In this episode, Cristen speaks with “J,” an Indiana mother who recorded the meeting with her hospital about a non-consented procedure during labor that the hospital defended as “appropriate” and “part of” routine care.  Later, human rights and birth lawyer Farah Diaz-Tello and Maternal-Fetal Medicine doctor Emiliano Chavira explain why the hospital’s claims are dead wrong.

Listen to Episode 8 on SoundCloud or iTunes.  Hear the recording of the meeting (at around minute 8:45), lawyer Farah Diaz-Tello (at around minute 24:00), and Dr. Emiliano Chavira (at around minute 41:02).  Below is some background on the situation and a transcript of the meeting itself.

BACKGROUND: Summer 2016. J presents to hospital in early labor for a cervical check to see if the baby is really coming.  She is placed in triage for assessment by an obstetric emergency department doctor.  During the cervical check, the doctor also performs–without J’s consent–a membrane strip, or membrane sweep.  This is a typically painful procedure where the physician manually separates the amniotic sac from its attachment in the uterus in an attempt to stimulate labor.  J, a sexual assault survivor, finds this procedure without her consent traumatizing and knows it is a violation of her rights.  She complains to the hospital patient advocate. The hospital performs a peer review with a group of physicians and the patient advocate follows up with this letter:

Dear [J], The intent of this letter is to follow up per our conversation of September 16th. As previously discussed a full review of your medical chart specific to your visit on July 13th is complete. The Physicians, including the section chief of Maternal Services, participated in the peer review and have concluded the care revived [sic] during the visit in the Labor and Delivery Department was deemed appropriate.

J then asks for and has a meeting with the patient advocate and a representative from Labor & Delivery.  

TRANSCRIPT:

J – Patient “J”

LD – Hospital representative from Labor & Delivery

PA – Hospital patient advocate

PA: So, would you like to start?

J: Yes! Um, basically, um, I guess what I’m trying to rattle around in my brain is trying to understand, um, through the eyes of the hospital, you know, why it was thought to be appropriate to do the membrane strip without being told, because, I mean, the letter that I got from the peer review just said, um, the treatment given was deemed appropriate. That’s all I was given; I wasn’t given any other information as to why or anything about, you know, what was the [inaudible] and I know I’m not privy to that information.

PA: And that would be why the letter is very brief, in description–what happens with meetings with our section chiefs and their physicians is, is kept to that meeting. That is theirs and, and logged appropriately. Uh, [name deleted] can speak more on the physicians’ standpoint, she works very closely with all of the OB/GYNs, um. I think it’s fair to, to discuss the process you experienced with the OB ED [emergency department] physician–you did not develop a, a positive relationship with that particular physician. Be that as it may, the membrane sweeping is part of the exam. It’s, it’s, it’s part of the exam. When you sign the consent for care, that, that goes from the beginning all the way through until discharge. So, if you’re going to have a procedure such as surgery, there’s another consent for something like that. But when it’s part of the exam per section chief [overlapping voices]… That’s part of it.  You came with an expectation for care and that was what you received.

J: Because everything that I’ve, you know, looked at and researched on medical journals and such [inaudible] that a membrane strip is a procedure done to initiate labor. And it intends to do that.

LD: But you know, even a labor check could do that. I mean, that, I think that’s where, maybe… that’s the disconnect. I mean, these people aren’t just reading medical journals online, J. They’re doctors, they went to med school, they’ve been through multiple years of practice.  I’ve been on the ACOG website myself and, uh, no other hospitals asking for a separate consent for this, so–

J: Well, but–

LD: –it’s just not something we’re going to start at this time.

J: But a physician usually has, you know, his common rapport with a, a patient is to, you know, go through and say, hey, we’re going to do this, is it okay. Even if they’ve signed the bl–you know, you’ve signed the blanket consent form, just getting that extra verbal consent and walking your patient through what’s going on. Because somebody like me, who suffered sexual assault as a child, I have some bodily autonomy issues, and coming in and having people poking and prodding in my private areas is difficult enough, let alone, you know, somebody doing something there without saying, I’m going to do this, or would you like me to do this.

PA: J, when you came in to facility, what were the expectations for the care? What–I guess that would be my, my first question. What, what were your expectations?

J: I was expecting to come in and get checked out; I felt like labor had progressed quite a bit and, um, that where I was, and what to do from there. I didn’t expect somebody to say oh, maybe that’ll put you into active labor. And…

LD But you told us on the phone three days before that in the office you had actually requested this to be done to you.

J: Yes. By my physician, who I said it was okay to do it. I didn’t know this, I didn’t know Dr. R__ at all, you know. I’d never met her. She came in, she was rude, she was pushy, and then she just came in and just did that and then said well you can either stay or leave, it’s up to you. And at that point I was like, I’m going to go. I, I don’t even want to be here right now. And… it was extremely upsetting.

SILENCE

PA: I am sorry that your experience didn’t meet your expectations. We will always apologize for any drop in communication, which I kind of feel like we had here, but I also feel like when you came into this facility, you, you were seeking care, and we did provide the care that was necessary at the time. Our communication from a physician’s standpoint isn’t anything that we approve of. We want our physicians to be kind, caring professionals. I don’t know this physician so I can’t speak to her. Um. I always expect our physicians to communicate well with our patients. OB ED is, is, is a different atmosphere than your physician’s office. They see all sorts of emergent situations where they must move and move quickly. They can’t be that warm, professional person that you’re used to in the physician’s office–and I’m not telling you anything you don’t realize… but when we communicate all of these concerns on a physician’s basis that work in the OB/GYN field, we have to lean on their expertise. We have to listen to what they have to say, which is: it isn’t a procedure. It doesn’t need a consent. And this was a group of physicians deciding this together when it was tabled and questioned. From our standpoint, we have to, we go with what our policies support and physicians approve. And that’s our, that’s our business day. I feel like you, you, you were disappointed in, in, in that visit. I hope in the future we can be something that meets your expectations–but that’s, that is, that piece is not going to change and I don’t want your expectation to be that that is something you’ll see in future. That’s, that’s not going to change: those physicians are very… very… They, they truly believe what they’re doing is, is the best practice or they wouldn’t be doing it.

LD: And it’s consistent with what other people are doing… other facilities and other OBs, physicians, but… Like I don’t want you to just walk away thinking we just made this up in this hospital. This is nationwide.

J: I know about the blanket consent issue to because I delivered my daughter at Regional and, uh, I was given an episiotomy without my consent over there, by my first OB. And I was, I didn’t know about filing a complaint or anything, you know, what I could do at that point, and when I delivered [inaudible] here–

HR__: –I think what–

J: –I didn’t have any kind of problem. I just had Dr. [name deleted] and that was it. And, you know, she was there from start to finish, and there was never any kind of issue.

LD: So that will be new moving forward. There will always be an OB ED physician–there will always be an OB physician in the OB emergency room and you will always come into our department for that, unless you come for a scheduled C-section. You will see that person. Um. So. And, and you’ll see that person for anything, like for a labor check, or if you come in and you’re having another issue related to pregnancy. All the physicians–all the patients that come in to our OB ED are seen by that physician. Um. Uh, I don’t… I don’t know… [inaudible] It’s a law?  It’s a quality measure, I guess, that patients have to be seen within a certain timeframe, so we just have to expect the OB physicians to meet that requirement with their office load and stuff. So, just in the future, know that if you come in, you will see one of them.

PA: So, I, I, I feel like, your concern was not met or recovered what you feel like what your visit was at that particular time. We feel like we’ve done our homework to make sure and verify and table this and take this through the appropriate channels to respond to your concern. Do you feel like we’ve met that?

J: I think that’s about all the information I’m going to get. If things aren’t, if it’s not going to change, it’s, you know, it’s not going to change, I guess.

PA: Well, we thank you for your feedback, and I mean that sincerely. We can’t improve or grow–and I put that in the letter but that’s not a pat statement!  I say it every day.  We can’t improve or grow if we don’t hear the feedback from the people that are experiencing the care as a patient. So, thank you. And the physicians had a topic to discuss at the meeting and brought it to the attention. So… we heard your voice and we understand it isn’t probably what you wanted to hear but we did want you to know we took it seriously and we took it to every channel we could. Okay?

J: Mm-hmm.

LD: Um, J, is there something we can do for you other than… I, I know that… I mean, is your ideal outcome to see what is obtained as consent… I guess I want to know what’s your ideal resol–like, what would make you walk out of this meeting and be like, yes, this is what I wanted.

J: Knowing that there was a, um, like, a policy or a general rule put into practice that, you know, that there is, you’re supposed to get verbal consent in addition to the written consent for things that are going to be done, just… so patients are aware. And–

PA: –‘Cause I’m just–and I’m thinking about your statement about the episiotomy. I mean, that could easily happen today. If you come in, and you’re having a vaginal delivery, and your baby goes in the toilet, I mean, [overlapping voices] an emergent, when things happen out of the unexpected or out of the norm or out of the ordinary, which happens every day in OB, and you’ve got a baby in distress and it’s life or death–

J: But what if everything’s perfectly normal? What if there is no distress? What if there is nothing that [inaudible] that’s what happened with my daughter and it’s what happened when I came in for this membrane strip, too, I–

PA: I just lean on, I just lean on the fact that the physicians that we have here–so–our credentialing process is pretty thorough–

LD: Very thorough.

PA: Um, our OB physician, our, we have an OB physician that leads the credentialing committee. So, she is extremely picky and [inaudible] um, there is case reviews, there’s multiple, multiple cases that she looks at, multiple, multiple cases, for every physician that we credential here that we allow to practice under our roof. It’s something that we take very seriously–physician quality–um, so I would just tell you that I trust the physicians that work here in this department to make whatever decision is best for a patient at that time. They know how to interpret strips, they know how to read things that maybe we don’t always see from a patient perspective [omitted] … I do, I feel like, I do fully trust the decisions that they make, because I know that the physicians that we have here are quality providers, so…

U: I understand that, but, so, does being quality physician make it okay to do something like that? Like…

PA: When you say “something like that,” that is part of the exam. That is considered part of an exam, so—

LD: –I guess I–I think maybe that’s where there’s a disconnect, J. I think the providers, and, I mean, as an organization I’m supporting the providers, they do see that as part of that vaginal exam. So they feel like, you know, their fingers are up in your vagina and you’ve consented to that, so… I…

J: A “as long as I’m up there” kinda thing, or?

LD: Well… I think a lot of them, it is viewed as part of the vaginal exam. I guess.  Is that–am I stating that correctly?

J: I don’t understand where that is, that I’m, is there a way I can get that in writing or something, because I don’t, I have not been able to find any evidence of that anywhere, how it’s considered part of a standard cervical check.

LD: Yeah, well, I… I guess, you’ll just have to remember they’ve been through years of medical school and residency, they’ve learned from physicians who have more experience than them in their field, um, and, I mean, neither one of us has, nobody in this room has done that, so… I, I guess, I think that’s maybe where the disconnect is…

PA: I agree. And I’m sorry there’s a disconnect, I guess, I, I [scoff] don’t know…

J: I don’t know if that makes entirely an amount of sense, but… my husband was going to be here to, for support, but he got called in to work and he wrote something down he was stewing over in his mind about it, before.

LD: Sure.

J: He says: We understand that a membrane sweep has over the years been a relatively standard procedure that few people have given much thought of, but it is an action that can affect the progression of labor and anything that alters the timetable of a woman’s pregnancy or delivery should be done with her consent. [inaudible] that the form is enough. The fact that a doctor was in the vicinity of your cervix is irrelevant.  It takes very little time to ask to ask a question or even explain the process or effects of a process like a membrane sweep.  If an older man comes in to have his hemorrhoids examined by a doctor, does the doctor take, um, his already gloved fingers, penetrate the man, and examine his prostate because that’s a common medical practice also while he’s up there?

LD: I guess I don’t know because I’m not a, I don’t do geriatrics… I couldn’t speak to that, I [inaudible]

PA: We could go analogy to analogy.  We could also take that and flip it right back over. So, I don’t, I don’t want to rehash the hash.  I want you to feel like we listened. That’s what I want. I think communication from the physician to the patient can be broadened, at any given time, both from your side to that physician and from that physician to you, I think this was an exclusive situation that may or may not happen again between a physician that was in our OB ED. If there are opportunities to review this consistently I think [name deleted] would agree, we could, we could, you know, if this happens again! Has this ever happened before? No. We, we tabled it with the physicians, we looked at it, we reviewed it, we agreed that the care received was appropriate. We’ll be on the lookout in the future for opportunities specific to this, so I hope that you feel better about that. Plus I think the communication piece has got to improve with… any physician. But always remember when you’re coming through any ED, it’s going to be abrupt, it’s going to be quick (snaps fingers three times), it’s going to be–be-because they are used to emergent situations. They, they behave differently, they speak differently. [Recording ends.]

Listen to Episode 8 on SoundCloud or iTunes now!

Also, read the companion article to this episode, on Implied Consent, coming June 2017.

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