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The Rights of the Fetus or a Medical Kidnapping?

pO157.

Posted to Scoop on Wed Jan 27, 2010 at 08:05:12 AM EST (promoted by port1080). RSS.

Samantha Burton may not be the ideal mother of the year, but now she is in court fighting the state over mother's rights. After being forcibly committed to a hospital during the 6th months of her pregnancy by her physician, Ms. Burton is bringing a landmark case in appellate court against the court ruling that kept her on gynecological lockdown.

Ms. Brown is in her late 20s, and the mother of 2. She smokes, and was about 6 months prengant when she went to Tallahassee Memorial Hospital after experiencing symptoms of premature labor (it later turned out to be a false alarm). Ms. Brown stated she wanted to check herself out of the hospital, after finding out everything was okay and that the medical staff allegedly had a surly and overbearing attitude. She says the physicians had a negative impression of her smoking habit, which Ms. Burton and her attorney claim does not cause miscarriage or impact pregnancy anyway.

Her physician (Dr. Jana Bures-Foresthoefel) disagreed, demanding she be on bed rest. When she said she wanted to go home to take care of her other kids and job he went to State Attorney Willie Megs who obtained a court order confining Ms. Brown "indefinitely" to the hospital and requiring her to submit to medical testing, treatment (including surgical procedures like a Cesarean).

The ACLU says that Ms. Brown was not given an attorney at the hearing that resulted in her committal, while the state, hospital were represented. Even her fetus was assigned an attorney and a physician. As a compromise at the hearing Ms. Brown asked the court if she could at least switch hospitals or get a second opinion to Dr. Bures-Foresthoefel's diagnosis and care plan but that was denied.

The patient remained in the hospital for 3 days against her will before the staff ordered a C-section, where it was determined that the baby was dead anyway.

The case is now in the First District Court of Appeal for Florida. See the Amicus brief filed by the ACLU here (pdf). The ACLU argues that if this agression is allowed to stand that it means any physician or hospital could lock up a pregnant mother if it disagreed with their eating, drinking or other lifestyle habits.

Tags: edited by Port1080, written by pO157, politics, medical rights (all tags)

This story: 21 comments (5 from subqueue)
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1

hold the torches and pitchforks - get the rope

wetkarma.

Wed Jan 27, 2010 at 08:31:19 AM EST

none

she went to the hospital experiencing premature labor and had a c-section 3 days later; but the labor symptoms was a false alarm? I think not. And in fact here is what the NYT article says:


The doctor said Burton's membranes had ruptured, that she was having early contractions and the fetus was in a breech position.  

Now having recently become very familiar (one would say expert) with pregnancy and obstertricians, I suspect what is going on here is that she came in and the doctor wanted to do a cesarean. If you read a few pregnancy websites, you'll find its quite common that doctors are overwhelmingly pro-cesarean especially given any complication. Delivery taking too long? Heartbeat weak? Water broken for a few hours? Harvest that sucker! In the meantime, lets get that baby carrier lying on a bed and hooked up to a variety of tubes and monitors.

Given the medical community attitude, you'd think western women were the breeding equivalent of turkeys - unable to deliver a child through the vagina. The smoking issue is irrelevant and should be paid no attention; if this is the fig leaf the hospital has chosen to hold up, they look awfully naked to me.

People have the right to determine their medical care. Doctors are not gods.  This is a pretty straightforward case of government supported kidnapping. I'm pretty freaked out that the fetus got a lawyer (um why?) and the woman didn't but aside from that 'wtf', this seems like straightforward unconstitutional behavior.

So if nothing else is learned from this case -- if you want to maintain some control of your medical care; never seek treatment from Dr. Jana Bures-Foresthoefel (Fl).

"The problem with socialism is that eventually you run out of other people's money."

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Re: hold the torches and pitchforks - get the rope

port1080.

Wed Jan 27, 2010 at 09:41:33 AM EST

none

Given the medical community attitude, you'd think western women were the breeding equivalent of turkeys - unable to deliver a child through the vagina.

Delivery is always dangerous, both for the mother and the infant.  Most women most of the time will end up fine (biologically a necessity - if pregnancy was invariably fatal we'd have died out as a species a long time ago), but a non-trivial number of women will have complications with a natural birth unassisted by modern medical technology.  The historical rate of maternal death was about 1 in 100 births.  In the US that's dropped to "11 in 100,000, a decline by two orders of magnitude".  Not all of that gain is attributable to c-sections, but certainly a decent chunk of it is.

Ce n'est pas une pipe. C'est une signature.

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Re: hold the torches and pitchforks - get the rope

harzerkatze.

Wed Jan 27, 2010 at 10:12:58 AM EST

none

This is a pretty straightforward case of government supported kidnapping.

I do not seeem to get part of what is giong on here. Let me try:
  • The was pregnant in month 6.
  • The hospital performed a C-section after 3 days, the delay because the mother instead wanted to go home.
  • After the three days, the baby was dead.

If I am not mistaken, the mother would not have been propable to have the kid in a natural way if she is only in month 6, right? So the C-section was the only way to get the kid at that early point of time, right? And as it was dead three days later, there was no time to wait, right?

How is that kidnapping? The kid is now f***ing dead, and could have been saved if the mother had not ignored the doctors saying "Everything seems alright, I'll get back to work". If at all, it is reckless endangerment by the mother, resulting in death.

So what am I understanding wrong?

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Re: hold the torches and pitchforks - get the rope

pO157.

Wed Jan 27, 2010 at 10:31:20 AM EST

none

It's kidnapping because she was forcibly detained in the hospital, first by the physician then by the court under an open ended order that could have gone as long as 15 weeks. She was not allowed a second opinion, nor the chance to consult with a lawyer before she was locked up.

Like it or not (outside of this case the mother doesn't seem like the most sympathetic person here as others have pointed out) the mother still has the right to decide what would be done to her body or her fetus. Even involuntarily committed psychiatric patients still have the right to refuse treatment within the first few days of their commitment, and refusal of medication/treatment is not recognized solely as grounds for committal.

See:

Can a person on involuntary status still be competent to consent or refuse consent to their own treatment?
YES. The issue of competence to consent is considered separately from the placement issue. If the person meets the criteria for involuntary examination or involuntary placement but is capable of making well-reasoned, willful, and knowing decisions about his/her medical or psychiatric health, he or she may continue to consent, withhold consent, or refuse consent to treatment.

In light of the above, how in the world can it be viewed as appropriate for a single physician to go to court and demand that a person be locked up for months and forced to subject themselves to life threatening surgery they may disagree with? Remember, in Florida even mentally ill patients who are locked up are guaranteed the right to a lawyer and access to the courts to file a writ of habeus corpus. Why was the pregnant mother prohibited from doing so?

Never compromise.

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Re: hold the torches and pitchforks - get the rope

Lou.

Wed Jan 27, 2010 at 10:48:35 AM EST

none

Why was the pregnant mother prohibited from doing so?

Short of locking her in a room with no phone, taking away a cell, and forbidding visitors, how could they stop her from getting a lawyer?

Why does reduced fat Swiss cheese have twice as many holes are regular Swiss cheese?

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Re: hold the torches and pitchforks - get the rope

pO157.

Wed Jan 27, 2010 at 10:55:07 AM EST

none

Color of authority. Physician tells the nurses she's confined to the ward/floor/room and not allowed visitors or whatever, they put some hospital rent a cops outside the door, or whatever. Or it's quite possible that due to the emotional and crazy nature of the situation, plus not knowing her rights, the patient didn't realize she was being hosed until it was too late.

Never compromise.

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Re: hold the torches and pitchforks - get the rope

joshv.

Wed Jan 27, 2010 at 11:56:28 AM EST

5.00 (educated, agreed)

Most people are not wired to question authority, especially medical authority.  Recently my child was in the emergency room for an infection/fever.  Had she been a few weeks older, they would have discharged her from the ER with antibiotics.  Instead she was admitted and a full battery of tests was run.  Which was fine - she was a little tiny baby and I wanted to be extra careful.

BUT - once they figured out the root cause, ruled out the really bad stuff, and determined a course of treatment, they wanted to keep us for several days after the fact - "just to be safe" and wait on the results of some other secondary tests.  I proposed that they release her, with an oral antibiotic, and that they fax the results to our doctor.  No dice.  Kept giving us the run-around.  But the basic problem was that they didn't really trust us to follow through with the baby's treatment plan, and were worried about liability if we didn't.

In the end we had to get downright nasty with the staff in order to be released.  At one point my wife asked "what will happen if I just get up and walk out of here with my child?"  I am sure they put us on a list of "trouble" patients.  We questioned everything, and made them explain exactly why every treatment/test was required.  Which I gathered from the staff's response was not at all the norm.

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Re: hold the torches and pitchforks - get the rope

pO157.

Wed Jan 27, 2010 at 12:08:07 PM EST

none

We questioned everything, and made them explain exactly why every treatment/test was required.  Which I gathered from the staff's response was not at all the norm.

Which is sad, because it should be. The first thing a medical provider is taught is that a patient needs to give informed consent (except in extreme or special cases). The key word is informed.  A patient can't do that unless they have been explained the risks and benefits of a drug, test or treatment. What should be commonplace is sadly very uncommon.

Never compromise.

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Re: hold the torches and pitchforks - get the rope

port1080.

Wed Jan 27, 2010 at 12:28:21 PM EST

none

The first thing a medical provider is taught is that a patient needs to give informed consent (except in extreme or special cases). The key word is informed.  A patient can't do that unless they have been explained the risks and benefits of a drug, test or treatment.

I agree with this, but I want to play devil's advocate for a moment here.  What if the majority of patients that a doctor sees in a day are incapable of being informed?  Heads so full of nonsense from third rate former sitcom stars, porn stars and/or religious fanatics that they are simply incapable of actually understanding the health risks of a particular course of action?  I don't think that this justifies forcing treatments on anyone, but I do think that a large part of the problem is that too many people either refuse to educate or are incapable of educating (or perhaps both) themselves about health issues, and separating the good medical advice from the bad.  
This isn't entirely confined to the willfully ignorant, either.  "Best practices" seem to shift with the wind sometimes - look at the controversies over mammogram screening, prostate screening, and hormone replacement therapy, among many others.  Can someone who's not a doctor or at least educated with a biological sciences background even hope to really understand this stuff?  At the end of the day most of us are just going to have to take it on the doctor's authority.  Even if we question what he/she is saying, at best we'll just go to another authority source (another doctor, or perhaps we'll read a little bit on the Internet to see if what the doctor says conforms with other authority sources we trust).  How informed can our consent really be in a situation like that?

Ce n'est pas une pipe. C'est une signature.

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Re: hold the torches and pitchforks - get the rope

pO157.

Wed Jan 27, 2010 at 12:32:04 PM EST

none

It's not going to be ideal, that's absolutely certain. That's why it should be critical to allow people a 2nd (or 3rd, or 4th) opinion if the patient desires it. If my insurance even covers 2nd opinions and insurance companies are stingy then I'd say this has value. Couple that without outside research in the case of non-emergencies and hopefully people can be more active participants in their education. I completely understand some people are complete idiots who are full of superstition and bad advice, but if the staff isn't even attempting to explain things or provide a second opinion as in the case of josh's baby (or this event here) then there is something majorly wrong.

Never compromise.

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Re: hold the torches and pitchforks - get the rope

port1080.

Wed Jan 27, 2010 at 12:56:04 PM EST

none

Couple that without outside research in the case of non-emergencies and hopefully people can be more active participants in their education. I completely understand some people are complete idiots who are full of superstition and bad advice, but if the staff isn't even attempting to explain things or provide a second opinion as in the case of josh's baby (or this event here) then there is something majorly wrong.

Agreed in josh's case, but in the Brown case the details are fuzzy enough that it's hard to say.  Perhaps the staff did try to explain things to Brown and she went into denial and refused to contemplate anything other than natural birth.  Clearly the fetus was in distress (since it ultimately died) - what is more of an emergency situation that that?  I could go as far a saying the hospital was right in not letting her leave - if she had left and then miscarried (which she undoubtedly would have), she might well have sued the hospital for letting her leave.  They were screwed either way.  The problem here is that "informed consent" notion.  Courts often seem to favor the patient here no matter what - if the patient insists on leaving and then suffers harm, the court ruling will be that the patient couldn't possibly have given informed consent.  If the same situation happens and the hospital doesn't let the patient leave, the court rules that the patient's rights were violated and that he could have given informed consent.  There really isn't a "safe" course of action for the hospital to take.  

I think perhaps in these circumstances we need to say that the initial consent came when you walked into the hospital and signed the paperwork - at that point you're saying that you need care and you're giving professionals some leeway in determining what that care should be, and particularly when you can leave.  The place where the line needs to be drawn is second opinions - once you're in care, there should never be a barrier to being passed off to another competent physician, as long as you can find one willing to take you.  If you disagree with a treatment option, if you request another physician then the original physician's liability for your care should end - any decisions made after that point shouldn't be held against him.  That's the one thing about this that I don't really understand - why was the hospital so unwilling to let someone else have a look at her?  Were they still afraid of some liability, or just so narcissisticly confident in their own ability they were unwilling to be second guessed?

Ce n'est pas une pipe. C'est une signature.

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Re: hold the torches and pitchforks - get the rope

Lou.

Wed Jan 27, 2010 at 11:05:24 AM EST

none

Damn...that's hardcore.  If something like that happened to me, I would immediately begin planning my escape.

Why does reduced fat Swiss cheese have twice as many holes are regular Swiss cheese?

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Re: hold the torches and pitchforks - get the rope

pO157.

Wed Jan 27, 2010 at 11:22:41 AM EST

none

Pretty much. That happens to me and it's on like donkey kong. Although that's assuming that a person put in that situation would be anything close to their right mind.

Never compromise.

2

Appearances Can Be Deceiving

zyxwvutsr.

Wed Jan 27, 2010 at 08:53:03 AM EST

none

Wanting to know more about this story, I decided to search Google for more information on the main characters. Here's what I have learned: Dr. Bures-Foresthoefel looks like an insufferable know-it-all and Samantha Burton does not look like a heavy smoker.

I was unable to unearth any information about the fetus, or the foetus's attorney.

3

Been thinking

Lou.

Wed Jan 27, 2010 at 09:30:07 AM EST

none

Did they take away Ms. Burton's cell phone, or deny her access to a phone?  I was appalled at first after reading that the fetus had a lawyer.  There are assloads of lawyers in Florida (especially in Tallahassee)...was Ms. Burton prevented from calling one?

  What would have happened if she just walked out of the hospital?  Police intervention?

Why does reduced fat Swiss cheese have twice as many holes are regular Swiss cheese?

5

Re: The Rights of the Fetus or a Medical Kidnappin

port1080.

Wed Jan 27, 2010 at 09:54:13 AM EST

none

From a legal standpoint, I absolutely disagree with what was done here.  Brown should have been given a lawyer and she should have been given the right to seek a second opinion.  The fetus should not have had an attorney - what a farce.  On the other hand, Brown sounds like a real piece of work and not the most sympathetic person.  Nonetheless, she should have been allowed to do what she saw fit.  I fail to understand how she could legally terminate the pregnancy (remember - 3rd trimester abortions are still legal, as long as they're not "partial birth" abortions), but was not allowed to engage in risky behavior.  It makes a mockery of the notion of individual freedom and is the inevitable consequence of the pro-life mindset.  Libertarian leaning Republicans and tea-party sympathizers who find this sort of thing as repulsive as I do would do well to remember that if the Republican party is put back in power, legalizing and encouraging this sort of thing will be first on their priority list (not expanding economic freedoms).

Ce n'est pas une pipe. C'est une signature.

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Re: The Rights of the Fetus or a Medical Kidnappin

pO157.

Wed Jan 27, 2010 at 10:19:17 AM EST

none

Well, Thank god I'm a Libertarian-leaning independent, then.

Never compromise.

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Re: The Rights of the Fetus or a Medical Kidnappin

Lou.

Wed Jan 27, 2010 at 10:25:25 AM EST

none

OT.  I was reading about how conservative candidates may have to pass a "purity test" to get help from the RNC.  Two of the items on the test are right to life, and supporting liberty.  Shouldn't liberty to control our bodies be the first liberty?  My head hurts.

Why does reduced fat Swiss cheese have twice as many holes are regular Swiss cheese?

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Re: The Rights of the Fetus or a Medical Kidnappin

gerrymander.

Wed Jan 27, 2010 at 01:06:54 PM EST

none

Libertarian leaning Republicans and tea-party sympathizers who find this sort of thing as repulsive as I do would do well to remember that if the Republican party is put back in power, legalizing and encouraging this sort of thing will be first on their priority list (not expanding economic freedoms).

The first thing the Republican party would do would be to promote the government control of healthcare agenda of a Democrat? That sounds unlikely.

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Re: The Rights of the Fetus or a Medical Kidnappin

port1080.

Wed Jan 27, 2010 at 01:24:52 PM EST

none

The logic behind this case comes from fetal rights law, not from nationalized healthcare.  Indeed, if we had national healthcare the woman might have had more options (I'm purely speculating here, but my guess is that part of the reason she couldn't get a second opinion was due to lack of insurance - hospitals almost always have the upper hand when dealing with patients without insurance, since they have no leverage).

Ce n'est pas une pipe. C'est une signature.

13

gynecological lockdown

Lou.

Wed Jan 27, 2010 at 11:07:16 AM EST

none

None of this would have happened if she had just kept her legs shut.

Get it?  Gynecological lockdown...legs shut?

Thank you...I'll be here all week.

Why does reduced fat Swiss cheese have twice as many holes are regular Swiss cheese?

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