As in all medical malpractice, liability is evaluated against a reasonable duty of care. In general, this duty of care is reasonable care comparable to the expected level of care of other health practitioners in ensuring that no unnecessary harm comes to the patient.
This standard is created in a non-specific way because it would be impossible to identify every possible event and circumstance that may result in injury and liability. As a patient, this general standard can make it difficult to pinpoint what is and what is not medical malpractice.
To help identify an appropriate level of care and delineate what a pregnant patient should expect, this pregnant patient’s bill of rights can provide some general guidance.
A pregnant patient has the right to expect:
- Information about the potential direct and indirect effects, risks, hazards to the mother and/or unborn child because of a drug or specific procedure administered
- Explanation of the benefits, risks and alternatives to treatment
- Disclosure that an administered drug may affect the unborn child
- In cases of cesarean delivery, instruction that minimal use of non-essential pre-operative medication is beneficial
- Disclosure of the unknowns and uncertainties with regard to the effect of a drug or procedure on the physical, mental, and/or neurological development of a child
- Identification of both the brand and generic names of all drugs administered
- Right to select, without pressure, patient’s preferred procedure
- Identification of name and qualifications of all individuals administering medical procedure
- Disclosure of whether drug or procedure is beneficial or merely elective
- Presence of a loved-one for support during the procedure
- Right to choose labor position, with appropriate medical consultation
- Right to have baby cared for at bedside unless there are complications
- Identification in writing of the delivering physician
- Disclosure of any aspect of care that may lead to later difficulties
- Complete, accurate and legible records maintained by the hospital until the newborn’s age of maturity or sent to patient before records are destroyed
- Right to access records with a reasonable fee, without an attorney.
Injuries that occur as a result of a failure to meet any of these rights can be grounds for medical malpractice.
The pregnant patient can recover for injuries to herself or her child. Recovery in civil law is typically monetary compensation: money. Awards for damages come in three forms:
- Compensatory – This amount is to help the patient recover from the doctor’s malpractice. The money given here is expected to be spent on therapy, extra procedures, and any other ways to help the patient or her child heal.
- Punitive – This amount is given not to compensate the patient for her injuries, but to punish the doctor for his or her misconduct. However, most of the money will still be given to the patient.
- Pecuniary – This amount is designed to compensate the parents for any future losses expected as a result of the medical malpractice.
Can I Be Forced To Do Something I Do Not Want To Do Even If the Doctor Believes It Might Endanger the Child?
A new conflict in the law involves the rights of the mother versus the rights of the child. Although this conflict is at the forefront of the abortion debate, there are other ways this area of the law can arise. If the mother is smoking, drinking, using drugs, or even eating poorly, the infant may be adversely affected. Along the same lines, a mother can also decide that she does not want to take certain medication or undergo certain procedures such as blood transfusions even if doctor insists that the medication or procedure is necessary.
As mentioned, this is still an open area of the law and a highly debated one at that. On one hand, every person should be treated as an individual. If the law forces a mother to do something against her will, the mother’s rights are violated and women might feel that their primary value during pregnancy is to be an infant incubator. On the other hand, society has a very clear interest in protecting a new member of the community. Given that parents are not allowed to abuse their children after their child is born, it makes sense to extend that rule to pregnancy as well.
The outcome of a case involving this legal and ethics debate will vary by location and jurisdiction. Obviously, states which are considered “pro-life” will side with fetal rights while states which are considered “pro-choice” will support the rights of the mother.
If this debate ever comes up during your pregnancy, the best thing to do may be to just reframe the issue. Rather than disputing the rights of the mother against the rights of the unborn infant, it might be better to just argue that the case is about the mother’s own instincts versus the medical expertise of the doctor. This issue favors the mother. If the mother plans to carry the child to term, she also has an interest in ensuring that her child will be healthy.
If you, or a loved one, have been injured by medical malpractice, you should speak to a personal injury attorney immediately to learn more about the value of your case and what types of recoveries are available to you.