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When Consent Does Not Help

Challenges to Women's Access to a Vaginal Birth After Cesarean Section and the Limitations of the Informed Consent Doctrine

Published online by Cambridge University Press:  06 January 2021

Hindi E. Stohl
Hindi E. Stohl*
Affiliation:
Dr. Hindi Stohl is an Assistant Clinical Professor of Obstetrics and Gynecology at the David Geffen School of Medicine at UCLA.
*
[email protected]
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Abstract

Pregnant women with a prior cesarean delivery face challenges in accessing a vaginal birth due to both hospital and provider preferences and practices. Although the doctrine of informed consent secures women's reproductive rights, it is not a viable legal remedy. Instead, women should champion increased maternity-related education and transparency as well as medical malpractice reform to increase the desired access.

Type
Articles
Information
American Journal of Law & Medicine , Volume 43 , Issue 4 , November 2017 , pp. 388 - 425
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2017

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Footnotes

She is a board-certified and practicing perinatologist (high-risk obstetrician) at Harbor-UCLA Medical Center, where she is the Director of Maternal-Fetal Medicine services. Dr. Stohl has over ten years of experience in obstetrics and has cared for hundreds of women with prior cesarean deliveries. She routinely performs vaginal births after cesarean deliveries. Dr. Stohl is also a graduate of Southwestern Law School and admitted to the California State Bar.

References

1 Gibson, Katie L., In Defense of Women's Rights: A Rhetorical Analysis of Judicial Dissent, 35 Women's Stud. Comm. 123, 123 (2012)CrossRefGoogle Scholar (quoting Rebecca Traister, Hell Hath No Fury Like Ruth Bader Ginsburg, Salon (Feb. 6, 2009, 6:40 AM), http://www.salon.com/2009/02/06/ruth_bader_ginsburg/ [https://perma.cc/Y7WL-H9AF]).

2 While Ana's story is fictional, it represents the real stories of hundreds of women each year.

3 Guise, Jeanne-Marie et al., Vaginal Birth After Cesarean: New Insights on Maternal and Neonatal Outcomes, 115 Obstetrics & Gynecology 1267, 1276 (2010).CrossRefGoogle Scholar

4 Compare Lothian, Judith A., Questions From Our Readers: Why Natural Childbirth?, 9 J. Perinatal Educ. 44, 45 (2000)CrossRefGoogle Scholar (describing the process of vaginal delivery through the birth canal), with Cesarean Birth (C-Section): Frequently Asked Questions, Am. Coll. Obstetricians & Gynecologists (“ACOG”) (May 2015), https://www.acog.org/Patients/FAQs/Cesarean-Birth-C-Section [https://perma.cc/P9MH-6UZL] (explaining the process of cesarean delivery, as well as the advantages and disadvantages of the procedure).

5 ACOG, Practice Bulletin No. 115: Vaginal Birth After Previous Cesarean Delivery, 116 Obstetrics & Gynecology 450, 450 (Aug. 2010)CrossRefGoogle Scholar [hereinafter ACOG VBAC Practice Bulletin 115].

6 Id.

7 See id. (explaining how the TOLAC process can result in either VBAC or failed trial of labor).

8 Id. Due to the relatively recent adoption of this terminology in the medical literature, many prior publications – both medical and legal – have used the term “VBAC” to refer to what is actually a TOLAC. This paper will use the term “TOLAC” to describe a woman's prospective attempt at achieving a vaginal delivery and will reserve the term “VBAC” to describing the successful outcome of a TOLAC, which necessarily is assessed retrospectively.

9 See id. at 451. A cesarean delivery without a trial of labor is considered to be “elective” in that, strictly speaking, it is not medically necessary but, rather, represents the decision to perform a surgical delivery when other non-surgical delivery options exist. See id.

10 Among women who attempt TOLAC, an estimated 60–80% of them are successful in achieving a safe vaginal birth. Id. at 452.

11 See generally Cheng, Yvonne W. et al., Delivery After Prior Cesarean: Maternal Morbidity and Mortality, 38 Clinics Perinatology 297 (2011)CrossRefGoogle ScholarPubMed (discussing both health and social factors affecting the prevalence of cesareans over alternative delivery methods).

12 McMahon, Michael J. et al., Comparison of a Trial of Labor with an Elective Second Cesarean Section, 335 New Eng. J. Med. 689, 690–92 (1996)CrossRefGoogle Scholar. A peripartum hysterectomy refers to the surgical removal of the recently-gravid uterus during or shortly after abdominal or vaginal delivery. Lovina Machado, S.M., Emergency Peripartum Hysterectomy: Incidence, Indications, Risk Factors and Outcome, 3 N. Am. J. Med. Sci. 358, 358 (2011).CrossRefGoogle Scholar

13 See Silver, Robert M. et al., Maternal Morbidity Associated with Multiple Repeat Cesarean Deliveries, 107 Obstetrics & Gynecology 1226, 1227-29 (2006)CrossRefGoogle ScholarPubMed (finding that women who have multiple cesarean deliveries face increased risks of placenta accrete, hysterectomy, cystotomy, bowel injury, ureteral injury, ileus, and admission to the intensive care unit).

14 Id.; see also Robinson, Barrett K. & Grobman, William A., Effectiveness of Timing Strategies for Delivery of Individuals with Placenta Previa and Accreta, 116 Obstetrics & Gynecology 835, 840-41 (2010)CrossRefGoogle ScholarPubMed (underscoring the medical morbidities associated with placenta accreta, including the need for a planned preterm delivery six weeks prior to a pregnant woman's due date when this condition is diagnosed).

15 Committee Opinion No. 529: Placenta Accreta, ACOG 1 (July 2012).

16 See Lydon-Rochelle, Mona et al., Risk of Uterine Rupture During Labor Among Women with a Prior Cesarean Delivery, 345 New Eng. J. Med. 3, 6 (2001)CrossRefGoogle ScholarPubMed (demonstrating that the risk of uterine rupture significantly increased for TOLAC patients); see also McMahon et al., supra note 12, at 691 (noting that major complications, including uterine rupture, were 1.8 times as likely in the TOLAC group of patients). It is unclear whether uterine rupture is more likely to occur in the setting of an induced labor compared to labor that occurs spontaneously. Compare Ouzounian, Joseph G. et al., Vaginal Birth After Cesarean Section: Risk of Uterine Rupture with Labor Induction, 28 Am. J. Perinatology 593, 593 (2011)CrossRefGoogle Scholar (finding comparable rates of uterine rupture rates among 6,832 women undergoing TOLAC), with Palatnik, Anna & Grobman, William A., Induction of Labor Versus Expectant Management for Women with a Prior Cesarean Delivery, 212 Am. J. Obstetrics & Gynecology 358.e1, 358.e3 (2015)CrossRefGoogle ScholarPubMed (finding higher rates of uterine rupture among women with induced labor compared to women whose pregnancies were expectantly managed).

17 See ACOG VBAC Practice Bulletin 115, supra note 5, at 451-52.

18 See, e.g., Spong, Catherine Y. et al., Risk of Uterine Rupture and Adverse Perinatal Outcome at Term After Cesarean Delivery, 110 Obstetrics & Gynecology 801, 802-04 (2007)CrossRefGoogle ScholarPubMed (concluding that the overall risk of a uterine rupture for women undergoing TOLAC is 0.74%). ACOG quotes a rupture rate of 0.7% for most of the women who undergo TOLAC, namely women with one prior cesarean delivery that utilized a transverse incision in the lower, noncontractile portion of the uterus. ACOG VBAC Practice Bulletin 115, supra note 5, at 452-53. However, in women who had more than one prior cesarean delivery or had a prior cesarean delivery in which the type of uterine incision is unknown (because an operative report is unavailable), the risk of uterine rupture can approach 3%. See id.

19 See Spong et al., supra note 18, at 805.

20 An amniocentesis is a diagnostic test in which a small amount of amniotic fluid is aspirated from the amniotic sac via percutaneous needle insertion. ACOG, Practice Bulletin No. 162: Prenatal Diagnostic Testing for Genetic Disorders, 127 Obstetrics & Gynecology e108, e111 (2016)CrossRefGoogle Scholar. The aspirated sample can then be analyzed for evidence of fetal infection, inflammation or genetic abnormalities as clinically indicated. Id.; see also Higgins, Rosemary D. et al., Evaluation and Management of Women and Newborns with a Maternal Diagnosis of Chorioamnionitis: Summary of a Workshop, 127 Obstetrics & Gynecology 426, 429-30 (2016).CrossRefGoogle ScholarPubMed

21 See Bakker, Merel et al., Total Pregnancy Loss After Chorionic Villus Sampling and Amniocentesis: A Cohort Study, 49 Ultrasound Obstetrics & Gynecology 599, 601 (2016)CrossRefGoogle Scholar (noting that pregnancy loss rate attributable to the amniocentesis procedure was 1/208).

22 See generally Cheng et al., supra note 11. While women who achieve a VBAC have lower overall morbidity than women who undergo a planned cesarean delivery, women who attempt TOLAC but are unsuccessful and ultimately require a cesarean delivery actually experience greater risks than had they undergone a scheduled cesarean delivery at the outset. See id. at 5-7. Therefore, only women with the greatest a priori chance of achieving a successful vaginal delivery are typically advised by their physicians to attempt TOLAC. See generally Gilbert, Sharon A. et al., Lifetime Cost-Effectiveness of Trial of Labor After Cesarean in the United States, 16 Value Health 953, 961 (2013)CrossRefGoogle ScholarPubMed (discussing the cost-effectiveness of ideal health conditions and the use of TOLAC). Thus, not all women who are technically eligible for TOLAC end up undergoing TOLAC. Id. at 961. Specifically, when the likelihood of achieving a VBAC is greater than or equal to 47%, a TOLAC is more effective than a planned cesarean delivery. Id. The National Institute of Child Health and Human Development (“NICHD”) supports an online VBAC calculator, in which providers can input patient demographic and clinical parameters into an internet-based program to calculate a patient's individualized chance of achieving a successful TOLAC. See Vaginal Birth After Cesarean, Nat'l Inst. of Child Health & Human Dev., https://mfmunetwork.bsc.gwu.edu/PublicBSC/MFMU/VGBirthCalc/vagbirth.html [https://perma.cc/HRU4-PN2E] (last visited Sept. 5, 2017).

23 Martin, Joyce A. et al., Births: Final Data for 2013, 64 Nat'l Vital Stats. Reps. at 1, 7 (2015).Google ScholarPubMed

24 See Kukura, Elizabeth, Choice in Birth: Preserving Access to VBAC, 114 Pa. St. L. Rev. 955, 957 (2010).Google Scholar

25 Ctr. for Disease Control & Prevention, User Guide to the 2013 Natality Public Use File, 154, tbl. 14 (2013) [hereinafter User Guide 2013], ftp://ftp.cdc.gov/pub/Health_Statistics/NCHS/Dataset_Documentation/DVS/natality/UserGuide2013.pdf.

26 Curtin, Sally C. et al., Maternal Morbidity for Vaginal and Cesarean Deliveries, According to Previous Cesarean History: New Data from the Birth Certificate, 2013, 64 Nat'l Vital Stat. Reps. at 1, 5 (2015).Google ScholarPubMed

27 See generally ACOG VBAC Practice Bulletin 115, supra note 5, at 453 (explaining that women with one prior cesarean are good candidates for a subsequent vaginal birth); see also Consensus and State-of-the-Science Statement, Nat'l Inst. of Health, NIH Consensus Development Conference Statement on Vaginal Birth After Cesarean: New Insights, at 2 (Mar. 8-10, 2010), https://consensus.nih.gov/2010/images/vbac/vbac_statement.pdf [https://perma.cc/W2SS-C45Q].

28 See Stone-Manista, Krista, In the Manner Prescribed by the State: Potential Challenges to State-Enforced Hospital Limitations on Childbirth Options, 16 Cardozo J. L. & Gender 469, 469-70 (2010).Google Scholar

29 Meaning, the women meet the ACOG criteria for allowing TOLAC. See generally ACOG VBAC Practice Bulletin 115, supra note 5, at 453-54 (providing criteria for ideal TOLAC candidates). Some people have criticized the ACOG criteria as being paternalistic, arguing that physician-determined eligibility standards for TOLAC makes physicians, rather than patients, the gatekeepers for maternity care. This author posits that evidence-based medicine should inform medical decision-making and that physicians, who are best situated to remain up-to-date on evidence-based recommendations, should introduce the evidence and have an informed discussion with their pregnant patients.

30 See Stone-Manista, supra note 28, at 469-70.

31 Id. For example, in a survey of maternity hospitals in New Jersey, over eighty percent of participating perinatal centers reported the availability of planned VBAC, but the remaining hospitals had policies that restricted TOLAC. See N.J. VBAC Task Force, Access to VBAC: A Vision Statement, 31 (2012), https://www.pdffiller.com/en/project/133132990.htm?f_hash=b20425. Similarly, a survey of California hospitals from 2007 noted that of 225 hospitals surveyed, 26% had hospital policies that did not permit TOLAC. Shihady, Ida R. et al., Vaginal Birth After Cesarean: Do California Hospital Policies Follow National Guidelines? 52 J. Reproductive Med. 349, 351 (2007).Google ScholarPubMed

32 See Kukura, supra note 24, at 957.

33 Id. Some providers may officially allow and offer TOLAC to their patients but, in practice, are very reluctant to supervise the process and thus limit a woman's access. Id. This statement was corroborated through personal communications with many recently-pregnant women who underwent, at the recommendations of their physicians, a cesarean delivery without a trial of labor even though they had been told during the early months of pregnancy that a TOLAC would be an available option. See Barger, Mary K. et al., A Survey of Access to Trial of Labor in California Hospitals in 2012, 13 BMC Pregnancy & Childbirth, at 3 (2013)CrossRefGoogle ScholarPubMed (noting that among the 139 California hospitals that reported offering TOLAC in 2010, the VBAC rate was between 0-1% in seven of these hospitals, suggesting that even though TOLAC was officially offered, it was not commonly performed).

34 See Dolgin, Janet L., The Legal Development of the Informed Consent Doctrine: Past and Present, 19 Cambridge Q. Healthcare Ethics 97, 97-98 (2010).CrossRefGoogle ScholarPubMed

35 See discussion infra Part III.B.

36 Dolgin, supra note 34, at 97-98.

37 See generally Stone-Manista, supra note 28 (discussing the moral, medical, and legal problems posed by the “medicalization of childbirth” that arise when a woman's desires concerning her labor and delivery do not comply with the recommendations of her doctors).

38 Id. at 472-73.

39 See Aaron B. Caughey, Vaginal Birth After Cesarean Delivery, Medscape (last updated Dec. 23, 2015), http://emedicine.medscape.com/article/272187-overview [https://perma.cc/KLC7-RLMG].

40 See id. (finding that these words were first uttered to the New York Association of Obstetricians and Gynecologists in 1916).

41 Kukura, supra note 24, at 960.

42 Id. at 960-61.

43 World Health Organization, Appropriate Technology for Birth, 2 Lancet 436, 437 (1985)Google Scholar; Kukura, supra note 24, at 961.

44 Kukura, supra note 24, at 961.

45 Id.

46 Id. at 961-62.

47 User Guide 2013, supra note 25, at Table 14. Although this number suggests an increase in the VBAC rate from the 2007 nadir of 8.3%, the data cannot be compared year to year due to the changing composition of each annual cohort as the various jurisdictions across the United States gradually adopted the revised 2003 birth certificate form. See Fact Sheet, Childbirth Connection, Cesarean Section Trends in the United States, 1989-2014, Nat'l P'ship of Women & Families (Sept. 2015), http://www.nationalpartnership.org/research-library/maternal-health/cesarean-section-trends-1989-2014.pdf [https://perma.cc/J6D6-UP7D].

48 Curtin et al., supra note 26, at 5.

49 See Holmgren, Calla M., Uterine Rupture Associated with VBAC, 55 Clinical Obstetrics & Gynecology 978, 978-79 (2012).CrossRefGoogle ScholarPubMed

50 See, e.g., Lydon-Rochelle et al., supra note 16, at 4-6; McMahon et al., supra note 12, at 690-92.

51 ACOG VBAC Practice Bulletin 115, supra note 5, at 451-52.

52 See, e.g., Lydon-Rochelle et al., supra note 16, at 5, 7.

53 Id. at 5-7.

54 See ACOG VBAC Practice Bulletin 115, supra note 5, at 5; see also Landon, Mark B. & Lynch, Courtney D., Optimal Timing and Mode of Delivery After Cesarean with Previous Classical Incision or Myomectomy: A Review of the Data, 35 Seminars Perinatology 257, 258 (2011).CrossRefGoogle ScholarPubMed

55 See Kukura, supra note 24, at 957.

56 See id. at 968-69.

57 Id. at 968.

58 See id.

59 See Andrea M. Carpentieri et al., Overview of the 2015 American Congress of Obstetricians and Gynecologists Survey on Professional Liability (Nov. 3, 2015) (unpublished report), https://www.acog.org/-/media/Departments/Professional-Liability/2015PLSurveyNationalSummary11315.pdf?dmc=1&ts=20170819T1312015281 [https://perma.cc/4BM4-Z2TN].

60 See Kukura, supra note 24, at 968-69. A major insurance carrier in Oklahoma, for example, did not provide malpractice coverage to physicians for performance of VBAC. Id. As of 2014, the carrier changed its policy and now covers elective VBACs that are performed according to ACOG guidelines. See Jaclyn Cosgrove, Oklahoma Women Who've Had C-sections Have Options with Second Birth, The Oklahoman (Mar. 29, 2015), http://newsok.com/article/5405308 [https://perma.cc/C4SB-DRAR].

61 ACOG, Practice Bulletin No. 5: Vaginal Birth After Previous Cesarean Delivery, 66 Int'l J. Gynecology & Obstetrics 197, 198 (July 1999).CrossRefGoogle Scholar

62 Since the complications of TOLAC, including a uterine rupture, are unpredictable, all of the staff necessary to perform an emergent cesarean delivery would have to physically be present in the hospital throughout a woman's labor in order to truly be “immediately available.” Necessary staff includes, at a minimum, an obstetrician, an anesthesiologist, an obstetric nurse, and support staff for the operating room.

63 See Caughey, supra note 39, at 2; Kukura, supra note 24, at 963.

64 See Caughey, supra note 39, at 2; Kukura, supra note 24, at 963.

65 Many university or tertiary-level hospitals are the sites for residency training programs. See Accrediting Programs & Sponsoring Institutions Search and Reports, Accreditation Council for Graduate Med. Educ. (“ACGME”), https://apps.acgme.org/ads/public/ [https://perma.cc/C4SB-DRAR] (last visited Oct. 2, 2017). The ACGME mandates that faculty physicians are physically on-site whenever residents are on duty in the hospital. Common Program Requirements, ACGME (2017), http://www.acgme.org/Portals/0/PFAssets/ProgramRequirements/CPRs_2017-07-01.pdf [https://perma.cc/H4M5-7Z5L]. Since residents typically care for laboring women at these tertiary hospitals, faculty physicians would necessarily be present throughout a woman's labor course.

66 Kukura, supra note 24, at 963.

67 See Caughey, supra note 39.

68 Id. The revised guidelines, for example, supported a TOLAC in some women who had two prior cesarean deliveries or in women carrying a twin gestation, whereas prior guidelines discouraged TOLAC in both of these situations. See ACOG VBAC Practice Bulletin 115, supra note 5, at 453-54.

69 ACOG VBAC Practice Bulletin 115, supra note 5, at 457.

70 Id. ACOG specifically noted that respect for patient autonomy supports allowing patients to accept increased risk, as long as patients are sufficiently informed of those risks and of the management alternatives. Id. Nonetheless, although ACOG officially permitted TOLAC in these alternate settings, ACOG clearly indicated that the preferred, and safer, setting for TOLAC was one in which emergency cesarean delivery was immediately available. Id.

71 See, e.g., ACOG Issues Less Restrictive VBAC Guidelines!!, Anthro Doula (July 22, 2010), http://anthrodoula.blogspot.com/2010/07/acog-issues-less-restrictive-vbac.html [https://perma.cc/Y2ZA-YMZS] (exclaiming that ACOG guidelines were an “excellent step in the right direction”); Mat-Su Doula, Posting ACOG Issues Less Restrictive VBAC Guidelines, Mothering (Aug. 7, 2010, 2:05 AM), http://www.mothering.com/forum/93-alaska-hawaii/1251038-acog-issue-less-restrictive-vbac-guidelines.html [https://perma.cc/626K-AVGC] (conveying optimism that the guidelines would allow more mothers to opt for VBACs); Jen Kamel, ACOG Issues Less Restrictive VBAC Guidelines, VBACfacts (July 21, 2010), http://vbacfacts.com/2010/07/21/acog-issues-less-restrictive-vbac-guidelines/ [https://perma.cc/MRV3-YZQX] (“It seems that the option of VBAC is now available to hundreds of thousands of women, many of whom, up to this point, were left with no choice at all.”).

72 See generally International Cesarean Awareness Network (“ICAN”), http://www.ican-online.org/ [https://perma.cc/B6NR-A5WQ] (last visited Oct. 3, 2017) (advocating for increased access to VBAC); Baker, Heather Joy, “We Don't Want to Scare the Ladies:” An Investigation of Maternal Rights and Informed Consent Throughout the Birth Process, 31 Women's Rts. L. Rep. 538, 584 (2010)Google Scholar (explaining how the ACOG's guidelines have prompted hospitals and physicians to refrain from performing VBAC procedures); Kukura, supra note 24, at 963; Lusero, L. Indra, Challenging Hospital VBAC Bans Through Tort Liability, 20 Wm. & Mary J. Women & L. 399, 401-02 (2014)Google Scholar (demonstrating how these guidelines influenced a hospital's restrictive policy, and in turn provided a patient that had gone into labor no real choice of delivery).

73 See generally Baker, supra note 72; Kukura, supra note 24; Lusero, supra note 72; ICAN, supra note 72.

74 See Kukura, supra note 24, at 963; Caughey, supra note 39.

75 See Lusero, supra note 72, at 401-03.

76 See Pratt, Lisa, Access to Vaginal Birth After Cesarean: Restrictive Policies and the Chilling of Women's Medical Rights During Childbirth, 20 Wm. & Mary J. Women & L. 105, 106-07 (2013).Google Scholar

77 La. Admin. Code tit. 48, § 9555 (2017).

78 H.B. 1211, 2014 Leg., 434th Sess. (Md. 2014).

79 It is not the recommendation of this author that these policies be changed, as they are rooted in legitimate patient-safety concerns. However, it is important to recognize the impact that these regulations may have on access to TOLAC for some women.

80 See Kukura, supra note 24, at 963-64.

81 Id.

82 Id.

83 Dolgin, supra note 34, at 97-98.

84 Contra Almand, Andrew I., A Mother's Worst Nightmare, What's Left Unsaid: The Lack of Informed Consent in Obstetrical Practices, 18 Wm. & Mary J. Women & L. 565, 568 (2012)Google Scholar (stating that a mother's informed consent is a given for themselves and a child based on Draper v. Jasionowski, 858 A.2d 1141, 1148 (N.J. Super. Ct. App. Div. 2004)).

85 See generally Kukura, supra note 24 (outlining the myriad geographical, medical, and logistical obstacles facing women seeking VBAC).

86 See generally Dolgin, supra note 34.

87 See generally Almand, supra note 84 (discussing the issue of informed consent in obstetrics).

88 See id. at 566, n.1.

89 See id. at 574 (discussing when the duty to inform arises and amount information required); see generally Dolgin, supra note 34, at 97-98 (discussing different court opinions regarding amount of information disclosure required).

90 See generally Dolgin, supra note 34 (discussing the contours of legal interpretations of informed consent in obstetrics).

91 Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92 (N.Y. 1914), abrogated by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957); David B. Parker & Diana Tsudik, The Informed Consent Doctrine: What's Good for the Patient is Good for the Client, Parker Mills & Patel LLP (2005) (citing Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891); Schloendorff, 105 N.E. 92), http://parkermillsllp.com/wp-content/uploads/2016/02/The-Informed-Consent-Doctrine.pdf [https://perma.cc/R7KQ-VBBW].

92 See Dolgin, supra note 34, at 97-98.

93 Schloendorff, 211 N.E. at 93.

94 Dolgin, supra note 34, at 98. For the next several decades, courts viewed a physician's failure to disclose information about the risks involved in a proposed treatment or procedure as analogous to civil battery where consent was either fraudulently obtained or not obtained at all. See, e.g., Wall v. Brim, 138 F.2d 478, 481 (5th Cir. 1943) (holding that a physician may be liable for battery for proceeding with a complicated surgery when the patient was informed that the procedure was “simple and without danger.”); Chambers v. Nottebaum, 96 So. 2d 716 (Fla. Dist. Ct. App. 1957) (upholding a finding of trespass to person when a surgeon administered a spinal anesthetic against the express wishes of the plaintiff-patient); see also McNichols, William J., Informed Consent Liability in a “Material Information” Jurisdiction: What Does the Future Portend?, 48 Okla. L. Rev. 711, 714-15 (1995).Google Scholar

95 See Salgo v. Leland Stanford Jr. Univ. Bd. of Trs., 317 P.2d 170, 181 (Cal. Dist. Ct. App. 1957) (“In discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent … the physician has such discretion consistent, of course, with the full disclosure of facts necessary to an informed consent.”).

96 See Studer, Martin R., The Doctrine of Informed Consent: Protecting the Patient's Right to Make Informed Health Care Decisions, 48 Mont. L. Rev. 85, 87 (1987).Google ScholarPubMed

97 Salgo, 317 P.2d at 181.

98 Id.

99 Cf. Dolgin, supra note 34, at 99 (“The [informed consent] doctrine[] … requires that patients be given the right to consent to or refuse healthcare and that they be provided with all information material to a decision to consent to or refuse healthcare.”).

100 Cf. Salgo, 317 P.2d at 181; see also Studer, supra note 96, at 87 (“The Salgo court … articulated two contrasting considerations at the heart of informed consent law; the patient's right to receive all of the information material to an informed health care decision, and the need for judicial deference to medical discretion in some circumstances.”).

101 See Studer, supra note 96, at 87.

102 Studer, supra note 96, at 88; see also Richards, R. Jason, How We Got Where We Are: A Look at Informed Consent in Colorado – Past, Present, and Future, 26 N. Ill. U. L. Rev. 69, 82 (2005).Google Scholar

103 Richards, supra note 102, at 84 (citing Natanson v. Kline, 350 P.2d 1093, 1097 (Kan. 1960)); see also Studer, supra note 96, at 88.

104 See Murray, Bryan, Informed Consent: What Must a Physician Disclose to a Patient?, 14 AMA J. Ethics 563, 564 (2012)Google ScholarPubMed (arguing the community disclosure standard is not in the patient's best interest as it creates an incentive for physicians to protect themselves by limiting the standard disclosures).

105 Id.

106 Canterbury v. Spence, 464 F.2d 772 passim (D.C. Cir. 1972); Woolery, Wendy, Informed Consent Issues Throughout the Birthing Process, 21 J. Legal Med. 241, 241 (2000)CrossRefGoogle ScholarPubMed; see also Dolgin, supra note 34, at 100-01 (discussing the scope of the decision in Canterbury v. Spence); Murray, supra note 104, at 564 (discussing the Canterbury court's shift away from community disclosure standard).

107 Canterbury, 464 F.2d at 781; see also Murray, supra note 104, at 564 (summarizing the holding in Canterbury).

108 Canterbury, 464 F.2d at 782.

109 See Canterbury, 464 F.2d at 785 (requiring a “reasonable” disclosure); see also McNichols, supra note 94, at 716; see also Richards, supra note 102, at 86.

110 Canterbury, 464 F.2d at 786 (emphasis added).

111 Dolgin, supra note 34, at 101; McNichols, supra note 94, at 716.

112 See Richards, supra note 102, at 85-86 (discussing the evolution of informed consent jurisprudence).

113 See generally Leo, Raphael J., Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians, 1 Primary Care Companion J. Clinical Psychol. 131 (1999)CrossRefGoogle ScholarPubMed (providing a background on the concept of competency and a general overview of the standards used to determine whether a patient is capable of making an informed decision regarding her care). Competency is a legal term referring to an individual “having sufficient ability” or “possessing the requisite natural or legal qualifications” to execute a legally-recognized act in a rational manner. Id. at 131. The law presumes all individuals to be competent unless demonstrated to the contrary. Id. A determination of incompetence is made by the courts and, for civil cases, requires a standard of proof of at least “clear and convincing evidence.” Id.; see also Addington v. Texas, 441 U.S. 418, 432 (1979). An incompetent individual cannot make legal decisions and is appointed a legal guardian by the court to make decisions on the individual's behalf. Leo, supra, at 131; see also Unif. Guardianship & Protective Proceedings Act § 301 (Nat'l Conference of Comm'rs on Unif. State Laws 1997/1998).

114 Ketler, Suzanne K., The Rebirth of Informed Consent: A Cultural Analysis of the Informed Consent Doctrine After Schreiber v. Physicians Insurance Co. of Wisconsin, 95 Nw. U. L. Rev. 1029, 1037 (2001)Google Scholar; see also Gates v. Jensen, 595 P.2d 919, 923 (Wash. 1979) (en banc) (“The facts which must be disclosed are all those facts the physician knows or should know which the patient needs in order to make the decision. To require less would be to deprive the patient of the capacity to choose the course his or her life will take.”).

115 Curran, Kristen A., Informed Consent: A Right Without a Remedy Examined Through the Lens of Maternity Care, 21 Am. U. J. Gender, Soc. Pol'y & L. 133, 137 (2012)Google Scholar; Studdert, David M. et al., Geographic Variation in Informed Consent Law: Two Standards for Disclosure of Treatment Risks, 4 J. Empirical Legal Stud. 103, 105 (2007)CrossRefGoogle Scholar. As of 2007, 25 states (including California) and the District of Columbia have embraced the patient-centered standard, 23 states have maintained the professional standard, and the remaining two states, Colorado and Georgia, have a hybrid standard. Studdert et al., supra, at 104-05. Some states immortalized the common-law shift from the professional standard to the patient standard by adopting explicit statutory provisions regarding informed consent, while other states used the legislature to re-affirm the professional standard in an attempt to prevent legal controversy. Id. at 105. All in all, as of 2007, informed consent was governed by statute in twenty-two states, while it was governed by case law in the remaining states. Id. at 107-09.

116 See Curran, supra note 115, at 137.

117 Ketler, supra note 114, at 1037.

118 Studdert et al., supra note 115, at 104-05.

119 Natanson v. Kline, 350 P.2d 1093, 1103 (Kan. 1960).

120 Id. at 1106. The court notes that one reason why a comprehensive disclosure of all possible consequences of a treatment is not required is because such a disclosure would, arguably, alarm the patient to such an extent that it would “constitute bad medical practice.” Id. at 1103.

121 DiFilippo v. Preston, 173 A.2d 333, 339 (Del. 1961) (citing Natanson, 350 P.2d at 1093); see also Hunt v. Bradshaw, 88 S.E.2d 762, 766 (N.C. 1955) (finding that the advisability of an operation, which would include the balancing of the risks and benefits of the procedure, is not a matter that is “within the knowledge of lay witnesses but must be established by the testimony of qualified experts”).

122 See, e.g., DiFilippo, 173 A.2d at 339 (holding that a surgeon did not have a duty to warn his patient of the possibility of laryngeal nerve injury during surgical removal of the thyroid gland since it was not the practice of other physicians in the surgeon's locale to warn their patients of such a potential injury); Ditlow v. Kaplan, 181 So. 2d 226, 228 (Fla. Dist. Ct. App. 1965) (finding that breach of informed consent could not be proven when the patient offered no evidence regarding accepted medical practice in the community).

123 Cf. DiFilippo, 173 A.2d at 339.

124 Cf. id.

125 Cf. id.

126 Ketler, supra note 114, at 1037-38.

127 Richards, supra note 102, at 86; see also, e.g., Duffy v. Flagg, 905 A.2d 15, 20 (Conn. 2006) (noting that the Connecticut standard for informed consent is an “objective standard that does not vary from patient to patient based on what the patient asks or what the patient would do with the information if it were disclosed.”); Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 120 (Tenn. 1999) (holding that “the objective standard … best balances a patient's right to self-determination with the need for a realistic framework for rational resolution of the issue of causation.”).

128 See Canterbury v. Spence, 464 F.2d 772, 791 (D.C. Cir. 1972) (noting that disclosure is measured by “what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance.”); Studdert et al., supra note 115, at 104-05; Woolery, supra note 106, at 242.

129 Ketler, supra note 114, at 1038.

130 As the Pennsylvania Superior Court noted in Cooper v. Roberts, 286 A.2d 647 (Pa. Super. Ct. 1971), the “[d]etermination of what a reasonable man would do or consider significant within the context of a particular set of facts is standard fare for jurors, for which they need no expert assistance.” Cooper, 286 A.2d at 651; see Richards, supra note 102, at 87.

131 Canterbury, 464 F.2d at 787.

132 See Richards, supra note 102, at 86.

133 Cf. id. at 87.

134 Id. As the Canterbury Court explained, to require disclosure of all possible risks, benefits, and alternatives would require “[a] mini-course in medical science [which] is not required[.]” Id. (citing Canterbury, 464 F.2d at 787 n.84).

135 See generally Ginsberg, Marc D., Informed Consent: No Longer Just What the Doctor Ordered? The “Contributions” of Medical Associations and Courts to a More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010)Google Scholar (highlighting conflicting court rulings from different states regarding the need to disclose physician personal information, including, for example, prior experience, financial interests or research aspirations).

136 See, e.g., Johnson v. Kokemoor, 545 N.W.2d 495, 505 (Wis. 1996) (requiring that doctors disclose experience to patients (or lack thereof) as part of informed consent doctrine); Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990) (en banc) (facilitating the expansion of informed consent doctrine to include non-patient factors like doctors' research and economic interests).

137 Moore, 793 P.2d at 497.

138 Johnson, 545 N.W.2d at 505.

139 Murray, supra note 104, at 566.

140 Duffy v. Flagg, 905 A.2d 15, 18 (Conn. 2006).

141 Id. at 21.

142 Id. at 21 (citing Duttry v. Patterson, 771 A.2d 1255, 1257 (Pa. 2001)) (holding that a surgeon did not breach his duty of informed consent when he did not disclose his prior experience in performing the surgical procedure).

143 Wlosinski v. Cohn, 713 N.W.2d 16, 20-21 (Mich. Ct. App. 2005) (finding that a physician's personal success rate with a particular surgical procedure is not an inherent risk of the procedure and thus do not have to be disclosed to a patient as part of informed consent).

144 See Duffy, 905 A.2d at 20-21 (holding that a physician's personal information does not need to be disclosed for informed consent purposes); see also Wlosinski, 713 N.W.2d at 20-21 (finding that a physician's success rates are not material for informed consent purposes).

145 See Duffy, 905 A.2d at 20; see also Wlosinski, 713 N.W.2d at 20-21.

146 Duffy, 905 A.2d at 21 (citing Pedersen v. Vahidy, 552 A.2d 419, 425 (Conn. 1989)) (internal quotation marks omitted); see also Richards, supra note 102, at 83-84 (citing Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960) (requiring “reasonable disclosure” rather than full disclosure)).

147 Duttry v. Patterson, 771 A.2d 1255, 1258 (Pa. 2001); see also Ginsberg, Marc D., Informed Consent and the Differential Diagnosis: How the Law Overestimates Patient Autonomy and Compromises Health Care, 60 Wayne L. Rev. 349, 352 (2014)Google Scholar (noting that “[t]he doctrine of informed consent should be a focused procedure or treatment based doctrine, not a ‘full disclosure’ doctrine”).

148 See Studer, supra note 96, at 85 (explaining how a physician is liable for a patient's injuries that result from a risk that should have been disclosed during the informed consent discussion, and subsequently explaining both the physician and patient standards).

149 Id.

150 See discussion supra Part III.B.

151 Curran, supra note 115, at 137-38.

152 See id.

153 Shultz, Marjorie M., From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 226-27, 249-50 (1985)CrossRefGoogle ScholarPubMed; see Studer, supra note 96, at 85-86.

154 See Ketler, supra note 114, at 1037 (explaining the variation in adequacy of disclosure by jurisdiction); see Studer, supra note 96, at 85 (“The physician's duty of disclosure is the principal component of informed consent. There are two approaches to defining the scope of the duty”).

155 See Curran, supra note 115, at 142-43.

156 Id. at 143-44.

157 See Studdert et al., supra note 115, at 104-05 (explaining that professional standard requires disclosure of information that would be considered customary by professional peers and patient standard requires disclosure of information that a reasonable plaintiff in the patient's position would want to be told).

158 See, e.g., Draper v. Jasionowski, 858 A.2d 1141, 1148 (N.J. Super. Ct. App. Div. 2004) (finding that an infant injured during vaginal delivery had a cause of action for informed consent); see also Miller v. Dacus, 231 S.W.3d 903, 912 (Tenn. 2007) (finding that a surviving child injured during childbirth did have a valid cause of action for informed consent).

159 Almand, supra note 84, at 568 n.11.

160 Draper, 858 A.2d at 1148; Almand, supra note 84, at 568 n.11.

161 Miller, 231 S.W.3d at 912.

162 Id.

163 See Harris, Pamala, Compelled Medical Treatment of Pregnant Women: The Balancing of Maternal and Fetal Rights, 49 Clev. St. L. Rev. 133, 134 (2001).Google ScholarPubMed

164 See Hughson v. St. Francis Hosp. of Port Jervis, 459 N.Y.S.2d 814, 815-16 (N.Y. App. Div. 1983) (citing Albala v. City of New York, 429 N.E.2d 786, 787 (N.Y. 1981)) (finding that both a mother and child in utero are owed a duty by a physician in cases of negligence resulting in prenatal injuries).

165 See id. at 817-18 (finding that a fetus is equivalent to an incompetent patient who would similarly rely on a competent individual to authorize their treatment).

166 Id.

167 Id. at 817.

168 See id. (discussing a mother's power to consent, on behalf of a fetus, to medical procedures).

169 See Woolery, supra note 106, at 242 (citing Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355, 360 (Iowa 1987)) (listing medical emergency as one of the few exceptions to the requirement to obtain informed consent).

170 See, e.g., Canterbury v. Spence, 464 F.2d 772, 788 (D.C. Cir. 1972) (noting that the emergency exception occurs “when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment.”); Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914), abrogated by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957) (finding that informed consent is always required “except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained.”).

171 See, e.g., Canterbury, 464 F.2d at 788-89 (noting that the “impracticality of conferring with the patient dispenses with [the] need for [informed consent].”); Stewart-Graves v. Vaughn, 170 P.3d 1151, 1156 (Wash. 2007) (en banc) (finding that the emergency exception is “based on the impracticality of having an adequate, informed consent discussion in the midst of a medical emergency, and [on] the importance of allowing a physician to maintain focus on providing lifesaving treatment to the patient.”); Miller v. R.I. Hosp., 625 A.2d 778, 784 (R.I. 1993) (highlighting that the “impracticality of conferring with the patient is a prerequisite to dispensing with informed consent under the emergency exception.”).

172 See Woolery, supra note 106, at 242.

173 See id.

174 See id.; see also, e.g., Bankert v. United States, 937 F. Supp. 1169, 1174 (D. Md. 1996) (noting that labor does not necessarily render a woman legally incompetent to make decisions); Rizzo v. Schiller, 445 S.E.2d 153, 155 (Va. 1994) (finding that a laboring woman was capable of making decisions even though she had been medicated); Schreiber v. Physicians Ins. Co. of Wisc., 588 N.W.2d 26, 32 (Wis. 1998) (stating that neither pregnancy nor labor automatically make a woman incapable of deciding which mode of delivery she prefers).

175 Bankert, 937 F. Supp. at 1174.

176 See id.

177 See Woolery, supra note 106, at 242; see also, e.g., Bankert, 937 F. Supp. at 1174; Rizzo, 445 S.E.2d at 155; Schreiber, 588 N.W.2d 2 at 32.

178 See Woolery, supra note 106, at 242; see also, e.g., Bankert, 937 F. Supp. at 1174; Rizzo, 445 S.E.2d at 155; Schreiber, 588 N.W.2d 2 at 32.

179 See generally Dolgin, supra note 34 (tracking and analyzing the changes in the informed consent doctrine in the United States).

180 See Gates v. Jensen, 595 P.2d 919, 923 (Wash. 1979) (en banc) (“The facts which must be disclosed are all those facts the physician knows or should know which the patient needs in order to make the decision. To require less would be to deprive the patient of the capacity to choose the course his or her life will take.”).

181 See Studdert et al., supra note 115, at 103-09; see generally Ginsberg 2010, supra note 135, at 31-40 (discussing individual informed consent requirements by state).

182 See Woolery, supra note 106, at 242; see also, e.g., Bankert, 937 F. Supp. at 1174; Rizzo v. Schiller, 445 S.E.2d 153, 155 (Va. 1994); Schreiber v. Physicians Ins. Co. of Wisc., 588 N.W.2d 26, 32 (Wis. 1998).

183 See Hughson v. St. Francis Hosp. of Port Jervis, 459 N.Y.S.2d 814, 817 (N.Y. App. Div. 1983).

184 See Lusero, supra note 72, at 401-02.

185 See id.

186 See Finer, Joel J., Toward Guidelines for Compelling Cesarean Surgery: Of Rights, Responsibility, and Decisional Authenticity, 76 Minn. L. Rev. 239, 240-41 (1991)Google ScholarPubMed (noting that a compelled cesarean delivery occurs when a court orders a woman to undergo a cesarean section even though she has not provided personal consent).

187 See Lusero, supra note 72, at 414.

188 See id.

189 See id.

190 Id.

191 See generally Ginsberg 2010, supra note 135, at 31-40 (discussing individual informed consent requirements by state); discussion supra Part III.B.1.

192 See Woolery, supra note 106, at 242.

193 See id.; see also Ginsberg 2010, supra note 135, at 31-40.

194 See Studdert et al., supra note 115, at 104 (explaining that the professional standard of informed consent is determined by what a reasonable physician in similar circumstances would do); see also discussion supra Part III.B.

195 See generally King, Jaime S. & Moulton, Benjamin W., Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 Am. J.L. & Med. 429, 441 (2006)CrossRefGoogle ScholarPubMed (explaining that to satisfy the physician standard a physician must “inform a patient of the dangers of, possible negative consequences of, and alternatives to a proposed treatment or procedure” to the same degree that a reasonable prudent physician in the same situation would).

196 See Schreiber v. Physicians Ins. Co. of Wisc., 579 N.W.2d 730, 734 (Wis. Ct. App. 1998) (establishing that “where there are two or more medically acceptable treatment approaches to a particular medical problem, the informed consent doctrine … provide[s] that a competent patient has the absolute right to select from among [the] treatment options after being informed of the relative risks and benefits of each approach.”).

197 See Otwell v. Bryant, 497 So. 2d 111, 117 (Ala. 1986) (emphasizing that under the informed consent doctrine the question of whether the physicians disclosed all of the material risks of the procedure is a factual issue to be resolved by a jury).

198 See Lusero, supra note 72, at 414 (highlighting that plaintiffs in malpractice suits for VBAC procedures rarely plead that the doctor failed to disclose because the plaintiffs are “highly educated about the risks and benefits of the procedure.”). This issue of adequacy of disclosure is certainly contested by some maternity care advocates and patients. See Eugene R. Declercq et al., Listening to Mothers III: Pregnancy and Birth, Childbirth Connection (May 2013), http://www.nationalpartnership.org/research-library/maternal-health/listening-to-mothers-iii-pregnancy-and-birth-2013.pdf [https://perma.cc/LG36-X9FV]. It is this author's personal belief based on over a decade of experience caring for women with prior cesarean deliveries that women are typically informed enough to meet the professional-standard threshold of disclosure. While there are certainly physicians who recommend a repeat cesarean in many women who, in this author's opinion, should likely be offered – and even encouraged – to attempt TOLAC, the conversation(s) and disclosures between physicians and patients regarding risks, benefits, and alternatives does appear to be sufficient to meet the basic standard of care. This opinion is supported by case law in which inadequate physician disclosure is rarely found by the courts in the setting of TOLAC as well as by patient report. In fact, the Listening to Mothers report notes that the majority of mothers with a prior cesarean delivery who were interested in a TOLAC in their subsequent pregnancy were given the option of TOLAC. Id. at 21.

199 See, e.g., Duffy v. Flagg, 905 A.2d 15, 17 n.4 (Conn. 2006) (finding that a woman undergoing TOLAC was adequately informed by her physician of the risks associated with TOLAC, including the risk of uterine rupture).

200 See, e.g., Brown v. Park Nicollet Clinic Health System Minn., No. C0-00-1525, 2001 WL 506722, at *2 (Minn. Ct. App. May 15, 2001) (noting that the physician testified that he discussed the risk of uterine rupture with the patient and that because, as a matter of personal philosophy, he does not favor VBAC, he encouraged the patient to undergo a repeat cesarean).

201 See generally Spong et al., supra note 18, at 805 (explaining study results that showed the greatest risk for uterine rupture occurred in women attempting vaginal delivery).

202 Because uterine rupture, although relatively rare, is arguably the most dangerous complication of TOLAC, reasonable medical practitioners would be expected to inform their patients of this risk. See ACOG VBAC Practice Bulletin 115, supra note 5, at 451 (noting that uterine rupture is the “outcome associated with TOLAC that most significantly increases the chance of additional maternal and neonatal morbidity.”).

203 See, e.g., Brown, 2001 WL 506722, at *2 (noting that a physician's counseling can depend on their “personal philosophy”).

204 See id.; see also Kukura, supra note 24, at 960-61 (noting that while VBAC increases the risk of a uterine rupture it still has many significant advantages such as a shorter hospital say, a faster recovery rate, and lower medical costs).

205 Natanson v. Kline, 350 P.2d 1093, 1103 (Kan. 1960) (emphasizing that a physician does not have a duty to describe all of the possible consequences of the procedure in detail); Flinn, Jessica J., Comment, Personalizing Informed Consent: The Challenge of Health Literacy, 2 St. Louis U. J. Health L. & Pol'y 379, 403 (2009)Google Scholar (highlighting that it is hard to prove “consent was not sufficiently informed” under the physician standard since it is based on an objective reasonable physician).

206 See Richards, supra note 102, at 86 (citing case law which established that every patient has a right to self-determination and must be made aware of all “material” risks pertaining to a medical procedure).

207 See id. (citing Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972)) (emphasizing that all material risks that can potentially affect a patient's decision must be unmasked).

208 See generally King & Moulton, supra note 195, at 440-48 (noting how risk disclosure is affected by the two standards of informed consent); Murray, supra note 104, at 564-65 (explaining that informed consent standards are vague and it is in the physician's best interest to thoroughly inform the patient).

209 See generally Spruce, Tracey E., The Sound of Silence: Women's Voices in Medicine and Law, 7 Colum. J. Gender & L. 239, 245 (1998)Google Scholar (referencing a medical malpractice suit for a bad birth outcome that settled for three million dollars).

210 See Ginsberg 2010, supra note 135, at 21-24 (noting that “physician associations have not stressed to their members the need to use the informed consent process to disclose more than the classic ‘risks of the procedure, its necessity, and alternative procedures that might be preferable.’”).

211 See Almand, supra note 84, at 583-85 (noting hospitals often advocate for procedures that would allow them to make more money, so many hospitals will not permit mothers to have a vaginal birth after a cesarean section because the insurance will not cover the procedure even if their bodies are capable).

212 See generally Ginsberg 2010, supra note 135, at 64-68 (highlighting the myriad of non-clinical disclosures discussed by the courts).

213 See, e.g., Duffy v. Flagg, 905 A.2d 15, 21 (Conn. 2006) (noting that the doctor's prior experience performing vaginal births on women after having a cesarean was not a requirement of informed consent because it did not increase the risks for that procedure); Duttry v. Patterson, 771 A.2d 1255, 1259 (Pa. 2001) (emphasizing that a physician's personal attributes and experience are irrelevant to an informed consent claim even if a patient requests such information); Wlosinski v.Cohn, 713 N.W.2d 16, 21 (Mich. Ct. App. 2005) (explaining that the doctor did not have a duty to disclose his statistical history of transplant failures to obtain the decedent's informed consent).

214 Duffy, 905 A.2d at 21.

215 Id.

216 Id. at 22.

217 Id.; see also DeGennaro v. Tandon, 873 A.2d 191, 200 (Conn. App. Ct. 2005) (finding lack of informed consent when a dentist failed to disclose her inexperience in using certain dental equipment as well as her lack of staff to assist with the procedure because the undisclosed provider-specific information related directly to the risks of the dental procedure).

218 For example, the risk of uterine rupture in the setting of TOLAC remains at approximately 1% regardless of whether or not a specific physician offers TOLAC to his or her patient.

219 See Duffy, 905 A.2d at 21 (emphasizing that the doctor's duty under the informed consent standards is not dependent on how curious or passive a patient is, but rather requires the doctor to disclose information relative to the surgery itself).

220 See Woolery, supra note 106, at 242-43 (explaining that courts give great deference to physicians in emergency scenarios and typically waive the informed consent requirement).

221 See, e.g., Bankert v. United States, 937 F. Supp. 1169, 1174 (D. Md. 1996) (concluding women are capable of rational thought and competent decision making both while pregnant and at the onset of labor); Rizzo v. Schiller, 445 S.E.2d 153, 155 (Va. 1994) (finding it necessary for a physician to get informed consent from a laboring mother to use obstetrical forceps while delivering a baby even if the mother signed a generalized consent form); Schreiber v. Physicians Ins. Co. of Wisc., 579 N.W.2d 730, 735 (Wisc. Ct. App. 1998) (holding that neither pregnancy nor the labor process automatically hinders a woman's ability to make competent and rational decisions regarding her medical treatment); see also Woolery, supra note 106, at 242 (stating that the requirements of informed consent do not change during delivery unless an emergency situation arises).

222 See ACOG VBAC Practice Bulletin 115, supra note 5, at 454-57; see also Woolery, supra note 106, at 242 (determining that women are competent to make medical decisions during childbirth despite being in pain).

223 See Canterbury v. Spence, 464 F.2d 772, 788-89 (D.C. Cir. 1972) (noting that there is an exception to the rules of disclosure in emergency situations where a patient is “unconscious or otherwise incapable of consenting”); see also Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355, 360 (Iowa 1987) (stating one exception to the doctrine of informed consent occurs in emergency situations where it would be impractical for a physician to obtain consent); see also Woolery, supra note 106, at 242-43 (finding women competent to make their own medical decisions during childbirth unless there is a medical emergency).

224 See Holmgren, supra note 49, at 981.

225 See, e.g., In re Baby Boy Doe, 632 N.E.2d 326, 332 (Ill. App. Ct. 1994).

226 See id.; see also In re A.C., 573 A.2d 1235, 1252 (D.C. 1990) (en banc) (finding that the competent decision making of women regarding their course of treatment controls in almost all cases).

227 See, e.g., Jefferson v. Griffin Spalding Cty. Hosp. Auth., 274 S.E.2d 457, 459-60 (Ga. 1981) (per curiam) (upholding the trial court's order compelling a pregnant woman to undergo a cesarean delivery due to the significant risks to her and her fetus's life with an attempt at labor); Raleigh Fitkin-Paul Morgan Mem'l Hosp. v. Anderson, 201 A.2d 537, 538 (N.J. 1964) (per curiam) (ordering a pregnant woman to submit to a blood transfusion if her physician thinks it is necessary to save either her life or the life of her unborn child).

228 Compare Pemberton v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 66 F. Supp. 2d 1247, 1250 (N.D. Fla. 1999) (ordering a cesarean delivery against the mother's wishes after ruling that the state of Florida's interests in preserving the life of her unborn child trumped her personal constitutional rights), and Jefferson, 274 S.E.2d at 460 (ordering a woman to undergo a cesarean delivery and any other necessary procedures necessary to protect the life of the fetus because the state has an interest in protecting the life of the woman's unborn child), with In re A.C., 573 A.2d at 1253 (vacating an order forcing a woman to undergo a cesarean delivery against her will after finding that the wishes of a woman capable of making informed decision about the course of her medical treatment must control in virtually all cases), and In re Baby Boy Doe, 632 N.E.2d at 330 (finding that a competent woman's choice to refuse a cesarean delivery must be honored even if the choice is harmful to her unborn child).

229 See Jefferson, 274 S.E.2d at 458 (finding that the mother's decision to decline a cesarean delivery and proceed with a trial of labor was associated with a 99% risk of fetal mortality).

230 See id. at 459 (finding that “as a matter of law[,]” the fetus was considered “a viable human being and entitled to the protection of the Juvenile Court Code of Georgia.”).

231 See id. at 458 (finding that labor was associated with a 99% chance of death for the fetus and a 50% mortality for the mother).

232 See id. at 459 (giving temporary custody of the unborn child to the State of Georgia, thereby removing the pregnant mother's parental authority to consent on behalf of her minor child and, instead, providing the state the “full authority to make all decisions, including giving consent to the surgical delivery ….”).

233 See, e.g., id. at 460 (authorizing the attending physician to perform a cesarean section and any other related procedures he considers necessary to sustain the life of the unborn child).

234 See Pratt, supra note 76, at 112-17 (finding that 42% of hospitals prohibit TOLAC and that midwives are often prohibited by state law from assisting women who previously had cesarean sections).

235 See, e.g., In re A.C., 573 A.2d 1235, 1264 (D.C. 1990) (en banc) (ordering a cesarean section because the mother of the fetus was close to dying from cancer); see also Jefferson, 274 S.E.2d at 458 (compelling a cesarean delivery because a woman had a complete placenta previs with an afterbirth that would prevent the baby from surviving natural childbirth).

236 See Pemberton, 66 F. Supp. 2d at 1249-50 (compelling a woman who left the hospital after her doctors refused to allow her to deliver vaginally to return to the hospital and undergo a cesarean section over her objection); see also Jefferson, 274 S.E.2d at 459 (transferring the ability to consent to all surgical procedures pertaining to the birth of an unborn child from the mother to the State of Georgia).

237 E.g., Pratt, supra note 76, at 118-19 (stating that women are often forced into consenting to cesarean sections when their hospitals prohibit TOLAC because if they do not elect to have the surgery, they will have to go without medical care).

238 See, e.g., id. (determining that some women seeking TOLAC elect to give birth out of hospitals when their nearby hospitals have policies that prohibit TOLAC).

239 See id.

240 See, e.g., Pemberton, 66 F. Supp. 2d at 1249-50; see also In re A.C., 573 A.2d at 1253; Jefferson, 274 S.E.2d at 459.

241 See Pratt, supra note 76, at 118-19.

242 See id.; see also Pemberton, 66 F. Supp. 2d at 1249-50; see also Jefferson, 274 S.E.2d at 459.

243 Harris, supra note 163, at 137.

244 See id.; see also Finer, supra note 186, at 247-49 (finding that viable fetuses have rights prior to birth that the court can enforce through both civil and criminal actions); Kukura, supra note 24, at 990-91 (stating advances in medical technology have increased the legal status of fetuses for medical decision-making about the best course of treatment).

245 See Finer, supra note 186, at 247 (citing Bonbrest v. Kotz, 65 F. Supp. 138, 140-42 (D.D.C. 1946) (rejecting the argument that a fetus is simply “part” of its mother and therefore not a separate legal entity)).

246 Id.; see also King, Patricia A., The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 Mich. L. Rev. 1647, 1660 (1979)CrossRefGoogle ScholarPubMed (limiting recovery for fetal injury to fetuses subsequently born alive).

247 See Finer, supra note 186, at 247 (citing an Ohio statute that treated a fetus as a life-in-being for the purposes of the rule against perpetuities).

248 Id. (citing Douglas v. Town of Hartford, 542 F. Supp. 1267, 1270 (D. Conn. 1982) (holding a viable fetus who is subsequently born alive is a “person”)).

249 Id. at 252-53.

250 Id. at 249 (citing Roe v. Wade, 410 U.S. 113, 158 (1973)).

251 Roe v. Wade, 410 U.S. 113, 160 (1973) (defining viability as the point at which a fetus is “potentially able to live outside the mother's womb, albeit with artificial aid.”). The legal protections afforded to the viable fetus were not ascribed to the pre-viable fetus.

252 Id. at 154, 163 (noting that the privacy rights involved in abortion “cannot be said to be absolute” and therefore the state's interest in preserving the life and health of a viable fetus may allow the state to restrict abortion after fetal viability).

253 See Roe, 410 U.S. at 160, 163-64; Finer, supra note 186, at 252-53.

254 See Finer, supra note 186, at 253. Roe, however, does not permit a state to prevent a woman at any gestational age from obtaining an abortion if it is necessary for her health or life. Roe, 410 U.S. at 164-65.

255 Roe, 410 U.S. at 155 (holding that the right to an abortion is included within the right of privacy under the Due Process Clause of the Fourteenth Amendment).

256 Roe is the legal basis for the maternal-fetal conflict. From a medical perspective, the maternal-fetal conflict arises from the obstetrician's perception of a fetus as a patient independent of its mother. ACOG, Committee Opinion No. 214: Patient Choice and the Maternal-Fetal Relationship, Int'l J. Gynecology & Obstetrics, 213, 213 (1999)Google Scholar; see also Kukura, supra note 24, at 990-91. Obstetric providers feel a sense of duty to the fetus that is distinct from their duty to the pregnant woman. See id. at 990-91. Therefore, when the physician recommends a treatment course that the physician believes is best for the maternal-fetal pair, and the woman refuses the treatment for one or a myriad of personal reasons, a medical conflict arises between the mother and her fetus. See Harris, supra note 163, at 134.

257 Civil Cases, U.S. Courts (last visited Oct. 4, 2017), http://www.uscourts.gov/about-federal-courts/types-cases/civil-cases [https://perma.cc/Z4W3-FHN4].

258 See id.

259 See Harris, supra note 163, at 137. A pregnant woman retains full legal rights throughout her pregnancy to make decisions about her own body. Id. at 145.

260 See id. at 145 (noting that “the fundamental right to refuse medical treatment … is [a right that is] accorded to all competent adults.”).

261 Prior to viability, the fetus is not viewed as having rights independent of the mother, and maternal wishes trump those of the fetus, even if the maternal wishes result in fetal harm or destruction. See generally Roe, 410 U.S. at 163-64 (limiting state regulation of abortion prior to fetal viability); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992) (upholding the central tenet of Roe).

262 Raleigh Fitkin-Paul Morgan Mem'l Hosp. v. Anderson, 201 A.2d 537, 538 (N.J. 1964) (per curiam) (ordering a pregnant woman to submit to a blood transfusion to save the life of her viable fetus because “the unborn child is entitled to the law's protection ….”); see Harris, supra note 163, at 146.

263 Jefferson v. Griffin Spalding Cty. Hosp. Auth., 274 S.E.2d 457, 460 (Ga. 1981) (per curiam); see Finer, supra note 186, at 245-46.

264 Jefferson, 274 S.E.2d at 458. Placenta previa is a condition in which the placenta overlies the internal opening of the cervix and thus blocks the fetus from being able to exit the uterus through the vagina. See Soc'y of Obstetricians & Gynaecologists of Canada (“SOGC”), Diagnosis and Management of Placenta Previa, 189 J. Obstetrics & Gynaecology Canada 261, 262 (2007)Google Scholar. If vaginal delivery were attempted, both the fetus and the mother have significant likelihoods of death due to life-threatening hemorrhage from the placenta and uterus. See Jefferson, 274 S.E.2d at 458. The physicians in this case quoted the court a ninety-nine percent chance of death for the fetus and a fifty percent mortality for the mother. Id.

265 Jefferson, 274 S.E.2d at 460 (Hill, P.J., concurring).

266 Id. at 458-59.

267 Id. at 460 (quoting the trial court opinion).

268 See Stone-Manista, supra note 28, at 483 (citing Pemberton v. Tallahassee Mem'l Reg'l Med. Ctr. Inc., 66 F. Supp. 2d 1247, 1251-52 (N.D. Fla. 1999)). In Pemberton, a woman with a prior classical cesarean delivery attempted an unmonitored vaginal birth at home after refusing to undergo a medically-indicated repeat cesarean delivery. Pemberton, 66 F. Supp. 2d at 1249-50. The court found that labor in the setting of this particular type of cesarean delivery was associated with a four to six percent risk of uterine rupture, which would lead to “almost certain death.” Id. at 1253.

269 Pemberton, 66 F. Supp. 2d at 1252 n.9.

270 Id.

271 See People v. Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997); In re A.C., 573 A.2d 1235 (D.C. 1990) (en banc).

272 In re A.C., 573 A.2d at 1239; see also Oberman, Michelle, Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts, 94 Nw. U. L. Rev. 451, 480 n.119 (2000).Google ScholarPubMed

273 In re A.C., 573 A.2d at 1241.

274 Id. at 1243-44.

275 Id. at 1252. Although the court's overall conclusion was that to uphold a pregnant woman's right to bodily integrity, the court did allow for the possibility of overriding a patient's wishes when the “conflicting state interest may be so compelling that the patient's wishes must yield[.]” Id. However, such a situation, the court noted, “will be extremely rare and truly exceptional.” Id.; see also Finer, supra note 186, at 244-45.

276 In In re A.C., the court was uncertain as to whether the pregnant woman was competent to make informed medical decisions about her care or the care of her pregnancy. In re A.C., 573 A.2d at 1247. The court, however, noted that the right of bodily integrity applies equally to an incompetent patient as it does to a competent one, but that for the former, the decision-making would need to be made through a surrogate decision-maker rather than by the patient herself. Id.

277 Id. at 1244.

278 Id.

279 See In re Baby Boy Doe, 632 N.E.2d 326, 332 (Ill. App. Ct. 1994) (finding that a fetus's rights are “not assertable against [the] mother” and therefore a pregnant woman retained the right to refuse a cesarean delivery even in circumstances in which her refusal exposed the fetus to harm).

280 See Levine, Eric M., The Constitutionality of Court-Ordered Cesarean Surgery: A Threshold Question, 4. Alb. L. J. Sci. & Tech. 229, 254 (1994).Google ScholarPubMed

281 This may explain the Georgia court's finding in Jefferson because the risk to the fetus with a trial of labor was quoted as 99%. See Jefferson.

282 See generally Roe (describing widespread religious belief considering life to begin at conception).

283 Finer, supra note 186, at 240-41.

284 Id.

285 See discussion supra Part III.A.

286 The withdrawal of consent is encompassed within the general doctrine of informed consent. See Bankert v. United States, 937 F. Supp. 1169, 1183 (D. Md. 1996) (quoting Mack v. Mack, 618 A.2d 744 (Md. 1993) “a corollary to the [informed consent] doctrine is the patient's right, in general, to refuse treatment and to withdraw consent to treatment ….”). Therefore, just as competency is required for the provision of consent, it is similarly required for the withdrawal of consent. See id. at 1173-74 (finding “[a] competent patient's right to select from among medically acceptable treatment alternatives also encompasses the right to change one's mind about the treatment ….”); see also In re A.C., 573 A.2d 1235, 1247 (D.C. 1990) (en banc) (noting that a heavily-sedated pregnant patient was not competent to accept or refuse a cesarean delivery and should have had a competent third party make medical decisions on her behalf).

287 See Woolery, supra note 106, at 251-52.

288 See Schreiber v. Physicians Ins. Co. of Wisc., 579 N.W.2d 730, 735 (Wis. Ct. App. 1998); Bankert, 937 F. Supp. at 1183. In both Bankert and Schreiber, the courts found the treating physicians liable for breach of informed consent when each physician failed to perform a cesarean delivery on a laboring women undergoing TOLAC who requested that the TOLAC be terminated and a cesarean section be performed. Schreiber, 579 N.W.2d at 735; Bankert, 937 F. Supp. at 1183.

289 Based on my personal search of Westlaw on multiple occasions over the past several months, there is no case law that highlights this specific scenario. However, based on the principles of Bankert and Schreiber, this scenario must also be legally correct. See generally Bankert, 937 F. Supp. at 1183 (finding that the patient's withdrawal of consent was binding on the physician); Schreiber, 579 N.W.2d at 735 (finding that a patient retains the right to change the course of medical treatment even during a current course of treatment). Of note, there is litigation pending in the New York Supreme Court Appellate Division in which a woman with two prior cesarean deliveries sued the maternity hospital and obstetric providers for forcing her to undergo a cesarean delivery when she presented in labor. Dray v. Staten Island Univ. Hosp., No.2016-05859 (N.Y.A.D. 2 Dept.)., slip op. 60626(U); see also City Bar Files Amicus Brief in Support of Plaintiff in Dray v. Staten Island University Hospital, NYC Bar (Jan. 17, 2017), www.nycbar.org/media-listing/media/detail/city-bar-files-amicus-brief-in-support-of-plaintiff-in-dray-v-staten-island-university-hospital [https://perma.cc/Z95U-HVU8].

290 In the case of maternal refusal of treatment, “court-ordered intervention against the wishes of a pregnant woman is rarely if ever acceptable.” ACOG, Patient Choice in the Maternal-Fetal Relationship, Ethics in Obstetrics & Gynecology 34, 34 (2004).

291 Id.

292 Id. at 35.

293 See, e.g., id.

294 Id.

295 A Westlaw search using search terms “compelled cesarean” and “court-ordered cesarean” did not reveal any of such TOLAC cases. This paper restricts the term “compelled cesarean delivery” to include only cesarean deliveries that are mandated by the court. This author recognizes that this restricted definition of a compelled cesarean delivery does not include other forms of coercion, in which a pregnant woman may feel forced – even if not legally compelled – by the hospital or obstetric providers to forgo TOLAC and proceed with a cesarean delivery. Nonetheless, since these other forms of persuasion do not hold the same legal implications as a court-order, the current discussion is restricted to the latter.

296 See Pemberton v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 66 F. Supp. 2d 1247, 1249 (N.D. Fla. 1999).

297 Id.

298 “Classical” uterine incisions are vertical uterine incisions that extend into the contractile portion of the uterine muscle, thereby weakening the uterine muscle. Landon & Lynch, supra note 54, at 257. Since this contractile portion of the uterus undergoes significant stress during labor, a uterus that has been weakened in this area due to a prior classical incision has a much higher risk of uterine rupture. Id. at 258.

299 See Landon & Lynch, supra note 54, at 258.

300 See ACOG VBAC Practice Bulletin 115, supra note 5, at 453 (recommending that women with a lower than sixty percent likelihood of achieving a safe VBAC should not undergo TOLAC).

301 Pemberton, 66 F. Supp. 2d. at 1249 (noting that the patient was advised by “every physician she contacted” that “vaginal delivery was not an acceptable option.”). A discussion regarding a physician's right to refuse a patient's request for treatment that the physician believes is medically inappropriate and not indicated is beyond the scope of this article. However, the Pemberton case does highlight the sometimes conflicting legal rights of autonomy between patient and provider. While the informed consent doctrine should protect Laura Pemberton's right to make an informed decision regarding her mode of delivery (since there is no indication that she was deemed incompetent at any point), the doctrine cannot require a physician to perform a procedure which the physician believes is medically inappropriate. A physician is legally bound by the parameters of the standard of care and may decline to offer a procedure which is outside accepted medical standards.

302 See generally ACOG VBAC Practice Bulletin 115, supra note 5, at 453 (describing the ideal medical conditions for TOLAC).

303 See, e.g., id. at 450-51.

304 Id. at 457.

305 Kukura, supra note 24, at 963.

306 See id.

307 As previously mentioned, since emergencies during labor are unpredictable events, obstetric, anesthesia, and nursing staff would need to physically be in the hospital throughout the pregnant woman's labor in order to ensure that an emergent cesarean delivery could be performed immediately.

308 See generally Miller, David A. et al., Vaginal Birth After Cesarean: A 10-Year Experience, 84 Obstetrics & Gynecology 255 (1994)Google Scholar; Smith, Gordon C. S. et al., Factors Predisposing to Perinatal Death Related to Uterine Rupture During Attempted Vaginal Birth After Caesarean Section: Retrospective Cohort Study, 329 Brit. Med. J. 375 (2004).CrossRefGoogle ScholarPubMed

309 ACOG VBAC Practice Bulletin 115, supra note 5, at 457.

310 See id.

311 See generally Cheng et al., supra note 11 (discussing various potential perinatal injuries associated with TOLAC).

312 See generally Ross, Michael G. & Gala, Rageev, Use of Umbilical Artery Base Excess: Algorithm for the Timing of Hypoxic Injury, 187 Am. J. Obstetrics & Gynecology 1, 1 (2002).CrossRefGoogle Scholar

313 See, e.g., ACOG VBAC Practice Bulletin 115, supra note 5, at 457.

314 See id.

315 See, e.g., Green-Top Guideline No. 45: Birth After Previous Cesarean Birth, Green-Top Guideline No. 45, Royal Coll. Of Obstetricians & Gynaecologists, at 13 (Oct. 2015) (advising that a planned VBAC should be conducted in a delivery setting with “resources available for immediate caesarean delivery and advanced neonatal resuscitation.”); SOGC, Guidelines for Vaginal Birth After Previous Caesarean Birth, Clin. Practice Guidelines No. 155, 27 J. Obstetrics & Gynaecology Can. 164, 167 (2005) (recommending that, for safety, delivery occur in “a hospital where a timely Caesarean section is available.”).

316 See Kukura, supra note 24, at 988.

317 WHO, supra note 43, at 436.

318 See Kukura, supra note 24, at 988.

319 See id. at 958.

320 See id.

321 Id.

322 See Declercq, supra note 198.

323 See, e.g., Vaginal Birth After Cesarean Delivery: Deciding On A Trial of Labor After Cesarean Delivery: Frequently Asked Questions, ACOG (Aug. 2011), https://www.acog.org/-/media/For-Patients/faq070.pdf?dmc=1&ts=20171005T1352463744 [https://perma.cc/P9MS-TYVC].

324 See How Can I Choose a Caregiver and Birth Setting that Value Labor Support?, Childbirth Connection, http://www.childbirthconnection.org/giving-birth/labor-support/basics/labor-support-options/choosing-a-care-provider.html (last visited Oct, 4, 2017). Doulas or experienced birth companions provide women with more confidence to voice their wishes and concerns regarding their childbirth preferences and have been associated with higher rates of VBAC. Telephone Interview with Cordelia Hanna-Cheruiyot, Childbirth Educator, VBAC Advocate and Executive Director, Wholistic Maternal Newborn Health (Sept. 27, 2015).

325 See The International Cesarean Awareness Network (“ICAN”) http://www.ican-online.org/physician-cesarean-rates/ (last visited Oct 17, 2017).

326 See e.g. CMQCC, Maternal Data Center California Measure List, Cal. Maternal Quality Care Collaborative (Dec. 2016), https://www.cmqcc.org/sites/default/files/Measure%20List_CA.pdf [https://perma.cc/GR7G-NH4A] (last visited September 20, 2017).

327 Id.

328 See ICAN, Advocacy, http://www.ican-online.org/advocacy/ [https://perma.cc/XQF7-PXDA] (last visited Oct. 4, 2017).

329 N.Y. Pub. Health Law § 2803-j (Information for Maternity Patients).

330 Maternity Information Childbirth Services Pamphlet, N.Y. State Dep't of Health, http://www.health.ny.gov/publications/2901.pdf [https://perma.cc/L7DK-KTC6] (last visited Oct. 4, 2017).

331 Id.

332 Id.

333 See Jena, Anupam B. et al., Malpractice Risk According to Physician Specialty, 365 New Eng. J. Med. 629, 632-33 (2011)CrossRefGoogle ScholarPubMed (noting that because birth injuries can often involve a child that is permanently impaired, outlier awards, defined as indemnity payments in excess of $1 million, occurred most frequently in obstetric claims).

334 See Baker, supra note 72, at 549.

335 See Kukura, supra note 24, at 970 (contending that obstetricians do not change their practice based on liability-related concerns).

336 See generally Carpentieri, et al., supra note 59; see also A. Dale Tussing & Martha A. Wojtowycz, Malpractice, Defensive Medicine, and Obstetric Behavior, 35 Med. Care 172, 184 (1997)Google Scholar (showing generally that malpractice liability can have an effect on physician activity and choice).

337 Carpentieri et al., supra note 59, at 3.

338 Id.

339 See Lusero, supra note 72, at 412.

340 See, e.g., Bankert, 937 F. Supp. at 1183; Schreiber, 579 N.W.2d at 735; Cicione v. Meyer, 33 A.D.3d 646, 648-49 (N.Y. App. Div. 2008); Lusero, supra note 72, at 412.

341 See Lusero, supra note 72, at 412.

342 Id.

343 See id.

344 Defensive medicine is a term used to describe clinical decisions and treatments that are associated with lower professional liability exposure without improving the quality or effectiveness of the medical care. See Off. of Tech. Assessment, OTA-H-602, Defensive Medicine & Medical Malpractice 13 (1994).

345 William G. Hamm et al., MICRA and Access to Health Care, MICRA, 34 (Jan. 2014), http://micra.org/wp-content/uploads/2016/02/FINAL2014MICRAReport01.21.14.pdf [https://perma.cc/WT8M-F9UV].

346 Id.

347 See id.

348 See Cheng et al., supra note 11, at 2.

349 See Declercq, supra note 198, at 21.

350 See discussion supra Part IV.A.

351 Finer, supra note 186, at 240-41.

352 Kukura, supra note 24, at 957.

353 See discussion supra Part III.A.