WhiteCoat

Should Refusing Medical Care Be A Crime?

Doctor threatens to call police on patient if she does not consent to immediate Caesarian section.

The mother was a high-risk pregnancy (due to VBAC), was post-dates and had gestational diabetes. The fetus wasn’t in a good position to facilitate vaginal delivery, and an ultrasound showed the fetus in possible distress.

The patient was sent to Tampa General hospital for immediate C-section, but refused to have the surgery done that day. She wanted the baby delivered on Friday, not Tuesday. So the obstetrician sent her an e-mail which stated, in part

I am deeply concerned that you are contributing to a very high probability that your fetus will die or your child will incur brain damage if born alive. At this time, you must come in for delivery.
I would hate to move to the most extreme option, which is having law enforcement pick you up at your home and bring you in, but you are leaving the providers of USF/TGH no choice

The doctor was promptly contacted by the National Advocates for Pregnant Women, whose New York attorneys advised him (apparently applying their vast knowledge of Florida law to the case) that he was making “legally and ethically unjustifiable” threats and demanded he cease taking further action against the patient. The NAPW even put up a post about the incident on their web site. Hopefully, the attorneys at NAPW have licenses in Florida, otherwise some might consider them to be practicing law in Florida without a license – which I think might be illegal.

Now the patient is having her baby delivered on Friday as she wanted.

When I initially read this article, I was upset with the doctor.

The more I thought about it, though, the fetus has as many rights as the mother does. If the mother was doing things to endanger the life of the fetus the day after it was born, a call to the police would be expected, not ridiculed. States mandate reporting of suspected child abuse and impose liability on providers if suspected abuse is not reported.

In this case, it is questionable whether a failure to deliver a child that is possibly in distress would be considered “child abuse,” but usually if there is a suspicion, a report is mandated.

I side with the doctor on this one. And I probably would have called the state child welfare agency on the woman just to cover myself.

This case will get ugly real quick if there are complications during the pregnancy or if the child isn’t born healthy.

If the baby is stillborn, should the mother be charged with a crime?

28 Responses to “Should Refusing Medical Care Be A Crime?”

  1. Michelle says:

    As a woman, but not a medical professional, I find fetal rights to be very uncomfortable. I disagree with the choice the patient made to discard her doctors treatment plan but unless she was incompetent, she has the right to make that choice.

    What if she declined to be treated at all? At what point in the pregnancy does the fetus become a patient?

  2. Dan says:

    Or if the kid is born with cerebral palsy, is the doc on the line for “malpractice”? John Edwards would have a field day on this case.

  3. suki says:

    If the child is born with longstanding care issues, who ends up paying for the care of this child? Due to the mother’s reasons for wanting a baby born on a certain day? Who is looking out for the welfare of the child? Someone has to speak up for the baby. Sounds like the doctor attempted to.

  4. LC says:

    I Think the point is this. The patient can do what she wants, but the doctor’s email hopefully would prevent the patient from suing if something goes wrong.

    I am sure she’d sue anyhow, but i would hope she looses the case because she is stupid with “no not today”… At least I hope… but i’d feel bad for the physician having to deal with this patient.

  5. Meghan says:

    When the fetus is no longer using her body the physicians and CPS get a say. Until then it’s her body and you cannot force her to consent to surgery, induction, etc.

    I have a child and this was what I was afraid of during my pregnancy. That the medical establishment would try to override my rights for the fetus. A fetus isn’t a person, the woman is.

    I understand that if something happens to the fetus that the medical providers would be concerned about litigation, but that’s why documented informed consent is important. Beyond that it’s a problem/issue with the litigation system, not informed consent or personal autonomy/rights.

  6. Marilyn says:

    The fetus doesn’t have rights until it exits the mother’s body. Remember, late-term abortion is still allowed in this country, gruesome as it is.

    It is the woman’s choice. That’s what Roe v. Wade was all about. Privacy and choice.

    Doctors and lawmakers better get a consistent, and EQUALLY APPLIED standard in place. The fetus can’t have rights sometimes, and not have rights other times.

    • Tammy says:

      “The fetus can’t have rights sometimes, and not have rights other times.”

      Indiana has a “fetal murder” law. Here is an Indiana woman who tried to commit suicide and was charged with fetal murder because her baby died:
      http://www.mommyish.com/2013/03/09/pregnant-suicidal-woman-charged-with-murder/

      I agree with you, there must be one law and one law only. Either killing or intentionally (or even negligently) harming a fetus is a crime, or it is not.

      I am /personally/ pro-life and wish that every baby conceived could be born healthy and wanted, but am realistic enough to realize that it would be madness to impose my value system on everyone else. I think the anti-abortion zealots have led us into a mess with their “personhood” declarations for fetuses. Resources focused on education and support and mental health would probably save more lives than declaring that anyone whose actions lead to the death of a fetus is a “murderer”.

  7. Art Fougner MD says:

    Had the woman been in labor, this case would have been considerably more dicey.

  8. Don says:

    The doctor needs to protect himself.

    Like someone else said, if the child has a birth defect there would be an army of lawyers lined up to sue him.

    • Matt says:

      What a load. Why do you guys keep repeating this nonsense. There are about 120,000 children born with birth defects each year in the US. There are less than 100,000 medical malpractice lawsuits filed each year, which includes EVERY kind of claim.

      If you’re going to be afraid, at least be afraid in relation to the actual risk.

  9. pro-choice says:

    The mother should have absolute rights until the baby is actually born, and the mother gets to make decisions about what is best for her health. Often times the judgment of doctors is flawed and patients should be empowered.

  10. Codeblue says:

    Any lawyers in the audience care to comment? Interested in your thoughts.
    As a physician, I can see the doctor’s point here. Not only is he practicing good CYA, but his patients are the mother AND the child. A term infant who can survive just as well outside the body as in it, who may be harmed by remaining inside, should have an advocate.

    • ConcernedRN says:

      As with elopement and AMA incidences in my professional life this to me sounds like an AMA issue. The patient could have easily signed the paperwork stating she understood the risks of waiting and then all responsibility and medical costs falls to the patient not the physician or medical staff.

  11. Clara says:

    Farah Diaz-Tello, the staff attorney for the New York-based National Advocates for Pregnant Women, has announced that the mother delivered a healthy, 11-pound boy, and that both mother and baby are fine:

    http://www.tampabay.com/news/health/11-pound-baby-born-to-mother-threatened-by-usf-obstetrician/2107899

    As far as whether the unborn baby had an “rights”, well obviously not. We live in a country where if she had wished, that mother could have hired someone to stick scissors in her baby’s head and then suck his brains out at any point before 100% of him had exited her body, and that would have been okely-dokely.

    Like it or not, no-one logically has any standing to protect the life or safety on an unborn baby if the mother says “no”. She can order him or her killed at any point she is the only one with “rights”.

  12. DdR says:

    Threatening to call in law enforcement is completely out of line – even if the woman was in the wrong. Drop her as a patient & refer her to the ER for delivery if she continues to ignore his advice, sure. But threatening a patient like that should be considered criminal behavior.

    • Marni says:

      That’s patient abandonment. You can’t just drop a patient, especially at 41 weeks of pregnancy.

      • DdR says:

        Why Not? If the doctor continues to bear liability even though the patient refuses to follow medical advice, why should the doctor not be able to drop the patient – legally? It only seems fair.

  13. Eric says:

    Thoughts: if mother was murdered and both die, the perpetrator could face 2 murder charges. Secondly, termination of a 39 week pregnancy is illegal in most states providing mother otherwise not at danger. Finally, by conscious if not by law, there are 2 patients here. Md’s are not final arbitrator of right and wrong in this case. There exist courts and legislation for a reason. I was under the impression in cases involving a minor, if in doubt of abuse, contact children services.

  14. EZkeeper in TX says:

    What was so special about Friday?

    • MamaOnABudget says:

      The mom in this story came into a facebook community I follow and gave her side of the story. She had been hoping for a VBAC but had already consented to a repeat section weeks before when the baby was transverse and unlikely to turn. The section was scheduled for that coming Friday. Her husband had already requested time off work to be with her then, they had child care arranged for that Friday. The “possible distress” was an “unreassuring” BPP, and the technician who administered the test, as well as the doctor at the hospital who reviewed the results (not the OB that emailed her) both felt the results were because the baby was sleeping and they didn’t get the heart rate to go up as they had hoped. She was having weekly or bi-weekly BPPs up to that point that were all great. She had no one to watch her 2 year old if she consented to immediate surgery (he would have been watched by strangers) and her husband would have missed the birth.

  15. Matt says:

    This stuff is the inevitable result of those opposed to abortion seeking ways to further identify the fetus as a life. For example, in many states the fetus has a viable wrongful death claim if the mother loses the pregnancy due to the negligence of another.

    This doesn’t directly attack legal abortion, but it seeks to do an end around on it by giving the fetus status and legal protection. This won’t stop.

    • Tarl says:

      “For example, in many states the fetus has a viable wrongful death claim if the mother loses the pregnancy due to the negligence of another.”

      As long as the fetus shows up in court and signs documents in person, rather than by proxy….

      (I do agree that this is the expected result of the abortion battles).

  16. Raf says:

    It’s interesting.

    In the UK, the Court of Protection can make decisions on someone’s behalf if they are unable for temporary or permanent reasons to make a reasoned decision (weigh up the pros and cons etc) within the timeframe the decision must be made.

    I’m reasonably sure that a Court of Protection judge would be prepared to order a caesarian in a context like this – in fact, I think it has done in the past, when an expectant mother with a profound needle phobia needed a caesar – she wanted her baby and knew that the section was needed to ensure safe delivery for some reason, but was unable to cooperate with being cannulated.

    • Slippery says:

      Yes, England’s “Court of Protection” can order a cancer sufferer to receive cancer treatment and surgery against her will, and they can order a woman they deem unfit to have a baby to submit to abortion, they can order the “mentally unfit” to be sterilized, they have a lot of power.

      “Woman with hospital phobia must be forcibly treated for cancer, judge rules: A cancer sufferer is to be forced to have life-saving treatment against her wishes after a landmark court ruling by a High Court judge.”

      http://www.telegraph.co.uk/health/healthnews/7768577/Woman-with-hospital-phobia-must-be-forcibly-treated-for-cancer-judge-rules.html

      “Doctors seek court order to carry out abortion on mentally disabled woman: Doctors are applying for a court order to allow them to carry out an abortion on a mentally disabled woman without her consent.”
      http://www.telegraph.co.uk/news/uknews/law-and-order/9786469/Doctors-seek-court-order-to-carry-out-abortion-on-mentally-disabled-woman.html

      Whether it’s a good thing to give the State that much power is a question worth asking. In America, if the extreme right get into power who’s to say that they wouldn’t use those powers to declare that any woman who wants an abortion is obviously not thinking right and must be forced to go to term and give birth, “for her own good”?

      Or order all men and women they deem “deficient” to be sterilized?

    • Alex says:

      I suspect that the court of protection would not agree to a LSCS in a case like this as the fetus has no rights (except for the crime of “child destruction” which has been used less than 10 times). In the needle phobia case discussed it was felt that the phobia meant that the mother did not have capacity to decide to refuse an operation, because she was unable to make a properly informed discussion – there have been cases of people refusing and the fetus dying.

  17. Rachele says:

    And what if 5 years from now this child needs a kidney and mom is a match should that surgery also be forced? After all, this child has rights which presumably supercede those of his/her mother according to this logic.

    • Mandy says:

      And what if 5 years from now this child turns out to be “inconvenient” to the mother’s lifestyle, and she wishes she’d never had him/her? Should she be allowed to hire a doctor to kill him/her? After all, this mother has rights which presumably supersede those of her child according to this logic.

      • Rachele says:

        I’m not sure were taking about the same thing unless by “inconvenient” you mean requiring mom to undergo major surgery and by “hire a doctor to kill him” you mean make a choice about when, where, or whether our not to undergo said surgery that might (our might not) prevent harm. We’re not discussing abortion here. No ones asking if she should kill the baby.

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