Obstetric Battery

By Nadia N. Sawicki

In 2013, Kimberly Turbin came to Providence Tarzana Medical Center for a momentous occasion – the birth of her first child. In the delivery room, she was surrounded by supportive family members. Her mother stood by her side with a video recorder, hoping to capture the once-in-a-lifetime event for posterity.

And this is where Kimberly’s birth story veers off course. According to the complaint filed in Los Angeles County Superior Court against her OB/GYN, Dr. Alex Abbassi, Kimberly is a survivor of sexual assault who had confided in the medical staff that she had previously been raped. She requested that the staff ask permission before touching her, and asked them to “be gentle.” And when Dr. Abbassi told Kimberly during delivery that he would be performing an episiotomy – a surgical procedure in which the perineum and vaginal wall are cut to provide more room for the baby to pass through the vaginal canal – Kimberly objected. When she asked why the episiotomy was necessary, Dr. Abbassi provided no medical justification. He responded, “What do you mean, Why? I am the expert here! … You can go home and do it! You go to Kentucky!” Kimberly continued to object, loudly saying “No!” and “No, don’t cut me!” numerous times. Dr. Abbassi proceeded nevertheless, cutting her perineum twelve times. A video of this entire encounter, which is extremely graphic and difficult to watch, is viewable on YouTube.

These allegations, if true, present a textbook case of battery – the defendant intended to cause contact with the patient, the contact was harmful and offensive, and the contact was neither consented to nor justified by any emergency. And yet, when Kimberly filed suit for battery and intentional infliction of emotional distress, Dr. Abbassi moved to dismiss her suit – he argued that because Kimberly’s claim was grounded in the failure to obtain informed consent, it constituted negligence under California’s medical malpractice laws and therefore was barred by a shorter statute of limitations. In June of 2016, however, Judge Benny Osorio denied Dr. Abbassi’s motion to dismiss the battery claim, holding that the “alleged act of proceeding against the express wishes of Plaintiff … is premised on intentional misconduct and not professional negligence.”

This case is worthy of note not only because of the trial court’s wise recognition of the difference between blatant violations of informed consent that sound in battery, and traditional failures of informed consent that sound in negligence, but also because of the chord it struck with women nationwide who have experienced similar (though perhaps not as egregious) violations of their autonomy interests during childbirth. These women share narratives of having carefully prepared birth plans ignored by physicians who take aggressive measures to speed delivery for reasons that often seem unrelated to the welfare of the mother and child. In no other medical context does it seem so common for health care providers to pressure patients into unwanted procedures, or (as in Kimberly’s case) force them upon the patient against her will. Notably, these decisions are made not calmly in an examining room, but in a context in which the patient is in pain and under tremendous emotional and physical stress. If ever there was a time to take particular measures to ensure that a patient is able to make autonomous medical decisions without coercion or pressure, surely this is it.

So why are violations of patient autonomy so common in the context of labor and delivery?

One explanation, to be sure, may be the substantially increased liability risk faced by OB/GYNs, who if found liable for negligence may be responsible for a lifetime of damages for the injured child. These providers may therefore be more inclined than other specialists to practice defensive medicine – but surely this does not justify the use of unnecessary medical interventions that a patient has explicitly rejected.

A second, and perhaps more controversial, explanation relates to the gendered nature of the physician-patient encounter in this context. When allopathic physicians began to assert their authority over pregnancy and childbirth, once the exclusive province of lay midwives, medicine was a male-dominated profession that valued paternalism over patient autonomy. The paternalistic attitudes of the 1800s were even more pronounced when physicians were treating female patients. While women in 21st century America surely have greater rights and are granted greater respect than they did two centuries ago, cases like Kimberly Turbin’s suggest that perhaps the legacy of gendered paternalism in medical practice has not entirely disappeared.

Nadia Sawicki

Nadia N. Sawicki is a Georgia Reithal Professor of Law at Loyola University Chicago, and Academic Director of Loyola’s Beazley Institute for Health Law and Policy. Her research focuses on patient decision-making and the informed consent process, particularly in the areas of end-of-life and reproductive care. Her work has been published in a variety of peer-reviewed journals - including the New England Journal of Medicine; Law & Policy; the Journal of Law, Medicine & Ethics; the American Medical Association Journal of Ethics; the Journal of Clinical Ethics; the American Journal of Bioethics; and the Journal of Legal Medicine – as well as in many academic legal journals. She has previously served as a member of the American Bar Association’s Special Committee on Bioethics and the Law, and was the co-chair of the American Society for Bioethics and the Humanities’ Law Affinity Group. Prof. Sawicki received her J.D. from University of Pennsylvania Law School, and her Masters in Bioethics from University of Pennsylvania School of Medicine. She is a graduate of Brown University, with a concentration in biomedical ethics. Prior to joining the Loyola faculty, Prof. Sawicki held the inaugural George Sharswood Fellowship at the University of Pennsylvania Law School, served as a lecturer in History and Sociology of Science at the University of Pennsylvania's School of Arts and Sciences, practiced law with Wolf, Block, Schorr & Solis-Cohen, and clerked for the Honorable J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania.

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