Judge confines pregnant smoker to hospital

A few weeks back I reported on a study conducted by a team of researchers at UBC (University of British Columbia) led by Dr. Kirsten Bell, a medical anthropologist. The study concluded that there is an "urgent" need for governments to revisit their anti-smoking policies, especially those designed to de-normalize smokers. Bell and her team referred to a 2005 Canadian Lung Association survey which indicated that: “As many as one in four doctors who responded, admitted to providing lesser care to smokers.”

Now, the fact that, as a smoker, I can expect less than quality care from one out of four doctors does not exactly inspire me with confidence. For that reason alone I would concur with Bell that the government should reconsider their anti-smoker policies. Smokers have become the target for more and more unjustified discrimination.

But, while some doctors in Canada admit to providing a lesser degree of care to smokers, at least one doctor in the US deems it appropriate to impose an excessive level of care on smokers, whether the patient wants it or not.

Samantha Burton is a smoker. And, she continued to smoke during the first six months of her pregnancy. She was admitted to hospital after experiencing what she thought might be premature labor. Her doctor argued she was risking a miscarriage if she didn't quit smoking immediately and remain in hospital on bed rest for the remainder of her pregnancy.

Burton, in her late 20s, has two young daughters. She didn't want an abortion, had obtained prenatal care and voluntarily went to the hospital after experiencing symptoms she'd been told to look out for.

Burton claims she was unhappy with the level of care she received at Tallahassee Memorial Hospital and the “brusk and overbearing” attitude of Dr. Jana Bures-Foresthoefel. Said Burton, "I was desperately hoping to receive the care I needed to save my baby. However, after a few days there, I did not feel I was receiving the care I needed”.

But, Burton was not permitted to leave Tallahassee Memorial, either to go to another hospital or to go home. Instead she was ordered by a judge to stay at Tallahassee Memorial and submit to all medical care from its hospital staff, whether she agreed or not. Jennifer Portman, in an article on Tallahassee.com, claims the Judge barred her from seeing another doctor.

After Burton allegedly threatened to leave the hospital, State Attorney Willie Meggs was contacted by the hospital and he, in turn, contacted Circuit Judge John Cooper. The Judge held an emergency hearing by telephone. The hearing was held only seven hours after the petition to the court was filed and Burton was not represented by counsel. Cooper made his ruling after taking testimony from Burton and Bures-Foresthoefel, but apparently without getting a second medical opinion.

The doctor (Bures-Foresthoefel) said Burton's membranes had ruptured, that she was having early contractions and the fetus was in a breech position. Three days after the judge ordered her not to leave the hospital, Burton delivered a stillborn fetus by cesarean section.

Following the loss of her baby, Burton contacted a lawyer and appealed the judge's order. She isn't seeking damages, but hopes to keep her case from setting a precedent for legal control over women with problem pregnancies. She also worries it could prevent women from seeking appropriate prenatal care.

David Abrams, Burton's attorney, said her condition didn't merit such extreme action. "Her symptoms were not that unusual, she wasn't in active labor and the state failed to show why bed rest at Tallahassee Memorial would have been any better than at another hospital or home." In addition, he noted, smoking, by itself, did not cause miscarriages.

American Civil Liberties Union (ACLU) lawyer Diana Kasdan believes the court order sets a “horrible precedent”, saying that if the ruling stands it could lead to the state virtually taking over the lives of pregnant women, including telling them what they should or should not eat and drink and what medications they must take. The Florida ACLU has filed a brief in support of Burton.

And, the judges ruling does indeed set a dangerous precedent.

Prosecutor Meggs said Burton was threatening to leave the hospital and her doctor believed that would have endangered the fetus. Judge Cooper apparently agreed and ruled the best interests of the fetus overrode Burton's privacy rights.

But, even if there was a legitimate medical problem concerning the pregnancy, the disagreement could have been resolved by transferring her to another hospital. And it's not as if Burton was accused of doing anything to endanger her unborn child, other than smoking and seeking a second medical opinion.

Some critics say the state’s intervention could have dark ramifications for other pregnant women, suggesting that similar action could be taken for drinking a glass of wine or eating unhealthy foods, driving too fast or even failing to take their prenatal vitamins.

And they have a point. Such a precedent could, for example, permit a judge to order a pregnant smoker to submit to smoking cessation therapy and a drug regimen which included Chantix or Zyban?

Dr. Michael Grodin, a physician and professor of health law, bioethics and human rights at Boston University, said doctors should never resort to court orders. "People have the absolute right to refuse treatment. It's unconscionable. It's an affront to women."

Said Burton in a written statement: "The entire experience was horrible and I am still very upset about it. I am trying to move on. I hope nobody else has to go through what I went through."

Florida's 1st District Court of Appeal has yet to rule on Burton's appeal.