Analysis Law and Policy

Lawsuit: Staten Island Hospital Forced Patient Into C-Section Against Her Will

Jessica Mason Pieklo

A lawsuit filed by a New York woman against a local hospital alleges that she was forced to undergo a c-section against her will. The suit is believed to be the first to raise a claim under a New York public health law detailing the rights of patients at hospitals in the state, but experts worry that such cases could become more common.

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.

News Law and Policy

Court Blocks Two Extreme Alabama Anti-Abortion Provisions

Jessica Mason Pieklo

The temporary order prevents officials in Alabama from enforcing a ban on later abortions and implementing a law that would regulate abortion clinics in a similar fashion as sex offenders.

A federal judge on Wednesday temporarily blocked two Alabama abortion restrictions set to take effect August 1 that would ban abortion clinics near schools and criminalize the most commonly used later abortion procedure.

In May, Alabama Gov. Robert Bentley (R) signed into law a ban on abortion clinics within 2,000 feet of public K-8 schools. He also approved a separate measure banning the most common method of performing a later abortion, known as dilation and evacuation, or D&E, abortions.

The American Civil Liberties Union (ACLU) challenged both provisions on behalf of providers in the state, arguing they were unconstitutional. According to attorneys for the ACLU, the location restriction would close the state’s two busiest abortion clinics, while the method ban would hamper access to later abortions.

The first blocked measure would prohibit the Alabama Department of Public Health from issuing or renewing a health center license to an abortion clinic or reproductive health center close to some public schools. As reported by Rewire, this would effectively regulate abortion clinics in the same manner as registered sex offenders. In Alabama, sex offenders cannot reside within 2,000 feet of a school or child-care facility.

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The second blocked measure would outlaw most surgical abortions. Dilation and evacuation, the most common form of surgical abortion, is used in the majority of abortions after 13 weeks of pregnancy, according to the American College of Obstetricians and Gynecologists. It is extremely safe, with less than one in 1,000 patients experiencing complications.

Dr. Willie Parker, a physician who provides later abortions in Alabama, wrote in a statement to the court that, if allowed to take effect, the law would prevent him from performing abortions after 15 weeks of pregnancy.

According to Dr. Parker’s submission to the court, the only alternative to D&E is to induce labor in a hospital, a much riskier and expensive alternative for the patient.

U.S. District Judge Myron Thompson Wednesday issued a temporary restraining order to block the state from enforcing the provisions until after an October 4 hearing. In the meantime, both sides were ordered to submit written arguments to the court in advance of that October hearing.

Alabama is not the only state to attack later abortion access. Kansas and Oklahoma both passed similar bans, but those laws remain blocked by court order.

Analysis Law and Policy

Supreme Court Ruling on Texas Law Reverberates Around the Country

Teddy Wilson

"To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall," said Jessica Mason Pieklo, vice president for law and the courts at Rewire. "The good news is that the Supreme Court's decision in Whole Woman's Health provides advocates with a solid foundation to begin those next fights."

The U.S. Supreme Court struck down Monday two provisions in Texas’ anti-abortion omnibus law known as HB 2, and with that ruling the dominos began to fall. Similar anti-abortion laws in Wisconsin and Mississippi were blocked Tuesday by the Supreme Court, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

However, significant obstacles remain to ensure access to reproductive health care throughout the country. A number of states have in place slightly different variations of the requirements struck down by the Court, which means it remains to be seen how lower courts may apply Monday’s ruling to restrictions that aren’t exactly like those included in Whole Woman’s Health v. Hellerstedt.

Monday’s decision is a significant victory for patients and providers, but it doesn’t guarantee that targeted regulation of abortion providers (TRAP laws) across the country will start to fall immediately, explained Jessica Mason Pieklo, vice president for law and the courts at Rewire.

“To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall,” Pieklo said. “The good news is that the Supreme Court’s decision in Whole Woman’s Health provides advocates with a solid foundation to begin those next fights.”

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Dozens of states in recent years have passed TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to clinics and physicians in other medical fields.

Many anti-abortion measures introduced around the country resemble copycat legislation drafted by Americans United for Life (AUL), an anti-choice organization that distributes proposals to state lawmakers as part of a strategy to flood state legislatures with anti-choice bills.

As Rewire previously reported, key players in the development of HB 2 were deeply connected to AUL and other conservative lobby groups.

The Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that two TRAP provisions under HB 2 placed “a substantial obstacle in the path of women seeking an abortion,” and constituted “an undue burden on abortion access.”

Specifically, the Court struck down the requirement that physicians who provide abortion care must have admitting privileges at a hospital within 30 miles of the facility where the physician will provide abortion services. The Court also struck down the requirement that facilities providing abortions meet ambulatory surgical center (ASC) requirements, which involve prohibitively expensive medically unnecessary building renovations.

There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.

Laws requiring abortion providers have admitting privileges remain in effect in Arizona, Arkansas, Florida, Indiana, Kansas, Missouri, South Carolina, Tennessee, and Utah.

These laws typically require physicians have admitting privileges at a hospital near the facility where they provide abortion care. Some of these laws require that the hospitals provide OB-GYN services, and some require the physician to be board certified in OB-GYN medicine.

Other laws require that the hospital be no more than 30 miles from the facility where the abortion is performed, or have varied in defining the geographic boundary.

The law that was struck down in Mississippi required the admitting privileges be obtained at a “local hospital.” And Utah’s current law requires the hospital be within a “travel time of 15 minutes or less,” while Florida’s recently passed law requires the hospital be within a “reasonable proximity.”

There are 24 states that have passed laws requiring facilities in which surgical abortion services are performed to meet ambulatory surgical center standards that go beyond what is needed to ensure patient safety, and another 17 states require clinics that may only provide medication abortion to meet these same standards, according to the Guttmacher Institute.  

As Nick Bagley, an assistant professor at the University of Michigan School of Law, told Vox, similar laws that have been passed in other states may face legal challenges in the wake of Whole Woman’s Health, but the details of those challenges may vary. “The Supreme Court only applies to Texas,” Bagley said. “Other states will have slightly different laws with slightly different facts to argue over.” 

Florida and Indiana TRAP Laws Set to Take Effect 

This year Florida passed its own Texas-style anti-choice omnibus law, which takes effect Friday. However, there are some differences between the two laws, including differences in the types of regulations of physicians who provide abortion care.

Clinics that offer abortion services in Florida will be required to have a written patient transfer agreement, which includes the transfer of the patient’s medical records, with a hospital within “reasonable proximity” to the facility. Physicians also will be required to have admitting privileges at a hospital within “reasonable proximity” to their clinic.

The law also mandates annual inspections of all licensed abortion clinics, requires any medical facility in which abortions are performed to submit a monthly report, and prohibits state or local governments from entering into contracts with organizations that provide abortion services.

State Sen. Kelli Stargel (R-Lakeland), who voted for the bill, expressed concern after the senate vote that the bill’s language could become an issue in the courts. “Those clauses gave me concern that it would make it as though our intent was to close down all abortion clinics in the state,” Stargel told the Tampa Bay Times. “That was not the intent of this bill.”

After the Supreme Court’s ruling on Monday, Stargel reiterated that despite the bill’s similarities to the Texas law, it was not lawmakers intent to restrict access to abortion. “In Florida, we passed [the law] to safeguard women’s health, not to close abortion clinics,” Stargel said in a statement, reported the Florida Sun Sentinel.

Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told the Miami Herald that the language of the bill may be different, but that Florida lawmakers had the same intent as Texas lawmakers: to shutter abortion clinics.

“It’s definitely different language,” said Goodhue. “But the intent is the same.”

Planned Parenthood has filed a lawsuit challenging the law, however, the organization is not challenging the admitting privileges requirement. 

Goodhue told the Florida Sun Sentinel that the organization will determine if there are grounds for other lawsuits in the future. “Right now, we’re seeking emergency relief on the other three provisions, but we’ll make sure that access to care is protected,” Goodhue said.

Gov Rick Scott (R), who signed the bill into law in March, said during a press conference Monday that his administration is reviewing the Supreme Court’s decision, reported the Miami Herald

Lawmakers in Indiana have in recent years passed multiple laws to restrict access to abortion, including laws that have provisions mandating that physicians have admitting privileges and other reporting requirements

Mike Fichter, president and CEO of Indiana Right to Life, said in a statement that the Supreme Court showed “utter disregard for women’s health and safety,” and defended a similar law passed state lawmakers this year.

“We will be reviewing the Supreme Court’s decision thoroughly to see how this legal precedent could affect Indiana’s laws on admitting privileges and abortion facility building standards,” Fichter said. 

An omnibus abortion bill passed in 2011 contained multiple abortion restrictions, including a provision that a physician performing an abortion must have admitting privileges at a hospital located in the county where abortions are provided or a contiguous county.

The law also allowed for a physician to meet the requirement by entering into an agreement with a physician who has admitting privileges at a hospital in the county or contiguous county.

Another similar law was passed by Indiana lawmakers this year, which made numerous changes to state laws, including requiring forced counseling and mandatory ultrasounds for abortion patients, creating regulations on physicians who provide abortion care, and banning fetal tissue donation that has led to the development of vaccines and other public health benefits

The law created a requirement that a written agreement between a physician performing an abortion and a physician who has written admitting privileges at a hospital in the county or contiguous county be renewed annually.

The law also requires the state department of health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.

Gov. Mike Pence (R) signed the bill into law in March, and it will go into effect on Friday.

Ali Slocum, spokesperson for Planned Parenthood of Indiana and Kentucky, told the Indianapolis Star that the organization does not have any immediate plans to challenge the law in court. “We are focused on what is currently in the pipeline. It is possible that the standard that the court set [Monday] could be used to challenge restrictions in other states,” Slocum said.

Efforts in State Legislatures to Repeal Laws

In some states lawmakers and advocacy groups may push to repeal similar laws following the Whole Woman’s Health decision.

Arizona lawmakers have passed several anti-choice laws in recent years and, like Texas and Florida lawmakers, justified those regulations as necessary to ensure the health and safety of women in the state.

Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona, said in a statement that the Supreme Court made a “clear statement” that laws that restrict access to abortion care are unconstitutional.

“Arizona is a large state, with population spread across many rural areas. Laws that delay care, require travel over great distances and overnight stays certainly place real-life burdens on women seeking our care,” Liggett said.

Arizona Senate Minority Leader Katie Hobbs told the Arizona Republic that she will lead the effort in the legislature to repeal similar laws. “No woman or doctor should be punished for receiving or providing essential medical care,” Hobbs said. “These restrictions have never truly been about women’s health.”

However, repealing anti-choice laws in the GOP-dominated Arizona state legislature may prove difficult.

Republicans hold an 18-12 majority in the state senate and a 36-24 majority in the state house, and they have introduced dozens of anti-choice bills in the past several years. There have been seven laws to restrict access to abortion passed by Arizona lawmakers, including a law similar to Texas’ HB 2 which requires abortion providers to have admitting privileges.

Those efforts have been spearhead by the Center for Arizona Policy, a conservative think tank that promotes anti-choice, anti-LGBTQ, and so-called religious freedom legislation.

Cathi Herrod, president of the Center for Arizona Policy, said in a statement that the Supreme Court’s decision eliminated “common-sense safety precautions” for women seeking abortion care. “To give the abortion industry a blanket exemption from laws applicable to every other medical facility is unconscionable,” Herrod said.

Josh Kredit, general counsel for the Center for Arizona Policy, told the Arizona Republic that the Supreme Court’s decision suggest that abortion providers should be treated differently that other health-care providers.

“They are arguing they should be exempt from garden-variety health and safety regulations,” Kredit said. “It was clear that Texas, when it passed these, was focusing on protecting women, just like many of our laws that we pass in Arizona.”

Dr. Thomas M. Gellhaus, president of the American College of Obstetricians and Gynecologists, said in a statement that the Court’s decision made it clear these laws do not improve the health and safety of patients seeking abortion. Said Gellhaus: “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”

“Of course, this is not the end of the battle when it comes to abortion access,” Gellhaus added. “In dozens of states, women are living under laws that impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more. None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship. We will continue to oppose these laws and to promote safe access to legal abortion for our patients.”