Consent in High-Risk Pregnancies
The physician’s duty to inform and educate is the same whether the factor complicating the pregnancy is intrinsic or behavioral. This duty is complicated by the legal dilemma that the woman is the proper arbitrator of her medical care, but she is not the only person who can sue the physician for the consequences of that care. The patient’s husband or surviving children can sue the physician if the patient dies or is gravely injured. If the woman knowingly assumes the risk of the pregnancy and her medical decisions, then she can waive her right to sue. This waiver will bar others who might sue on her behalf or on their own behalf because of their suffering occasioned by her injuries.
The patient’s assumption of risk (or informed consent) is effective only if it is carefully obtained and documented. The risks to the patient and to the baby must be fully explained and the explanation documented. This is best done with a structured prenatal care system, tailored to the patient’s special needs. Dilemmas arise because the law is ambiguous about a woman’s right to assume the risk of injury for her fetus. Although it is expected that the courts will not hold a physician liable when a woman clearly refuses care, the burden will be on the physician to convince the jury that the refusal was both knowing and unshakable. Juries assume that patients are rational and refuse care only if they are insufficiently informed of the risks. Juries will have a stronger prejudice that a pregnant woman would not knowingly have put her baby at risk. Although it may be easy to convince a jury that a woman who uses crack does not care about her baby’s well-being, it will be much harder to convince them that refusing medical care evidences the same level of disregard.