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Just one of those inconsistencies
Condemnation is a typical response to mothers who ingest opioids while pregnant. But these women are at risk of receiving much more than a scolding: they may lose their state benefits, their children, and their liberty. Mandatory reporting laws in many states turn health care providers into informants who connect the dots between health care, child welfare authorities, and law enforcement. Reporting of drug-using pregnant people is heavily racialized.
These same health care providers and institutions, however, are content to fix up their laboring patients with epidurals that contain opioids. Epidurals certainly make patients quieter, as the provider in Frame 2 suggests; they are also increasingly demanded by patients who are not permitted to move around during labor, whose contractions have been artificially strengthened with Pitocin, or who are experiencing long labors as a result of physiologic responses to the hospital environment.
Note: No one is suggesting that women in labor should not receive epidurals, only that patients should not be tricked or coerced into epidurals for providers’ benefit, and that patients should have true informed consent with explanations of both benefits AND risks.
Emerging evidence suggests that people exposed to opioids in utero are more likely to develop opioid addictions later in life. We hope that this recognition does not trigger greater retaliation against opioid users who face the sanctions shown in Frame 1, but instead explores all the factors that shape a system that leads to opioid use of any kind by any birthing person.
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 2011.
Lynn M. Paltrow, “Roe v Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration,” American Journal of Public Health 103, no. 1 (2013): 17–21.
Khiara M. Bridges, The Poverty of Privacy Rights, 1 edition (Stanford, California: Stanford Law Books, 2017).
Kajsa Brimdyr and Karin Cadwell, “A Plausible Causal Relationship between the Increased Use of Fentanyl as an Obstetric Analgesic and the Current Opioid Epidemic in the US,” Medical Hypotheses 119 (October 1, 2018): 54–57, https://doi.org/10.1016/j.mehy.2018.07.027.
All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.
Frame 1: The pregnant woman is by creativeitchalways. She was originally holding an orange drink; it was replaced by an orange water bottle created by alistairjtp. This image is in the public domain. The doctor’s office background is by annekarakash. The pointing hand is by Tumisu; the white sleeve was added later. The police officer’s hand is by Andrew Griffith; it is isolated from a much larger image of a police officer standing with his arms crossed. The handcuffs are from Needpix.com.
Frame 2: The laboring woman is from Max Pixel. The doctor’s office background is by Omar Bárcena; the image shown is a much smaller piece of the original photo. The downplaying hand is by truthseeker08; the white sleeve was added later.
At what point do we worry that the sky is falling? At what point is the sky falling? The fear and the actuality can be connected with a line as thin as an EFM trace.
Continuous electronic fetal monitoring (EFM) was introduced to American maternity care in 1970 with the untested promise that it would reduce the incidence of cerebral palsy (CP) by half. CP is a collection of conditions said to be caused by fetal oxygen deprivation during labor and birth. For over 30 years, the scientific community has recognized that EFM has failed to deliver on its promise. Worse than that failure, however, is EFM’s track record of causing an increase in medical interventions, most notably cesarean surgery, which in turn is responsible for increased morbidity and mortality.
Yet EFM is still used in most U.S. births. Furthermore, EFM is so entrenched in hospital practice that true informed consent for its use is rarely given; indeed, patients find themselves almost completely unable to refuse continuous monitoring. How did we get to this place where the standard of care is endangering good care?
EFM was put into use six years before the passage of the Medical Device Amendments Act of 1976 that authorized the Food and Drug Administration to begin regulating medical devices.
EFM use was institutionalized with minimal oversight. The lack of regulation allowed EFM manufacturers to grow to an over $2 billion industry.
EFM enables nursing staff to track multiple patients from a central bank of monitors, thereby cutting down on staffing that would be required to monitor patients in person. The electronic feed can also be shared with offsite physicians, allowing them to maintain a private practice and carry out other obligations while still caring for their hospital patients.
Staff attention is divided between multiple patients. Patients therefore receive less hands-on attention, allowing abnormalities that may not trigger an abnormal EFM trace to be missed or ignored by providers. Physician interactions with their patients become even more sporadic, sometimes absent until the baby is crowning.
Providers view EFM not as an individual procedure with attendant risks and benefits, but as a part of the standard Labor and Delivery package, for which the patient has signed a blanket consent form upon admission.
Patients are not given an opportunity to receive informed consent about EFM use. Since they don’t explicitly consent to EFM, there is no formal opportunity to refuse it. When patients do try to refuse EFM, providers feel tremendous institutional pressure to insist on its use.
It was anticipated that EFM would protect practitioners and institutions from medical malpractice liability. The presence of a physical strip (or, nowadays, an electronic file) containing a record of the entire labor, would surely show where physicians acted appropriately. Plaintiff’s attorneys could likewise rely on the strip to show where defendants acted negligently. Unfortunately, the interpretation of EFM signals is notoriously unreliable and variable.
In medmal cases, the EFM strip is now used by both Plaintiff and Defense, with the result that failing to produce a strip in one’s defense is taken as an admission of negligence. Hospital Risk Management departments insist on the use of EFM for potential use in litigation.
EFM’s 99% false positive rate remains unacknowledged in courts of law, where dueling experts defend their variable interpretations of the strip.
EFM was a new technology that promised to help transcend the barrier of the maternal body, allowing physicians to see more closely what was happening within.
Physicians have come to depend on EFM, not only because of the predictable technological imperative, but also because hand skills, such as abdominal palpation, are no longer taught.
The American College of Obstetricians and Gynecologists (ACOG), in its latest practice bulletin on fetal monitoring (#106, 2009), acknowledges all the shortcomings of continuous EFM, including its greater than 99% false positive rate for predicting cerebral palsy and its association with increased instrumental deliveries (forceps and cesarean surgery). Nevertheless, its practice bulletin concludes, “Given that the available data do not show a clear benefit for the use of EFM over intermittent auscultation, either option is acceptable in a patient without complications.” In its latest Committee Opinion (#766, 2019) on “Approaches to Limit Intervention During Labor and Birth” (Committee Opinion #766, 2019), ACOG does not actively recommend replacing EFM, but instead suggests providers consider making arrangements for a hand-held Doppler “for low-risk women who desire such monitoring during labor.”
ACOG’s practice bulletins are subtitled “Clinical Management Guidelines for Obstetrician-Gynecologists.” During litigation, expert witnesses may, depending on specific state law, introduce these guidelines as evidence of standard of care. Because PB 106’s conclusion approves the use of EFM and neglects to note that intermittent auscultation shows a clear benefit over EFM, ACOG’s stance shores up the legal position of EFM use.
The alternate recommendations in CO 766 would be more effective if they were issued in a bulletin that formally replaced PB 106. Since this is not the case, the PB 106 guidelines still stand.
The factors listed above have contributed to the current EFM impasse: everyone is aware of EFM’s essential defects, but all parties seem united in an emperor-new-clothes fiction that EFM is keeping birthing people and their babies safe. However, as mainstream maternity care begins to focus on reducing non-medically-indicated cesarean surgery in order to rein in the shocking U.S. rate of poor outcomes, most particularly maternal mortality, perhaps EFM will be recognized for its causative role in this situation. We can hope and advocate for appropriate steps that will overcome the barriers to replacing EFM with something more evidence-based, effective, and safe.
This cartoon and post are dedicated to Susan Jenkins, Esq., who created the formulation of risk explained in the final frame, and to Thomas Sartwelle, Esq., who has written extensively on the subject of EFM and was kind enough to share his wisdom at the Birth Rights Bar Association 2019 conference.
Lent, Margaret. “The Medical and Legal Risks of the Electronic Fetal Monitor.” Stanford Law Review 51 (1999): 33.
Nelson, Karin B., Thomas P. Sartwelle, and Dwight J. Rouse. “Electronic Fetal Monitoring, Cerebral Palsy, and Caesarean Section: Assumptions versus Evidence.” BMJ 355 (December 1, 2016): i6405. https://doi.org/10.1136/bmj.i6405.
———. “Electronic Fetal Monitoring: A Defense Lawyer’s View.” Reviews in Obstetrics and Gynecology 5, no. 3–4 (2012): e121–25.
Sartwelle, Thomas P., James C. Johnston, and Berna Arda. “A Half Century of Electronic Fetal Monitoring and Bioethics: Silence Speaks Louder than Words.” Maternal Health, Neonatology and Perinatology 3, no. 1 (December 2017). https://doi.org/10.1186/s40748-017-0060-2.
———. “The Ethics of Teaching Physicians Electronic Fetal Monitoring: And Now for the Rest of the Story.” The Surgery Journal 03, no. 1 (January 2017): e42–47. https://doi.org/10.1055/s-0037-1599229.
Sartwelle, Thomas P., James C. Johnston, Berna Arda, and Mehila Zebenigus. “Cerebral Palsy, Cesarean Sections, and Electronic Fetal Monitoring: All the Light We Cannot See.” Clinical Ethics, May 24, 2019, 147775091985105. https://doi.org/10.1177/1477750919851055.
Social networks are abuzz this week following the publication of the article, “Safe Prevention of the Primary Cesarean Delivery,” developed by ACOG (the American College of Obstetricians and Gynecologists) and the Society for Maternal-Fetal Medicine. The gist of the article is that the U.S. c-section rate, hovering somewhere around 25% of first-time births (and 33% of all births), is too high and measures should be taken to lower it. I couldn’t agree more.
However, before I fall all over myself congratulating ACOG for its perspicacity, I’d like to call attention to a few truths it has omitted. Commence strategic changes of headgear now!
Late to the party
Members of the overlapping midwifery, physiologic birth, and maternity care reform communities have been warning of the dangers of the rising c-section rate for decades. Because of c-sections’ greater risk of injury to both mother and baby as well as the consequent restrictions on mothers’ fertility, many advocates have emphatically sounded this warning for a long time. I think it’s fair to say that gladness reigns in these communities that ACOG has finally gotten the memo, but many of us would have been happier to see ACOG acknowledge its long delay in coming to these conclusions.
In fact, it would have been reasonable for ACOG to concede that perhaps these communities might be correct in some other stances as well:
MIdwives are widely acknowledged to be experts in lowering c-section rates, but the word “midwife” appears nowhere in the article. Doulas are mentioned in the context of the benefits of “the presence of continuous one-on-one support during labor and delivery.” However, overlooked is the reason why doulas are necessary: hospitals fail to provide continuous one-on-one support for their pregnant patients. Everyone is familiar with the obstetrician who swoops in at the last moment to catch the baby, but many new parents are not aware that labor and delivery nurses will for the most part be monitoring multiple patients’ fetal monitoring traces from a computer in another room. If ACOG is serious about lowering the c-section rate, it needs to get behind a model of care that can accomplish this. Rather than making patients responsible for providing their own support personnel at added cost, hospitals should step up by establishing and increasing midwifery services and empowering midwives to practice autonomously. As a bonus, hospitals could incorporate doula services.
Out-of-hospital midwives, particularly when they are direct-entry midwives rather than nurse-midwives, have long faced hostility from ACOG. It’s time for ACOG to recognize that families plan out-of-hospital births for many reasons, and that no amount of censure by obstetricians will change that. If ACOG is serious about lowering the c-section rate and improving the U.S.’s abysmal maternity and infant mortality rate, it should be falling over itself to learn from these midwives who are experts in protecting physiologic birth. It would also be a show of good faith if ACOG recommended protocols for hospital for receiving appropriate home birth transfers, as home birth is made safer if smooth transfers are a given. Finally, ACOG might consider throwing its political might behind state legislative measures to license direct-entry midwives and to permit nurse-midwives to practice autonomously to their full scope of practice.
While the article addressed limits on interventions such as inductions that are known to increase the number of c-sections, it left out others of the other widely acknowledged healthy birth practices, including encouraging patients in labor to move around and to avoid giving birth on their backs, and to refuse unnecessary interventions shown to increase c-sections, such as continuous electronic fetal monitoring.
Overall, I would remind ACOG that its members are experts in performing c-sections – and thank goodness, because this surgery can be life-saving. But to reduce the number of c-sections, ACOG would do well to look elsewhere for guidance.
Causation, correlation, and stigma
It’s not only Weight Watchers, the First Lady, supermarket tabloids, and everyone’s family members who shame people for their size; medicine jumped on this bandwagon a long time ago. It is rare for a research study examining some aspect of pregnancy or childbirth to avoid blaming fat women for increased risk. The ACOG article doesn’t disappoint:
A large proportion of women in the United States gain more weight during pregnancy than is recommended by the Institute of Medicine (IOM). Observational evidence suggests that women who gain more weight than recommended by the IOM guidelines have an increased risk of cesarean delivery and other adverse outcomes. In a recent Committee Opinion, the College recommends that it is “important to discuss appropriate weight gain, diet, and exercise at the initial visit and periodically throughout the pregnancy.” Although pregnancy weight-management interventions continue to be developed and have yet to translate into reduced rates of cesarean delivery or morbidity, the available observational data support that women should be counseled about the IOM maternal weight guidelines in an attempt to avoid excessive weight gain. (Citations removed)
While to the uninitiated this paragraph might seem eminently sensible, I invite you to consider the following thoughts:
The correlational evidence between weight gain and increase in c-sections is somewhat less than solid, by ACOG’s own admission. Even if the correlation were solid, it doesn’t mean that managing weight gain would resolve the problem – after all, the weight gain and adverse outcomes might both be caused by some third factor. Finally, even if causation were shown, there are vast amounts of evidence to show that in general, trying to control weight through restrictive eating and increased exercise is a losing game. In pregnancy, restricting intake may well have harmful effects on the child. One of the best sources for information on these matters is Pamela Vireday’s website, The Well-Rounded Mama.
Finally, because poor nutrition and too much or too little exercise can be bad for people of all shapes and sizes, it would be more reasonable – and easier! – for practitioners to recommend good nutrition and appropriate exercise to all their patients rather than to target fat patients with weight control advice. This approach is in fact a feature of midwifery-led care and of the Health at Every Size philosophy.
However inured we have become to messages positioning fat as the the next Great Terror, I suggests we think critically about fairness, practicality, and evidence when making recommendations about what size or shape pregnant people should be.
Let’s blame all the lawyers
Physician anxiety over potential medical malpractice liability is a frequent topic when practice reforms are under discussion, particularly in the high-stake field of obstetrics. The typical solution proposed is tort reform – specifically, legislature-imposed caps on damage awards to injured parties. ACOG falls right into step:
A necessary component of culture change will be tort reform because the practice environment is extremely vulnerable to external medico-legal pressures. Studies have demonstrated associations between cesarean delivery rates and malpractice premiums and state-level tort regulations, such as caps on damages. A broad range of evidence-based approaches will be necessary––including changes in individual clinician practice patterns, development of clinical management guidelines from a broad range of organizations, implementation of systemic approaches at the organizational level and regional level, and tort reform––to ensure that unnecessary cesarean deliveries are reduced. (Citations removed and emphasis added)
Caps on damages, currently in place in a majority of states, can certainly lower the costs negligent physicians pay in damage awards and thus lower anxiety about liability, which in turn may lead to fewer c-sections. However, this strategy is akin to alleviating a family’s anxiety about its grocery bills by having it cut out breakfast and dinner each day: it solves one problem while creating a much more serious one.
The civil justice (“tort”) system enables individuals to obtain redress for civil wrongs without deploying government to do so; once a state government has established the necessary courts and basic rules of the game, private entities move the action along. Accordingly, the civil justice system is one of the few arenas in which individuals have the power to challenge negligent behavior of large, influential entities. In the realm of medical malpractice litigation, this capacity is further facilitated by the contingency fee arrangement that allows litigants to engage an attorney without paying a retainer fee. Attorneys front the costs of cases and receive payment only if the case is successful.
To limit the amount of damages awarded by juries is to undercut the redress that injured individuals can receive. If medicine wishes to avoid malpractice liability, numerous solutions are available:
Refrain from committing malpractice!
Eliminate the need for compensation. If families with babies injured at birth could be sure that the care required for the rest of the children’s lives would be available and accessible to them, one economic motivation for bringing suit would be removed. The considerable power of the medical lobby should be brought to bear on strengthening and broadening collective systems that compensate victims of illness, injury, and disability, such as Medicare and Social Security.
An approach pioneered by the University of Michigan demonstrates that liability after adverse events can be reduced when medical institutions provide 1. open communication and record sharing with patients, 2. early offers to settle when the institution is at fault and corresponding refusal to settle when not at fault, and 3. (if the institution is at fault) systemic changes, so the error is not repeated.
The three points above have been made before, and by wiser heads than mine. Rarely discussed, however, is the relative powerlessness of mothers to use the tort system to discourage non-medically-indicated c-sections. As the c-section has grown to an ever-greater proportion of American births, its potential harms have been increasingly played down, particularly those harms that are not apparent until subsequent pregnancies. As a result, projected damage awards are insufficient to induce plaintiffs’ attorneys to mount such cases and tort law thus fails to fulfill one of its functions of a feedback system to deter unsafe medical practices.
In “Distorted and Diminished Tort Claims for Women,” Jamie Abrams contends that tort law has come to privilege the claims of injured babies over those of their mothers in a way that “diminish[es] the birthing woman as a patient and a putative plaintiff.” She connects this primacy of the fetus as patient and plaintiff with the decline of the mother’s role as decision-maker for herself and the fetus. Among her recommendations to reverse this trend, Abrams suggests that “more pursuits of maternal harms claims are necessary. Even if the ultimate damage verdicts are nominal, the pursuit of damages will push courts to consider more carefully the harms to mothers and perhaps influence the standard of care.” If such actions could normalize for attorneys, judges, and juries the idea that unwanted and non-medically-indicated c-sections constitute harm to pregnant patients, just as the ACOG article finally admits, this might re-establish a remedy for patients who have suffered these harms. Furthermore, the tort system’s feedback function would then re-emerge to provide a counterweight to physicians’ traditional concerns that not performing c-sections exposes them to liability.
* * * * *
In summary, I congratulate ACOG on joining the party, however late, and urge it to mingle with all the guests, giving credit where credit is due. If ACOG can acknowledge the knowledge and experience of pregnant people, midwives, and yes, even lawyers, we might all join together to reverse the mounting c-section trend and make a safer world for parents and babies – and a less anxious one for physicians as well.