What we can learn about obstetric violence from the $16 million Malatesta verdict: nothing!

18957911 - zero sign created from text - illustration

The birth community is buzzing with news of a $16 million dollar judgement in an Alabama obstetric case.

According to the Yahoo article Mom Who Sued Hospital for Traumatic Birth Wins $16 Million by Beth Greenfield:

The jury did not find anyone guilty of obstetric violence.

Malatesta was 32 years old and halfway through her fourth pregnancy when she switched hospitals, lured from one that had taken a typically medicalized approach to her three previous births … to Brookwood Medical Center in Birmingham, which used a new marketing campaign that offered women “autonomy,” birthing tubs, and cushy suites, and promised to honor their birth plan.

But what Malatesta experienced on the night she gave birth to her son at Brookwood in 2012 could not have been further from the picture the hospital had laid out. Instead … she was met with a staggering series of aggressive medical interventions — including being forced onto her back by nurses who held her son’s crowning head inside her for six minutes as they waited for a doctor to arrive. It left the mother of four (ages 10, 9, 6, and 4) with a rare and debilitating nerve injury, pudendal neuralgia, which causes her severe and chronic pain to this day — not to mention lingering psychological trauma for both Malatesta and her husband, J.T., an attorney.

Cristen Pascucci of ImprovingBirth.org has spun this as a victory against obstetric violence, going so far as to provide the jury verdict form on the organization’s Facebook page.

image

Other websites, Facebook pages and Tweets have echoed Pascucci’s spin.

There’s just one problem: As you can see from the verdict form, the jury did not find anyone guilty of obstetric violence. The jury found for Malatesta on two counts: the hospital nurses violated the standard of care and the hospital was guilty of false advertising.

According medical anthropologist Lola Ruiz-Berdun, the definition of obstetric violence is:

… the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.

In other words, it is positioned as distinct from harming the patient or her baby (malpractice) defying the patient’s expressed refusal of treatment (medical battery) or failing to inform the patient of risks and benefits (informed consent).

As Law Journal Newsletters explains:

Reports of the types of acts that fall under the larger umbrella of obstetric violence include:

physical violence during labor and delivery, including slapping, pushing on the abdomen to force the baby out, and excessive force on the fetus;
lack of informed consent;
misinformation about delivery options and methods;
disrespect for non-medical delivery methods such as water births, use of a doula, and home delivery;
lack of confidentiality; or
forced sterilization.

The initial reaction is that tort claims based on problems such as these are unlikely to be as prevalent in the United States as in countries with a less robust health care system. Likewise, it is easy to fit many of these issues into traditional tort categories — assault and battery, violation of informed consent statutes, invasion of privacy or administrative claims for violation of the HIPAA Privacy Rule or state confidentiality regulations, or traditional medical malpractice cases. But, as we explore below, the concept of “obstetric violence” may ripen into new claims under American tort law.

Obstetric violence does not exist as a tort in American law.

…[W]e searched the “All States and All Federal” database on Westlaw for the term “obstetric /2 violence.” There were no reported cases in the results and no secondary sources that specifically discussed “obstetric violence” as a concept. A broader Internet search yielded three state trial level cases: 1) Caroline Malatesta’s case against Brookwood Medical Center in Alabama; 2) Kimberly Turbin v. Alex Abbassi, M.D., Superior Court of California, County of Los Angeles (http://bit.ly/1O5zvSt); and 3) Michelle Mitchell v. Mark Brooks, M.D., Augusta County, VA (http://bit.ly/1ObsRYS).

In Mitchell v. Brooks, the plaintiff lost.

According to the news articles, Ms. Mitchell alleged that Dr. Brooks forced her to have a C-section based on concerns of gestational diabetes and fetal macrosomia (larger than normal-sized) (http://bit.ly/1ObsRYS). Although Mitchell consented to the C-section, she claimed she signed the consent form under duress because Dr. Brooks threatened to call child protective services. The issue appeared to be the unwanted surgery because, according to the article, both mother and baby were “fine.” Ms. Mitchell initially sought $2.5 million in damages, but reduced her claim to $200,000. An Augusta County, VA, jury returned a defense verdict for Dr. Brooks.

Turbin v. Abbassi is the case of the forced episiotomy discussed several times on this blog. The plaintiff has been featured repeatedly on ImprovingBirth.org., which produced a press release at the time the lawsuit was filed.

The incident involved the outdated use of episiotomy—vaginal cutting that has been discredited for decades as harmful to women and not beneficial to babies when performed routinely (link). Despite the weight of medical evidence, episiotomy is still sometimes imposed on women without medical need and often without consent (link), apparently for provider convenience. Such treatment is characterized as obstetric violence, which has now been criminalized in a handful of other countries.

But Turbin filed a case of battery an established cause in law, not obstetric violence. The claim is that the doctor performed a medical procedure against the patient’s expressed wishes. That procedure could have been ANY procedure. The issue is not the episiotomy but the lack of consent.

The Malatesta case is not a case of obstetric violence, either. It’s just a straightfoward malpractice case alleging a violation of medical standards by nurses applying pressure to the baby’s head in an attempt to prevent delivery and the nerve injury to the mother that resulted. It was malpractice; and malpractice should never be tolerated and ought to be punished.

It was also a case of false advertising. The hospital advertised the availability of waterbirth more than a year after they had banned it. That, too, is unacceptable and should be punished.

Cristen Pascucci is insisting that Malatesta’s victory strikes a great blow against obstetric violence and for women everywhere; she’s wrong on both counts. It yet another one of a myriad of victories against nursing malpractice and has nothing to do with obstetric violence. It’s a victory for Malatesta personally, but does nothing for any other woman.

  • Venus65

    Another doctor trying to play lawyer. Just stop. You don’t know how this can or will be used or if it will get the attention of state and local legislators.

    • Empress of the Iguana People

      Considering she’s married to a lawyer, I’m guessing she’s better acquainted than usual for a non-lawyer.

      • Venus65

        LOL No. From an actual lawyer.

      • Venus65

        LOL No. From an actual lawyer.

        • Empress of the Iguana People

          Did you mean to spam me?

          It’s a bit difficult to tell if you’re a lawyer, or what you specialize in if you are. We get a lot of trolls in here pretending all kinds of things. One person insisted s/he was taught how to read scientific and medical journals in high school. That would be a very advanced science program.

  • Dr, Majesta

    Oh yeah – Tuteur championing the poor maligned OBGYN manarchy yet again! “Deranged OB” should be the title of this blog.

    • Amy Tuteur, MD

      Is that supposed to be clever?

      Are you too embarrassed to use your real name, Dr. Hikel? You should be.

  • nrbrk

    This case is all parents need to know when deciding whether to vaccinate or not. Vaccine manufacturers and doctors cannot determine which children will be injured or killed by vaccines. It’s Russian Roulette, plain and simple.

    http://www.prweb.com/releases/2011/7/prweb8600435.htm#.VhKrTgLX1T0.mailto

    • The Bofa on the Sofa

      Vaccine manufacturers and doctors cannot determine which children will be injured or killed by vaccines.

      Well, duh.

      If they know which children would be injured or killed, they wouldn’t be giving those kids vaccines. Some kids have risk factors, and in those cases, vaccines are contraindicated, but otherwise, the risk is essentially random.

      I don’t understand what the problem is. No one ever claimed that vaccines were risk free. Everything has risks. If you can identify those cases that have higher risks, you manage them. But the risks of vaccines are minuscule compared to their benefit.

    • Nick Sanders

      If it’s Russian Roulette, it’s played with a gun with a million chambers, one bullet, and somewhere between 850,000 to 99,900 of the remaining chambers filled with candy.

      • Hmmm….candy is the mild side effects, last time this came up, I wondered using the types of bullets used for BB guns for moderate effects and one real standard bullet for the 1-in-a-million. Of course, even this is overestimating.

        Then do the same for the disease and see where we end up.

  • Cody

    I see nurses hold babies in all the time. I had no idea that nerve damage could result from this practice.

    • unctuwoman

      Were you aware that hypoxic/ ischemic injury could occur? Who the fuck holds babies in a woman’s vagina when they are trying to get out? Doctors do not need to be present more than the mother and child need to get baby out. What idiocy.

      • Cody

        It’s problematic, and yet it happens all the time.

  • J.B.

    I just noticed “and her husband, an attorney”…

    So the pushing stage went really fast for me both times. The first time, hospital staff told me to hold back until MD arrived and the second time I had called, said I was feeling pushy, in a wheelchair because I could no longer coordinate walking, and was holding back from pushing as they made my husband do paperwork at checkin. No negative results, but it could certainly have been handled better! The business side of health care has some work to do.

    • unctuwoman

      Depending on where the umbilical cord was, it could have meant cerebral palsy for your baby. You are lucky it went well.

  • Platos_Redhaired_Stepchild

    Malatesta was 32 years old and halfway through her fourth pregnancy when she switched hospitals, lured from one that had taken a typically medicalized approach to her three previous births … to Brookwood Medical Center in Birmingham, which used a new marketing campaign that offered women “autonomy,” birthing tubs, and cushy suites, and promised to honor their birth plan.

    Irony is she had three successful births at an old-fashioned medicalized L&O hospital before she went to Brookwood, which offers women a ‘hotel-like experience’.

    https://www.brookwoodbaptisthealth.com/our-services/womens-center/mother-baby/during-your-stay

    • Kathleen

      That’s what jumped out at me. She sought out the “perfect” non-medicalized birth with birthing pools and “autonomy” and all the stuff that is supposed to result in a perfect, ‘natural’ birth – and instead ended up with the WORST experience ever, as opposed to her hospital births, which were probably far MORE ‘medicalized and less ‘natural.’ Notice none of the natural birth, empowerment people are talking about that.

      • unctuwoman

        Because it was a super medicalized birth, which is what the whole lawsuit was about. She received an award for their false advertising.

  • Amy Tuteur, MD

    According to this article, in exchange for the hospital’s promise not to file an appeal, Malatesta settled with them for less money:

    http://weldbham.com/blog/2016/08/09/alabama-a-dangerous-place-to-give-birth/

  • CSN0116

    OT: Is there any reliable study that evaluates the relationship between breast feeding and IQ that controls for duration of breast feeding AND maternal IQ?

    The sibling study just did “breast fed” or “never breast fed” groups, which doesn’t say a whole lot. But their sample size is good and they control for like every confounder under the sun, including genetics and maternal IQ.

    Kramer’s PROBIT controls for duration but not genetics (via siblings) or maternal IQ. And it’s super small, N=191 (even lower at the final phase).

    Does anybody actually capture it all?

    • swbarnes2

      Here’s one study I just found, of British twins. They say they asked the moms how many days they breastfed. About 12k kids.

      http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4583278/

      Conclusion, tiny effect for girls, none for boys. Which they conclude really means “no benefit”.

    • Sullivan ThePoop

      I don’t have much to say on the study but even well designed and controlled studies can be outliers

    • Mac Sherbert

      What about Dad’s IQ? My husband is gifted and I know my son did not get his gifted IQ from me or the 4 weeks of breastfeeding we did.

  • Irène Delse

    What i can’t fathom is the urge to rebrand malpractice and battery as “obstetrical violence”. Somehow, I don’t see malpractices by dentists being call “dental violence”! Or a botched prostate operation labeled “urologic violence”.

    • Amy Tuteur, MD

      I suspect that they want to rebrand it because they want unmedicated vaginal birth to be viewed as the standard of care and intervening in any way to be equivalent to assault.

      Had Malatesta not been injured, and had the hospital not lied about their services, Malatesta wouldn’t have had a cause of action. Though Cristen Pascucci is trying to spin this award as an example of providers being punished for denying a woman the birth of her choice, it had nothing to do that at all.

      • Irène Delse

        Ha, yes, that makes sense!

      • Sarah

        And of course, the reason the lady here switched provider is because they offered a more natural approach. Organisations like Pascucci’s are a big part of the narrative in favour of such services. Put bluntly, if they weren’t out there demonising interventions, perhaps Mrs Malatesta wouldn’t have been receptive to the idea of choosing a more ‘natural’ provider in the first place.

        • Roadstergal

          That was my initial thought about this whole debacle. If she hadn’t been seduced by a hands-off, ‘all-natural’ approach, would this have happened in the first place? Prevention > cure, etc. (timely interventions reducing the need for ‘aggressive’ ones).

          • unctuwoman

            If she had gotten the all natural birth, no one would have forced her to hold her baby in her vagina until the doctors came. What kind of logic are you using? She was awarded the money because of false advertising. They said natural, they gave interventions. She was hurt by interventions. Natural was not the cause, she should have gotten her wish. The lack of respect for her autonomy in these comments is disturbing. instead of realizing that they were wrong for promising a natural birth and having to pay for not delivering that, you demonize her for wanting a natural birth. She is the birthing woman. She gets to choose. It’s not like she wanted a free birth with no attendant. She wanted to avoid exactly what happened.

          • Heidi

            Notice the use of quotes around all natural.

        • C.

          This was my first thought as well. My second thought was that all the coverage this is getting seems uncomfortably voyeuristic to me, especially the coverage by promoters of NCB. But I guess that’s nothing new.

      • AnnaPDE

        So, if holding the baby in for minutes had somehow not resulted in a bad injury, would it have been an ok way of managing this birth? Or is it just that the mother couldn’t sue?

        • Monkey Professor for a Head

          It would have been a bad way to manage this birth regardless, but as part of a malpractice case, you need to prove that harm has been caused. If there had been no injury, she would not have been able to sue, but the nurses who did this should still have been disciplined by the hospital (or just plain fired).

          • I feel I have to interject here. During my years in the US, several times, when informing a doctor that his private patient, Mrs. X, had just arrived in L&D in advanced labor, and he was in his uptown clinic and would have to fight through midday Manhattan traffic to reach my downtown hospital, I was literally ordered to “prevent” delivery until he arrived, rather than having him relay his orders to the resident on duty, and let him take the delivery. What happened was a “whoops!” Situation: “So sorry, Dr. But she pushed and the head just popped out!”

            I was called on the carpet more than once for “not following orders” and once my dismissal was demanded by the Attending MD, but my nursing supervisor and the hospital always backed me. So, while I do not defend the nurses, they may well have been intimidated by the OB. In private, “for profit” hospitals, they can wield a lot of power.

          • MI Dawn

            Not even required to be private “for profit” hospitals. Simply work in an “At Will” state. If you know rolling your eyes at Dr. Manhattan will get you fired, you don’t do it, you follow orders.

          • Irène Delse

            What a crappy situation.

          • Monkey Professor for a Head

            That’s true, and a crappy situation all round. Ideally in situations where this is happening, there should be a root cause analysis done to determine why it happened and to prevent it happening again. And if it’s due to intimidation from doctors, then they deserve disciplinary action too.

          • unctuwoman

            Who would report it? Women on epidurals feel so little, they are unaware of a lot of what is being done. They just have the consequences of a mutilated perinium, the result of abusive procedures like forcing two hands in a vagina. She can’t see it or feel it. But she lives with the fourth degree lac and reconstructive surgery, painful intercourse, leaking sphincter …

            It would have to be the nurse to turn the doc in. Guess which one of them will lose their job?

    • unctuwoman

      I have a hard time believing that you can’t see why obstetric violence is different from standard battery. I once saw a doctor force two whole hands inside a woman’s vagina, while the baby was at a zero station and doing just fine according to all monitors. Mother is utterly unaware that he caused her grade IV laceration and subsequent surgery, because she had an epidural. She is unaware that she is being assaulted. No one handles a vagina that way- except doctors. That is why obstetric violence is different. She is unaware, disempowered, and he had no goddamn right to treat her that way. I filed a complaint with the hospital. Nothing happened. I should have screamed right then and there. But I was too shocked.

  • MI Dawn

    What we can learn:
    1. the nurses acted incorrectly, but had probably been instructed to do that exact thing by their superiors (and perhaps some MDs) in the past. Or they had been disciplined for NOT doing that, and allowing the woman to deliver.

    2. People think the MD won’t get paid for the delivery if he/she misses it. Wrong.

    3. the patient is suffering, but yes, I think the payment was excessive.

    • Irène Delse

      OMG, believing that doctors are not paid if they aren’t physically present? Okay. People can believe anything.

      But it’s mindboggling that the nurses tried to keep the baby in, and even more if it was the (unwritten?) policy at that hospital. What good did they thought they were doing?

      • It’s not always about money. The patient can decide that if her doctor can’t manage to be present for her delivery, she’ll change doctors and not recommend him to others in future. Unrealistic, but laypeople often have unrealistic expectations of doctors.

    • Sarah

      Personally I’m ok with it. To be in constant pain, be unable to look after your children, be unable to have sex ever again, because of the sort of total and utter stupidity that even a random on the street knows is a bad idea, I think a large figure is appropriate.

    • CSN0116

      I’m happy she took them for a ridiculous sum, whatever the “real” reason was.

      Is it excessive in comparison to other “pain and suffering” awards to those with far more severe injury or death? …absolutely. It’s an outlandish amount of money by comparison.

      • MI Dawn

        Exactly. I certainly believe she is due compensation. And given she is young and her whole family is affected, it should be significant. BUT…many others have suffered far worse and gotten less or nothing.

        • corblimeybot

          That’s an argument in favor of other people getting better awards, not this lady getting a lesser one.

  • niteseer

    “disrespect for non-medical delivery methods such as water births, use of a doula, and home delivery;”

    This falls under the umbrella of obstetric violence? Right between slapping a patient, and forced sterilization? So, having no respect for home delivery as an option is obstetrical violence? My mind is now officially boggled.

    • Sarah

      Naturally, nothing about disrespect for medicalised methods. No suggestion that epidural denial might amount to obstetric violence.

      • Monkey Professor for a Head

        Or MRCS denial.

    • Roadstergal

      I can’t see “home delivery” without thinking of pizza. Babies are not pizza.

      • Megan

        Mmm , pizza…

        • The Computer Ate My Nym

          Pizza. Now there’s a thought…

          • Roadstergal

            …I just thought about the poor bastard who gets called to deliver a pizza to a home birth. No tip is sufficient.

          • KeeperOfTheBooks

            Aaaaaaagh! And I thought the couple I had as customers at the bookstore who wanted an explicit sex manual to give to their son and his bride-to-be were bad… *gags*

    • Erin

      Yep but grabbing and squeezing hard the breast of a woman who has just described how triggering she finds breastfeeding to shove the baby onto it is fine…when its a midwife doing it.

      Tempted to start a lactation violence campaign.

      • sodanotpop

        Or grabbing my breast after I had put a sign on the door that said I was formula feeding so no LCs AND had it in my chart I was formula feeding, and had an LC come in and snatch the bottle out of my hand AS I WAS FEEDING and grabbed my breast. She was SO lucky my husband was not there at the time, he would have socked her.

        It was fun explaining what happened to the dozen people that ran into my room after I yelled “Don’t you fucking touch me bitch!” and smacked her arm away from my breast. LC was fired (but probably molesting women somewhere else now) and I had a steady stream of higher and higher ups coming by to profusely apologize, as well as sent home with a buttload of RTF bottles and lots of other hospital goodies. I swear, they just loaded up the back with apology swag. I seriously didn’t have to mix formula for a month.

        • Nick Sanders

          What the hell is going through these people’s minds as they do this?

          • swbarnes2

            That that a woman’s breasts don’t belong to her, they belong to the baby.

          • Monkey Professor for a Head

            That breastmilk is so magical that any means are justified in order to produce their desired result.

          • Roadstergal

            That as soon as the woman starts breastfeeding, her eyes will be opened to how wonderful it all is, and all will be forgiven.

            Much like how you just need to get a woman drunk enough to not say ‘no,’ and she’ll realize afterwards what a great boyfriend you make.

        • MI Dawn

          OMG. That’s totally appalling. And I hope LC was NOT able to find a job elsewhere, unless she peddles her services on her own (which no one can stop).

        • Anion

          I absolutely love that you responded the way you did, though.

      • niteseer

        Who was it, Ida May Gaskins, who said she likes to rub the woman’s “button” while she is pushing, “I like to keep my hands busy down there the whole time”.

        I would consider THAT to be sexual molestation. How awful would that be? You can’t defend yourself when in the middle of strong second stage contractions.

        • Nick Sanders

          Yup, Gaskin.

  • Irène Delse

    On the plus side, it’s a win for patients’ rights. Let it be a lesson for other hospitals hand birth centres who try to cut corners or paint themselves in too-good-to-be-true colours.

  • demodocus

    Poor woman. That delivery sounds horrible. Fortunately, neither of my hospital experiences were this bat-s%!) crazy.