Florida court hears case of woman confined by court to hospital during pregnancy, no 2nd opinion.

[madfloridian]

The ACLU is working with her lawyer to present the case of the women who had two small children at home to care for, yet court-ordered to stay in the hospital with a second opinion denied.

Some background:

Woman forced to remain in hospital, putting rights of fetus above rights of mother and other children.

Three days later they discovered the fetus had died, but this case holds huge implications. Courts ordering women held in a hospital, denied 2nd opinion.

Tallahassee, FL – The American Civil Liberties Union and the ACLU of Florida today filed a friend-of-the-court brief opposing the state's decision to force a pregnant woman to remain hospitalized against her will.

"Women do not give up their right to determine the course of their own medical care when they become pregnant," said Diana Kasdan, a staff attorney with the ACLU Reproductive Freedom Project. "Faced with similar cases, courts throughout the country have made clear that pregnant women have a right to make decisions about their own health, including refusing medical care."

In March 2009, the Circuit Court of Leon County ordered Samantha Burton – a mother of two suffering from pregnancy complications – to be indefinitely confined to Tallahassee Memorial Hospital and forced to undergo any and all medical treatments deemed necessary to save her fetus. After three days of state-compelled hospitalization, Ms. Burton suffered fetal demise and was released from the hospital.

Because she was pregnant she lost her right to make her own medical decisions.

More:

By Dahlia Ward, State Strategist, ACLU Reproductive Freedom Project

Imagine this — you're the busy mother of two small kids with another one on the way. This pregnancy has been fraught with complications. During a medical exam, your doctor orders bed rest for the remainder of your pregnancy. You explain that you can't possibly stay in bed for four months with two small children (!). The doctor insists. You say you want to get a second opinion. The doctor refuses and goes to court and gets a court order mandating your confinement in the hospital for the remainder of your pregnancy.

Sound crazy? Well something along these lines happened to Samantha Burton, a mother of two in Florida who was 25 weeks pregnant when she was hospitalized against her will due to pregnancy complications. When she requested a transfer to another hospital so she could get a second opinion, the state refused because it was not in the fetus' "best interests at the time."

Florida's First District Court of Appeals is hearing the case now.

From the NYT Magazine:

Is Refusing Bed Rest a Crime?

The lower court based its decision on the fact that medical intervention is justified in “extraordinary” circumstances. The A.C.L.U. responded that the circumstances Burton found herself in were very ordinary. “It is hard to imagine anything more commonplace than the inability of a mother of two to remain on continuous bed rest,” the brief says, “or the well-documented difficulty in quitting smoking,” which Burton was also ordered to do.

Where then, to draw the line? If a court can confine a pregnant woman to a hospital because she refuses (or is unable) to stay in bed and quit smoking, what about the women who doesn’t eat healthfully? Or who drives above the speed limit? Dahlia Ward, state strategist for the A.C.L.U.’s Reproductive Freedom Project, wrote the following in the Daily Kos a few months ago, when the case was first reported:

"Don’t get me wrong — of course I want pregnant women to follow their doctor’s advice. But I do not think that pregnant women should be confined against their will if they are unwilling or unable to do so. If we allow the government to confine a pregnant woman for not following orders to remain in bed, what’s next? Will we forcibly hospitalize pregnant women for having a glass of wine with dinner? Or eating too much fast food?

What if they don’t take their prenatal vitamins? Or miss their doctor’s appointments? What if a pregnant woman refuses a Cesarean section? While we each may have strong opinions about such behaviors, our government cannot interfere in a woman’s personal private medical decisions. Allowing the government to make medical decisions for pregnant women means that literally every decision and every activity a pregnant woman engages in could be regulated by the state. And certainly the possibility of state-mandated hospitalization for those who have engaged in “unhealthy behaviors” would deter some women from seeking any prenatal care for fear of being punished. In that situation, everybody loses. "

Looks like she was not allowed to choose to go home for the bed rest. That is scary.

Tallahassee Woman Fights Bed Rest Order and More

From a WCTV article.

A Tallahassee woman court-ordered to remain in the hospital on bed rest appeals her case to a higher court.

Samantha Burton was at risk of a miscarriage. Back in March, a circuit judge ordered her to remain on bed rest at Tallahassee Memorial and receive any medication or treatment her doctor deemed necessary to save the life of her unborn baby.

TMH attorneys argued it was in the best interest of the child.

Burton's attorney David Abrams says Burton is a working mother of two small children and says she wanted to be released to remain on bed rest at home.

She has now asked the First District Court of Appeals to decide if TMH, the doctor, and the circuit court went too far.

[EFerrari]

1. That judge needs a mental health check up. Someone needs to ask him

if he knows what date this is.

[Canuckistanian]

6. So does the doctor

He's the one who called the law in the first place.

[malaise]

18. The judge should be locked up

Throw away the keys

[EmeraldCityGrl]

2. So this is America?

The sheer stress of being held against her will probably contributed to the fetus dying.

And it's no surprise this happened in Florida.

[mrbarber]

3. Florida, what a shock.

Was born in that medieval shithole of a state, and vowed to never return there unless to visit my parents.

Seriously, to hell with state.

[BadgerKid]

4. Every sperm is sacred

:sarcasm:

[Solly Mack]

5. K&R

[Pithlet]

7. There aree no words

I'm speechless. Hell yes they went too far.

[Triana]

8. when a woman is reduced to nothing but an incubator....

...rather than a human being in and of herself and having a life and body of her own, this is slavery.

For anyone who erroneously thought slavery had been abolished in the U.S. - think again.

[ohheckyeah]

9. I can see this kind of thing

causing women in this position to have abortions. Is that what they want?

[Hekate]

11. Actually those who think like this want to totally outlaw all abortions. nt

[Hekate]

10. That is just sick. After "fetal demise" did they at least help extract the dead thing?

Or did they send her home to her OTHER SMALL CHILDREN to let Nature take its course? And who exactly was taking care of those existing kids?

Christ on a trailer hitch. Angels would weep. I know I want to.

Hekate

[Quantess]

12. I bet Rick Santorum was there to cradle the dead fetus.

[rebecca_herman]

30. not that it makes it any better but

they did an emergency c-section, but the fetus had already died.
Not surprised to see this story from Florida. A while back they tried to assign a guardian to the fetus of a mentally disabled rape victim. They ultimately failed in court but not suprised to see them pulling this crap.

[Rozlee]

58. It's a mother's instinct to want to protect her children

Especially the ones she's already got! No matter how much I might want a baby or to be pregnant, that fetus, no matter how developed, would still be an abstract to me compared to the children that I already have. When I was a young single mother and I would leave my kids with a new caregiver that I didn't know well yet, I'd suffer the agonies of hell, imagining the worst. And they wanted her to leave the kids she had already to some social agency, against her will. Then they probably threatened her with child protective services by telling her that they'd take away her children and put them in foster homes because she'd be an unfit mother if she wasn't willing to "do the best for your fetus." No wonder she miscarried! She was no doubt terrified out of her wits.

[AdHocSolver]

13. It is a bad assumption that being in a hospital is good for one's health.

The longer you stay in a hospital, the greater your chances of an adverse outcome. That judge knows nothing about medical practice in this country, and his assumption that being in that hospital would benefit the woman and her fetus was totally wrong.

The woman's request for a second opinion from a doctor in a different hospital was reasonable and totally justified. The doctor who had the woman confined sounds to me like he didn't want to lose the "business" of making this woman stay in "his" hospital. The judge does not have a license to practice medicine, and he was way out of line. The woman's lawyers should bring this fact up on appeal.

Tens of thousands of people die every year in hospitals from causes not related to the original reason for which they sought medical help. In other words, they got sick and frequently died BECAUSE they were in the hospital.

The statistics verify this, and having worked for several years in hospitals, I am not surprised.

It could very well be the case that the woman had the miscarriage BECAUSE she was in that hospital.

[pipi_k]

32. You're so right...and to illustrate how scary it is...

Mr Pip had total knee replacement surgery done this past October. He went in Wednesday, came home Friday.

One of his daughters is a nurse on the surgical floor of the hospital where he had the surgery.

The other day she told us something that just scared the holy living shit out of everyone...she pulled strings to get her dad a private room. The day after the surgery she actually SAW one of the nurses leave the room of a patient who had H1N1 flu and attempt to enter her dad's room without washing her hands first.

She said that when he left the hospital to come home, she felt 100% better because she knew he'd get the best of care here and would not be exposed to any scary diseases.

And when the physical therapists/visiting nurses came the first six weeks, they always wore latex gloves during treatment, and after they left, I went around disinfecting anything they touched.

But anyway, yeah...hospitals are breeding grounds for all sorts of nasties.

[winyanstaz]

14. This is outragious!

Take the judge OFF the bench..he has no right to be a judge if thats the best he can do.

[LeftyMom]

15. Her doctor is especially contemptible.

When Ms. Burton stated that she could not do bedrest because she needed to care for her two children, his phone call should not have been to the law, it should have been to find somebody to come help her so that she could remain on bedrest.

[madfloridian]

16. Amen to that. That he failed to help her, and used punitive methods...

shows a mindset that a doctor should not have.

[knitter4democracy]

28. Absolutely. He forgot which one was his patient.

The mother was his patient, not the baby, and he also forgot that a patient always has the right to refuse care and demand a second (or third or whatever number) opinion. Why the heck did the hospital admins go along with this?!

[madfloridian]

17. No transcript available from circuit court hearing of judge's order...

"Burton was not refusing medical treatment, Kasden argued, but simply wanted to be able to go home with her two other children. Other options could have been pursued, she said, such as home nursing, and noted that if the appeals court sided with the state it would set an “unconstitutional and dangerous precedent.”.

One member of the three judge panel, Judge William A. Van Nortwick, asked both sides whether they would concede that the state did have a right to step in at some point. The judges also acknowledged some difficulties with the case, because there was no transcript of the circuit court hearing available, so there were no documents to back up what went into the judge’s decision to issue the order confining Burton to the hospital.

Lisa Raleigh, a lawyer with Attorney General Bill McCollum’s office, which is representing the state, said the trial judge was “doing all the right things” when he issued the order. As part of his decision, the judge ordered that social services be contacted to help the family and that a lawyer be appointed for Burton. He also asked that all parties come back to him with a report within five days, so that the situation could be re-evaluated.

“He is clearly appropriately weighing the constitutional issues in this case,” Raleigh said."

http://www.jaxobserver.com/2010/01/13/court-weighs-rights-of-pregnant-mothers/

AG Bill McCollum is running for governor of Florida. His lawyer/spokesperson says "the trial judge was “doing all the right things” when he issued the order."

I disagree with that statement.

[knitter4democracy]

27. Um, wait. How the heck did that happen?!

There's always supposed to be a transcript.

[TommyO]

19. Has the name of the doctor that initiated the proceedings against her been released?

Every woman in Florida needs to know his or her name so they can avoid this pitiful excuse for a doctor.

Did a bit more digging, in addition to the Tallahassee Memorial Hospital, Dr. Jana Bures-Forsthofel appears to be involved based on this article: http://www.wctv.tv/home/headlines/81371587.html, though there's no indication that she was the one who initiated the action against Samantha Burton.

[northernlights]

20. exactly...publish the name of the doctor and hospital

so the women of Florida know who to avoid like the plague. :grr:

[csziggy]

40. I had outpatient surgery in Tallahassee Memorial over thirty years ago

And will never willingly go back to that hospital for anything. Prior to the surgery, I had made arrangements with their business office to make payments, but while I was recovering from the anesthesia, some damn clerk came into the room and started harassing me about paying - threatened to hold me there until I wrote them a check. When I finally threw up from the drugs - all over her shoes - she finally left. I left as soon as I could walk out, even though I was still puking. The bill I got was for far more than I had been quoted and the doctor was so outraged at the treatment I got from the business office, he waived his fee.

TMH is a for profit hospital and they never forget that or let the patients forget. The other for profit hospital, Tallahassee Community, is much better and has a much nicer staff. I spent three nights there after a major operation and they were terrific. They may not be a trauma center like TMH, but I will chose to go to Community for treatment if I am capable of stating my wishes!

Oh, yes - both surgeries were for "female" things, so my experiences were directly comparable.

[uponit7771]

22. Yeap, make sure every pregnant woman knows that if they go their they lose their rights

[uponit7771]

21. fuckin wow!!

[Gold Metal Flake]

23. Dr. Jana Bures-Forsthoefel? Is that the name?

I see only one mention of a doctor, Dr. Jana Bures-Forsthoefel. From your third link.

http://www.vitals.com/doctors/Dr_Jana_Bures-Forsthoefel.html

If this is the OB/GYN, people need to know so that they can make an informed choice as to medical providers.

[madfloridian]

24. Thanks, I had missed that.

She obviously has a point of view.

[Gold Metal Flake]

25. Imagine her refusing a second opinion and then rushing to court.

She or the hospital has an attorney on retainer for this? This is the state of women's rights in the USA. This is not an outlier.

[katandmoon]

26. K&R Unfuckingbelievable and shockingly outrageous..

[AspenRose]

29. Proof once again that they don't care about the kids once they're here

Only the 9 months prior. After that, sorry kids!

[Odin2005]

31. That is fucked up.

:grr:

[Qanisqineq]

33. This just makes me sick

Women are more than just baby-makers.

[bertman]

34. Rec and kick. Everybody needs to be aware of this.

[AnnieBW]

35. But yet they don't want state interference in health care?

I mean, WTF?

[defendandprotect]

36. Women have no right to life or self-defense vs a fetus -- !!!

The doctor should be in jail -- !!

[Jefferson23]

37. Thank goodness for the ACLU, but this was a complete disgrace to have ever been allowed to happen!

[Guilded Lilly]

38. America...

land of the free...unless you are a woman. Particularly a pregnant woman.
Forget about your own health and rights. You give them up when you are impregnated.

We really can be a very twisted country.

Yes, they went too far.
Ugly stuff, this.

[ooglymoogly]

51. Big brother is watching

The authoritarian act of forcing folks to buy pucky insurance at exorbitant rates is equally stupid. We need to fight this crap tooth and nail.

[Mithreal]

39. Thank you

[winyanstaz]

41. Isnt this kidnapping?

[Piewhacket]

42. I think the Mad Floridian has just found her "furious" groove.

And who could blame her. This is pretty nuts.

A medical doctor brings a case against his patient demanding
that she follow his medical advice??? And the judge bought it???
Geezus.

But this reporting is all inflammatory heat, without much light.
Will somebody post the damn ACLU brief please.

[Piewhacket]

43. The ACLU brief (PDF)

ACLU amicus brief on the case is here

http://www.aclu.org/files/pdfs/reproductiverights/burton_v_florida_acluamicus.pdf

[madfloridian]

46. Really? "But this reporting is all inflammatory heat, without much light."

This has been going on for almost a year.

[Piewhacket]

52. I don't get out to Florida much. Hows the weather?

It just seemed reasonable, somewhere amonst all the
hyperbolic rhetoric (which I don't object to, but..)
that a few basics would ALSO be brought forward.
This permits the case to be evaluated in context.

Some simple info would help, but in the fury of the moment
the essential stuff needed to understand the case ended up missing.
Even the aclu brief doesn't address it properly, no statement of facts
just a haymaker swing with an "its all unconstitutional" argument.
Which is probably true, but... hey, how about some context...

How is it such a case got before a judge in the first place? By what
authority? What is the purported basis for the lower judge's ruling.
I just was asking for some bleeping simple statement by someone who knows
as to the statute used by the doctor (or whoever) to intervene
legally, and the proported legal basis for the judge's decision.

Because what's "wrong" (what went wrong) depends on that context.

But nowhere is it to be found, so I looked, and started guessing:

IT APPEARS, and its just conjecture at this point by me, that
the doctor (or someone) sought to impose a guardianship on the
fetus and the judge bought it. Unbelievable. Shocking. Nuts.

IT APPEARS, and again it is just conjecture on my part, that every
legal authority (appellate level) is utterly against issuing these orders
and that law seem PLAIN and what we really have going on is one of
these "ASHCROFT" deals where the judge knows his action is completely
illegal but he doesn't give a rip and is going to do it anyway.
Culture war. Abortion War. You know the drill.
Onward Christian Soldiers, Marching As To War.

What I know is the judge is legally immune for such a decision. IMMUNE. The only
thing to do is to vote him out of office and send him and his
crackerhead supporters packing. You MIGHT get him removed or recalled,
for "misconduct" but I wouldn't hold out a lot of hope in that.

My other ideas aren't fit for a family channel.

FOR SOME BACKGROUND OF THE WAR IN PROGRESS SEE:
The case of JDS
www.aclufl.org/PDFs/wixtrom_revised.pdf
justice.law.stetson.edu/lawrev/abstracts/PDF/34-1Wozniak.pdf

[ck4829]

44. Kick

[crim son]

45. I really want to know how this is resolved.

It IS like kidnapping.

[madfloridian]

47. Florida apparently considers confining pregnant women to bed rest "status quo."

From the ACLU blog:

Blog of Rights

The State of Florida apparently considers confining pregnant women to bed rest "status quo."

You may be wondering if you read that correctly. You did. The State of Florida actually took the position that it is simply maintaining the "status quo" to hospitalize a pregnant woman against her will (instead of allowing her to return home to her two children) and to deny her fundamental right to make her own informed decisions about medical care during her pregnancy.

Yesterday in Tallahassee, the 1st District Court of Appeal heard arguments in a case involving a pregnant woman — Samantha Burton — confined to a hospital bed, against her will, after disagreeing with her doctor's recommendations for treating pregnancy complications. I joined Ms. Burton's lawyer as a "friend of the court" in arguing that the State of Florida had violated Ms. Burton's constitutional right to make decisions about medical care related to her pregnancy.

The ACLU first learned about this case after Ms. Burton's pro bono lawyer, David Abrams, called us for help as he pursued an appeal of the lower court's order confining Ms. Burton to hospital bed rest. Frankly, I wasn't surprised to hear that the State of Florida had stepped in to override the medical decision-making of a pregnant woman — unfortunately we have seen that before. What was even more stunning than in other cases was the unlimited breadth of the court order; the complete lack of any consideration of Ms. Burton's constitutional rights or health; and the fact that the hearing had gone forward with no legal or other advocate to represent Ms. Burton. After a brief telephone hearing, and no review of her medical records or consideration of a second medical opinion, the circuit court summarily ordered Ms. Burton to submit to any and all medical treatments and interventions — including eventually a C-section — that the hospital's medical staff deemed appropriate. To top it off, the court ordered her to remain confined on constant bed rest at the very hospital where the disagreement arose, and expressly prohibited her from switching to another hospital.

[winyanstaz]

57. I hope she sues their pants off.....

Too bad she wont get much after Bush an co have finished protecting wrong-doers from being sued much.

[Dont_Bogart_the_Pretzel]

48. Poor lady,

I'll bet in six months the bill will be rolling in, and if she can't pay them then she'll end up back in court.


IMO someone needs to make the judge pay the tab.

[winyanstaz]

49. I don't understand why there is not more outrage in DU over this....

This is just wrong on so many levels.
Women are not chattel or baby incubators or incapable of taking care of themselves or making decisions.
It may well have been the stress of being kidnapped and confined with two babies at home to worry about that caused the fetus to die.
Everyone knows you cant get any rest in the hospitals anyways.
When has a man ever been treated this way>?

[ooglymoogly]

50. If the idiot Hospital and the idiot Dr. lose the appeal. as they must;

I smell lawsuits up the gazoo and rightly so; Especially if the woman takes the tack that the stress and the worry of her other children and perhaps the loss of a job, and forced confinement contributed (if not solely) to the loss of her baby.

What is a wanted life worth these days, in our brave new world?

[rd_kent]

53. How are they KEEPING her in the hospital? Is she restrained?

If not, she should just walk out. If she is arrested, she files a habeas corpus and gets released. What LAW is she violating by not following a doctors orders?

[TorchTheWitch]

54. she's already out

The court order was signed 3 days before she lost the baby, and she was released because she lost the baby. She didn't walk out because of the court order and it's consequences... she was afraid what would happen to her if she tried to leave. Who knows what she was threatened with if she tried to leave... she very well may have been threatened with restraints or security personnel posted outside her door, fines, arrest, imprisonment and who knows what. I would imagine that she chose remaining in the hospital against her wishes once faced with a court order and whatever threats were used versus worse consequences by trying to leave. She may not even have known what her rights were at the time either, and I doubt she had access to an attorney then.

As far as I'm concerned this was kidnapping and physical abuse of such a degree that someone needs to go to jail over it.

[rd_kent]

56. I agree 100%

[McCamy Taylor]

55. Woman should sue her MDs for low medical standard...failure to get a second opinion.

While the true merits of the case involve civil liberties, it is easier to win in civil court. The jury's emotions come into play more, and jurors in the US value autonomy. They will want to send a message to the doctors---do not impose your will on me.

Go over the case with a fine toothed comb. I am betting that her OB missed some important warning flags early on and that may contributed to the demise. Portray her forced hospitalization as an effort on their part to cover up their blame by doing "everything possible." Their denial of a second opinion (gross breach of medical ethics) was designed to conceal their medical errors which caused the bad outcome.

I am also puzzled as to why they performed a c-section on someone who already had a fetal demise(????). Generally it is an easy matter to tell if an infant is dead in utero. You do not force the woman to have surgery. Instead, you induce delivery, which, at 25 weeks for a multip should be easy. Were they unaware that the infant had died? Were they failing to monitor the fetus? A stat c-section is often performed if there is sign of fetal distress----why did they wait until it was dead.

Go over this case, and I will bet that you find medical errors. The type of medical providers and facility which would ignore the wishes of the mother and get a court order to treat her like an animal is probably a facility/doctor that is not used to considering the wishes of the patient---i.e. I wonder if they are used to doing a half asses job caring for indigents and other marginalized people. The hospital in question, Tallahassee Memorial has a residency program and describes itself as a "nonprofit community" hospital--sometimes a euphemism for a charity hospital.

Note that this hospital gained notoriety almost a decade ago, when they forced a woman to have a c-section at their hospital, even though she planned an attempt at vaginal delivery after previous c-section at home. Even though women with insurance commonly are allowed an attempt at vaginal delivery after c-section, this woman could not find an ob willing to do it. Was this because she was too poor? Did the hospital trample her rights?

http://en.wikipedia.org/wiki/Pemberton_v._Tallahassee_Memorial_Regional_Center

[Demoiselle]

59. This is terrifying.

And the legal implications are horrendous, but something else has occurred to me. This woman, in touch with her own body and far more in touch with her fetus than anybody else...appears, in the final analysis, to have known that something was very wrong. She couldn't go along with the doctor's order. And three days later, they "discovered" that the fetus had died. I know that I'm talking instinct here, not law, but damn, I'd like to see women given more credit for a kind of primal knowledge of what's going on in their bodies.. I don't want to be anti-science here. but as it turned out, this lady had a far more practical grasp of what the priorities were in this situation then her doctor did. She had two whole living children to care for at home, and was carrying a doomed fetus inside her.