Legal Corner Q&A: Informed Consent (Part 2) (or, "They Can't Really Kick You Out of the Hospital for Not Following Hospital Policy & Can They?")

[Editor's note:  This second segment of Ms. Magan's Legal Corner Q&A, focusing on informed consent, makes a great resource for childbirth professionals to share with their clients in the event that questions surrounding hospital policies/procedures comes up]A Review

In my first post, I talked about that legal and ethical doctrine,informed consent, which is founded upon the notion of personal autonomy a person's right to decide what treatment to agree to, or refuse and the health care provider's obligation to disclose all material facts pertaining to a particular treatment or procedure. I provided three scenarios in which a pregnant woman could find herself if she ends up laboring in a hospital.  It was determined that, the last of our three examples (your provider comes into your room and forcefully lobbies the use of Pitocin to induce or augment labor) allowed the most straightforward answer (see previous post).

Now, we will address the other two scenarios:

  1. As you walk the halls to bring on labor, a nurse firmly escorts you back to bed, explaining that hospital policy requires you to stay in bed;
  2. When you ask for a glass of water, you are instead poked with an IV because  that's hospital policy; and the overarching question that affects the analysis of each of the examples "They can't really kick you out of the hospital for not following hospital policy & can they?"

Short Answer
Yes, but &They cannot kick you out if you are in active labor (when the cervix is about 3 - 4 cm), or any other condition that may be considered an "emergency" without violating state and federal law. (e.g., Emergency Medical Treatment & Active Labor Act (EMTALA). Similarly, a physician may not abandon you, meaning he or she cannot "fire" you as a patient without reasonable notice when you still require medical attention. But you want a healthy, happy, delivery, not a potential lawsuit. So what can you do?

What is Hospital Policy and Procedure - Can I See It?
Hospital polices are designed to save money, streamline care and avoid at least on paper liability. So, for instance, a fetal monitor may be strapped onto you soon after admission to the hospital, to assess whether the fetus is in distress;  and you may not be allowed to walk the halls after receiving pain medication, including, often, epidurals the hospital's policy to avoid falls (rather than hire more staff to ensure safety). Knowing these real reasons for the policies, though, provides you some strength.I can tell you that, as an attorney, it is often a war to obtain a hospital's policies and procedures, even in the midst of a lawsuit. But, as the patient, you are armed with that right by virtue of another hospital policy - the Patient's Rights and Responsibilities.

Obviously, hospital policies and procedures may vary from institution to institution, and even within the hospital, where, for instance, the Labor and Delivery Department may have additional policies that conflict with other general hospital policies. But the hospital's Patient's Rights and Responsibilities policies will generally be the same among institutions, because they are written to comply not just with state, but with federal laws. (e.g., the Patient Self Determination Act of 1990, 42 U.S.C. 1395cc(f) (2010), which applies to all Medicare/ Medicaid participating hospitals and facilities). You will usually have to initial something on the hospital's admission papers/consent for treatment form that you understand your rights as described in the Patient's Rights and Responsibilities brochure, which they oftentimes never provide, but which you can usually find online, or with Admissions at the hospital. So, when it looks like your preferences for a natural birth are being unfairly dashed, here are some of the rights you will find in, or that flow directly from, your hospital's Patient's Rights and Responsibilities (or Patient Bill of Rights) policies that you can use to negotiate treatment that better suits your desires:

Example: You would prefer to walk in order to help labor along; but the staff is insisting that "Hospital Policy" requires that you lay down in bed. Your response might be, "May I please see the rules, because I also understand that perhaps we can negotiate on this point if I accept responsibility for doing so?"

Your support:
Know any hospital rules or policies that apply to your conduct while a patient.

Accept full responsibility when refusing treatment or not following the physician's instruction.

Example: I would prefer a glass of water, not an IV; can't we agree that I will receive an IV only in the event that I need one?

Your support:
Have your psychosocial, spiritual and personal values, preferences and beliefs respected;
Participate in the development and implementation of your plan of care; and
Request or refuse treatment, to the extent permitted by law. However you do not have the right to demand inappropriate or medically unnecessary treatment or services.
You have the right to leave the hospital even against medical advice to the extent permitted by law, and you have the right to be informed of the medical consequences of any of these actions.

Example: They are treating you like "the difficult patient." They want nothing more to do with you. You overhear a nurse say, "If she wanted natural childbirth, she should have stayed home." You think, "Uh-oh" and say, "I am sorry you believe I am being difficult; I know it is my responsibility to report any concern I might have, and I simply have a concern that this is not best for me or my baby; I would like to talk to someone about this."

Your support:
Report any unexpected changes in your condition or any difficulties or concerns you have as soon as possible;

Make any concerns, complaints, or grievances known to your care provider  in order that they may be resolved in a timely manner by either the immediate healthcare provider or by hospital administration;

(You also have the right to participate in ethical questions that arise in the course of your care, including issues of conflict resolution&)

In Sum
Your relationship with any health care provider is based on trust. It is extremely important that you know your rights and establish relationships with those health care providers who will support your wishes. Your birth plan is not a contract, and neither your maternity care provider, nor the hospital, has to comply with it. But take it, and your questions to both your doctor and hospital in advance. Learn what their standard procedures are. Discuss your desires and objections in the context of the hospital"s Patient"s Rights and Responsibilities policy.  If your birth plan and concerns are vetted beforehand, it is more likely that you will be able to reach amicable solutions to any problems ahead of time, rather than in the throes of labor.

Posted by:  Casey Magan Waddell & Magan, PC

Although we go to great lengths to make sure that the information we present here is accurate, please know that legal information is not the same as legal advice and does not apply the law to an individual's specific circumstances. Please consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation. 

To leave a comment, click on the Comment icon on the left side of the screen.  You must login to submit a comment.  

Recent Stories
SOGC and Canada Embrace Home Birth - Why is the USA So Far Behind?

January is National Birth Defects Prevention Month - What the Childbirth Educator Can Be Sharing

Series: Building Your Birth Business - Google Classroom to Share Resources and Build Community