Military Homebirth: An Attack on Informed Consent

Military maternity care and military obstetric care persistently fail some servicemembers and their families.  Attacks, both outright and oblique, on military homebirth and Tricare coverage for homebirth are only two examples of the military’s willingness to deny servicemembers the right to informed consent – among other things.

This article touches on my own horrible treatment by a Naval OB when it came to my oldest son’s birth, the current terrible situation a dear friend has been put in by this paternalistic system, the current legal state surrounding these issues, and resources.

Denial of Informed Consent
My Story

In 2010 when my oldest son was born, I was a U.S. Marine on active duty (I am a reservist now).  Initially, I hadn’t considered homebirth.  I had, however, done a significant amount of research on childbirth and the medical interventions that sometimes accompanied it.  A very close relative suffered permanent damage from an epidural and forceps delivery – damage which, more than a decade later, was still evident.

I determined, based on my own research, which included medical journals, mainstream publications, and consultations with medical and non-medical birth professionals – and with several women who had given birth in various ways – that, so long as my pregnancy continued uncomplicated and healthy, I did not want any interventions during labor and delivery.

As an attorney, I was well aware of my right to refuse any unwanted medical intervention.  Or, I thought I was.  Then I informed the obstetricians at Naval Hospital Beaufort (NHB) of my desire to labor and deliver without drugs or intervention.  I was told in no uncertain terms that such a decision was not up to me.  The head of section at the time told me to my face that HE would decide what interventions were performed on me and my son.  When I offered to provide a written Birth Plan detailing my desire for an intervention free birth, complete with medical citations, he told me such a document was all but worthless, as he would be making the decisions based on what he thought was best, not on what I wanted.

When I then informed him that I would not consent to any interventions (outside of an emergency), he told me I didn’t have to consent to them.  He told me, expressly, to my face, that he would not honor my right to refuse unwanted interventions.

And since my body belonged to the U.S. Government at that point in time, there was essentially nothing I could do about it.

When discussing individual interventions (in hopes of making a little headway), I told him I didn’t want pitocin.  He informed me that I would have an IV, and whatever drugs he or any of the other OBs decided were necessary would be fed through it regardless of what I said.  Just so we’re clear, injecting someone with drugs against their will is battery.  So my OB, who was supposed to be helping me through childbirth, threatened me with battery.  And even for all the noise I made about it, the military was totally fine with it.

End result: I chose homebirth.  In my case, I was 100% confident that homebirth with a Certified Professional Midwife and a Certified Nurse Midwife, was the safer option for me.  With the care of these two amazing professionals (and my husband, of course), I gave birth to my happy, healthy baby boy in my own bedroom at home.  There were no complications, and not a single person attempted to force me to undergo unnecessary and unwanted cutting, drugging, immobilization, etc.

My insurance at the time was Tricare Prime – the insurance all active duty servicemembers carry.  I was ascertained from Tricare’s publications that Tricare Prime would cover the cost of a homebirth.  This fact was affirmed by several Tricare representatives.  But, of course, there was one giant catch:  In order for Tricare to pay for the homebirth, my assigned Military Treatment Facility (MTF), NHB, had to approve it.  To be more specific, the very doctor who had frightened me into a homebirth, the one who had threatened me to my face and told me I didn’t have a right to informed consent, got to make the decision about whether my insurance would cover the cost of my birth.

And, of course, NHB denied my request.  This launched many, many months of struggle attempting to obtain a just result.  It took months to even get ANYTHING in writing from NHB, and when I got it, the letter stated that the decision of whether or not to permit me to give birth anywhere other than the hospital my OB chose (which was Beaufort Memorial Hospital since NHB’s birth center had already been shut down amidst some scary rumors) was solely up to my OB.  The OB that threatened me.

To be clear: THE DECISION OF WHERE AND HOW TO GIVE BIRTH WAS HIS, NOT MINE.

Because I was a servicemember, because I was a Marine, I did not have a say in my own birth.  And to punish me for exercising my own right to protect myself and my baby from unnecessary and unwanted bodily harm, I would have to pay for my positive birth experience out of my own pocket.

I appealed it to the hospital, but got no response.  I was granted a congressional inquiry, but all that resulted in was another copy of the original letter from the hospital.  I should point out that the materials I provided them with to request consideration were 16 pages long and included both legal and medical justification and citations.  What I got in return was a one page insult.

I eventually managed to appeal it up to the Navy Bureau of Medicine (BUMED) Inspector General’s (IG’s) Office.  After a time, this resulted in a conference call wherein I was told the behavior of the OB was completely out of line, what happened to me was very unfortunate, and the Navy was not going to do one single thing about it.  I requested the decision in writing.  Guess what?  Denied.  They wouldn’t even provide me with anything in writing in response.

So, after more than a year, I gave up.  And the desire to have another child was part of what drove me off of active duty.  I couldn’t risk having to go through all that again.  (Did I mention how horribly I was treated by the head nurse at all my post-partum appointments?  Or the fact that they were outright mean to my midwife when she dropped off the required cord blood samples – which they then failed to properly store AT THE LAB, and they were destroyed?).

It was worth it in the end, though, because I got this:

That was all a long time ago.  Why bring it up now?  Because the nonsense of targeting any childbirth outside of the medicalized routine continues.

Bullying Providers
Savannah Midwifery

One of the wonderful midwives who attended my homebirth was GeorgAnna Wiley.  She was amazing.  I wish I had more precise words to describe what an incredible caregiver she was for me.  She and Nicole Lavallee knew exactly what I needed at every moment along the way, and guided me brilliantly through the birth.  GeorgAnna in particular talked me through the actual pushing (while Nicole caught the baby) with such skill that I harbor very fond memories of that moment and was quite heartbroken that we lived too far away to use her services when my second son was born.  About a week ago, I saw this story from her organization, Savannah Midwifery (the full text is available here):

[…] I have worked hard to serve hundreds of families over the past 6 years.  I strive to make homebirth a supported, affordable option and worked hard as a change agent facing much opposition to earn respect from the medical community here. I truly try to make the world a better place by safeguarding gentle birth, offering a holistic approach with evidence-based natural methods, facilitating uninterrupted bonding and breastfeeding, empowering women, […]

On October 8th, 2015, I received a letter from Tricare South stating they had made an overpayment to Savannah Midwifery. Upon discussing with Tricare South and Humana representatives, the American College of Nurse Midwives (ACNM), and other homebirth CNMs (licensed Certified Nurse Midwives), it appears that Tricare adjusted their fee schedule (what determines the amount they pay per service provided) for homebirth services in 2015 and ascertained that they overpaid all homebirth CNMs. Tricare identifies “manual processing errors [by] PGBA (the subcontractor who processes claims)” as the reason for the overpayments. There is no statute of limitations for Tricare, so the refund request involves all Tricare families I served in the past 6 years – totaling $22,670.39.

[My billing service] submitted the bills and billed appropriately [for births] as well as itemized fees for other services rendered, such as pap smears, newborn resuscitation, lactation assistance, etc., which Tricare has decided they should not have paid. I submitted an appeal […] and was told the CNMs affected would need to file a class action lawsuit.  ACNM states they do not have the financial resources for a class action lawsuit. If I am unable to refund Tricare the full amount, this debt will be referred to a collection agency, and result in seizure and subsequent sale of my assets (and likely bankruptcy).  The overpayment amount is accruing interest as well.

It is therefore with great remorse that I must bill previous Tricare clients for the difference in what Tricare paid versus my fee, according to their signed contracts.  If I am unable to recoup the funds, I will be forced to close Savannah Midwifery, preventing me from serving other families and helping them have empowering birth options.

I apologize for the inconvenience of this and am truly sorry that this situation doesn’t have a better resolution. Thank you for your continued support of Savannah Midwifery. I welcome open discussion of this matter. Please don’t hesitate to call or email me with questions. I’m so very sorry for all this mess.

So, essentially, Tricare cut what they were willing to pay for Midwife care, then failed to appropriately adjust their accounting, and now Tricare is using their own mistake to force midwives out of practice.

If you would like to contribute to Savannah Midwifery, you can do so here:

Legal State of Birth Choices for Servicewomen

In a word – iffy.  (I can think of more colorful words, too – after all, I am a Marine).

Let me start by pointing out the difference between being a pregnant servicemember and being the pregnant dependent of a servicemember:  A pregnant dependent (ie, the wife of a Marine) has the option of switching from Tricare Prime to Tricare Standard.  Under Tricare Standard, no “approval” from an MTF provider is required to allow the pregnant woman to choose her birth location (within certain perimeters).  Pregnant dependents have a CHOICE.  Yes, if they run into a paternalistic OB like mine who refuses to approve their decision of a birth center or midwife assisted homebirth, they will have to change insurances and pay a bit of a deductible, BUT THEY HAVE A CHOICE.  If a servicemember’s wife is threatened by her OB, she can go elsewhere.

Servicemembers cannot switch to Tricare Standard.  A pregnant servicemember who wanted to have a say in her own birth (when faced with an OB who feels his ego is more important than, say, the right to refuse unnecessary and unwanted bodily intrusions), would have to purchase an entire new health insurance policy or simply pay for the birth out of pocket (like I and many others did).

If this pings your constitutionality meter, there might just be a reason:

UNCONSTITUTIONAL SEX DISCRIMINATION AGAINST THE CHILDREN OF ACTIVE DUTY MILITARY MOTHERS

In a heartbreaking case (though sadly not the only one of its kind), Air Force Captain Heather Oritz gave birth in an MTF.  Due entirely to malpractice by the medical staff, her child was born with severe brain damage.  When she attempted to sue to cover the lifelong medical expenses her severely disabled child would face due to the actions of the military medical staff, a California court found that because the original injury perpetrated by the military medical staff was to Capt Oritz’s body, even though it directly caused the brain damage to her child, the government could not be held liable because the injury was “service connected.”

Bet you didn’t know that severe disability of your newborn (your nonservicemember newborn) during childbirth was a service connected injury, did you?

In November of last year, Harvard Law’s Bill of Health bloggers Alex Stein and Dov Fox filed an amicus brief urging the Supreme Court to hear the case of Capt Ortiz and her baby. The case is No. 15-488 Ortiz v. U.S. ex rel. Evans Army Community Hospital.  “Professors Fox and Stein urge the Court to overturn the Tenth Circuit’s holding that the federal government’s immunity against liability for intramilitary torts extends to wrongful injuries like those sustained by Major Ortiz’s baby. They argue that this holding misinterprets the immunity, misapplies the Federal Tort Claims Act (FTCA), and constitutes no less than unconstitutional sex discrimination.” (citation)

Their amicus brief presents these questions:

1. When government negligence injures the child of an active-duty mother, does the Federal  Tort Claims Act allow that child to bring birth-injury claims against the federal government,  as the Fourth, Eighth, and Eleventh Circuits have held, or should the Feres doctrine be  expanded to bar a child’s birth-injury claim, as the Tenth Circuit has held?

2. Does treating birth-injury claims of the children of active-duty military mothers differently than the children of active-duty military fathers constitute unconstitutional gender  discrimination?

BIRTH INJURIES ARE MORE LIKELY IN MILITARY TREATMENT FACILITIES