In August of 2014, we told you (and showed you, via video) Kelly’s story of a forced episiotomy, experienced while she was giving birth to her son in 2013. Kelly contacted us, asking for help finding resolution. Her original intent was to work with the hospital where she gave birth to make sure what happened to her never happens to another woman.
Kelly, and every other person in the United States, has the right to informed consent and refusal in her medical care. When she gave birth, however, her right to information about a suggested medical procedure and her right to say “no” to that procedure were completely disregarded. She was brutally cut without consent.
It’s been over a year since Kelly enlisted our help, and in that time, it has become clear that the hospital is not interested in working with her or Improving Birth. The state medical board has acknowledged receipt of her complaint, but has given her no answers and no indication of what action they may take.
In the interest of preserving a possible legal claim, Kelly and Improving Birth contacted over eighty lawyers, law firms, and non-profit organizations in California (the state in which Kelly gave birth and received an episiotomy against her explicit refusal) about her case. Some lawyers did not respond; some simply said they were not interested. And a few said, vehemently, that nothing bad happened to Kelly, that her doctor did nothing wrong, and that she does not have a case against either the doctor who cut her or the hospital where she gave birth. One said, unequivocally, “This is absolutely not a case.” In the end, only one lawyer out of that entire list said he believed in her case. Unfortunately, he was not able to take it for reasons unrelated the validity of her claim.
A woman, Kelly, had her vagina cut against her explicit refusal, twelve times. She had her vagina cut with a pair of scissors after she said no and for no apparent medical reason. This egregious violation of both her physical body and her right to informed consent as a medical patient is on video: twelve cuts, fast and clearly audible to any viewer of Kelly’s birth. Yet lawyer after lawyer after lawyer has said there is no case: not for malpractice, not for medical battery. Why?
Because Kelly and her baby both survived the childbirth–what happened during the childbirth is deemed irrelevant. The prevailing view–by care providers, hospitals, and lawyers–is that women have no rights in Labor & Delivery. Or that, if we do have rights, they aren’t meaningful rights, and they aren’t worth protecting. Ultimately, we are expected to be passive recipients of whatever treatment is doled out to us, whether it is unnecessary medical procedures or bullying behavior.
If twelve unnecessary cuts to a woman’s vagina, after her explicit refusal, on video, is not a slam-dunk case, then what is? What protections does any childbearing woman in America have if this is “not a case”?
Kelly isn’t alone. 2013 research showed that 6 out of 10 episiotomies performed were without consent (see Childbirth Connection’s Listening to Mothers Survey III)–and even though episiotomies are no longer seen as appropriate in routine care, after decades of research showing their harms. We know that dangerous violations of informed consent, including coercion and obstetric violence, take place throughout the country in situations where women are giving birth. (See our article “Improving Birth Breaks the Silence on Abuse of Women in Maternity Care.”) The vast majority of women who have contacted us cannot find lawyers to take their cases in part because they are not seen as having rights to be violated. To us, this is not acceptable. Women do have the same rights as any other human being, even when giving birth, no matter what state they’re in, where they are giving birth, or who is their care provider.
So, after over a year of helping Kelly look for legal representation, without success and with her Statute of Limitations looming ahead in just two weeks–there are only two options: cut our losses or keep fighting. You can probably guess what Kelly and we have unanimously decided.
Kelly will be filing a lawsuit…
And she will be supported by the only other group of people who take her seriously.
That’s right. Whether or not anyone else ever steps up to agree that Kelly’s rights were violated and she has a legitimate complaint, she will put her claim on record with a court of law. Her doctor and hospital will be officially notified that Kelly isn’t backing down. And we are backing her up.
(That means you.)
It is critical that Kelly’s complaint is filed before her Statute of Limitations runs out, and this is the only way she can preserve her claim as we continue to help her look for a lawyer. Despite the setbacks, we do believe that she will find one. The one lawyer (the only lawyer) who believed in her case but could not take it is actively helping to find another lawyer–it’s just going to take a little more time.
Kelly must raise $1,500 in the next 10 days.
The costs to file are prohibitive for her. The estimated $1,500 includes filing fees, process server fees, lost wages for Kelly to take off work, and travel expenses from where Kelly now lives, several hours away from where she had her baby. She is being supported every step of the way by a team that includes the president and vice president of Improving Birth and representatives (including lawyers) from Human Rights in Childbirth and the Birth Rights Bar Association, who have volunteered thousands of dollars worth of time and resources.
Now, we are taking it to the people: Please help Kelly meet this deadline and get her lawsuit filed (go here to help). This initial $1,500 is a fraction of the estimated cost to litigate her case (up to $100,000), but it’s a necessary step if she will ever be able to seek justice in a court of law.
And it’s more than a shot at her day in court–it’s a shot for every woman in America and potentially, a watershed moment for women’s rights in childbirth. If Kelly is successful, her action could very well create protections for other women in California and around the country, setting a precedent in which a nonconsented procedure during childbirth was not only recognized by the legal system–but righted.
Go here to help.
Even a symbolic amount of just $10 is meaningful.
Your support matters.
Thank you for being a hero for Kelly. She’s a hero to all of us.
April, 20, 2015 Update: What’s Needed in a Lawyer
Thank you all for expressing so much interest in supporting Kelly, and in helping to get her funded to file her initial complaint! Many of you have asked how you can help find her a lawyer. Here is some information about what she is in need of.
– A lawyer who recognizes why this non-consented surgical incision is a battery and is able to represent that. The vast majority of lawyers we spoke to had experience with medical malpractice but were unfamiliar with the legal implications of forced interventions in childbirth. The issue at stake is not about how the procedure was performed, or its medical necessity, or what other providers might have done in the same circumstances. The issue at stake is consent. (Incidentally, the Statute of Limitations for malpractice on this case was up last year, and Kelly wasn’t able to find representation for it as a malpractice case before that time, either.) Many of the lawyers we spoke to would not even consider bringing a battery case for a medical procedure, and especially one performed in childbirth, because it is such an unusual claim and they weren’t sure whether birthing women have a right to say “No.”
– Someone who is able to bring a case against the doctor in both state court and against the United States in federal court, Central District of California (the claim appears to fall under the Federal Tort Claims Act).
– Because Kelly’s case happened in California, she can only be represented by a lawyer who is licensed to practice California law. The lawyers who volunteer their time on behalf of Improving Birth and Human Rights in Childbirth are not licensed in California, but are happy to consult from other jurisdictions.
– The cost of this case has been estimated by one lawyer to be between $50,000 and $100,000. If you would like to contribute toward these costs, please do so here.