In a lawsuit filed by a New York woman against the Staten Island University Hospital, two physicians and their practice groups claim she was forced to undergo a cesarean section
against her will.
Rinat Dray is a 35-year-old mother of three who had delivered her first two children via c-
section. When Dray learned she was pregnant a third time she began investigating options for a VBAC, or vaginal birth after cesarean.
As her attorney explained to Rewire, Dray experienced post-operative problems resulting from her previous c-sections, involving prolonged
recoveries. After doing some research, she believed she might be a successful VBAC candidate. Dray interviewed providers and eventually switched OB-GYN practice groups to one she believed would support and respect her decision. According to her attorney, when Dray raised the issue of a VBAC directly with physicians in the Metropolitan OB-GYN Associates group, they indicated it was a possibility for Dray. “He gave her a positive response without a guarantee,” said Michael Bast of the law firm Silverstein and Bast, “which is a good response. It’s all you could expect.” That practice group and two of its physicians are named as defendants in Dray’s lawsuit.
But when Dray checked into the Staten Island University Hospital in labor, she claims hospital staff began pressuring her to consent to another c-section. According to Dray’s attorney, after several hours of labor, the attending physician told her that he would not examine her unless she agreed to have surgery. When she refused surgery, the hospital then consulted with a hospital attorney who authorized doctors to overrule Dray’s refusal to have a c-section.
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According to the complaint, hospital staff made the decision to ignore Dray’s express wishes regarding her care without consultation with the hospital’s bioethics department and without engaging the hospital’s patient advocate. According to records in the case, the surgery was approved by the hospital’s legal department over Dray’s explicit objection. A physician noted in her medical records, “The woman has decisional capacity. I have decided to override her refusal to have a c-section.”
In the process of performing Dray’s surgery against her express wishes, doctors perforated her bladder, an injury which forms the basis of most of Dray’s legal complaint. Additionally, Dray is seeking punitive damages from the hospital due to the defendants’ “conscious decision” to violate the law and Dray’s rights. But while the wrong done to Dray in ignoring her refusal for a c-section may seem obvious, a legal recovery is not guaranteed.
Dray’s attorney has asserted a number of claims against the doctors and the hospital. First and most straightforward is a claim for medical malpractice, which
states the Staten Island University Hospital and its doctors violated the standard of care in their treatment of Dray by subjecting her to a c-section against her will. That standard of care is set out in, among other places, new, less restrictive guidelines issued by the American Congress of Obstetricians and Gynecologists (ACOG) for attempting a vaginal birth after previous cesarean deliveries. Those guidelines emphasize the importance of respecting patient decision making, which is beneficial to maternal, fetal, and child health, and note that a VBAC avoids major abdominal surgery, lowers a woman’s risk of hemorrhage and infection, and can shorten postpartum recovery time.
Dray’s attorney is also bringing a claim under a New York’s public health law, which among other things
provides that patients have a right to refuse treatment. Bast believes it’s the first time the law has been used to affirmatively state a claim like Dray’s. “The Patient Bill of Rights is a good thing. Not just for this case, but for every case,” said Bast. “Patients need to be informed. They need to have things explained to them. And they need a helper in getting this information and the hospital must facilitate that process.”
Despite these ACOG guidelines and affirmative protections like the New York Patient Bill of Rights, many hospitals and providers are unwilling to make VBAC an option for pregnant patients. And with c-section rates still alarmingly high, this raises the concern that cases like Dray’s will be more common. “Overall, forced surgery is extremely rare. However, there are a couple of trends that, unaddressed, raise concerns that this could become more common,” Farah Diaz-Tello, a birth justice activist and staff attorney for National Advocates for Pregnant Women
, told Rewire in an email.
“First is the high cesarean rate,” Diaz-Tello explained. “Maternity care advocates and birth justice activists have been concerned with this for some time, but ACOG and the Society for Maternal Fetal Medicine are beginning to take notice and released a joint statement on reduction of the primary cesarean rate just a couple of months ago. Second is the trend to treat fetuses, and even fertilized eggs, as though they are separate persons under the law.”
“Medical ethical guidelines are clear that the autonomy of the pregnant woman is paramount, and that there is virtually no case in which forced surgery is justified. Nevertheless, the idea that the fetus is in there waiting to be saved, with the pregnant woman receding into the background or even disappearing entirely, certainly drives these cases,” she said.
While Diaz-Tello noted that actual forced surgery cases like Dray’s are rare, she acknowledged that it is common for providers to tell a woman that VBAC is not an option at their facility. It is also increasingly common for providers tell a woman that if she is noncompliant with their orders and refuses to undergo a c-section
there will be some sort of legal consequence for her, including threats that child services will be called in to investigate.
“This is, of course, not the appropriate use of the child welfare system, which is designed to protect children from neglectful parents,” said Diaz-Tello, “but we have seen cases in which women have been investigated and even had parental rights terminated based on proceedings that started with a refusal of cesarean surgery.” According to Diaz-Tello, cases in which women are threatened with some sort of legal action should they refuse a c-section often come up during the actual delivery: “It is usually the case that these conflicts arise when the woman is in the hospital in labor, but there was a case in Florida last year in which a woman was threatened with arrest if she did not show up for surgery.”
But even in those egregious cases where hospitals and doctors have threatened legal action for refusing to consent to surgery, the medical providers have sought some kind of legal protection first, usually in the form of an emergency court hearing to order the surgery. No such court order was sought in Dray’s case.
In a way, the protections detailed in New York’s Patient Bill of Rights can be seen as a kind of equivalent to the assistance given to individuals navigating the legal system, and Dray’s case illustrates the need for such protections. According to the New York statute, patients have a right to understand their options related to their care, and hospitals must do certain things, like provide interpreters
or access to patient advocates to facilitate the process, similar to protections available to those accessing the courts. “When people come to a hospital, they are sick, they are scared, they are not in their usual environment surrounded by their usual resources,” said Bast. “They are in a state of confusion and are confronted with major life-changing decisions. Patients need help understanding what the reasonable choices are.”
But unlike some of the help people get in accessing the courts, based on constitutional due process and equal protection guarantees that protect people against the government abusing its power, most hospitals are private entities, and thus there’s no direct constitutional directive to treat patients in a way that does not deprive them of their liberty and bodily autonomy. But, as Diaz-Tello points out, Dray’s case still raises significant human rights and constitutional concerns. “There are absolutely human rights and constitutional implications to cases like these, which treat women as separate and unequal to other people,” she said. “All people who are conscious and competent have the right to make decisions about their own health care, even in emergency situations. In this situation, they acknowledged that she had the right to make this decision, and unilaterally decided to take it away from her. They didn’t even believe that they needed legal authority to do so. This is a clear sign that they did not see her as a full person.”
The issue of patient consent is crucial here, Dray’s attorney explained. That’s because typically we frame patient consent in terms of “informed consent,” a legal standard developed to make sure doctors and hospitals provide patients with all the necessary information to make informed decisions about their care. But in this case, the issue goes beyond Dray’s providers failing to
give her the necessary information to make an informed decision about the course of her treatment and care; her providers, according to the lawsuit, ignored her wishes altogether. “This is really a no consent case,” said Bast.
Dray’s case is still in its early stages. Dr. Leonid Gorelik and Metropolitan OB-GYN Associates served an answer to the lawsuit this week, while the Staten Island University Hospital’s attorney has requested an extension to submit its response to the allegations in the complaint.