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Massage Today
September, 2009, Vol. 9, Issue 09

Informed Consent

By Elaine Stillerman, LMT

I always felt that the case of Meador v Stahler and Gheridian would have made a terrific case for the award-winning television show "Boston Legal." I could just picture Alan Shore (brilliantly portrayed by James Spader) eloquently and passionately representing his client while educating the rest of us about our legal rights as patients.

Not familiar with this case? Let me explain. In 2005, a Massachusetts woman, Mary Meador, sued and won a $1.5 million award against her obstetricians for performing a C-section she made clear she didn't want. She didn't claim that the procedure was negligently performed or that her postsurgical complications (which left her bedridden and unable to work for a number of years) were foreseeable. The merits of her claim were that the doctors had misrepresented the risks and dangers of her birth choice -- a vaginal birth after a prior C-section (VBAC) -- and that they ignored her repeated pleas and requests for a vaginal birth.

The doctors were brought up on charges that they failed to obtain Meador's informed consent, which constituted substandard, negligent medical care. The forensic psychiatrist who testified at the trial established a link between the lack of informed consent and the physical and emotional toll it took on the patient and her family by forcing her to undergo a procedure she did not want and did not medically need.

When it comes to labor and childbirth, a woman's emotional vulnerability and physical discomfort makes it difficult for her to stand up for her rights. She needs to focus on her labor and not be engaged in an argument about what she is entitled to. According to the Childbirth Connection's "Rights of Childbearing Women" brochure2 (www.childbirthconnection.org), "Every woman has a right to accept or refuse procedures, drugs, tests, and treatments and to have her choices honored." (For a free copy of this important pamphlet, send a SASE to Childbirth Connection, 281 Park Avenue South, 5th Floor, New York, NY, 10010.)

Fifteen years before the Meador case, Congress passed the Patient Self-Determination Act (PSDA) as an amendment to the Omnibus Budget Reconciliation Act of 1990. It became effective in December 1991. Basically, the PSDA requires that Medicare and Medicaid providers (hospitals, nursing homes, hospice programs, home health agencies, and HMOs) give competent adult individuals, at the time they are admitted or enrolled in the program, information about their rights under state laws governing advance directives. These rights include:

  • the right to participate in and direct their own health care decisions;
  • the right to accept or refuse medical or surgical treatment;
  • the right to prepare an advance directive; and
  • information on the provider's policies that govern these rights.

The PSDA also prohibits institutions from discriminating against a patient who does not have an advance directive or a plan of care.

All hospitals that receive federal funding (nearly 80 percent of hospitals in the United States) must conform to the Center for Medicare and Medicaid Services (CMS) Conditions of Participation (CoP) which requires that hospitals honor patient rights as expressed by the PSDA, the Consumer Bill of Rights and the EMTALA (Emergency Medical Treatment and Advanced Labor Act) law to be fully informed of the risks, benefits and alternatives of any proposed treatment and to participate in all treatment decisions. Hospitals that fail to uphold this practice run the risk of receiving stiff fines and/or losing their right to qualify for Medicare or Medicaid funding.

In New York, we have the Public Health Law, Section 2503, passed in 1978 (see my March 2006 column "The Truth About Pitocin" ), that requires all doctors and midwives to fully disclose and require informed consent from laboring women, regarding the use of all drugs during labor and delivery. The Joint Commission on Accreditation of Hospitals (JCAHO) accredits 80 to 85 percent of American hospitals, and one of their standards for accreditation is patient rights. Complaints about patient rights violations can be made to them at www.jacho.org or (630)792-5800.

In my May 2005 column "'V-Back' to the Dark Ages," I addressed the political environment surrounding VBACs and the increased medical denial of this choice, so I am not going to go into the benefits and risks of VBAC again. Instead, I want readers to know that we and our clients have choices and responsibilities when it comes to our health care. Informed consent can only be provided if the patient is truly informed, and by regularly conceding this right to our care providers, it proves how rare and improbable this practice is. The onus of education, the burden of learning the facts, options, alternatives and side effects of procedures and drugs must be the responsibility of the patient. That is the only way, regrettably, that the patient will learn all the facts. Patients don't have to be powerless about their rights.

This is neither a war against individual doctors, or hospitals and their care, nor a diatribe against the medical community at large. It is a wake-up call to those patients who have remained passive about their own health decisions for too long and who have merely accepted the choices that are made for them by others. Only when patients and their care providers can openly discuss, debate and compare options based on shared evidence-based information can we really have a partnership, a team, dedicated to a person's total health care. Alan Shore would have fought -- and won -- for these rights. We can too.

Resources

  1. Ascension Health. Patient Self-Determination Act. www.ascensionhealth.org/ethics/public/issues/patient_self.asp.
  2. Childbirth Connection. The Rights of Childbearing Women. New York, 2006.
  3. Childbirth Solutions. A Plaintiff's Verdict: Meador v. Stahler and Gheridan. www.childbirthdolutions.com/articles/birth/cesarean.
  4. Obgyn.Net. Lawsuit, Meador vs Stahler and Gheridian.
  5. Stratton B. 50 Ways to Protest a VBAC Denial. Midwifery Today, 2006;Issue 78.
  6. Stillerman E. "V-BACK" to the Dark Ages. Massage Today, May 2005.
  7. Stillerman E. The Truth About Pitocin. Massage Today, March 2006.

Click here for previous articles by Elaine Stillerman, LMT.

 

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