Suit settlement promotes different view of conflict between pregnant woman, fetus


December 02, 1990|By LYLE DENNINSTON | LYLE DENNINSTON,Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

One of the more astonishing notions to come out of the always-polarized abortion controversy is the idea that pregnant women and the fetuses they are carrying are always, or nearly always, in conflict. That notion may be dispelled, at least partly, by the way in which a history-making lawsuit is being settled.

The lawsuit is part of a legal saga that has unfolded in the local courts in Washington over the past 3 1/2 years, a painful drama over the life, illness, pregnancy and death of a Laurel woman, Angela Carder.

Mrs. Carder, near death from cancer but struggling to carry a pregnancy to term as well as to survive herself, was required -- by a judge's order -- to have a Caesarean section delivery of her baby, who died shortly after the procedure. Mrs. Carder died two days later.

Ultimately, the case of "A.C.," as she was known anonymously through much of the legal proceedings that preceded and followed her death, led to a truly precedent-setting decision on the medical rights of pregnant women.

That decision, by the D.C. Court of Appeals in April, made clear that the woman herself is the one who must make the medical decisions about her pregnancy and that her decisions almost never could be overridden in favor of protecting the life or health of the fetus. If the woman was too ill -- as Angela Carder was -- to make the decisions, the choices made for her had to reflect as closely as possible what she would have chosen.

The decision in the case of "In re: A.C." provided thefirst firm precedent against medical intervention to protect a fetus when the pregnant woman herself did not choose to have that intervention. The decision came at a time when there had been a sharp increase in the number of court orders requiring women to have C-sections, or other medical procedures, because of the medical interests of the fetus.

That type of order had helped further the impression, encouraged by anti-abortion forces, that women and their fetuses had conflicting medical interests and the woman herself could not be trusted to take the fetus' interests fully into account in making treatment decisions. Because the "A.C." dispute had turned into a legal contest between two sides, the decision in that case did not do much directly to dispel the notion that the interests of women and their fetuses were divided.

But that case was only half of the legal drama that arose out of Mrs. Carder's experience. The other half was a malpractice lawsuit filed later by her parents against the George Washington University Medical Center, the Washington hospital where she had the Caesarean operation and had died.

Last week, at the time that a trial was to start in that case, the parents and the hospital settled, in an agreement that sets a variety of precedents on hospital ethical procedures designed explicitly to assure that the pregnant woman's own medical care choices will be honored in real-life practice to reflect the rights won, as a matter of law, in the "A.C." case.

One of the underlying premises of these new procedures is that pregnant women do not abandon their fetus' interests when the women confront critical medical care decisions affecting pregnancy. As the policy itself declares: "Our usual expectation is that a pregnant patient usually wants to give birth to the healthiest possible baby and will take prudent steps to promote that goal."

From there, the George Washington guidelines go on to suggest that, if the pregnant woman does make a decision that doctors think "would disserve fetal welfare," a hospital's response should not be to run off to a judge and get an order to force the woman to change her mind or take the choice away from her.

Instead, the guidelines suggest that the treatment decision is to be explored even further with the woman, to see whether she had made her initial choice under family pressure or without full understanding. Added counseling is an option, too.

The theory, throughout, is that the patient herself can be trusted to make an "informed" decision, if she just has the information.

"Our respect for autonomous adult patients' decisions is not altered," the hospital says, "simply on the basis of disagreement between the patient and her care-givers regarding the appropriate course of treatment." The hospital, under this approach, does not perceive itself to be the advocate of the fetus as an adversary to the pregnant woman.

That appears to be a breakthrough in the ethical norms of medicine and hospital care, and Mrs. Carder's family, their lawyers and the hospital are urging other institutions to follow that lead.

Under the settlement guidelines, the hospital and the doctors involved are given an option to withdraw from any case in which they feel they cannot honor the patient's wishes -- as, for example, when the patient chooses a treatment option that is considered to be "ethically unsettling" to the hospital staff.

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