Your Right to
Refuse
What to Do if Your Hospital Has "Banned" VBAC
by ICAN - International Cesarean Awareness
Network
Available as a pdf file at: http://www.ican-online.org/resources/white_papers/wp_vbacbanqa.pdf
The International Cesarean Awareness Network has tracked
over 300 hospitals across the U.S. that have instituted policies seeking to
ban vaginal birth after cesarean (VBAC), misleading women to believe they
must undergo cesarean surgery whether there is a medical need for it or not.
Clinical research shows the risks of VBAC are small and that repeat cesarean
surgery carries its own risks. In spite of this, many hospitals have
attempted to ban VBAC in order to limit their exposure to liability. As a
result, many women around the U.S. have been told they must choose
unnecessary surgery or forgo hospital care altogether. Below is a guide for
women in this situation. Women who are seeking to avoid other medical ifind
this information useful.
Q. Does my doctor or hospital have the right to force me to
undergo surgery?
A. No. You have
the legal right to refuse any medical treatment, including cesarean surgery.
VBAC "bans" exist only because they have not been challenged by patients.
The doctrine of informed refusal is upheld by common law, case law,
Constitutional law, federal law, state law, state mandated medical ethics
and the ethical guidelines of the American Medical Association (AMA) and the
American College of Obstetricians and Gynecologists (ACOG). Any facility or
care provider claiming that you must undergo a cesarean you wish to refuse
is violating the governing principles of their respective institutions and
professions, as well as the rule of law.
Q: What can I do to protect myself from being forced into
surgery?
A: There are
multiple steps you can take to protect yourself:
- •
Know your rights.
Visit
www.birthpolicy.org
to learn more about the
illegal and unethical status VBAC "bans."
• File a grievance with the Chief Compliance
Officer at the hospital where you plan to give birth.
Hospitals that attempt to ban VBAC are
in violation of the Center for Medicare and Medicaid Services (CMS)
Conditions of Participation (CoP), which require all federally funded
hospitals (approximately 80%) to honor the rights of patients to be
informed of the risks, benefits, and alternatives of all procedures, to
refuse any proposed treatment, including cesarean surgery, and to
participate in all treatment decisions. To hold your hospital accountable
under these regulations, you must first file a complaint with the
hospital’s Chief Compliance Officer, who is required to issue a ruling
within 60 days. If the CCO rules against you, then you have the right,
first, to appeal to the your state CMS office and then to Office of the
Inspector General’s Office at the Department of Health and Human Services.
If HHS rules against you, then your appeal goes to the Department of
Justice, which is authorized to bring litigation against the hospital on
your behalf. You can read the CoP regulations by going to the Code of
Federal Regulation’s main page at http://www.gpoaccess.gov/cfr/index.html
Enter "42CFR482.13" into the search engine, which will bring up all of the
CoP regulations on patient rights and filing grievances. To find contact
information for your state CMS office, go to http://www.medlaw.com/healthlaw/EMTALA/reporting/where-to-report-violation.shtml
• Replace your birth plan with a customized
form documenting your refusal to consent.
By law, you are not required to sign the
hospital’s consent form. You can either customize the hospital’s form or
write down your refusal to consent to treatment on any piece of paper and
sign it. Put a line through any listed procedure you want to decline and
then add the list of routine procedures, including cesarean surgery, you
want to refuse, initial each change or addition and make sure you have all
the required signatures. Doing so will legally document your refusal to
consent and alert staff that you understand and are prepared to protect
your rights. In addition, such a document will require staff to obtain
direct, verbal consent from you each time they want to do a procedure
you've already declined in writing. If possible, pre-register at the
hospital no
- sooner than thirty days before your due date and take the forms home
with you to review, add to, and sign. Be sure to keep personal copies of
any forms you sign and ask your partner or doula to record any changes
that were made during the course of your labor.
Q. What if the hospital refuses to admit me unless I consent
to a cesarean?
A: The federal Emergency Medical Treatment and Active Labor
Act (EMTALA) requires hospitals to admit women in active labor and to abide
by their treatment decisions until after the baby and placenta are
delivered. The act was originally designed to prevent hospitals from
"dumping" patients who couldn’t pay but has since been widely used to hold
hospitals accountable for violating other patient rights, including the
right to refuse treatment. If your hospital threatens to perform a cesarean
despite your refusal, notify them that they are in violation of your rights
under EMTALA and that you plan to file a complaint. To find out where to
report an EMTALA violation, go to http://www.medlaw.com/healthlaw/EMTALA/reporting/where-to-report-violation.shtml
Q: What happens if my care provider ignores my refusal to
consent and performs a cesarean anyway?
A: Many women have been threatened by their care providers
that they would be put under general anesthesia and sectioned if they sought
care in the hospital, even if they were close to delivering the baby
naturally. While these threats are intimidating, they are not supported in
either legal or ethical guidelines. If your care provider performs surgery
in spite of your refusal, you are within your legal right to file criminal
assault and battery charges and, if you or your baby suffer an injury, you
may also sue for negligence.
Q: What if I challenge my care provider and he or she
decides to drop me from care?
A: Professional ethical guidelines state that a physician
may only drop you from his care after giving you 30 days notice. This means
that if you are within 30 days of your likely delivery date, your care
provider cannot terminate your care. In addition, if you are pregnant and
are outside of that 30 day time frame, your provider must give you a
referral and ensure you are transferred to a specific provider.
Physicians who fail to meet these guidelines may be charged with patient
abandonment, which is grounds for malpractice and constitutes a violation of
ethical conduct that could result in loss of licensure.
Q: What if my care provider or hospital seeks a court order
to perform a cesarean?
A: While there is always the possibility that the local
court could grant an order forcing you to undergo a cesarean, these cases
have become very rare in the aftermath of several court rulings declaring
that such orders violate the rights of pregnant women. As a result of these
rulings, both the AMA and ACOG have revised their ethical guidelines to
state that court-ordered cesareans are rarely, if ever, justified, and are
most definitely not justified in instances where the proposed treatment
poses any risks to the mother.
Q: I want to give birth in a hospital, but I am afraid that
this is too much stress on my pregnancy and my family.
A: Unfortunately, the options for women whose hospitals have
attempted to ban VBAC are limited. Your choices are to fight and assert your
legal rights, submit to surgery, or opt for homebirth, either unassisted or
attended by a midwife. Educate yourself about the benefits and risks of each
option, and make the decision that is best for you and your baby. Call your
local ICAN chapter (www.ican-online.org) for more information on your
options and on the resources available to facilitate your decision. |
