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Ronnie Falcao, LM MS, a homebirth midwife in Mountain View, CA

About Lawsuit for Unnecessary Cesarean

Case Dismissed - Hopes for Appeal

Our case was summarily dismissed by the trial court because we did not produce an expert witness to rebut their expert (who, without ever seeing the FHM tracing, swore that the midwife's quick action was responsible for saving our child's life and safeguarding Rivka's well being.) Our case is now in the never never land of the appeal process. We have a realistic chance of winning the appeal which would in itself be a substantial victory even if we do not win the subsequent trial pr any money damages.

The name of our lawsuit is: KFIA v. Midwifery Services, Inc. and CNM Jeanne Kobritz.

We are suing the midwife and our midwifery service for breach of contract, the infliction of emotional distress, negligence and malpractice. The midwife inexplicably subjected Rivka to systematic psychological and physical abuse e.g., the midwife absolutely refused to let Rivka wear her own nightgown, immediately hooked up a FHM and inserted an IV over our objections. The midwife physically held Rivka down to administer a soap suds enema despite the fact that it had been agreed that NONE of these procedures were to be used. The midwife refused to explain her actions and went to sleep. When Rivka asked about pain medication options the midwife responded by performing a further "exam" during which she penetrated Rivka's cervix and ruptured the membrane with her fingers --no warning, no explanation. This triggered a drop in the FHM reading which began recovering even before Rivka was turned on her side. A doctor came in, reviewed the tracing, waited until the FHR was over 100, said everything was ok and left the room. At Rivka's request, I then chastised the midwife for breaking our agreements, physically abusing Rivka and repeatedly ignoring Rivka's request to discuss pain medication options. The midwife replied, "I can't be worried about her, I have to save the baby." and left the room. Bear in mind that the doctor had left the room only a minute or two before the midwife’s statement and that the FHM was now over 120 and still climbing. I followed the midwife into the hall demanding an explanation but the midwife just walked away from me. Rivka, who heard the remark, called me back to her side in a panic. The midwife returned to the room a minute later and, ignoring us completely, went to the other side of the bed, reached over and roughly flipped Rivka onto her back. Then the doctor came into the room carrying a razor blade and without conducting any examination or asking any questions, immediately began shaving Rivka; at the same time, someone else presented Rivka with a consent form. That's when and how we learned that Rivka was being prepped for an emergency cesarean. Am "informed" consent for to general anesthesia was presented for her signature as she was being wheeled down the hall. Less than five minutes after the Midwife had left the room Rivka was in the O/R. Our child was surgically delivered with an Apgar of 9/10.

It took us over a year to find out that after the midwife left the room she went to the nurses station and told them that our child was suffering from prolonged unrecoverable fetal bradycardia and, for good measure, that Rivka and I were aware of the "urgent" need for surgical intervention. Both statements were base fabrications but they left the surgeon with little choice but to operate immediately. The ONLY evidence of any problem are the Midwives progress notes purporting to diagnose fetal distress based on her observation of serious "variable decelerations" on the tracing. The problem is, the FHM does not support her observations. To be sure the FHM does dip here and there but never for more than a few seconds before coming back up. It dipped whenever Rivka got up to go to the bathroom after the enema, when the midwife ruptured the membrane and when Rivka sat up in reaction to the midwife's statement that she had to save our baby and, dramatically, when the midwife came back into the room and flipped Rivka over like a pancake on a griddle and while Rivka was being prepped in a prone position. I would stress that at no time did the reading remain below eighty for more a few seconds before recovering. More importantly, the FHM tracing clearly shows that there was absolutely no evidence of variable decelerations nor any episode of fetal bradycardia, much less one which persisted "without recovery despite O2 and maternal position changes." What the tracing shows is that the FHM continued rising from the time the doctor left the room and was still rising when the Midwife left the room and filed her false report at the nurses station. Interestingly, the original fetal strip has disappeared and the microfiche copy was mysteriously truncated to end before the reported indication of a problem. Fortunately, we obtained a complete tracing from computer memory.

Don't ask us to explain why the midwife did what she did. Maybe she figured that Rivka deserved a cesarean for asking about pain medication. Maybe she believes that pain medication is so damaging to the infant that she truly was "saving" our baby by lying to the doctor. Maybe she just didn't like us and maybe she just likes to be in total control, to let people know who's boss. Maybe she enjoys practicing a little sadism now and then. All we can say with certainty is that this midwife most definitely and deliberately abused Rivka and that she has similarly abused other women, right down to her irrational refusal to allow women to wear their own nightgowns and the "rotor-rooter" rupturing of the membrane with her fingers. So far we know six couples who have had negative experiences with this same midwife. We have heard mostly good things about the other midwives in the service and, indeed, one of the reasons we waited so long to sue was because of Rivka's relationship with these other midwives..

That's why we are suing. That's why the FHM strip is so important...and so frustrating because a less than perfect tracing can always be used to justify the performance of a cesarean section -even when it never dips very low nor for very long and the baby is born with an Apgar of 9/10.

For your general information, this was our first child, Rivka was then 23 years old, in good health, our child scored 12 out of 12 in a stress test performed just three days prior to the due date, labor started right on time. Rivka was admitted in early active labor and was progressing normally right up until we woke the midwife to perform a scheduled exam. Twenty minutes later and less than four hours after being admitted, Rivka was in the operating room.

We are still looking for an affordable expert witness; preferably someone who recognises the rightness of our lawsuit.

To all of the CNM's who have privately sent their best wishes, we say thank you. To those CNMs who have greeted out lawsuit with understandably mixed reactions and concern we apologise for putting you on the defensive. Our lawsuit has less to do with midwifery practices than it does with the general standard of treatment afforded women in labor. What we believe our midwife did to us would not have been possible were it not for a total disregard for Rivka's autonomy, an arrogant lack of respect for her personal integrity and intelligence and a completely cavalier attitude towards the use of cesareans. And those attitudes, endemic in the OB/GYN communities, would not exist were it not for the ubiquitous acceptance of stereotypes which conflate and equate a woman's well being and the success of her child bearing experience with the health of her new born child. Ultimately, it is these attitudes which are the real target of our lawsuit, not just a particular CNM, nor the OB/GYN community, and certainly not midwifery.

Barry and Rivka Kfia
kfia@erols.com