Why the Malatesta verdict will not improve obstetrics 23


By Georgia Ragonetti-Zebell, MD

 

Making headlines this week is the $16 million verdict against Alabama’s Brookwood hospital for false advertising and injury during childbirth. But what is not being discussed is the impact this verdict will have on maternity care.

 

The Case

 

Pregnant with her fourth child in 2012, Caroline Malatesta made the decision to switch hospitals. She noticed the advertising of Brookwood Medical Center, which claimed to have a “unique ability to deliver your personalized birth experience.” Malatesta’s previous births had been more “traditional”, with an epidural and her feet in stirrups. Her friends spoke of very positive natural birthing experiences. She was looking for something different, so she asked her doctor at St. Vincent’s Health System. He told her that she didn’t have to get an epidural, but that was it. No water birth tubs or extra childbirth support. Continuous monitoring and delivery in stirrups. The rest was “silly”.

So she switched.

The night of her delivery at her new hospital, Brookwood Medical Center, did not go as she had planned. She had created a birth plan with her doctor, but her doctor was not on call that night. When she arrived, close to delivery, the nurses insisted that Malatesta lie down on her back to be monitored. When she got on her hands and knees, which was more comfortable, the nurse tried to move her to her back. This resulted in a struggle, during which Malatesta claims her baby was held in for six minutes. Once the on call doctor arrived, the baby was quickly born and was healthy.

Malatesta claims that the struggle with the nurses resulted in chronic pain, a condition called pudendal neuralgia, which has severely affected her life, including her sex life. She attempted to discuss her case with the hospital, but when her efforts were ignored, she resorted to a lawsuit.

The trial ended this week with a verdict of $16 million, $10 million for the false advertising of the hospital, $5 million for punitive damages for Caroline and $1 million for loss of consortium for her husband, JT.

Many are thrilled about this verdict, hoping that it will change the way women are treated in maternity care. I’m not so sure.

 

Three sides to every story


I have thought about this case quite a bit since I first read Caroline’s account. My initial thought was, “No way. No way a nurse held a baby in for six minutes.” She must have been “protecting the perineum”, supporting with a hand the skin beneath the vaginal opening to help prevent tearing. The hospital staff apparently did not deny that this happened, but simply said they could not recall the details of this case. Well, I can’t recall the details of the thousand or so deliveries I’ve done, but I can say with certainty that I’ve never held a baby in. It just not something I’ve ever seen or even heard of being done.

Caroline also states that the nurses tried to physically move her to her back. This also struck me as odd. I couldn’t envision nurses physically moving a woman to her back and holding her down, especially a woman without an epidural with control of her own limbs. Caroline describes the position she delivered in, with her right foot planted on the bed and her left knee being pushed into her chest. Ah. Now that I have seen. The nurses were trying to position her legs in lithotomy position, knees bent, pushed back, the typical delivery position.

I suspect Caroline’s injury is not necessarily from the length of time to delivery, but from the struggle. Babies sit in the vagina for far longer than six minutes all the time. In gynecology, we treat women with chronic pain on a regular basis, and it often stems from a traumatic event, such as sexual abuse or a difficult vaginal delivery.

The more I thought about why would the nurses do this or that and how Caroline must be mistaken, the more I decided that it didn’t matter. It doesn’t matter whether the nurse was protecting the perineum or was pushing the baby’s head back in. It doesn’t matter whether the nurses were forcing her down onto her back or were simply positioning her legs for delivery. What matters is that the nurses were touching Caroline in a way that was hurtful to her, that she asked them to stop and they didn’t. If there was some safety issue, that should have been communicated clearly, at the time, immediately after and during the trial.

That is what I can’t understand. I’m a gynecologist. It is implied by the nature of my profession that I will at some point touch a woman’s vagina. But if I start a pelvic exam, which is my job and the exact reason the patient came to see me, and she says “No…stop!”…I stop. Every time. So even though the assumption was there that Caroline agreed to the normal happenings of labor and delivery, at some point that agreement ended.

Many women have contacted Caroline with similar stories. So how did we get to this place of a “power struggle” during childbirth, where the wishes of the momma are at odds with the policies of the hospital? And why did the hospital advertise services that were not offered?

 

The power struggle

 

Caroline hits the nail on the head when she said “power struggle.” There is a power struggle happening in healthcare, and in society in general, and it is manifesting in the way some mommas are treated during their hospital stays. In the broader picture, women are told by lawmakers what they can and can’t do with their bodies. Power struggle. Women are limited financially, by way of their insurance carriers, or even state law, to certain care providers and hospitals, even though they might prefer to deliver somewhere else. Power struggle. Doctors are limited by insurance providers in what medications they can prescribe for their patients. Power struggle. Nurses and doctors are stretched thin, while hospital administration pushes to increase volume (by advertising services that aren’t offered, perhaps?). Power struggle. Nurses are working to provide compassionate care to their patients, only to be restricted by hospital policies. Power struggle. Doctors and hospitals struggle to provide evidence based care in a litigious environment, limiting appropriate interventions and overusing others. Power struggle. No wonder mommas are feeling it too.

Does all this mean that what happened to Caroline was okay? ABSOLUTELY NOT. But we need to address the roots of a problem to make it go away. I tend to give all parties the benefit of the doubt. I truly believe (because we actually sit around and talk about it) that all OBs and hospitals want their patients to have a beautiful birth experience. I believe that nurses have caring hearts and want nothing more than beautiful, healthy deliveries for their patients. And I believe that Caroline is just a momma who wants to know why she is in pain every day.

 

Why the verdict won’t change obstetrics

 

Unfortunately, this case won’t improve the problems that exist in obstetrics and healthcare in general. That is the problem with lawsuits. They may help the plaintiff feel vindicated, but often have unintended consequences. While I have no problem covering the medical costs of a complication, these large verdicts only further limit appropriate care. Sure, Brookwood might change their advertising, though from what I can see online, it seems just vague enough to apply to anything. But I fear the “winner” in this case is the St. Vincent’s OB. The one who said no. The one who said you can’t plan, your choices are limited, and this is how we do things, “silly” woman. I fear that OBs, at Brookwood and beyond, will now follow his example, because he didn’t get sued.

Every now and then, I read about a lawsuit that seems appropriate. Gross negligence, medical misconduct, lack of consent. And I absolutely support the patient’s right to sue in those cases. But most of the lawsuits I read about are simply bad outcomes despite everyone trying their best.

We have seen how lawsuits limit care. Large payouts for uterine rupture cases limit the availability of VBACs. Cases of alleged neurologic damage from deciding to do a cesarean too late have contributed to our skyrocketing section rate, and have made continuous monitoring the standard. If there is a gap in the strip, then something was must have been missed. These cases aren’t improving care; they are making it worse. It doesn’t seem to matter what is medically appropriate, but simply what is least likely to cause a lawsuit. And that goes both ways- doing whatever the patient wants, despite medical recommendations or pushing unnecessary and unwanted interventions to prevent lawsuits.

The Malatesta verdict will not give women more choices in maternity care. It will not make more doctors and nurses focus on evidence based medicine. The focus shifts to lawsuit prevention medicine. It will limit the number of doctors willing to accept a birth plan, because if the expectations in the birth plan don’t meet the reality of the delivery, you may end up writing a $16 million check. It will limit the number of hospitals trying to accommodate requests such as birthing tubs. It will not lead to more education of nurses and doctors on how to deliver sensitive, compassionate care. It will use up the already limited resources by costing the hospital millions in payout and increasing malpractice rates. And it certainly doesn’t improve the lack of respect that is rampant on all sides of healthcare.

I feel for Caroline and I absolutely understand why she chose to sue the hospital. But this is not a win. I understand that many women feel validated by the verdict, but in the broader picture, we are all still losing.

 

Georgia Ragonetti-Zebell, MD is an OB/GYN practicing in Upstate South Carolina, and is mommy to four (yes, FOUR) boys. She is a graduate of the Women’s Health Pathway at Drexel University College of Medicine in Philadelphia, Pennsylvania and completed her residency in Obstetrics and Gynecology with the Greenville Health System in Greenville, South Carolina. She has a special interest in natural childbirth, breastfeeding, and alternative methods in labor and delivery. She enjoys yoga, crochet, and reading, but spends most of her free time cleaning up poop while trying not to step on Legos.


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23 thoughts on “Why the Malatesta verdict will not improve obstetrics

  • Heather P

    I’m a certified nurse-midwife, and tend to agree with your piece. While I also believe the patient was hurt, and feels pain every day, I do not see how a large payout helps anyone else in the future. Like you said, it will make it worse because now hospitals will be strapped for cash and live under the threat that if someone doesn’t get their ideal birth, they can just sue. I also believe that for many women, they are horribly misguided on the purpose of a birth plan. Because someone wishes for something doesn’t mean it all happens. There are two people in every birth, momma and baby, and sometimes baby’s wishes and needs do not match momma’s. Women who work very hard to avoid intervention at all cost also frighten me, because I fear the power struggle if baby isn’t tolerating labor well. From my own experience as a mother, I know that anything can happen at any time, and that sometimes fate laughs at the best laid plans. For example, with my 3rd child, what started as a routine day at 35 weeks pregnant (and my husband had just left for a trip for work across the country that morning) ended up with me in a different hospital that could handle higher risk deliveries, finding out my son hadn’t grown in 4 weeks, had severe oligohydramnios, a 4/10 biophysical profile, which was later chalked up to a 40% placental infarct. I had GDMA2 on insulin, but hadn’t had a single glucose reading out of range since 27 weeks gestation. So much for the plan of delivery at 39 weeks! In the end of it all, while not what I envisioned, my son and I got the care we needed, and he is a healthy happy 5 year old today who luckily never needed the NICU and went home with me 2 days later. When it comes to birth plans these days, I make it a point to add in the “perfect world” clause, to review the plan with my patients and make sure no wishes are mutually exclusive, and press hard that if they want a med-free birth, to seek childbirth education classes that are specifically targeted to med-free patients. You nailed it with the power struggle. It comes from all directions: insurance, hospitals, providers (and the expectations placed on providers are so immense one would have to be superhuman to weather them all), and even patients themselves sometimes. But, when you add in the large sums of money…no one wins. You can’t have a big payout without funding being taken from somewhere else, and women to follow will suffer. I don’t even begin to know where the solution lies anymore.

    • MommaDocs Post author

      I’m not sure how to reconcile this discrepancy. Other people have said that too. But every nurse I’ve talked to, and in every discussion among maternity care providers, we are all very confused by this. No nurse I know has ever held in a baby. I’ve never walked in to see a nurse holding in a baby, though I have walked in to see them delivering the baby more than once. Typically in a vaginal delivery, we do hold a hand on the perineum for support, so my thought is that the nurses are doing that and saying, “Don’t push!” and women feel like the baby is held in. The amount of pressure required to truly hold in a baby is more than I think a nurse would feel comfortable using. Of course, there may be rogue nurses out there doing weird things, but know that the general consensus in the medical community is that it would be downright bizarre for a nurse to hold in a baby, especially for six minutes. As I said in the article though, that point doesn’t matter. Whatever the nurses were doing, whether it was standard or not, was hurtful to Caroline and they should have stopped when she said stop.

      • Toshia

        Why, if a baby is already crowning, would a trained nurse tell a mother whose uterus is actually pushing the baby out “don’t push”?

        • R

          Because pushing out a baby quickly can lead to more tearing, requiring stitches, etc. It’s much better for mom (and fine for baby) to come out slowly during that final moment, which is why most providers will provide a little counter-pressure and ask the woman to not actively push hard, but rather rely on the more gradual pushing her uterus is already doing. Basically extending that last push from two seconds to six or eight seconds, but nothing more than that, which is why the notion of holding the baby in for 6 minutes is so odd.

  • Kathy at Maryland Families for Safe Birth

    “The Malatesta verdict will not give women more choices in maternity care. It will not make more doctors and nurses focus on evidence based medicine… . And it certainly doesn’t improve the lack of respect that is rampant on all sides of healthcare.”

    I am exceedingly sad and frustrated to hear so many, particularly medical professionals, opine this sentiment. Bait and switch, blatent disrespect and a fundamental disregard for women’s basic human rights to informed consent and bodily autonomy happen every day everywhere in maternity care. I ask you, what will YOU, particularly medical professionals, do to change this broken system of blatent disregard. We are limited only by what we believe (!) And how hard we are willing to work for what we believe. Unfortunately money talks in our world, and after being refused dialogue, back against the wall, she felt she had no other choice. Blatent disregard. I am quite sure there are compassionate professionals feeling very caught up in this power struggle too. I ask again, what are the medical professionals gonna do to change this broken system? I surely hope not hunker down and go further into defensive medicine and all that is wrong with it. I truly hope that medical professionals who are in the midst of the broken system courageously speak up, open up, listen,trust what they hear and begin to change the poison from within. Starting with fundamental respect for the human in front of you before financial interests. Lawsuits may then disappear…
    (PS. My mother told me a similar disheartening experience about my sister’s birth, and her being held in. Please believe. These things have gone on for far too long. Just because you wouldn’t do it or you haven’t seen it doesn’t mean it ain’t so. The jury did.)

    • MommaDocs Post author

      Every patient interaction is an opportunity for me to ensure that women are receiving evidence based, compassionate care. But the biggest thing that the case made me personally do was ensure that our hospital has a way for patients to voice their concerns and to feel heard. I wondered if Caroline went back to her OB and said, “This is what happened to me.” And then I considered how I would handle the situation had I been her OB. I’m sure you know medical professionals are often exceedingly sad and frustrated at our own system, and changing it feels overwhelming. But that’s one of the things I’m doing.

    • Linda Street (An obstetrician)

      “We are limited only by what we believe” clearly you are naive to what can happen in childbirth. You can not believe away a distressed fetus. You can not believe away a seizure. There are so many poor outcomes that can happen during childbirth that can not be “believed” away. They can however be treated with modern medicine. A low risk woman doesn’t need these extra things, that is true. The problem is you don’t know the difference between a low and high risk woman until hindsight (unless you already know she’s high risk of course). There are bad eggs in every bunch (and trust me I can tell you if some bad eggs in the non medical community who attend births….) but the majority of obstetricians are working hard to respect a woman’s preferences in a way that respects childbirth, an event that can and does go from calm to chaos in seconds. Doctors counsel for intervention when indicated because we’ve been the first to hold a baby who is floppy and blue because intervention was delayed, because we’ve been the one to tell a husband that his wife is dead because she was brought to a hospital too late after a postpartum hemorrhage. We carry those things with us every day and while those things sometimes happen despite the best planning and intervention, the cases that haunt me are the ones where I know that with appropriate care there would be a child out on the playground today that is instead a memory that plagues a mother. Just 2 cents from the “dark side”. I don’t leave my own children to care for women and babies because I don’t care. I do it because I do care and want nothing more than a safe mom and a safe healthy baby.

  • Marta V

    Thank you. This is exactly how I feel about our society as a whole. We can apply this way of thinking everywhere. Just an example can be schools and churches. Everybody feer lawsuit. Before empathy and help comes thought process.

  • Krista

    I think you absolutely make good points, but the lawsuit and her verdict are about more than improving obstetrics. She alleged that she suffered an injury, she was misled by the advertising of the hospital, and the jury agreed. The way the law works, she was entitled to recover financially. I know women seem to be championing it as a step in the right direction in terms of holding these institutions accountable and forcing them to change the way they do business, but I think a lot of women are also just pleased to see a woman take the extra step of challenging the notion that we are at the mercy of nurses and doctors who always know better and are always acting in our best interest. There are often real and avoidable physical and emotional consequences for women who are mistreated during childbirth.

    I don’t think it needs to be a forgone conclusion that every lawsuit will only have the unintended consequence of making more doctors/nurses/hospitals practice defensive medicine and limit the choices women have during labor. There are ways of moving forward that protect the health and safety of mothers and babies while also preserving a woman’s freedom of choice during her birth. Hospitals who want to attract women interested in a more natural birth experience need to follow through on their promise to support that goal. Doctors need to do the same thing. They need to practice evidence based care and treat and respect women as individuals who have birth plans because they are proactive and concerned with the health of their babies, not because they have a silly fantasy of what birth is like.

    Pregnant women have a responsibility to educate ourselves as well. If we all spent half as much time learning about and understanding birth and our choices as pregnant and laboring women as we do planning the nursery and baby registry we would come to the table with a lot more power. Not to engage in a power struggle, but to engage in meaningful conversations with our providers and choose doctors and hospitals that align with our goals. Women should have real choices when it comes to where with whom they give birth (but that’s an entirely separate argument). I’m pregnant with my sixth baby, and thanks to the military I’ve had my five other children in a variety of hospitals with several providers. I’ve managed to make the best of every situation, and that’s because I read everything I could, talked to other women about their experiences, and knew the questions to ask. Knowing which doctors were okay with being as hands off as possible and which were not helped me decide when I needed a doula (or when to stay outside until it was time to push). I have more respect for an OB who tells me (s)he is not comfortable with me pushing anywhere but on my back in the bed than one who acts like (s)he is okay with anything and then pressures me into doing things the way (s)he s comfortable with when I’m in the throes of labor and more likely to acquiesce. Birth should not be a hostile experience and we all have some responsibility to improve the current situation.

    • MommaDocs Post author

      It is my sincere hope that this does improve care, that nurses and doctors that read the story review their own practices and find ways to improve. I hope they think, “Do I ever ignore a patient when she asks me to stop? Do I ever say one thing and end up doing another? If a patient comes to me with a complaint, how do I handle it?” I hope! My fear is what is outlined in the post, and that fear is shaped by what I have seen. Having been the one who had to fight to bring VBACs to my hospital, I know firsthand the limits that lawsuits unintentionally create. And I wholeheartedly agree with your last sentence–“Birth should not be a hostile experience and we all have some responsibility to improve the current situation.”

  • Judith Tinkelenberg

    I have been a professional in the field for 41 years. My early days (10 years as a Labor and Delivery nurse I saw these things happen to birthing women and worse)!! I saw women slapped by OB doctors, screamed at by doctors (including obscenities) and brutalized by nurses. I went into my own first birth terrified, not of birth, but of the nurses who would care for me (I worked with them and some sucked). My second birth was better because I was very assertive and bought my own team of supportive persons and hand picked my primary nurse. Both of my births (37 and 33 years ago) were natural but, I almost bled to death the first time from a rapid, forced delivery of the placenta and associated problems. 31 years ago I became a nurse midwife and after 4 years I left the hospital that employed me due the violent and emotional maltreatment of the women> I had no power to prevent it but felt that I had colluded in this treatment of women by doing nothing. I then attended out of hospital birth (home and in the birth center I owned). As I was n San Francisco and my transfer hospitals were great teaching institutions that believed strongly in informed consent, humane treatment of women an had strong midwifery services with doctors taught by and working with nurse midwives. I got spoiled I guess. In 2012, I worked as a locum tenum CNM in a couple of Southern California and was thrust back into the nightmare that was the first 14 years of my professional life (the first 4 years in Los Angeles). Women forbidden to leave the bed. Women denies fluids and food. Women “forced” into consenting to pelvic exams, amniotomies without consent, women told that an epidural was mandatory and a doctor who screamed that he hated a woman for not pushing properly. I was retraumatized by this and I wasn’t even a birthing woman. The next stop, I was recruited to be a director of a Birth Center in Sacramento. Women who came to us had stories of forced pelvic exams while they screamed “No” (performed by doctors). Our nurses all worked in hospitals where they gave women no options for care and administered meds to moms and babies without consent. Several of these nurses gave birth in home births to avoid this care but then subjected women to it. They said they were grateful for the education that put the birthing mother as the authority over her own birth and the care for the baby that they received at the Center. I am now in a different setting and am fighting to have the woman recognized as the person that makes the decisions over her body (with informed consent and courtesy). When anyone says that this woman’s story couldn’t be accurate, I beg to differ. I saw nurses hold legs together or heads back as late as 2012 because they didn’t want a doctor to yell at them for catching a baby. I was on the unit and caught the babies I was supposed to and many for doctors that were home in bed at night with a woman in active labor. One hospital had no MDs in house at night!

    • MommaDocs Post author

      Thank you for sharing your story. Know that I hear you and other women who have said the same. Perhaps you can help me understand. When I approached the L&D nurses at my hospital after I first read Caroline’s story (long before the lawsuit), they all had the same reaction- “What? Held the baby in? That’s crazy!” I saw similar reactions online. I do not mean to discount the experience of others by sharing my own. But I am at a loss when it comes to this particular point. So do I just work with the best nurses? (The answer to that is yes! ;)) Or are they hiding the fact that they do this? Do they only do it for certain doctors? And why? Because they are yelled at? Because they are afraid, say, of a dystocia? Is there some billing/cost component to this? I feel like there is a piece missing in this discussion.

  • Priscilla Hall

    Dr. Ragonetti-Zebell, I appreciate your perspective on this and your capacity to discuss the importance of this story. I am a nurse-midwife researcher and I study women’s experiences of agency (of getting what they want, if you will) in labor, and how these experiences are shaped by hospital norms and customs. So you can see this event, and all the comments about it are of great importance to me. I think this event will change health care in one important way-it brings attention to the issue and it has started a conversation about respecting women’s rights when they are in a vulnerable state, and creating structures that will do just that. When I study women’s agency in labor, I do feel discouraged, there are many things that need to change related to who has power in the birth room and who does not, but social change is slow, and for the moment, I am happy that we are having a conversation about it. Thank you for your piece.

    • MommaDocs Post author

      Thank you, Priscilla. While I fear the backlash outlined in the post, I understand the hope that practices change for the better. I’d love to see some of your work!

  • Deena Blumenfeld ERYT, RPYT, LCCE

    On one hand, I’m glad this mother was vindicated. On the other hand, I know it’s not going to make anything better for pregnant women. Like the author here, I am of the belief that it will worsen the situation at many hospitals. Change is affected through positive reinforcement, not negative. We need carrots, not sticks.

    If it took 20 years before ACOG’s statement on the prevention of the primary cesarean to come out, it will take another 20 before those suggestions are fully implemented. One law suit is not going to affect national change. It is more likely to increase the polarization between mothers and physicians.

    We need to foster collaborative communication between providers and patients, with clear, evidence based information to mothers. A mother’s values must be considered during decision making, but balanced with safety. This is how I teach my Lamaze classes. I wish I had a better way of interacting with physicians and nurses regarding patient communication though.

  • Adrianna Costello-Martin

    Great article!

    Regarding holding babies back while in the birth canal: If you look in to the case of Rosemary Kennedy (The Hidden Kennedy, by Kate Clifford Larsen), it is stated that the nurse held her in her mother’s birth canal for HOURS, waiting for the doctor to arrive. Holding the baby in the birth canal with sanitary pads is also mentioned in Peggy Vincent’s memoir “Baby Catcher, Chrinicles if a Modern Midwife.” While it may not be a common practice these days, there is an established history of it. We had to learn the hard way it wasn’t good for babies or their mothers.