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who might sue on her behalf or on their own behalf because of their suffering
occasioned by her injuries.
The patient’s assumption of risk (or informed consent) is effective only if it is
carefully obtained and documented. The risks to the patient and to the baby must be
fully explained and the explanation documented. This is best done with a structured
prenatal care system, tailored to the patient’s special needs. Dilemmas arise because
the law is ambiguous about a woman’s right to assume the risk of injury for her fetus.
Although it is expected that the courts will not hold a physician liable when a woman
clearly refuses care, the burden will be on the physician to convince the jury that the
refusal was both knowing and unshakable. Juries assume that patients are rational
and refuse care only if they are insufficiently informed of the risks. Juries will have a
stronger prejudice that a pregnant woman would not knowingly have put her baby at
risk. Although it may be easy to convince a jury that a woman who uses crack does
not care about her baby’s well-being, it will be much harder to convince them that
refusing medical care evidences the same level of disregard.
4. The Self-Destructive Pregnant Woman
Self-destructive behavior poses different legal and ethical problems depending on
whether it is legal behavior, such as alcoholism, or illegal behavior, such as cocaine
use. The AMA policy statement suggests that the physician should provide
information and document consent. Beyond this, physicians must decide how far
they are willing to accommodate a patient who is unwilling to modify medically
destructive behavior. Is there a point where the physician’s continued treatment of
complications of self- destructive behavior becomes an impediment to the patient’s
commitment to changing the behavior? Is refusing to continue to treat the patient
ethically justifiable if the patient does not have access to appropriate treatment
programs? Should the physician’s role differ for illegal activities such as cocaine use?
Every self-destructive patient poses these questions. They are more urgent when the
patient is pregnant and her behavior threatens to injure her fetus. Absent a state law
requiring the reporting of the behavior in question, the physician has no duty to
report a patient’s illegal drug use to the police or public health authorities. If the state
offers only jail to illegal drug users, it is difficult to argue that reporting such a
patient is in the patient’s interest. A physician’s ethical duty is more difficult to
determine if the state offers appropriate rehabilitation services. Given the current
knowledge of addictive behavior and the effects of drugs such as cocaine, it is
difficult to speak of a knowing and voluntary refusal of care by an addicted patient.
If the patient cannot make an informed choice, the physician’s duty may be to seek
judicial intervention to determine the patient’s best interests.
J. Obstetrics Risk Management
When a baby is born with a severe genetic disease or intrauterine injury, the parents
often blame themselves for the injury. If there is any indication that the physician
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