An Attorney’s Fight to Challenge Rights Violations & Illegal Maternal Care Practices with Hermine Hayes-Klein

Hermine Hayes-Klein: I think that there's a cognitive disconnect happening with a lot of these providers where in pregnancy, I don't think they're planning to betray the patient. I can't imagine that they're sitting there when they say, "Yes, we'll respect this. Yes, we'll respect your right of informed consent. Of course, it's what we always do."

I don't think when they're saying that, that they're thinking, we're going to get her later because we're never going to respect her right to informed consent. They just don't recognize that what they're doing is violating the right of informed consent. That what they consider to be "just how we do it around here," what they would actually call their "standards of care," are actually illegal industry wide rights violations.

Doctors don't get to make up a standard of care that violates patient's statutory rights, human rights and bioethical rights. Standards of care are things like how to set the leg and how to clamp the artery when it's bleeding. They're not whether to and how to allow patients to make informed medical decisions is not something that doctors get to choose. It's not something that doctors get to adjust. It's actually a mandate on them that they must do. And the fact that they all ignore it doesn't make that a new standard of care to ignore informed consent. It makes it an industry-wide illegal action so those are the illegal actions that I'm challenging.

Jen Kamel: Hello, hello, and welcome to The VBAC Facts® Podcast. I'm Jen Kamel VBAC Facts® founder. And since 2007, our focus has been to provide accurate and objective information on vaginal birth after cesarean and repeat cesarean to parents professionals. Policymakers and the court so all decisions can be informed, ethical, and just today, I am so thrilled to bring you our guest informed consent expert and international human rights lawyer, Hermine Hayes-Klein. We are going to discuss the role lawyers play in improving maternal healthcare, including examples of rights violations of birthing women, as well as the recent $1.73 million jury verdict she secured for a mother.

Next VBAC Facts® Training

Jen Kamel: But first I want to share with you about the next VBAC Facts® training, and a reader question about prior uterine dehiscence and its potential impact on future uterine rupture risk. So first up, my next speaking engagement is this month for a team within the Los Angeles County Department of Public Health, specifically the LA team and stakeholders for the California Abundant Birth Project. I am so excited to support the California Department of Public Health as well as the California Abundant Birth Project in their VBAC education.

If you want to bring me out for a VBAC training for your team, unit, conference, or community, go to VBACfacts.com/speaking to learn more. The first step is to book a call with me and let's discuss who's your audience, what do they want to learn about, what's important to them, and then we will craft a program specifically for your needs. So go to VBACfacts.com/speaking to learn more.

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Reader Question: Prior Uterine Dehiscence

Jen Kamel: Next up, I have a question from a reader, and this is a question that I get quite frequently, so I'm glad she asked it so that way we could feature it on the podcast. So reader, Emily from the Twin Cities said,

"Hi, Jen. I sent in the question about uterine windows that you answered on the International Cesarean Awareness Network Q & A. I'm also the ICAN chapter leader here in the Twin Cities. My question was missing some context because I had wanted to make it more applicable to others. I'd appreciate your thoughts if they differ from what you've already shared. I have had two unplanned cesareans transferring in both times from planned home births. Both times I requested the cesarean after many days in labor and being unable to cope even with epidurals.

During the second one, last April, the OB found a window along my previous uterine incision. It was seven centimeters and two thirds of the layers opened. This was when I was told by the OB who did the surgery and the one who checked on me in post-op that I can never labor again and will need to schedule a C-section at 36 37 weeks.

They lectured my home birth midwife at length about at two. In February, I met with one of the only OBs who does maternal assisted cesarean in the Twin Cities. Her recommendation was the same except she was all about fearmongering. I asked for the evidence, she admitted they didn't have any, and brought up my death again and having two children already, and that she'd just write me a check now if I went past 38 weeks.

I asked the head of midwifery at a different hospital. She said that she understands that to be the standard of care where she works too. So while I know there isn't evidence and that it may not be present in a future pregnancy, I feel at a loss for finding a provider who will honor if I don't want surgery as a first choice.

It just feels like multiple C-sections are the norm and we shouldn't question the impacts of them. I want to have that conversation. What I want is a provider who will collaborate with me, as I stated in my question, I don't know how I'll feel about a C-section if I'm pregnant again, but I know that honoring when my baby wants to be born will still be important to me. Meaning waiting for labor to begin on its own. 36, 37 weeks is early. So what my question actually is, is do we have any evidence that prior uterine windows increase the risk of uterine rupture in future pregnancies? Do we know if the uterus heals on its own? My OB repaired mine.

Am I being obtuse for even asking these questions instead of agreeing with the stated recommendations I've been given again and again? Thank you kindly for your time.

So this question is so relevant especially within the context of our upcoming conversation with Hermine Hayes-Klein. So here's the bottom line. We do not have solid evidence linking a prior uterine dehiscence to subsequent uterine rupture risk. So in the absence of this evidence, some clinicians say, okay, I want you to schedule a repeat C-section. That's the only safe choice.

However, there are other clinicians who will say, we don't have solid evidence on this question. And so it's ultimately up to you. This is ultimately your decision. You get to weigh, how do you feel about a level of unknown evidence? That is a decision only you can make. And that's something that the woman makes within the context of the known risks and benefits of VBAC versus repeat Cesarean, not only in this pregnancy, but in future pregnancies and even beyond her reproductive years. Because it is true abdominal surgeries have lifelong implications for women. And abdominal surgeries include things like hysterectomies and cesarean, which many of us have had. And in fact, that would be in line with what Hermine will say later on in the interview.

So to answer some of the questions you asked:

Does the body heal? Yes, absolutely.

Could there be an increased risk of uterine rupture? Yes, there could.

Do I think that dehiscences occur at a much higher rate, but are not noted because people deliver vaginally? Yes. And why do I make that statement?

I make that statement because dehiscences are usually visualized two ways. One in an ultrasound prenatally and two during a C-section. So unless someone has a dehiscence and has an ultrasound or has a C-section, it's very likely that that dehiscence will go unnoted. And I believe there are a lot of people who have dehiscences and then subsequently deliver vaginally, and no one ever knows the difference.

But now since that has been visualized in the C-section, now the question is what do we do? Could the dehiscence reappear in a next pregnancy? Yes, it could. Could it not? Also, yes.

So I think the desire to wait until labor begins is reasonable. And my brain, because I want all the info, would find it interesting to have an ultrasound. So if you get pregnant again, have an ultrasound, see if that dehiscence, reappears or not, and then see how you feel and how your provider feels.

If the dehiscence doesn't reappear, does that change how you feel? Does it change how your provider feels? And if the dehiscence does reappear. Does that change how you feel?

The thing that we have to remember is anytime we do any kind of test, we need to think into the future and think, how will I feel if this test is positive or negative? And the next question always is, will it impact the choices I make?

And will it impact the choices I make is directly tied to the level of evidence available on not only that test, but the implications of that test. So in this situation, the ultimate decision is based not only on the accurateness of that ultrasound measurement, but it's also based on the level of evidence available on prior dehiscence impacting future uterine rupture risk.

And since we do not have evidence making that connection, what meaning does an existing dehiscence have on the subsequent labor? Depends who you ask. If you go and listen to episode 13 with Dr. Stroud, we actually quickly talked about this topic and how he concurs a prior dehiscence has no clinical significance on subsequent pregnancies.

So again, go listen to that podcast, hear what he has to say, because depending on who you talk to, people are going to have different reactions to the fact that we don't have solid evidence and different opinions on how you should proceed.

So one question to ask is if you get pregnant again and you have an ultrasound done and a dehiscence is not noted, will your provider then be supportive of you waiting for spontaneous labor? Or at the very least, will they honor your right to make that decision and attend your planned VBAC.

Now, if you're open to travel for birth, either for a cesarean after your labor begins or a planned VBAC, you might have more options.

Telemedicine VBAC Consults

Jen Kamel: Now there are a couple OBs I know and trust who do telemedicine VBAC consults, and you might feel more at ease either way, getting their opinion. The first is Dr. Stroud out of Fort Wayne, Indiana. I interviewed him in episode 13 of the podcast, which was entitled, "Why This OBGYN Passionately Supports VBAC Access, and You Should Too," which you can listen to at VBACfacts.com/e13. His email address is drstroud @myfmcc.com. So that's Dr. S-T-R-O-U d@myfmcc.com. I'll include that in the show notes.

The second is Dr. Emiliano Chavira, a maternal fetal medicine specialist out of Los Angeles, California. His phone number is (310) 603-2345, and I am so thrilled that he has agreed to be on the podcast. One of the things I want to chat with him about are all of the consults that he gets from OBs who say, "I don't really think this person is a candidate for VBAC. I want you to review their their records," and he reviews their records and he's like, there's no reason why you shouldn't plan a VBAC. It'll be fantastic for you to hear why this MFM, why this high risk OB, enthusiastically supports VBAC and perhaps you should too.

Introducing Hermine Hayes-Klein

Jen Kamel: Okay. Let me introduce you to the woman who, and I do not say this lightly, is changing the landscape regarding informed consent, responsibility, and liability within women's healthcare, especially midwifery and obstetrics. The incomparable Hermine Hayes-Klein. Hermine is an attorney and international advocate for women's rights in maternal healthcare. From 2008 to 2012, Hermine taught international law at the Hague University in the Netherlands, where she was the director of the Bynkershoek Research Center for Reproductive Rights.

Since 2012, Hermine has organized six multi-stakeholder international conferences on human rights in childbirth in Europe, the US, South Africa, and India, spoken publicly around the world on human rights and maternal healthcare, consulted on legislation resulting to birth and breastfeeding in multiple jurisdictions, and worked directly on many legal cases relating to midwifery, informed consent, shared decision making and modern maternity care. Hermine and her family live in Portland, Oregon. USA. Welcome Hermine to The VBAC Facts® Podcast. I am so excited for this conversation!

If someone had never heard of you, if someone knows nothing about this topic we're going to discuss what are the critical things that they're going to learn.

The Violation of Informed Consent

Hermine Hayes-Klein: So, I'm an attorney and my work is civil and human rights. And specifically the human rights of women and birthing people. And my work focuses on pregnancy and childbirth. The issues that I address are the abuse of women and birthing people by the maternal health system. And that can look a bunch of different ways.

One major way that it looks is the violation of informed consent. There's a lot of people walking around with physical and psychological injuries from the way that they were treated during childbirth, and these are preventable injuries that could be prevented just by following the law of informed consent.

So my work is about trying to get some recognition of the right of informed consent in maternal healthcare in order to avoid those preventable injuries for the people who give birth.

The other side of this work is trying to insure midwives ability to work because one way in which women have been abused through the maternal health system is through the elimination of midwives, at least within the American maternal health system, to make it that women don't have options and that their only options are to get in line for obstetric care that isn't always evidence-based and doesn't always respect their rights.

So a balanced system has both doctors and midwives working together in service of the population, and every pregnant person has a right to individualized care that meets their individual needs, their health needs, their psychological needs, their values, and my work is trying to sort of close the gap between what the law guarantees should be happening in maternal healthcare and what's actually happening as a result of culture. And the fact that feminism hasn't really addressed the experience that women and birthing people have in pregnancy and childbirth fully yet.

The issue that I'm addressing is that patients have rights and those rights are often written on the wall of the hospital room, you know, your bill of rights it often says, or it's in a handout or it's on the website, and those rights should, if their operating, exist to protect your ability to receive evidence based care that's honest and accurate about your medical needs and to be supported in making informed decisions about your treatment options.

The role that lawyers have to play is getting those rights enforced because at the end of the day, I mean, the issue that we're addressing and that other people working on all different kinds of levels at maternal health are addressing is a civil rights problem.

It's a fact that people have rights, but those rights aren't being respected. And so the only way that civil rights go from being ignored to being respected at all is when the rights holders stand up for those rights with the assistance of legal advocates. You kind of need both. You need the right holders to be willing and able to say, Hey, I've got rights and I want them to be respected. And you have to have, or it really helps to have, lawyers who know how to advocate the legal system and demand that those rights are enforced and protected. Because we can't really say that we have rights if there's no accountability for the violation of those rights.

So lawyers can both counsel people on how to prevent rights violations or prevent bad things from happening if they are preventable and also how to access accountability and redress if bad things happen and people have experienced preventable injuries as a result of negligence and informed consent violations.

"You'll Never Be Sued For Doing a Cesarean" And Other Myths

Jen Kamel: Well, and one thing that you said that really stood out to me is lawyers who know how to make the arguments. Can you share a little bit about how the legal arguments that you make are different than other lawyers in the past?

Because there is this notion if you've done a C-section, you've done everything you can to prevent a bad outcome. And so as long as you make sure you do that, you won't get sued and you've come along and you've kind of turned that on its head.

And one of the things that I love to talk about is how important it is to have an attorney who can effectively argue your case, which many attorneys cannot. So what makes you different?

Hermine Hayes-Klein: Well, you know, that's an interesting question and another way to approach the question that you're asking is sort of how did we get to the point that those kinds of beliefs are driving the bus in maternal healthcare. What you're describing is the culture of obstetrics and within the culture of obstetrics, there's a belief, there are sort of cultural beliefs that don't have much to do with law or evidence.

Like for example, once a cesarean, always a cesarean that never really had anything to do with medical evidence or what's best for women and babies. But it was a, an axiom that doctors followed for their professional cultural reasons.

Another one of those is, the only cesarean you'll get sued for is the one you didn't do, for example. What's underneath sayings like that is, when in doubt intervene and there'll never be injury, or certainly accountability for an injury, if you intervene. I think part of what you're getting at is bringing lawsuits.

Perverse Liability Incentives

Hermine Hayes-Klein: And so to answer your question, what I want to actually speak to is why did I come to the point that I started filing lawsuits over these abuses? Because when I first started doing this work, Jen, when you and I first met in 2012, it was really, it wasn't about lawsuits for me. It was about advocacy, policy-based advocacy, just trying to get into spaces where policy decisions were being made about maternal healthcare. And remind folks, Hey, we've got these rights. They're written on the wall and, oh my gosh, all these injuries we're looking at would be preventable if those rights would be respected.

What I discovered was, what we would call within the law to be perverse liability incentives. Okay? So what we know is that medical care and what doctors do and what hospitals do is often driven by their perception of their liability risk. Like if we do X, we will protect ourself from lawsuits. If we do Y, we are more exposed to lawsuits. And so we're going to make decisions according to what we think is going to serve us.

This saying that existed in obstetrics that you mentioned that "you'll never get sued for doing a cesarean," "when in doubt cut a cesarean," it doesn't make sense. 'cause we know that cesarean sections increase the risk of the birthing patient dying, of women dying. So how could it be? And all other kinds of injuries as well.

Free VBAC Resources

Jen Kamel: if you want to learn more about VBAC, the very first step is to download one of our free resources. Not only will it give you an immediate nugget of clarity, but it will also subscribe you to our email list where you will get a slow, regular drop of facts from me, as well as updates on future VBAC Facts® events, perhaps even in your community.

So where should you start? If you want to debunk the top five uterine rupture myths, go to vbacfacts.com/report. If you're planning a VBAC and you want to download our VBAC planning checklist, go to VBACfacts.com/checklist. And if you would like to debunk the three most persistent myths that I see again and again and again using the American College of OBGYNs VBAC guidelines, then go to vbacfacts.com/handout.

I can't wait to support you in your VBAC education.

Doctors Are Held Accountable For Not Respecting Client's Rights

Hermine Hayes-Klein: So how could it be that a mode of delivery that is more likely to be injurious to the patient is going to be the legally safer thing to do? Because what the law should incentivize is simply carefulness. You know, like that's what the doctors should know is we will be held accountable if we're not careful. We will be held accountable if we don't respect our client's rights and we do things to them without their permission, but that's not what they perceive. Instead, they perceive that they will be safer legally if they impose upon their patients a surgery that triples to quintuples [5x] that patient's risk of dying. That doesn't make sense.

Rinat Dray's Forced Cesarean

Hermine Hayes-Klein: A case that illustrates this problem is the case of Rinat Dray in New York. Rinat Dray was given one unnecessary C-section. She was at Orthodox Jewish mother. She wanted to have a big family. So after that first cesarean, she educated herself and she knew that it was in her interest to avoid a repeat cesarean or multiple repeat cesareans and so she educates herself.

She seeks a hospital that will support her in a VBAC and for her second birth, she gets, you know, the bait and switch. Where they said that they would support her, but she, she got in there and nobody was really interesting in supporting her in a true trial of labor.

So for her third birth, she really sought out a hospital that was willing to support vaginal birth after two cesareans. They promised to support her and then she came in in labor and the doctor on call wasn't willing to support her and said, "You know what? I'd prefer you to have a cesarean. I think you should do that." And when she said, "no thank you."

That doctor called the hospital lawyer and said, "can I force a third cesarean on this woman?" And what's so striking is that the hospital lawyer said, "well, you know, I, I think a vaginal birth after two cesareans is risky to the baby." She says, no, that the doctor had charted that she declined the cesarean. And the hospital lawyer said, "yes, you can force her." And then that doctor held her down and cut her open and lacerated her bladder, left her permanently injured, permanently traumatized. It's over a decade since that birth and her lawsuit is still wending its way through New York Courts trying to get some justice and accountability for what happened to her.

It's like stuff like that is why I realized, okay, so until, and unless hospitals and providers are actually held accountable for illegal behavior, they will continue to, they'll actually believe that the law requires them to commit illegal actions that leave their clients injured. Therefore, the liability incentives need to be rectified. They need to be no longer perverse because what we have with these existing incentives are doctors stating that the legal system pressures them into imposing modes of delivery on birthing patients that increase those patients' risk of dying, and are also more profitable and more convenient to the provider. This is highly problematic for anybody trying to give birth within the system.

So what makes my arguments different? To come back to your original question. It's that I'm basically rectifying illegal incentives because at the end of the day, it's like, how did we even get there? How would there have been any judge ever who said, when in doubt cut a cesarean? Or you shouldn't have allowed her to have a TOLAC [trial of labor after cesarean]?

Only because the lawyers in those cases allowed experts to sit up on the stand and falsely testify that there are minimal or no risks to a cesarean, but lots of risks to a vaginal birth. That's not true. So you have to actually get the evidence in front of the court to show there are risks on all sides of women's decisions in pregnancy and childbirth most of the time.

And that the risks that they're weighing in the balance include but are not limited to those which might be immediately apparent on the clinical chart. The law allows the patient to take a whole range of factors into account while they're making their medical decisions and the violation of informed consent causes very serious psychological injury that matters. It's not about a birth experience. This is about life and death.

Because the leading cause of maternal death in the United States is mental health injury. And so when we're talking about preventing trauma to women when they're birthing their babies, we're talking about not just protecting their physical health but protecting their mental health.

Jen Kamel: Yeah. So can you tell us about some recent cases that are illuminating these issues with regard to informed consent and the systems in which people birth?

$1.73 Million Dollar Judgement

Hermine Hayes-Klein: Yes. I can tell you about some of my cases here in Oregon where I live. I had my first case to go to a jury trial in October against a hospital and an obstetric clinic for the physical and emotional injuries that my client experienced when she birthed her baby on New Year's Eve 2019 into 2020.

She had sought out, before she even got pregnant, an obstetrician that would respect her right to informed consent. She asked in the politest possible terms for that kind of support and was given a promise that her rights would be respected. She had a birth plan that was very politely labeled, birth preferences, and said, you know, we're all on a team and we just want a healthy baby and a healthy outcome, and we absolutely respect your process. Really what we're looking for is communication and you know, we just want communication and informed consent before things are done. Please don't do any medications without informed consent. I really don't want Pitocin in my labor unless there's a real medical need that's communicated and agreed upon. And Doctor agreed to all this.

Cognitive Disconnect in Maternity Care

Hermine Hayes-Klein: And yet when she went into labor on New Year's Eve, it was just, let's do things the way we always do it, which is to steamroll and ignore your right of informed consent. I think that there's a cognitive disconnect happening with a lot of these providers where in pregnancy, I don't think they're planning to betray the patient. I can't imagine that they're sitting there when they say, "Yes, we'll respect this. Yes, we'll respect your right of informed consent. Of course, it's what we always do."

I don't think when they're saying that, that they're thinking, we're going to get her later because we're never going to respect her right to informed consent. They just don't recognize that what they're doing is violating the right of informed consent. That what they consider to be "just how we do it around here," what they would actually call their "standards of care," are actually illegal industry wide rights violations.

Doctors don't get to make up a standard of care that violates patient's statutory rights, human rights and bioethical rights. Standards of care are things like how to set the leg and how to clamp the artery when it's bleeding. They're not whether to and how to allow patients to make informed medical decisions is not something that doctors get to choose. It's not something that doctors get to adjust. It's actually a mandate on them that they must do. And the fact that they all ignore it doesn't make that a new standard of care to ignore informed consent. It makes it an industry-wide illegal action so those are the illegal actions that I'm challenging.

And of course, you know, coming back to the question about what are the other arguments that other lawyers are making, lawyers are a product of culture. You know what I mean? Everybody's a product of culture, doctors, patients, lawyers. Right?

One of the reasons I got into this work was realizing, wow, like there's a lot of women out there who are severely injured and traumatized from dramatically illegal behavior that when they go to a lawyer and say, Hey, I was held down while I was weeping, and my baby was cut out of me because it was Friday night, and they were saying they wanted to go home, didn't want to support my labor anymore.

And the lawyer says, but is your baby okay? Because the lawyer is carrying this cultural belief that the ends justify the means in childbirth. And that all that matters is a healthy baby in the bassinet at the end of the doctor's shift. And so then they're not taking the cases because they can't see injury to the mother as mattering, and then they don't believe that the jury will think the injury to the mother matters either.

So in this case, in my October case, my client went to labor on New Year's Eve, came into the hospital. Her OB was on call that day and for reasons that I think were ultimately around their shift scheduling and conveniencing the overnight provider just started the Pitocin. It was early labor. There was no reason for it. Everything was fine, but it was like, meh, you know, you can have Pitocin now or in three hours. Those are your choices. Well, there was absolutely a choice not to have it at all, and there was no discussion of the risks of turning it on. And that we have a statue in Oregon that requires all those things.

So he turned on the Pitocin and left for the night, and the next OB came on and is like, oh, I'm sure your doctor talked with you about C-sections. And my client said, well, he said that one in three women need them during pregnancy. But he didn't say I would, why is, do you think I will? And she said, oh, well, just. And she like leaves for the night, tells the nurse to keep cranking up the Pitocin and that's what happened. They just cranked up the Pitocin, baby got malpositioned because Pitocin plus an epidural that combination increases the likelihood of malposition, including occiput posterior position. Because the baby's not rotating through the pelvis because of the driving force of the Pitocin and the immobilization of the birthing patient, we get malposition. And so now the baby's grinding on the pelvis all night on those nerves.

And when they eventually section her on New Year's Day, it's not because they see that she's in abnormal pain, it's just because the ping pong ball hasn't come out of the paper towel tube, and it's been x hours since we squeezed the paper towel tube, so now let's cut the ping pong ball out. This is the model of female physiology that obstetrics seems to be addressing a lot of the time.

So she had her cesarean and she moved into the postpartum part of her stay and then she just continued to be neglected. It was like widget on an assembly line, not being seen as an individual. Her bladder was very injured. Bottom line is that six years later, she has to pee on a timer. She lives in permanent pain. Her career as an occupational therapist doing horses for paralyzed people and autistic people over because she can't get on a horse anymore, and that was her life. And serious PTSD.

"Birth Can't Be Planned" Is Insulting

Hermine Hayes-Klein: When she came to me, she described how it was New Year's Eve and she had done everything she could to set up this birth to be okay. One of my sayings is supported birth shouldn't be for the lucky 'cause I know so many women who have done everything they could to set that up and then provider's not on call or whatever, and they're betrayed and we're not talking about birth changing.

You know what people, women are told with their birth plans is, oh, we love birth plans, but understand that birth can't be planned. You know? And that's already insulting. Like they don't know that. Like they don't know things can happen in birth, but now that they're already being condescended to and gaslit with that response, then they move into trying to prove they're not ridiculously stupid. So they say, oh yeah, I know birth can't be planned. And then the doctor's implication is and so we'll take back the decisions when things don't go according to your hopeful plan, you know?

Sample Birth Plan Language

Hermine Hayes-Klein: And of course that's why the birth plan should be, "my plan is to make all the decisions about my care on the basis of information, advice, and support from you. Here are my anticipated decisions, which I might change, and if anything else changes, you'll tell me what, and I will keep making the decisions." You know, to just get out of that gaslighty place that women are usually in with regard to that.

Hooked Up & Induced, No Medical Reason

Hermine Hayes-Klein: So when it came down to my client's birth and she was lying in that bed and everybody's gone for the, you know, there's no doctor around. It's New Year's Eve. There's a nurse coming in to turn up the pit. She's hooked up to all the things she never wanted. This isn't what she wanted. And there's no medical problem. There's no reason for her to be hooked up to all these things.

She looked out the window of her hospital room at the parking lot, which was dark, it was cold, and she saw her car out there and she just wished she could flee, but she couldn't. She was now in this, she's tied up, and she's got a, she wants to help, she wants her baby safely born. There was no way out, but through. She had to go through what they were serving up to her.

Running, Sobbing, Sleepwalking

Hermine Hayes-Klein: And when she finally got home, you know, four days later, she would like wake up running, sobbing. She would wake up sobbing on her closet floor and not know how she had got there. She went back in for her postpartum appointments and they were like, Hmm, you're fine. It's birth, you know, it'll fade. She's in a world of pain and her OBs are minimizing her pain and their chart notes "some pain," they write. Even though she's calling to report agonizing pain. And the nurse is writing that down.

Diagnosed with "Adjustment Disorder" Instead of PTSD

Hermine Hayes-Klein: Her OB diagnoses her with adjustment disorder instead of PTSD, which you can see again how gaslighting that is, like you are failing to adjust to a normal life event. Here's some Xanax for your anxiety as opposed to you're having a normal response to trauma that was imposed on you you know which, like it just gets the OB out of any responsibility in the framing and fails to treat the trauma.

"The Kind of Abuse That Happens To Women Every Day"

Hermine Hayes-Klein: So it was, you know, six months later and she was suicidal again. Mental health injuries leading cause of maternal death. It was six months later and she was suicidal. Like so many of my clients have felt after giving birth. Before she finally googled birth trauma and started to find help, perinatal counseling, that could understand what she was dealing with and give her help. And we filed a lawsuit over it. And even though the birth I just described is the kind of abuse that happens to women every day, it's not dramatic.

It's not like

Jen Kamel: Every day.

Hermine Hayes-Klein: Every single day.

Jen Kamel: Yeah.

Hermine Hayes-Klein: was, it was just normal. I'm sure everybody involved was like, just business as usual, just another birth. And the injury to the mother is invisible to them. Even when she comes back in and lists it all out and she's begging for help, it's still invisible. She's invisible just like she was during the labor and so we brought the case to trial and it was years to get there and a lot of perseverance, money, time to get to that jury trial.

"The Baby's Healthy, Why Are We Even Here?"

Hermine Hayes-Klein: When we finally got there, it was two weeks against an army of lawyers and paralegals and assistants on the other side representing these institutions. And it was a war. This was my first jury trial. I'd never gone through anything like this, but I have faith in our system that, you know, if at the end of the day we get these issues in front of regular citizens, that they're going to understand that women are entitled to something better, that all patients are entitled to something better.

And that, at the end of the case, we presented this case to the jury. And my final argument to them, after the hospital's lawyers had said so many times, "The baby's healthy, why are we even here?" And I said, when my client went back in for those postpartum appointments, she was told, it's birth, you're fine. It'll heal. And remember, Laura, all that matters is a healthy baby.

Babies Need Their Mothers To Be Healthy

Hermine Hayes-Klein: And I said, and you know, we've all heard that and everybody loves babies, but I wonder if you asked the baby, what the baby would think. You know, I wonder if the baby looking back on its birth would say, you know, "all that really matters about my birth is that I was okay. Who cares about my mom?" I don't think any baby would say that. 'Cause babies need their mothers to be okay too.

Juries Recognize Trauma As An Injury That Matters

Hermine Hayes-Klein: And the jury came back with $1,730,000 verdict for my client, for her injuries.

That case told me, told her that in fact, in the 21st century in 2024, 2025, at the point we're at now, people are willing to recognize trauma as an injury that matters, and people are willing to recognize that mothers matter. That the only thing that matters from childbirth is not only a live baby, but a healthy baby and a healthy mother, and that for that to happen, the mother has to be healthy because the healthy baby requires a healthy mother to mother it.

Hold Doctors Accountable For Doing What The Law Requires

Hermine Hayes-Klein: That case was a game changer in terms of asking a jury to really just hold doctors accountable for doing what the law requires. No more, no less.

Next Case Challenges, "You Are Not Allowed"

Hermine Hayes-Klein: And then my next trial coming up in February will be a case that tests a policy level patient rights violation that's similar to the VBAC ban. A lot of what your work focuses on are what are the factors that are contributing to a system in which women feel that they have no choice or are being told that they have no choice but for surgical delivery in which that choice is being taken away. And they're subject to surgery after surgery without ever having made an informed decision for any of them.

As you know, a lot of the level on which that happens is kind of like the policy level where women are told, well," "you're not allowed." You know what I mean? You're not allowed, we won't support you in a vaginal birth, whether it's because your baby's breech, your baby's twins. You had one prior cesarean, two, three. Whatever your BMI, whatever we've decided, you're not allowed. All of that is a policy level violation of a constitutional right. The right to refuse surgery is a constitutional right, protected by the due process clause of the Constitution, and so they don't get to do that.

You know what I mean? Like, which is why I got into this work in the first place was listening to all my girlfriend's crying, being like, but they don't get to do that. There's a law about that. And so this lawsuit in February is challenging the C-section only for breech policy. My client was told, your baby's breeched, so you're having a C-section.

And she said, well, what are my options for vaginal birth? And she was told that she had no options, which was a lie. A lie at that hospital. It was a lie at other hospitals. It was a lie in Oregon period. And she believed that lie. And so she said, okay, well, um. Okay.

And the anesthesiologist came in and inject, said, "We do spinal blocks for C-sections." and she said, okay. And he injected the needle too high, hit her in the spine. And the short term effect was that she suffocated through her cesarean 'cause the medicine flooded up, to her throat and could have killed her. She thought she was dying and came out very traumatized.

And the long-term effect was nerve damage because he hit her in the spine. And so now she has permanent chronic pain at the site of injection where she can't flex her spine normally. And she has constant numbness and tingling of both her hands and feet, like ants are crawling all over them and will forever.

"The Very Real Risks of Cesarean Are Dumped Onto The Birthing Patient"

Hermine Hayes-Klein: You know that these are examples of. The way in which those kinds of, you know, you're having a C-section policies, take the very real risks of that surgery and dump them onto the birthing patient. They externalize the risks onto birthing patients, and they're the ones who are living with it in the short term and in the long term. They're invisible. Those injuries are forgotten. But the fact is the law requires that doctors support patients in deciding whether to take those risks on. Because again, there's risks in all directions.

Birth Trauma Not About Mode of Delivery

Hermine Hayes-Klein: And you know what the studies show about trauma is it's not about mode of delivery, C-section versus vaginal birth. It's about whether the patient felt like they were the captain of the ship. If you see that you've got risks on either side of your choices between say, you know, a third cesarean or TOLAC, those, those options suck. There's risks on either side.

But you're going to feel different coming out of that birth, if you were able to make a thoughtful and supported choice about which risks to take on and make that choice. And if some of those risks play out at the end. Things happen. You know what I mean?

Who is Liable for Complications?

Hermine Hayes-Klein: But if you didn't choose those risks, if they were imposed on you, and now you're living with an injury that you didn't choose to take on, that's a problem, and somebody else is actually responsible for you having to live with that injury. You've now been injured.

So a lot of what I'm doing with my work is essentially asking the law to hold providers accountable for these rights violations, because that is the only way in which this is going to change. If obstetricians and hospitals wanted to voluntarily choose to treat women better and to respect their rights, they would've already done it.

There would be midwives working at every hospital too. That's not happening. And so therefore, we can reasonably conclude that the only way in which patient's rights are going to start to be respected in the United States in a significant way is if doctors are held accountable in a significant way for the harm caused through the violation of those rights.

"Liability Makes Us Do It" Is A Lie

Jen Kamel: This brings up so many thoughts of conversations that I've been having with physicians and nurses over on TikTok and their response about VBAC is I don't want to be sued, so I'm willing to do whatever I need to do to not be sued. That is the conversation. And the other thing that I see is how many parents come up and defend this line of thinking.

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Hermine Hayes-Klein: Well, so here's really important about that. There's a mountain of law and economic studies on the use of cesarean section going back to the early 1990s that have investigated this question of does liability force doctors to do more cesarean? What those studies have conclusively proven is that that's a lie.

It's a story that doctors tell "liability makes us do it," but in fact, that's not true. What the studies have proven is actually the driving factor in you're having a C-section is economic incentives, convenience incentives, financial incentives, and time convenience incentives for those providers. They make more money and it's more convenient, but they're going to tell you, oh, it would be too risky for me to support your vaginal birth because I might get sued.

What birthing patients should get super clear about is, first of all, it's a story that's been proven. They can Google it. All right, so go read law and economics of cesarean section. Liability incentives, financial incentives, time convenience incentives. Read it yourself and understand what you're dealing with. But even with the story liability, "oh, I'm sorry, my liability risks means you are having a c-section." What they're saying is: the risk to them is that their insurance premium goes risk to you is dying. So they're saying that the risk of their insurance premium going up is more important than the risk to you of dying and orphaning your existing children.

For women to be able to, support that or participate in it is just an extension of a century of women being willing to put the providers at the center instead of themselves when it comes to childbirth, because what's the problem we're solving here that obstetrics from the, the birth of obstetrics constructed itself to put doctors' convenience and preferences at the center. Their voices at the center, not the needs, not the preferences, and not the rights, not the voice of the people who are actually giving birth, even though the law would put them at the center.

Should We "Go Slow?" Are We "There Yet?"

Jen Kamel: Yeah, I was just in a meeting this last week and we were talking about informed consent, policy, and clinicians' obligation to follow that policy. And what I contributed was, I think it's really important for clinicians to clarify for patients, while it is my, the clinician's, obligation to follow this policy. It is not your obligation to comply with policy.

And in conjunction with that, I was talking about informed consent and how the law of informed consent, as you have said many times, should mean that the provider is not held liable for informed decisions. And a physician who is there at this meeting said, we're not there yet. We can't make this argument yet, we're not there. That informed consent protects clinicians and that people should be allowed to make these decisions.

Hermine Hayes-Klein: Of course we're there yet. That's like telling people of color in 1970. Go slow. Go slow. Nina Simone has a song about this, "Mississippi god damn." You know, like please, we're absolutely there yet, we've been there since you put the rights on the wall. You know, lady, if you don't think we're there yet in the volunteer, your services as an expert witness to get up on that stand the next time one of your colleagues is attacked and explain that we cannot possibly be held responsible for their informed decisions.

The Law of Informed Consent Means...

Hermine Hayes-Klein: The law of informed consent means that the provider is never going to be liable under a theory that they shouldn't have allowed the patient to make an informed decision. They can still be liable for negligence. You know what I mean? So they still have to do whatever it is that they're doing carefully. But it does mean that with rights come responsibility. And if there's ever been a problem with that in any court, then that doctor and any other doctor concerned with the risk that there's going to be a mistake made, can get up there as an expert and testify. So we're absolutely there.

"Keep Telling Them That They Have To Strap Down For The Belt"

Hermine Hayes-Klein: What it reminds me of Jen is like 10 years ago, maybe more, I was watching some California, you know how California has that perinatal quality improvement. Main was the name of the doctor. And I was watching him be interviewed on electronic fetal monitoring and somebody raised their hand to say, in a group, it wasn't just a one-on-one interview, it was like a conference or something, to say, "Hey, the evidence shows that the EFM doesn't improve outcomes for babies at all or mothers and instead it only increases the risk of cesarean. So this, this machine that you're requiring doesn't serve women at all. It only serves the convenience of providers and your profitability 'cause it's a labor saving device. So are you going to support women being able to decline this?"

And he's like, we're not there yet. Oh. You know, may, yeah, I know the evidence does, you know, I know everything you're saying is true, but we're not there yet, so we're going to have to keep telling them they have to strap down for the belt.

And like all of this, what comes up for me when, when I even tell that story is, and that's why women are leaving the system to give birth unassisted because that guy's recognizing their rights, that guy's recognizing the evidence, and yet he still feels entitled to say that they must lie down and accept an intervention that hurts them, that increases their risks in order to convenience him and his colleagues. That's bananas.

Jen Kamel: There is so much of this crosstalk among physicians that reinforce this idea of, oh, yeah, well, it's all about liability. Oh, yeah, absolutely. We have this right to do this.

Hermine Hayes-Klein: Mm-hmm.

What Violating Informed Consent Looks Like

Jen Kamel: That there's no opportunity for any other thought to penetrate the conversation, which is why what you are saying is so critical, and I hope they hear it because I hope they understand that violating informed consent, and it's not just about a baby dying, which that is in the past, has been the argument, right? As long as the baby's healthy, we are now protected from lawsuits. And what you are saying is the mother, not only physically but mentally, it needs to be healthy as well. And so their actions, how they treat their clients during labor matters.

Hermine Hayes-Klein: That's right. And by treating, we're not talking about turn down the lights and turn up the music. You know what I mean? We're talking about informed consent. That's it. Yeah.

Jen Kamel: Honoring their right. Honoring their right.

Hermine Hayes-Klein: Even though it inconveniences you, frightens you, alarms you, you're afraid she'll decline. You know, tough luck because the risk to the providers mentally of a baby dying, liability, blah, blah, does not compare to the risks that the patients are facing if their rights are violated. Because those risks include death, death, death, death, death. I don't know of the doctor who's died because of something bad happening in their service of a patient in childbirth. But we know about lots of women who have.

Bodily Autonomy "Goes Both Ways?"

Jen Kamel: Yeah, absolutely. Well, and the other theme that's been coming up over on TikTok is this idea that, quote, bodily autonomy goes both ways. And so just as a woman can decline a cesarean, an OB or a nurse can decline attending your birth and can decline attending your VBAC.

Hermine Hayes-Klein: Well that's like providers saying that they'll decline your abortion, they'll decline to give you contraception, and that's just misogyny. That means that when women are seeking care, you know, I'm not sure what other aspect of health we have doctors saying, oh, I decline. I decline. What about my autonomy other than female reproductive health? I can't think of

Jen Kamel: Yeah.

Hermine Hayes-Klein: know what I mean? Like is

Jen Kamel: Yeah.

Hermine Hayes-Klein: what happens with abortion. We know what happens with contraception. We know what happens with women's reproductive flipping bodies. I can't off the top of my head think of another area of medicine, maybe death. Euthanasia, you know, but I feel like that's back in the eighties we used to hear those, you know, will they, won't they debates about euthanasia? That could be a place where that lives.

But certainly with women's reproductive systems, it's like, well, am I willing to support your, all we're talking about is abandonment by the system. You know, so when the doctor says, oh, I declined to, oh, I would feel better increasing your risk of dying, so I'm not willing to do anything that's not cutting you open. Then again, like women are giving birth alone at home

Jen Kamel: and

Hermine Hayes-Klein: reasonably so, because that would be a very dangerous situation to be giving birth in.

Let's Be Clear About Maternal Death

Jen Kamel: Well, and I think it's very important to be clear. I just saw on another thread on Instagram today about how you know, well, mothers die from VBAC. I need people to hear in the American College of Obstetricians and Gynecologists VBAC guidelines, they clearly state the risk of maternal death is five times higher in an elective scheduled repeat cesarean than it is during a planned VBAC. So if you think a planned elective repeat cesarean section is safer for the mother, you would be incorrect. Her risk of death is five times higher in that scheduled repeat cesarean. So people need to hear that. They need to understand that the marketing of risk in terms of VBAC and repeat cesarean is strong and people have drank the Kool-Aid, that somehow VBAC is excessively dangerous and repeat cesarean have no risk and that is false.

Hermine Hayes-Klein: There's risks on all sides of these choices. And the more cesareans you have, the more dangerous your next birth is, so you can die in that birth. You can die from a vaginal birth. You can die from a repeat cesarean. You're at higher risk of dying in that pregnancy now, and in the birth of your next baby, you can die. You can die if you plan a vaginal birth, you can die if you have a cesarean section.

News Articles When Women Die During Childbirth, Often, It's Cesarean

Hermine Hayes-Klein: But what you're pointing to is that the media, in order to sort of support obstetric monopoly and propaganda tends to play up. You know, certainly any out of hospital birth where somebody dies is going to be like trumpeted.

But with that said, Jen, I can't remember seeing any news articles about a maternal death from a TOLAC, and yet I read all the time about maternal deaths in news articles, and when I read the details in those news articles, she delivered by cesarean. There's an embolism. There's a hemorrhage. You know what I mean?

So just go read the articles. Anytime you see an article of a mother died in childbirth, read it carefully and and figure out how did this woman give birth to that baby? Most of the times that when I'm reading the articles, most of the times, period, it's cesarean. There's a cesarean implicated either in this birth most of the time, or you know, again, if she dies from a uterine rupture in this pregnancy, she's still dying from a cesarean. It was the last cesarean. You know what I mean?

We Are Pro Evidence Based Care and Informed Consent

Hermine Hayes-Klein: I think something that we have to reiterate because if we don't, our words could be manipulated, this is not about anti cesarean, pro cesarean, pro vaginal birth,, anti vaginal birth.

This is about evidence-based care and informed consent. You know, for many people a planned cesarean is the best birth and those are the risk packages that they want to take on and that's great. And for many people it's, you know, a midwife assisted birth. For many people it's an OB assisted TOLAC with an epidural, whatever.

These are all reasonable choices and the law requires the system to meet the individual and to let them navigate that system according to their individual needs rather than shoehorn the individual into one size fits all assembly line care.

Jen Kamel: Exactly, and there is a lot of money to be made, and there's a lot of clicks to be generated from dramatic content that makes it seem like everyone's being judged for all their choices. And you know, people say, this is the right choice. This is the wrong choice.

The right choice is what you want. If you want that repeat C-section, that is your choice to make. If you want to plan a VBAC, that is your choice to make. The point is the choice should be yours and not your physicians and not imposed upon you per this hospital policy that seems to dictate what you are and are not allowed to do with your body.

The point is, you woman, you pregnant person, you make the choice. That is the point. The only bad choice is when that choice is taken from you and someone else sits there and says, "sorry, you're not smart enough to make this decision. Let me make this decision for you." And meanwhile, they're thinking, "I'll be home by five. This decreases my legal liability, or at least they think it does. And I'm willing to push all of these risks into your body in order to create that scenario for myself."

OBGYNs Should Support Patient Decisions, Even If It Scares Them

Hermine Hayes-Klein: Well, exactly, and you know, patients who really want to understand what it should be like when they're making their decisions with the support of their obstetricians can read the American College of OB GYNs committee opinion from June 2016 called maternal refusal of medically recommended treatment, which is about speaking to obstetricians about what they're supposed to do when they support patients' decisions. And it reminds them they must support their patient's decisions. Even if they're afraid the baby might be at risk from that decision.

Contrary to the OB telling you, "oh, I'm so sorry, Jen. We can't, I'm sorry." Honey, have you not read ACOG? It's your professional organization and it's right about the law and it's right about ACOG. It's right you wrong. So go read that because what it makes clear is: no coercion, no pressure, no manipulation, and no force.

So all pregnant patients should think about what do those words mean? What is coercion? What is manipulation? What is pressure? What is force? What are threats? No threats either. None of those things are allowed. And so not only do you get to make the decision, but you get to make it through honest, straightforward, supportive, positive communication with your provider. That feels good. That's what it's supposed to be like.

And for that, the provider should know and must know you're safe in supporting them. Your responsibility ends where your patient's rights begin. And so if there have been any decisions in the world that violated that law, they were just bad decisions and bad decisions happen, but that doesn't mean the law isn't the law.

When An OB Realized Her Informed Consent Process Was Coercive

Jen Kamel: This whole exchange reminds me of your cross-examination of an OB in a case that you had, and I might even splice that into this interview so people can actually hear what this OB was saying. But could you summarize what was she saying and what were you able to ultimately make her see that she was really saying?

Hermine Hayes-Klein: I think you're talking about my cross-examination of the testifying obstetrician in the case where I was defending Nebraska midwife Angela Hawk, who was facing criminal homicide for the neonatal death following a unplanned breech birth at home.

I think that maybe part of what you're talking about is that I asked her to review with me on the stand that committee opinion and talk about it and what these terms meant. And I found that she was willing to talk pretty honestly and openly about, she acknowledged what it said, that we're not supposed to manipulate. We're not supposed to play up the risks of the thing that we don't want them to choose, and the benefits of the thing that we do want them to choose.

And I think she was sort of working out in real time, working through that cognitive disconnect between her understanding of what the patient's rights are and the fact that in practice, when she and her colleagues did things the way they usually do, they were ignoring and steam rolling those rights, which is why that patient had left the hospital to begin with.

OB's Testimony Regarding Informed Consent

Jen Kamel: And I am gonna go ahead and play a short clip of that testimony for you now. If you wanna watch the entire thing, I will include a link in the show notes.

Hermine Hayes-Klein: And given what your testimony today, would you agree that a doctor and a patient can therefore have a different perspective on what's the safest course of care for that patient?

Dr. Katherine Lessman: Yes.

Hermine Hayes-Klein: And do medical ethics require that the patient has the ultimate authority to weigh their treatment options and make the decision about what's safest for them?

Dr. Katherine Lessman: They do.

Hermine Hayes-Klein: So should informed consent involve doctors telling patients what is safest, as if that is objective and absolute, or informing them of the risks and benefits of their options so that the patient can weigh the evidence, consider their values, and make their own decision.

Dr. Katherine Lessman: Sometimes there truly is a safest option and sometimes they're balanced and that should be reflected according to the standard of care and the best medical knowledge at the time.

Hermine Hayes-Klein: So you've testified today that steering a patient toward the, the obstetrician's preferred choice can be a form of coercion. Is that right?

Dr. Katherine Lessman: It can be.

Hermine Hayes-Klein: When is it not?

Dr. Katherine Lessman: I am being delicate with this one 'cause I can see, um, in an obstetric context, um, multiple views and potential for misinterpretation. Informed consent is obtained of all, um, obstetric patients at presentation prior to delivery.

Hermine Hayes-Klein: And so when you testified earlier that your counseling might involve strongly steering a patient away from a decision, what does that mean in your context?

Dr. Katherine Lessman: There are so many different con consent conversations that occur in medicine, so again, it could mean an unfair or a discussion of the medical risks and benefits not consistent with the standard of care to get the provider's desired result.

Hermine Hayes-Klein: Thank you, doctor.

Women and Birthing People Are The Captain Of The Ship

Hermine Hayes-Klein: Let me just add one thing on that I think it's like what you and I have learned over the years and hearing from so many people navigating these really complex decisions with risks on all sides, is that as the risk of giving birth in the hospital goes up, women are willing to accept a higher level of risk outside the hospital and that disrespect. And abuse. Violation of informed consent. Those are real risk factors. Risk of psychological injury, that's a real risk factor that birthing women and people have to weigh in the balance when they're trying to make thoughtful decisions about childbirth. And a lot of those injuries could simply be eliminated by just following the statute recognizing that the patient gets to be the captain of the ship.

Rights Exist Even In Rural Hospitals

Jen Kamel: And I want to be clear that patients get to be the captain of the ship regardless of what the level of staffing is at a facility. So for example, a community hospital that may not quote, allow VBAC, people still have the right to plan a VBAC and decline a repeat cesarean there.

And in the course of this conversation, again, a physician on TikTok said to me, but how could any hospital attend a VBAC if they cannot perform an emergency Cesarean? And I have not replied to her yet because the idea that she does not understand that patients still have the ultimate right to make these decisions. And it seems that no matter how I phrase that statement. Physicians are not hearing it.

Hermine Hayes-Klein: ' cause you're up against deep culture. They're like, how could what you're saying be true when every, like this, the sort of assumption and everything that was said to me in my training was the opposite. We're taking on a big civil rights issue at the end of the day. and it's got roots and those roots can be pulled.

Jen Kamel: Maybe we can have you back another time and we can dive into the rest of the reader questions that we didn't have a chance to get to. And of course, there's still so much to discuss. But until next time, thank you so much for being with us Hermine.

Hermine Hayes-Klein: You are so welcome, my dear Jennifer.

Jen Kamel: And until next time, I'm Jen Kamel with VBAC Facts®. And don't forget what we're about since 2007, our focus has been to share accurate and objective information on vaginal birth after cesarean and repeat cesarean with parents, professionals, policy makers, and the court so all decisions can be informed, ethical, and just, I'll see you again in two weeks. Take care.