Public Health Law Map - Beta 5 - Medical and Public Health Law Site

een successfully managed in the hospital, the physician must convince a jury that
home deliveries constitute proper medical care. At this point the woman’s attorney
will pose the argument that the physician endorsed the safety of home deliveries by
consenting to perform one. The woman’s assumption of risk will evaporate if the jury
agrees. Very few jurors are sympathetic to physicians who claim that the patient
bullied them into agreeing to provide unsafe care. The defense that the woman could
not afford to go to the hospital can be countered with the availability of emergency
admissions. If the woman is in active labor and the physician is willing to fight with
the hospital administrator, the woman will be admitted because of the laws governing
emergency care of women in labor. The hospital may punish the physician for
holding it to its legal duty, but that is not the pregnant woman’s problem.
Legally, there is little to recommend participation in home deliveries. Analogies to
the successful use of home deliveries in Europe have limited persuasion. The
European countries have a structurally different medical and legal system that does
not encourage a patient to sue her physician for any complications of a home birth.
The ethics of home deliveries are more ambiguous. A woman in good health, without
risk factors for birth complications, and with realistic expectations could reasonably
consent to a home delivery. Although the physician’s legal risk might be great if any
complications arose, it would not be unethical to participate in such a delivery.
Ethical problems arise when any of these preconditions is not met. If there are
medical contraindications to a home delivery, the physician should hesitate before
implicitly minimizing those risks by agreeing to deliver the woman at home. If the
woman has unreasonable expectations, the physician should consider the possibility
of not being able to render needed care in a crisis. A woman has a legal right to
refuse necessary care, but physicians have an ethical duty not to encourage or
support unreasonable medical care decisions. Physicians who choose to participate in
home deliveries should carefully document the circumstances that make a home
delivery necessary or appropriate. The informed consent must recite the added risks
of the home delivery and why delivery in a hospital is undesirable or impossible.
H. Working with Midwives
One of the most difficult areas in referral and consultation is the relationship between
obstetricians and midwives in states that allow the independent practice of midwifery.
Some states allow midwives to practice only under a physician’s supervision. In these
states, the relationship between physicians and midwives is governed by the general
principles governing the relationship between physicians and other medical personnel.
Midwives pose unique problems because of the view that pregnancy is a natural
function that does not require sophisticated medical attendance.
The level of maternal and fetal morbidity and mortality is unacceptable for any woman
accustomed to modern medicine. An effective midwifery system depends on the
patients of independently practicing midwives being ensured of access to necessary
medical and surgical care. European midwifery practice is often touted as a model of
such a system, but the model is not directly applicable to the United States because of
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