How the conventions of our 'tort law' as applied to obstetrical practice
has negative consequences to childbearing families
Tort law is that body of case law precedents arising historically from what we call "Common Law" -- a ancient set of judicial principles that have accrued slowly over the last 3000 years, beginning with the principles of Hebraic jurisprudence as enumerated in Deuteronomy and other books of the Old Testament. It was taken up the the Romans qafter their occupation of the Holy Lands and then imported by Roman soldier to the "Tin Islands" -- what we now know as Britain -- during the last centuries of the Holy Roman Empire. It was further developed along the line of Anglo-Saxton populations in the United Kingdom after the passage of the Magna Carta in the 13th century AD. These juridical foundations for a just society were adopted by the United States when independence from England was declared in 1776.
In more modern times, the conventions of tort law in regard to the commercial and professional domain is the equivalent of an "industry standard". An industry standard is standard established by representative of the wider industry or by professional organizations. This self-generated standard is then applied in cases of litigation as to whether or not a "tort" or "wrong" occurred for which the merchant or care provider should by required by court order to offer monetary compensation to the "victim".
Our tort law system, which is 100 years out of date, requires that normal childbirth be managed by physicians as a medical or surgical ‘procedure’. The industry standard for obstetrics, set in the early 1900s, defined childbirth to be a basically pathological condition, referred to in textbooks as a nine month disease requiring medical and surgical management. This notion prevents modern day medical institutions from utilizing physiological management -- also known as the ‘midwifery model of care’. This type of normal care is associated with the best maternal-infant outcomes and is provided by physicians and midwives in hospitals, homes and birth centers around the world with excellent results.
Standard medical training does not teach or utilize the physiological management of normal labor and birth, which is the foundation of the midwifery model of care. The legal foundation for medical practice, which is normally based on diagnosing pathology and a subsequent offer to “cure” the patient, is distinctly different from that of community based midwifery. Unlike medical care, midwifery is extended to healthy childbearing women and only at their invitation. The nature of that interaction is a contract in which midwives agree to help the mother deal more successfully with the spontaneous forces of nature which constitute “normal” childbirth. Midwifery practice precludes the use of any “artificial, forcible or mechanical means” which defines a pathological or abnormal labor and medicalized childbirth practices.
Tort Law versus Contract Law
Medical practice under tort law as contrasted with midwifery care under contract law: Obviously it is inappropriate to use the medical model, which is based on tort law, as the legal basis for midwifery practice, which instead is based on contract law. Tort law, which is what governs medical practice, reflects the fact that laypersons suffering from illness or injury could not normally be expected to know the specifics of medical diagnosis and professional treatment protocols or surgical procedures relative to a cure for their disease state or disability, and thus could not intelligently contract for the appropriate therapeutic regime. For this reason, what is 'standard' for medical practitioners relative to an identified pathological diagnosis is defined under the tenets of common law (the basis of our tort law) by what is regularly done under similar circumstances by other practitioners of the same profession.
There are many other examples of tort law in modern life such as boarding a public bus, hailing a cab or being a passenger on an airliner, in which no specific ‘contract’ exists between the passenger and the driver/pilot. Even though one is a ‘paying customer’, a passenger has no right to direct or control the actions of the driver or determine the policies of the bus company. Quite to the contrary, the service offered is a standardized, one-size-fits-all. The only option for a 'dissatisfied customer' is to get off the bus if the industry standard is for any reason deemed unacceptable. However, as a passenger one has the right, under common law, to expect ‘standard’ (i.e. safe) care and therefore can sue for monetary and punitive damages based on tort law definitions of the responsibility of the bus, cab or airline company if one should become injured during the trip.
Under the current conventions of tort law the practice of obstetrical medicine requires that obstetricians (and all hospital-based nurse-midwives) conform their practice to the common-law definition of a ‘community standard,’ which is what is commonly done by other practitioners of the same status under the same or similar circumstances. This is not an evidenced-based concept but rather one of statistical majority and convention -- what is regularly done. In hospitals, the industry standard is to define normal birth as a medical procedure. True to the rules of tort law, the hospitalized childbearing woman has no control over how any “medical procedure” is accomplished by the doctor. Once she has presented herself to the hospital as a maternity patient, her role is simply to submit to whatever aspects of the procedure are deemed “necessary” in the professional judgment of the practitioner. In the current medical model childbirth is a ‘medical/surgical procedure’. The only opportunity for the mother to control the course of events (or avoid standardized interventions) is to “get off the bus” (i.e., leave the hospital) -- an option which is not feasible during the birth of her baby.
For instance, if the childbearing woman wants to decline medical admission procedures, leave the L&D unit to walk around the grounds of the hospital, labor somewhere other than in her bed or deliver spontaneously in an upright position (for example standing or squatting at the side of her bed), the doctor or hospital staff will usually insist that they “can’t permit” it, as none of these activities are routinely done and therefore are all outside the “standard of care”. Were there to be a problem the doctor or hospital could be held liable for damages.
Historical Childbirth Under General Anesthesia as the
Model for 'Procedure-Intensive' Obstetrical Care
The conventions of tort law, in force now for more than 100 years, characterize the physician (or by proxy, the labor room nurse) as “captain of the ship” and thus responsible for all aspects of outcome. As such doctors and nurses become quasi-enforcer of obstetrical standards designed more than 90 years ago when childbirth was defined as inherently pathological. Hospitalized mothers were under the influence of powerful narcotics and hallucinogenic drugs (“twilight sleep”), were unable to cooperative due to the effects of serious medical complications or unconscious due to anesthesia and thus unable to be an agent in their own behalf. All vaginal births were conducted under general anesthesia with the routine assistance of episiotomy and forceps. Thus childbirth was conducted as a “surgical” procedure, a convention still in force today. Historically the physician was gowned, gloved, with surgical cap and mask and had a sterile instrument table at the his/her side with a large number of gleaming surgical instruments, basins, syringes, etc lined up for convenient access. In this model the unconscious mother was draped with sterile sheets while lying on her back in a lithotomy position.
While the use of twilight sleep and general anesthesia is rare today, the contemporary medical standard in the United States is still for the childbearing women to be immobilized in bed during labor and to be denied food and drink-- now the result of continuous electronic fetal monitoring and equipment relative to IVs, Pitocin administration and epidural anesthesia. True to this antiquated 1910 model of physician as “captain of the ship” and normal childbirth as a ‘surgical procedure’ (complete with a surgical billing code), the mother is expected to remain still and passive during delivery, which is assumed to be accomplished by the doctor while the mother lies on her back in some version of a lithotomy position. The physician will still be wearing a surgical gown, cap, shoe covers and a mask (with splash guard), with ready access to an array of gleaming surgical instruments at his side. She and family members are all instructed not to touch anything lest they contaminate the physician’s sterile field. This is quite an intimidating scene for a conscious, unmedicated woman.
Once such a “surgical procedure” such as vaginal delivery or operative delivery (forceps, vacuum extraction or Cesarean surgery) is successfully completed by the physician, the doctor’s culpability under tort law is concluded and he or she is not liable for complications that may arise at a later date. For example, long term complications of forceps (incontinence or pelvic organ prolapse) or post-cesarean complications (infertility, abnormal placentation such as a previa or percreta in a subsequent pregnancy or a uterine rupture and neonatal death or permanent neurological damage) are not deemed to be the “fault” of the physician performing the original medical or surgical procedure. This explains why “consent” for these hospital procedures does not routinely reveal the association between these surgical procedures and the pathological sequelae listed above which are well known to the medical profession. Under tort law, the doctor is free from future liability when he puts in the last stitch and writes standard orders for post-delivery/operative care. This principle is similar to the limitations on liability common in product liability law.
Due in part to the conventions of tort law, the compiling of statistics by the obstetrical profession on the relative "safety" of various medical and surgical "procedures" used by obstetricians during normal childbirth do not reflect any of up-stream interventions or down-stream complication associated with them. For example, the maternal infant outcomes of routine induction does not factor in the mother's experience of being hospitalized, put to bed, hooked up to IVs and continuous electronic monitors, a catheter in her bladder and another catheter in her spine to administer epidural anesthesia. It does not address the higher level of operative delivery and the pelvic floor dysfunction that accompany the use of forceps and vacuum extraction. It does not count the number of hours babies send in the NICU nor does not count the increased Cesarean sections, the immediate operative complications and long term complications in post cesarean pregnancies that show up downstream as infertility, miscarriage, placenta previa, emergency hysterectomy or uterine rupture and permanent neurological damage for the baby in a subsequent pregnancy.
This dubious practice of selective analysis is a tort law "glitch" that permit ACOG to say the the maternal-choice is "safe" than normal birth and that home-based birth services by community midwives for healthy women with normal pregnancies are "dangerous". It is a form of accounting made famous by Enron and Arthur Anderson -- only count what is favorable and sweep the rest under the rug.