Informed Consent Is Critical During Labor and Delivery Interventions

All patients have the right to make informed decisions about their medical care. However, labor and delivery can present difficult choices that require quick decisions. Your care team may recommend interventions to decrease your pain, reduce the risk of complications, or respond to signs of fetal distress. During this process, your right to informed consent matters more than ever.

Doctors and hospitals must disclose risks, alternatives, and material information before performing medical procedures whenever possible. If they fail to tell you information that a reasonable patient would want to know, and that failure causes harm, you may be able to pursue a medical malpractice claim.

What Is Informed Consent?

Michigan law requires medical providers to provide the information a “reasonable patient” would need to know to make an informed decision about medical care. This generally includes:

• The purpose of the recommended procedure or course of treatment.
• The material benefits, risks, and possible complications of the procedure or treatment.
• Reasonable alternatives to the procedure or treatment.
• The likely consequences of not performing the procedure or treatment.

Medical providers must take reasonable steps to ensure the patient understands this information and freely consents to the procedure or course of treatment. They should use language the patient can understand and offer to answer questions or provide further information. They are responsible for ensuring a patient gives consent freely and voluntarily and informing the patient that they may withdraw consent at any time.

Medical providers often ask patients to sign a form acknowledging that they understand this information and agree to the procedure. However, signing such an agreement doesn’t automatically take away your legal rights. If your provider failed to adequately inform you about a procedure’s purpose, risks, alternatives, or consequences, you may have legal options.

Emergency Exceptions to Informed Consent

If a medical provider reasonably believes there is an immediate threat to a patient’s life or a serious health risk, they may proceed with appropriate treatment without obtaining consent. This exception relies on a clinician’s good-faith judgment that delaying care to obtain consent would cause serious harm.

However, this “emergency exception” is very narrow. Once the emergency has passed, the provider must make reasonable efforts to inform the patient about further treatment and obtain consent before proceeding.

Common Labor and Delivery Interventions

Many potential complications can occur during labor and delivery. Some of the most common interventions that labor and delivery teams use to treat these issues are:

• Administering Pitocin. Pitocin is a synthetic version of oxytocin, a natural hormone that causes uterine contractions. Pitocin is often given to induce labor or speed up the process if labor has stalled, but it can also be used to deliver the placenta and control bleeding after the baby is born. While it can help prevent or avoid some complications, it can cause other issues like fetal distress or dangerously frequent contractions.
• Cesarean delivery (C-section). Doctors may perform an emergency C-section if complications that threaten the mother’s or baby’s health arise during delivery. Sometimes, a care provider will schedule a C-section to minimize the chances of complications for high-risk patients. However, a C-section is a major surgical procedure with significant risks.
• Assisted vaginal delivery (forceps or vacuum). Doctors may use tools like forceps or a specialized vacuum to assist in problematic deliveries, such as when a baby’s shoulders get stuck and prevent it from advancing. However, these surgical maneuvers have specific risks, including lacerations to the mother and neonatal skull injury, facial nerve damage, and intracranial bleeding.

A mother’s care team should obtain consent for these and all other interventions whenever possible. However, time is of the essence when responding to many labor and delivery complications, making it challenging for patients to fully understand and freely consent. You may feel like you don’t have a choice and feel pressured by your care team to approve.

One way to improve patients’ understanding of the risks and alternatives of these common interventions is to discuss them in advance rather than in the heat of the moment. Prenatal care providers should educate patients about common childbirth complications and any specific, individual risks they may be at greater risk of facing. A prenatal provider’s failure to do so may be negligence.

When Failure To Obtain Informed Consent May Be Malpractice

A patient may be able to bring a medical malpractice claim against a provider based on a failure to obtain informed consent. To succeed on this type of claim in Michigan, a plaintiff generally must prove all three of these elements:

• The provider failed to disclose material risks or alternatives a reasonable patient would want to know before performing a procedure or intervention.
• The undisclosed risk happened, causing injury.
• The plaintiff would have refused the intervention or chosen a safer alternative if they had been adequately informed.

These cases hinge on providing expert testimony to show what a reasonable practitioner in that specialty would disclose and what a reasonable patient would have wanted to know. These cases can be complex and challenging to prove. If you believe you have a claim, consult an experienced birth injury attorney.

Do You Have a Claim for Failure To Obtain Informed Consent?

Every case is different, and not every example of poor communication amounts to malpractice. However, many situations may support a malpractice claim. Talk to a lawyer if:

• You were told after the fact that your care team performed an intervention for different reasons than what they told you when you consented.
• You experienced a known complication of an intervention (such as severe fetal injury after a vacuum delivery) that you would have refused if you had been fully informed.
• Your care team made decisions without offering reasonable alternatives or without documented attempts to explain risks.
• The team proceeded even though you expressly declined or asked for more time to decide about an intervention or procedure.
• Your care team performed additional interventions or procedures outside of or beyond the scope of your consent.

A skilled attorney will obtain your medical records, consult obstetric and neonatology experts to determine whether disclosure met Michigan standards, and analyze whether the undisclosed risk more likely than not caused the injury. Consult with an attorney experienced in Michigan birth-injury and malpractice law claims as soon as possible, because these claims have strict time limits and special procedural rules. If you or your baby sustained injuries during labor and delivery and you think you may have a claim, contact the legal team at Sommers Schwartz, P.C. Talking with our experienced medical malpractice lawyers will help you understand whether failure of informed consent contributed to your injury and what options you may have to pursue compensation. Contact us today to schedule a free, no-obligation, confidential consultation.