50 Ways to Protest a VBAC Denial
by Barbara Stratton

[Editor's note: This article first appeared in Midwifery Today Issue 78, Summer 2006.]

In 1999, the American College of Obstetrics and Gynecology (ACOG) issued new, restrictive guidelines for physicians and hospitals that handle vaginal birth after cesarean (VBAC). At first small, rural hospitals stopped offering VBAC; then larger, metropolitan ones followed suit. Now over 300 hospitals in our country no longer allow women to choose their method of birth.

If you have been denied a VBAC simply because of hospital or physician policy, you can fight the issue in many ways. Okay, so I really only have 11 approaches to try (not 50). But hopefully that will be enough! In Maryland, I am currently trying all of the approaches at once but you need not be such a zealot. Just pick whatever you can manage and go for it. Women in this country have never had to force a reversal of VBAC bans, so things are a bit experimental in terms of what will eventually work. I favor a comprehensive approach of harassing the physicians and hospitals from all angles. Here are the approaches you can try:

1. Hold a rally at the hospital. Contact the International Cesarean Awareness Network (www.ICAN-online.org) to be matched with a "rally mentor" who can help you with the details. Prior to the rally, establish a letter-writing campaign directed at the hospital and perhaps a petition to present as well. When women rallied in November 2003 against a newly instituted VBAC ban in Santa Cruz, California, the hospital administrators met with the protesters and reversed the ban on the spot!

2. File a complaint with your health insurance carrier on the grounds that they are paying extra money for unnecessary cesareans. Also, if your hospital meets the ACOG VBAC criteria (Obstetrics & Gynecology. 2004; 104(1): 203–212), then ACOG's practice guidelines do not say to ban VBAC. Rather, the woman and her physician should come to a mutually acceptable decision. Therefore, if they prohibit VBACs, your OB and your hospital are not following the national "standard of care" set forth by ACOG and you can use that in your complaint.

3. File a complaint with your state medical board against the physician. Again, if the hospital where he/she has privileges meets the ACOG guidelines, then use the standard of care argument. Also point out that your physician is violating your right to refuse treatment. For more information on these rights, see the essay created by Katie Prown based on her research of the illegality of VBAC bans, at www.birthpolicy.org/primer.html.

Katie also covers how denying a patient the right to refuse treatment violates ACOG's own ethics guidelines. Throw that in, too!

In situations where you were literally forced into surgery, use the blue pages of the telephone book to contact your state's attorney general and pursue criminal assault and battery charges against the physician.

4. File a complaint with your state agency that regulates hospitals. In Maryland, this is the Office of Hospital Quality Assurance (comes under of Department of Mental Health and Hygiene). They have an official complaint process for consumers. Again, use the ACOG standard of care argument if your hospital meets the VBAC guidelines and include that you are being denied your right to refusal of treatment. Then, pull a copy of your hospital's patient bill of rights (found on many hospital Web pages) and see if the ban is a direct violation of their own document! In Maryland, all hospitals are required to have a bill of rights.

5. Heck, while you are at it, write a letter to ACOG about their failure to update the VBAC guidelines after the New England Journal of Medicine study came out in December 2004. That study reported that the rupture rate in a non-induced or augmented labor is only 0.4%. Since only a portion of those cases will be catastrophic, the study summarized that 588 elective repeat cesareans would be required to prevent "one poor perinatal (meaning, around the time of birth) outcome." ACOG has a committee that reviews all practice guidelines every 18 months or sooner "if new information is presented." Why haven't they re-addressed the VBAC guidelines in light of that study? Address letters to:

Dr. Michael Mennuti, President
ACOG
409 12th St., SW
Washington, DC 20024

Send a copy to the man who heads the committee that updates practice guidelines Dr. Stanley Zinberg, Vice President of Practice Activities, at the same address. Give them two weeks, then start calling! ACOG's main number is (202) 638-5577.

6. One of the most promising routes to reversing the VBAC bans that we probably have is to file complaints through the Medicaid system. Women who file the complaints don't have be on Medicaid themselves in order to complain—just make sure that the hospital itself receives federal funding. Here, in Katie's words (referenced previously), is the rundown on how and why to approach Medicaid:

All hospitals that receive federal funding (approximately 80% of them do) must adhere to the Center for Medicare and Medicaid Service's (CMS) Conditions of Participation (CoP), which require hospitals to honor patient rights as defined by the Patient Self-Determination Act, the Consumer Bill of Rights and Responsibilities, the Emergency Medical Treatment and Active Labor Act (EMTALA) and the large body of case law upholding the right to refuse treatment, to be fully informed of the risks, benefits, and alternatives of any proposed treatment and to participate in all treatment decisions.Hospitals that fail to adhere to the CoP are subject to heavy fines and risk losing their right to qualify for Medicare and Medicaid funding. In addition, the CoP requires that hospitals institute an internal grievance process and give patients the information they need to know about how to file a complaint and where to appeal in the case of an unfavorable ruling.

Pregnant women who plan to give birth at a hospital that performs repeat cesareans on all VBAC mothers should start first by filing a complaint with the Chief Compliance Officer, whose job it is to ensure that the CoP are met. If the hospital has no Chief Compliance Officer, then call and ask to receive the necessary information to file a complaint for a violation of the Center for Medicare and Medicaid Service's Conditions of Participation.

The hospital must respond to an initial complaint within one week or else offer an explanation of the reasons for the delay and an estimated time frame for a response; failure to do so is in itself a violation of the CoP. If the hospital's Chief Compliance Officer or other designated agent issues an unfavorable ruling, then the next step is to appeal to the Office of the Inspector General at the Department of Health and Human Services. If HHS also rules in favor of the hospital, then you may appeal to the Department of Justice, which is authorized to bring litigation against hospitals on behalf of their patients.

Ideally, I'd like to have several of these cases filed across the country in the near future. Please contact me if you are planning to pursue this route.

7. Find a lawyer who will help you sue your banning hospital. Make sure you give him or her the link to Katie's essay because most lawyers don't seem to know the ins and outs of the patient rights issue. Tell them about the violation of standard of care if that pertains. To find a lawyer, write to your state chapter of the ACLU or contact your local law school and ask for someone who deals with health law. Try your state's bar association for referrals as well. In a case from Massachusetts a woman was awarded $1.5 million for the post traumatic stress disorder and medical complications resulting from her coerced cesarean.(Meador v. Stahler and Gheridian (Middlesex Superior Court C.A. No. 88-6450, Mass. 1993)) Many lawyers won't know about that case until you tell them.

8. Write to the attorney general (AG) who deals with your state's department of health. If attempts at convincing your state's hospital regulatory agency fail, you can try a different route. Find out which specific AG advises your state's department of health (Maryland has an entire group of attorneys that advise our health department so I directed my efforts at the head of that group). Write a letter outlining the legal issues surrounding the VBAC bans (I can provide you with a sample based on the one I'm sending) and ask him or her to write a legal opinion on the issue. If the AG does not agree to help, contact your state elected officials requesting that they ask again for you. Find your elected officials by typing "(your state) state government" into Google or another search engine.

9. Complain to JCAHO. Have you heard of The Joint Commission on Accreditation of Hospitals (JCAHO)? They are an organization that accredits 80–85% of the hospitals in our country. One of the standards for accreditation is patient rights. Their home page is www.jcaho.org.

Because they provide an opportunity for consumers to file complaints against hospitals accredited by them (www.jointcommission.org/GeneralPublic/Complaint), I requested that they process a complaint for me against Maryland's VBAC-banning Frederick Memorial Hospital as a patient rights issue.

[Editor's Note: Consumers without Internet access can call the JCAHO customer service department at (630) 792-5800 to find out if an organization is accredited and request a copy of the latest Quality Report.]

The example I provided JCAHO involved a Frederick woman who previously had a cesarean followed by three VBACs. She was newly pregnant with another child when a Frederick Memorial OB advised her that she would have to have a cesarean per hospital policy. JCAHO's unhelpful response was that unless a woman has already had a forced cesarean, her rights have not been violated.

As a result of my telephone call, JCAHO agreed to process complaints in cases where the forced surgery already had occurred. I would like to see as many complaints as possible regarding such cases. To determine whether your hospital is accredited by them prior to filing a complaint, go to www.qualitycheck.org.

Complaints should include the full name and address of the hospital at issue, and you can choose to have your name kept confidential. Remember, complaints have to be about patient rights. Just stating that the hospital is bad for banning VBAC isn't enough. JCAHO, like many other agencies I'm working on, immediately gave the answer "We can't force any hospital to offer any specific procedure." Yes, I've told them that cesarean is the procedure, not VBAC, but they didn't care.

Give them two weeks to process your complaint and then start calling! Their number is (630) 792-5900.

Not getting a satisfactory response? Write to the president:

Dr. O'Leary, President and CEO
JCAHO
1 Renaissance Blvd
Oakbrook Terrace, IL 60181

Please send me a copy at the e-mail or address below so that I can track this activity and determine how this approach is going.

10. If the hospital that is denying your VBAC claims they don't meet ACOG's VBAC guideline relating to "immediately available" anesthesia during labors, call your local newspaper and pitch the following story: "Women go to hospitals to give birth because they often feel that a hospital is best equipped to handle birth emergencies. Did you know that XYZ Hospital handles 1400 births a year but doesn't actually have the ability to perform an emergency cesarean 24 hours a day/seven days a week? They also offer heart procedures/gastric bypass/other risky treatments, but if those patients need emergency surgery overnight no anesthesiologist may be available to handle the case. Don't you think that birthing women and other health consumers in our area have a right to know this?"

11. Call your state representatives and request a personal meeting. Tell them about the VBAC ban and ask them to introduce a bill during the next legislative session that specifically prohibits VBAC bans and requires informed consent for all VBAC women. Maryland has some great laws already pertaining to breast cancer treatment that can be used as an example. Nearly everyone I've ever told about these forced cesareans gets completely bug-eyed with disbelief. Your elected officials will probably be no different and may be very willing to help. For the informed consent portion of the bill, I suggest requiring caregivers to provide copies of Childbirth Connection's (formerly the Maternity Center Association) publication titled What Every Pregnant Woman Should Know About Cesarean Section 2004. You can order this publication at app.etapestry.com/hosted/ChildbirthConnection/OnlineStore.html for $4.00, by mail at Childbirth Connection, 281 Park Avenue South, 5th Floor, New York, NY 10010 or by phone at (212) 777-5000. You can receive a discount on bulk orders.

Lastly, you can probably expect that the first response you are going to hear from many of these approaches is that no one can "force a hospital or physician to offer a specific procedure." Be ready for that and keep hitting hard with the other aspects I've mentioned regarding battery, patients' right to refuse treatment, etc. Feel free to e-mail me if you'd like any further help and please let me know what your results are.

Barbara Stratton is a mother, doula and birth activist who lives in Baltimore, Maryland. She was voted one of the United States' top 30 women's health activists of 2005 by the National Women's Health Network. She can be reached at WomancareDoula@comcast.net.


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