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Subject:
From:
Jake Marcus-Cipolla <[log in to unmask]>
Reply To:
Lactation Information and Discussion <[log in to unmask]>
Date:
Sun, 20 Jul 1997 12:33:35 -0400
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I am one of the lawyer types and have been thinking for some time about legal
recourse for disregarding birth plan instructions.  In my own case, my birth
plan for my first child instructed no antibiotic in the eyes, no fomula, no
water, no bottles, no pacifiers.  All of these instructions were ignored but
I was recovering from a c-section and then pneumonia from asperating fluid
during the c-section so I was in no position to put up much of a fight at the
time.  My husband, also a lawyer, was just in shock, I think, about how
different from our expectations everything had been.  Despite an unnecessary
stay in intensive care, my son breastfed beautifully, thanks in part to the
LC on staff.

My second son was a planned home delivery with a midwife but we did a
detailed birth plan anyway and hired a doula whose sole task if we ended up
at the hospital with a c-section was to follow the baby and make sure that
our instructions were followed.  Well, we did end up with an emergency
c-section (long story) but my midwife was first assist for the surgeon.  She
watched that baby like a hawk and when the staff insisted that his vitals
needed to be taken in the nursery rather than the operating room (my desire
was that he never leave my sight), my husband went with them.  The first time
I said "Why is the baby gone so long?" my midwife said "I don't know" and
marched to the nursery.  My husband says that he then saw my midwife (Barbara
d'Amato, Valley Birthplace, Huntingdon Valley, Pa., coolest of the cool)
march into the nursery, curtly say "Done with the Marcus-Cipolla baby?" and
before the nurse had time to answer had wisked him away back to me.  My next
memory is my midwife suspending my son over my body in the recovery room (the
spinal made it impossible for me to sit up or even really to roll over) and
latching my son onto my nipple.

Long story long, I am acutely aware of the problem of delivery and nursery
nurses ignoring breastfeeding related instructions.  However, from a legal
standpoint you have the "damages" problem.  There is no question, I think,
that violations of your explicit instructions constitutes a medical procedure
in violation of your informed consent release form.  However, for a
malpractice action you need "damage."  Now I think that there is ample
evidence of damage if by their action the hospital staff makes it impossible
for a woman to breastfeed and then the child develops any one of the many
maladies to which a formula fed baby is more prone.  However, I think it
would, in the current cultural and legal system, be a difficult case.  I
don't know if anyone has ever tried it.  Elizabeth Baldwin would know, I bet.
 Elizabeth are you out there?

Jake Marcus-Cipolla, J.D., student L.C., mommy to Luca (7/26/94) and Nicholas
(5/1/97).

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