It is about 11 p.m., a time when I am normally in bed, if not asleep. However, tonight, I am driving home from a Red Sox game when my cell phone rings. The call is from the attorney on-call for the hospital, who apologizes for the disturbance, but is relieved I answer the phone. As with any patient-related call, I listen to the facts needed for an ethical analysis, primarily, and a legal analysis, only if necessary—i.e., to implement the ethical “conclusion.”[1] My experience is that the first recitation of “facts” is only the beginning of the conversation. What I hear initially boils down to the following:

“A woman experiencing protracted labor is refusing a Cesarean section based on religious grounds that are unfamiliar to the medical team, putting her life and the life of the baby in jeopardy. Her husband is in agreement with her decision. If the woman continues to refuse a Cesarean section, and the team doesn’t take some action, such as forcibly performing the procedure in the next few hours, it is very likely that both will die. The woman appears to have decision-making capacity. What are our options?”

Based on the partial information I have, I ask, “Are the clinicians asking if they can cut into a competent patient against her wishes? If so, then the answer is, ‘No.’” I take a moment to attune myself to how language will frame the issue (e.g., “baby” rather than “fetus,” and “surgery” rather than “cutting”), and continue asking questions (with neutral language, or so I hope) to try to get a more complete picture.[2] I’m not sure that what I learn changes the ethical analysis, but it certainly makes it harder to be so definitive.

The most important information I learn relates to the patient’s apparent capacity to make medical decisions for herself. The clinical team is concerned that the husband may be unduly influencing the patient to refuse the Caesarean section, based on two facts. First, the patient’s husband is significantly older than she is, raising questions about an imbalance of power in the relationship and the possibility of coercion. Second, the clinicians cannot assess the patient’s stated preferences without the husband present because he stays by her side at all times. This is a concern we must take seriously. If a patient is not making a decision of her own free will, then one could argue we do not have a fully voluntary consent (or, in this case, refusal). We must carefully investigate and respect, to the greatest extent possible, any cultural norms that are different than our own.

At this point, I want to learn more about the impression that there may be some sort of coercion (implicit or explicit). The attorney on-call and I agree that the clinicians should try to find a way to have a conversation with the patient alone—in person or by phone—without being insensitive to cultural norms that might make this attempt difficult.

The next piece of information that impacts my perspective on this case is the description of moral distress the clinicians are feeling. First, I think it is fair to say that labor and delivery staff usually think of themselves as caring for two patients: the woman and the unborn baby. Right now, they are trying to care for and deliver an apparently healthy baby who may not get a chance at life and an otherwise healthy woman, who will almost certainly die if the fetus dies. Seeing any patient die is traumatic for the care team. Seeing two patients die unnecessarily is worse, perhaps especially when one is an almost-born baby and the clinical team’s impression is that both deaths are avoidable. The clinical team is not denying that there are risks associated with a Caesarean section, but they view the risks associated with the surgery as minimal compared to the almost certain death of two patients without it. The hospital has an obligation to address its clinicians’ moral distress, but how do we do that when faced with either a lack of moral agreement, as in this case (currently), or a clinically and ethically based preference among staff for an intervention that conflicts with the patient’s clearly expressed wishes?

I suggest that there is a possible option of paging the emergency judge on-call to decide the patient’s competence to refuse treatment and/or order a Caesarean section against the competent patient’s objection.[3] At this point, the attorney on-call has an incoming call from the clinical team. She thanks me for my guidance, though I’m not sure I provided any, and takes the other call. I do not hear from her again that night. The next day, I learn that the clinical team – specifically, the patient’s obstetrician who had a stronger relationship with the patient – spoke with the patient alone by phone. The obstetrician felt comfortable that the patient was making her own decision and was not being unduly influenced by her husband. The obstetrician did not, however, leave it at that. Rather, she tried to explain the severity of the consequences in different ways to make sure the patient fully understood the risks and benefits of her decision, including the almost certain death of her fetus and likely herself. After allowing some time for the information to be processed, the obstetrician also had a follow-up conversation with both the patient and her husband. Ultimately, the patient and her husband agreed to the Caesarean, which went well. I breathe a sigh of relief.

I also learn that our hospital’s outside legal counsel advised that the on-call attorney could have called an emergency judge, if the patient continued to refuse the Caesarean section, even if we thought she had capacity to make that decision. I would only consider making such a call if there was at least some legal support for the position that the hospital would be proposing—that is, overriding the patient’s decision to force a Caesarean section in order to save the life of the patient and fetus. A few days after this case, outside counsel to the hospital provided two court decisions that arguably support this position,[4] although neither deal with this precise question.[5] Based on my review of these cases, I am not sure how a court would rule if presented with the facts of our particular case.

Further research,[6] ethical analysis, and deliberation lead me to believe that forcing a Caesarean section, against this competent patient’s objection would not have been ethically justified. Accordingly, I would not support seeking judicial intervention to order a Caesarean section, over any competent patient’s objection assuming facts similar to those seen in this case.[7] Although I feel confident in this position, it would be difficult explaining it to the clinical staff, who would have to witness the nearly certain demise of the patient and her full-term fetus. I want to ensure our hospital’s clinical staff is supported in times of difficult ethical dilemmas. If faced with a case like this again, whether called upon as counsel to the hospital or as a clinical ethics consultant, I would try to explain the situation from a different perspective, likely with some analogies, to help the staff better understand the primary ethical objections to a forced Caesarean section. For example, if we can all agree that a competent non-pregnant patient has the moral standing (as well as common law and Constitutional right) to refuse treatment, even life-saving treatment, do you think pregnant patients should have different moral rights, or different rights under common law and the Constitution? Are pregnant women not entitled to the same full rights as others? Should they be considered to have less than equal moral standing or rights under the law? Another line of reasoning could be to imagine any instance where the law would force medical treatment on a mother—competent or incompetent—solely to benefit her (already born) child? Would we propose forcing a mother to have a kidney removed to save her child? If not, why would we force medical treatment, and extreme medical treatment at that (literally cutting someone open), for an unborn fetus? Is an unborn fetus entitled to greater moral standing than a born child, or the pregnant mother for that matter?

I am thankful our hospital’s skilled team was able to explain the gravity of the situation in a way that the patient could fully understand and that the patient ultimately decided to allow the Caesarean with her husband’s full support.
 

David N. Sontag, JD, MBE is lecturer on medicine Harvard Medical School. He can be reached at dnsontag (at) bidmc.harvard.edu.

 


[1] As Horace said long ago, "Leges sine moribus vanae," or "Laws without morals are empty (or useless)."

[2] It is important to note my role in this case. I am, in effect, acting as a consultant to the attorney on-call, who is technically being asked to opine on legal issues. An ethics consultant has already been called and is getting involved in the case as we speak. The attorney on-call will end up having a few more conversations with the clinicians and the ethics consultant simultaneously. She will also call outside legal counsel for independent advice.

[3] I am unsure what we would ask a judge to order. Is this an action in equity? How would the judge, who may not be experienced in cases like this one, gather enough facts to make a decision? Although emergency orders are supposed to be based on in-person hearings whenever possible, in my experience as an on-call attorney, the hearings typically occur by phone. Would that be sufficient due process in this case? Would there be enough time to get everyone together in one place to have an in-person hearing?

[4] Norwood Hospital v. Munoz, 409 Mass. 116 (1991) and Commonwealth v. Pugh, 462 Mass. 482 (2012).

[5] Interestingly, outside counsel also provided an Opinion from the American College of Obstetricians and Gynecologists Committee on Ethics entitled, “Refusal of Medically Recommended Treatment During Pregnancy” (Opinion No. 664, June 2016), which deals with this precise question, and it supports honoring the competent patient’s choice, even when it may result in the death of the fetus and/or the death of the patient.

[6] See, e.g., Deshpande NA, Oxford CM. Management of Pregnant Patients Who Refuse Medically Indicated Cesarean Delivery. Reviews in Obstetrics and Gynecology. 2012;5(3-4):e144-e150; Diaz-Tello F. Invisible Wounds: Obstetric Violence in the United States. Reproductive Health Matters. May 2016:56-64; Brief of National Advocates for Pregnant Women et al. as Amici Curiae in Support of Plaintiff Rinat Dray, Dray v. Staten Island Univ. Hosp., No. 500510 (N.Y. App. Div. 2014); Brief of the New York City Bar Association as Amicus Curiae in Support of Plaintiff-Appellant-Respondent, Dray v. Staten Island Univ. Hosp., No. 500510 (N.Y. App. Div. 2014).

[7] Note that if I were confident that legal action seeking to force treatment would not succeed, then I would consider pursuing such action solely in order to show support for the clinical team (recognizing, of course, the significant negative impact such course would have on the patient relationship – both with this patient and potential future patients). However, because I think legal action seeking to force treatment could possibly succeed, I could not support pursuing legal action seeking to force treatment in a case like this one.

 

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