rapid sequence intubation[1] can be achieved in a literal minute.

I'm sure that literal minute feels like a lifetime to the person experiencing the pain of surgery without adequate pain relief.

To answer your specific questions:

1. Yes.

2. None exist. Some rare changes in the fetal heart rate, such as a prolonged fetal heart rate deceleration to less than 60 beats per minute that does not resolve with more conservative measures, require expeditious delivery to prevent serious health consequences up to and including fetal death. Amniotic fluid embolism or pulmonary embolism also require immediate delivery. However, these circumstances, despite their urgency, would not preclude initiating general anesthesia before incision.

3. YES.

4. Immediate life-saving procedures like placing chest tubes might be done without anesthesia but the patient is usually unconscious already from the nature of their traumatic injuries and every effort would be made to establish anesthesia first. Part of managing a trauma involves establishing and protecting a patent airway and providing the surgeons with adequate muscle relaxation for the procedure, both of which involve unconsciousness, paralysis, and pain relief for the patient.

5. I have no idea about this one.

6. NO. No, no, no, a thousand times no.

[1] "Instead of titrating to effect, RSI involves administration of weight-based doses of an induction agent (eg, ketamine, etomidate) immediately followed by a paralytic agent (eg, rocuronium, succinylcholine) to render the patient unconscious and paralyzed within 1 minute."
posted by jesourie at 11:23 AM on July 1, 2019 [30 favorites]

If you're looking for anecdata, I had a traumatic birth involving poor pain control and an emergency c-section. I had very clear instructions around pain control but in the moment, they had to fly out the window because the baby crashed. She was born with an Apgar score of a 1, no heartbeat, and had to be resuscitated. I was awake for it, and very aware of the pain I was in. They didn't have time to pump me more full of anesthesia. About 40 seconds after her birth I was under sleep anesthesia (it felt like an hour) for my own health and well-being while they stopped my bleeding and stitched me up.

To be specific, it was a case in which I had a fetal monitor on, and everything was fine until very very suddenly it wasn't - the heart rate just fizzled out and stopped in less than a minute. I did have an epidural but it was at a low setting and I could still feel things, and there was no time to pump it up. I'd imagine that if a woman were in my position but had no epidural, she would have had a no-anesthesia c-section. It's very much a case of "if we don't operate now, everyone here is going to die."

P.S. I am doing okay.
posted by juniperesque at 11:26 AM on July 1, 2019 [16 favorites]

But even in the most emergent of cases (such as a women walking onto the unit from home, fully dressed in her street clothes, with an umbilical cord prolapse), adequate general anesthesia using rapid sequence intubation[1] can be achieved in a literal minute.

In the lawsuits I've seen (again, not a lawyer), the issue was that anesthesiologists were not available for whatever reason, or were going to be delayed in arriving by a certain period of time (said they would take 20 minutes to get there, for example). I don't know what that means in terms of other forms of pain control, though, or whether other doctors can do this kind of anesthesia.
posted by internet fraud detective squad, station number 9 at 11:41 AM on July 1, 2019

The study you cited has nothing to do with the questions you asked at the top.

Your questions are about consent. They pertain to non-consensual surgeries that you say people have told you about.

The study on the other hand pertains to unexpected surgical anesthesia failures. Presumably there was consent to the surgeries in these cases, and presumably additional anesthesia was given after the failures, as described above by jesourie and juniperesque.

posted by JimN2TAW at 11:41 AM on July 1, 2019 [14 favorites]

Response by poster: I don’t understand what is so hard to understand about this. No one would ever consent to a surgery without adequate pain medication.
posted by a strong female character at 12:38 PM on July 1, 2019

"I don’t understand what is so hard to understand about this. No one would ever consent to a surgery without adequate pain medication."

If they are told their child will die otherwise, they probably would. I had an emergency c-section under really bad circumstances and distinctly remember yelling "I don't care how much it hurts, get my baby out NOW!"
posted by notjustthefish at 12:43 PM on July 1, 2019 [22 favorites]

No one would ever consent to a surgery without adequate pain medication.

I would if it was the only way to save my life. Sorry if we're not answering the question correctly, but we can check the state law on informed consent. It does differ from state to state, I believe.
posted by OnTheLastCastle at 12:45 PM on July 1, 2019 [2 favorites]

I consented to a less painful---but still extremely painful---forceps delivery without anesthesia because, from what we could tell, the health of my child was at risk. My experience is that pregnancy and childbirth (and having a small infant) are extremely weird compared to the rest of life, so it might not make sense to everyone, but I think it makes sense that women might choose to do something like this. (I also think it's possible for them to be bullied into it unnecessarily.)
posted by internet fraud detective squad, station number 9 at 12:57 PM on July 1, 2019

Mod note: Folks, the question contains some assumptions you may disagree with - that's fine, and if the question can't be answered without interrogating the assumptions, that's also fine, but remember that the point is to answer the question clearly and helpfully.
posted by restless_nomad (staff) at 1:06 PM on July 1, 2019 [1 favorite]

Have you ever really read a consent form? The general boiler plate one that everyone signs usually contains some clauses in it that would allow for an emergent C-Section.

Here's a piece of one from my local hospital -

"I understand that during the course of the procedure(s), unforeseen conditions may arise or be discovered which require the performance of additional procedures, and I hereby consent to the performance of such additional procedures as my physician believes to be necessary or advisable."
posted by MadMadam at 1:23 PM on July 1, 2019 [4 favorites]

No one would ever consent to a surgery without adequate pain medication.

My son was about one minute away from dying. I consented to having an emergency C-section, knowing that the anesthesia would not possibly work in time.

So given the choice between feeling my lower abdomen being cut and a dead child because I couldn't handle some pain, I went for the pain. I could have said no. Nobody forced me to do anything.

I don't understand what is so hard to understand about that.
posted by yes I said yes I will Yes at 1:56 PM on July 1, 2019 [61 favorites]

I would have consented, had the option been available - it wasn't, and my daughter died. Just to respond to the "no one would ever."

I would be very careful of your sources here, because birth is so politicized in North America. I don't doubt anyone with horror stories on any side of the spectrum. My daughter died in part because the L&D team was anti-c-section and pushed the line too long. And there are plenty of offences on the other side of the spectrum.
posted by warriorqueen at 3:59 PM on July 1, 2019 [12 favorites]

The thing about emergency surgery is’s an emergency. If you’re talking about labour, that generally means that either mother or child or both are at risk if they don’t act immediately.

I’d absolutely consent to surgery without adequate pain management if it meant saving either of our lives. In fact, going into it, (and my labour turned into an emergency c section, with adequate anaesthesia thank god.) I told my husband if anything happened and he had to choose, choose the baby. Luckily everything turned out fine, but don’t underestimate what a parent will go through for their child.
posted by Jubey at 4:49 PM on July 1, 2019 [2 favorites]

No one would ever consent to a surgery without adequate pain medication.

I believe my c-section consent form included "you might die"; likewise, so did the consent form for my cancer surgery.

There's a distinction between "consent to surgery without pain medication" and "consent to surgery with knowledge that pain management might fail". You could potentially argue that people aren't fully made aware of the risks or the magnitude (and thus making informed consent iffy), but there is a difference there.

Speaking of those risks: if you look at the study cited in the study you found, if one form of anesthesia failed, the surgeons would try another (Study with crazy flow charts here). If you look at figure 2, for the worst outcomes, only about 76% of the patients who started with top-up epidurals had a successful surgery, which is where that scary 24% failure rate is coming from.

But, about half of that 24% were people who started with the epidural but who ended up not starting the surgery until they had other anesthesia. The other half started the surgery with the epidural. Of those, 70 had issues during delivery; about half of those people reported severe pain (vs. mild pain or discomfort or ending up with general anesthesia); 91 had issues after delivery about a third of which was severe pain (vs. mild pain or discomfort or ending up with general anesthesia). Those two numbers are out of 1286, so in total, it's about 8% reporting severe pain.

I got a dose of I think ketamine once my daughter was out because they weren't sure how well my epidural would hold up; I ended up not having any pain.
posted by damayanti at 4:52 PM on July 1, 2019 [1 favorite]

I’ve read about this recently. In my limited reading, it seems less likely that doctors were like, we’re not even going to bother trying with anesthesia and more like the epidural didn’t work and/or there wasn’t enough time to do general anesthesia (or it wasn’t safe/practical for other reasons, like concerns re: aspiration).

Something worth considering is that medical malpractice rates for obstetricians are really high because if they screw up, a baby and/or its mother could die and surviving relatives could sue. So one can assume that OBs are less risk tolerant than other doctors (not to be crude - obviously the life and death nature of the work outweigh the potential financial risks but said financial risks are not insignificant).

My daughter was a preemie and when I talked to a maternal fetal medicine specialist recently, she was like, but you’re both ok now. As scary and hard as it was having a kid in the NICU, it reminded me that from her perspective, it was all a success - mom and baby are alive and healthy today = a win. I think that’s part of the mindset.

I think you can learn more at the website for the National Advocates for Pregnant Women (NAPW) but there have been instances in which women have refused c-sections and been charged with child endangerment (one example).
posted by kat518 at 9:35 PM on July 1, 2019 [1 favorite]

I will always believe women first and while I don’t doubt they believe this happened to them which is truly awful to deal with, nope, nope, nope nope. Under no circumstances other that the mothers life being called ( as in we did CPR and we’re calling time of death’, so deliver baby ASAP) is scalpel put to skin before epidural, spinal or general through rapid sequence induction anesthesia done.

As with one of the commenters above, if an inadequate pain relief situation happens from an epidural, that is painful, and the minute it takes for rapid sequence induction to GA is terrifying for patients.

Also consider that some anaesthic agents interfere with the formation of memory I have no doubt some mothers may suffer PTSD in some of these circumstances but speaking from a UK perspective, any US colleague who claimed they put scalpel to skin without anaesthesia would be a pariah and complained to the state equivalent of the General Medical Council and should rightly be struck off the register, I cannot conceive of a circumstance in any individual US State that would allow what you correctly identify as torture ( just discussed with KaiRab, mrWilder who is the anaesthetist on call in our hospital tonight for the labour ward. He’s covered all forms of Obs-Gynae situations and when I put this to him he asked if this was one of my Trump alternate timelines/Handmaiden jokes.
posted by Wilder at 2:04 PM on July 2, 2019

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