The gentlebirth.org website is provided courtesy of
Ronnie Falcao, LM MS, a homebirth midwife in Mountain View, CA

Lawsuits and Complaints

I promised myself I wouldn't get into this EFM/csection discussion... but I weakened. So - what to do about unnecessary sections?: of course the lawyers won't take malpractice cases without significant "damages" - the money is in the damages. The law in my state (Texas) is that malpractice is a negligent action (defined as not meeting the standard of care, which is defined as what a reasonable and prudent physician would do) that causes damages. So we have two problems - first, what if the standard of care is wrong? Juries shouldn't decided that a new standard should be adopted, although they have done so when damages are obvious and emotional. Second, what if the damages are not obvious. Unnecessary c-section fits into both problems, as do unnecessary episiotomy and interference with establishment of breastfeeding.

I think it's clear that the malpractice litigation arena is not the place to fix these three (and other) clinical problems in modern maternity care. So, is there any other place in the legal system? --- As you mentioned, there are informed consent suits, but these also need to have demonstrable damages. Another option is battery - unconsented touching - and this has been used to sue a hospital for feeding an infant formula when parents explicitly refused it, but battery is not usually covered under medical malpractice insurance policies, and again since it's hard to get a lot of money from these cases, lawyers don't want them (they would have to collect the doctor's personal assets...)

Last idea is loss of consortium - so far not successful, but an interesting legal theory.

So - where else besides the courts? It's not perfect, but patients can complain to the state board of medical examiners. What if all the state boards suddenly got hundreds of complaints from women and their families about their maternity care? Well, right now the director of the federation of state medical boards would not likely think it is a problem with doctors ( I know the guy...), but some individual states might want to talk to state ob/gyn associations about it. Who knows?

Where else? Well, who appoints the state boards? Usually the governor. etc., back to who makes public policy Also, families can complain to hospital administrators and medical staff officers. The more complaints, the more seriously they are taken. Last place - in the pocketbook. Have patients start talking to insurance companies about the cost - and talk to legislatures about the costs under Medicaid..

All these are fairly untenable, and lead me to believe that midwifery must endure, so that women have a choice other than ob/gyns.... but I would like to see some of these tried.