# Wrongful Cesareans



## Turquesa (May 30, 2007)

Why doesn't anybody sue for these? I was reading in an interview with Jennifer Block (author of "Pushed") that docs perform them to AVOID lawsuits. I've heard this from other sources, as well.

But shouldn't a major and invasive surgical procedure done merely to avoid a lawsuit...be cause for a lawsuit? Consider the health care costs, not to mention the physical and mental anguish.

Of course, like most malpractice suits, wrongful c-sections may be hard to prove... Still, it would be nice to see women band together on this. And at the risk of sounding cynical, I think it's a hole in the market for malpractice attorneys. Or am I missing something here?

BTW, here's the interview: http://www.rhrealitycheck.org/blog/2...thor-of-pushed


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## JessicaS (Nov 18, 2001)

http://ican-online.net/


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## theretohere (Nov 4, 2005)

I think some of it is that lawyers look at it and see (usually) a healthy babe and mother- and see no grounds to sue.
It's really unfortunate and people need to realize that not dead =/= ok.


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## ProtoLawyer (Apr 16, 2007)

In general, the standard for being able to sue for medical malpractice is:

Is this what a reasonable OB/GYN, with similar training and credentials, in a similar situation, would do? In many jurisdictions, "industry standard practice" is a complete bar to recovery. So long as the C-Section is standard practice, there's no grounds for a lawsuit. Sometimes, you can try to prove that the industry standard is outdated and that better techniques exist (and aren't, say, 10 times the price or training is only offered by one hospital in Finland or something), but that's hard, too. You generally need one or more expert witnesses to say something's not reasonable any more, and the other side will offer witnesses to say, well, yes it is. It's up to the jury to determine which witnesses are more credible.

We may be at a point where routine episiotomy is falling out of favor and may be grounds for a malpractice suit (I'd like to see a test case on this)...but routine c-sections, unfortunately, still are considered standard by most doctors. Now, if a non-emergency c-section is performed without the mother's consent (or, if she's unable to give consent, the consent of her husband, next of kin or someone with power of attorney), there may be a better chance of recovery.

You also need to show some injury, and I'm not sure juries are willing to see the c-section itself (even with everything that goes along with it) as the injury quite yet.

So, theretohere, it's not so much healthy baby + healthy mother = OK, but it's healthy baby + healthy mother + commonly accepted procedure = not legally actionable. I'm not saying there isn't some lawyer out there who may be willing to take a case, but it's a long shot.


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## theretohere (Nov 4, 2005)

Quote:


Originally Posted by *ProtoLawyer* 
In general, the standard for being able to sue for medical malpractice is:

Is this what a reasonable OB/GYN, with similar training and credentials, in a similar situation, would do? In many jurisdictions, "industry standard practice" is a complete bar to recovery. So long as the C-Section is standard practice, there's no grounds for a lawsuit. Sometimes, you can try to prove that the industry standard is outdated and that better techniques exist (and aren't, say, 10 times the price or training is only offered by one hospital in Finland or something), but that's hard, too. You generally need one or more expert witnesses to say something's not reasonable any more, and the other side will offer witnesses to say, well, yes it is. It's up to the jury to determine which witnesses are more credible.

We may be at a point where routine episiotomy is falling out of favor and may be grounds for a malpractice suit (I'd like to see a test case on this)...but routine c-sections, unfortunately, still are considered standard by most doctors. Now, if a non-emergency c-section is performed without the mother's consent (or, if she's unable to give consent, the consent of her husband, next of kin or someone with power of attorney), there may be a better chance of recovery.

You also need to show some injury, and I'm not sure juries are willing to see the c-section itself (even with everything that goes along with it) as the injury quite yet.

So, theretohere, it's not so much healthy baby + healthy mother = OK, but it's healthy baby + healthy mother + commonly accepted procedure = not legally actionable. I'm not saying there isn't some lawyer out there who may be willing to take a case, but it's a long shot.

I understand- I was overly simplifying due to the baby on my lap. I need to not MDC with the littles around.


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## ProtoLawyer (Apr 16, 2007)

Quote:


Originally Posted by *theretohere* 
I understand- I was overly simplifying due to the baby on my lap. I need to not MDC with the littles around.









Heh...and I was over-complexifying due to, well, being a law student.


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## SleeplessMommy (Jul 16, 2005)

An MDC Mom fought back and won ...

http://www.mothering.com/discussions...d.php?t=668204


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## desultory (Jan 25, 2006)

I agree that wrongful cesareans aren't actionable, but the part of me that still mourns for my birthing power (after 4 cesarean births, I'm all done) is hoping that this will eventually become a powerful tool against the csection epidemic. Yes, doctors perform unnecessary c-sections to be on the 'safe' side, only it's safety from lawsuits, not for the mother and baby.


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## Turquesa (May 30, 2007)

Quote:


Originally Posted by *ProtoLawyer* 
In general, the standard for being able to sue for medical malpractice is:

Is this what a reasonable OB/GYN, with similar training and credentials, in a similar situation, would do? In many jurisdictions, "industry standard practice" is a complete bar to recovery. So long as the C-Section is standard practice, there's no grounds for a lawsuit.

So in other words they can say, "We do this all the time. Therefore it's OK." How scary!

Quote:


Originally Posted by *ProtoLawyer* 
Sometimes, you can try to prove that the industry standard is outdated and that better techniques exist (and aren't, say, 10 times the price or training is only offered by one hospital in Finland or something), but that's hard, too. You generally need one or more expert witnesses to say something's not reasonable any more, and the other side will offer witnesses to say, well, yes it is. It's up to the jury to determine which witnesses are more credible.

I know that Marsden Wagner has had the courage to go on the stand for this. But you're right. It's tough. In the OB community, especially, the price of standing up for the truth can be professionally detrimental.

Quote:


Originally Posted by *ProtoLawyer* 
Now, if a non-emergency c-section is performed without the mother's consent (or, if she's unable to give consent, the consent of her husband, next of kin or someone with power of attorney), there may be a better chance of recovery.

But then you hear of OB's calling for court orders to get the dirty deed done...

Quote:


Originally Posted by *ProtoLawyer* 
So, theretohere, it's not so much healthy baby + healthy mother = OK, but it's healthy baby + healthy mother + commonly accepted procedure = not legally actionable. I'm not saying there isn't some lawyer out there who may be willing to take a case, but it's a long shot.

No chance I can sweet-talk you into taking this path with your career???









Thanks for sharing your knowledge!


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## pampered_mom (Mar 27, 2006)

Quote:


Originally Posted by *ProtoLawyer* 
In general, the standard for being able to sue for medical malpractice is:

Is this what a reasonable OB/GYN, with similar training and credentials, in a similar situation, would do? In many jurisdictions, "industry standard practice" is a complete bar to recovery. So long as the C-Section is standard practice, there's no grounds for a lawsuit.

Marsden Wagner actually talks about this in "Born in the USA". It's frightening really.

OP - I hear ya! I wish that there was something I could do given my c/s was a CYA thing for my OB. The best that I've come up with so far is writing her a letter. Of course...now that I've done that it has probably just labeled me a crazy person!









I wish legal action were a possibility, but for the most part I feel like this has to be a grassroots thing which is an uphill battle all the way.


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## Storm Bride (Mar 2, 2005)

Quote:


Originally Posted by *ProtoLawyer* 
Now, if a non-emergency c-section is performed without the mother's consent (or, if she's unable to give consent, the consent of her husband, next of kin or someone with power of attorney), there may be a better chance of recovery.

You also need to show some injury, and I'm not sure juries are willing to see the c-section itself (even with everything that goes along with it) as the injury quite yet.

In recent online discussions with a malpractice lawyer, he said that in the case of non-consent, you're better to go for a charge of battery than malpractice.

Several moms I've talked to through ICAN have talked to malpractice lawyers about suits for unnecessary sections. They've basically been told "can't win - industry standard - you're okay - baby's okay - no money in it" and variations on those themes.

Apparently, it just isn't malpractice in a legal sense, which makes me sick, but the OBs get to define industry practice...nice for them, not so much for those of us with the scars.

...40 weeks tomorrow - hanging in there for a HBA3C with my last...after three unnecessary sections.


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## neverdoingitagain (Mar 30, 2005)

It reminds me of the issue of pregnancy after vasectomy or tubal ligation. I had a friend who became pregnant 6 months after she had her tubes tied, using the "clip" method, which was supposed to be just as effective and safer.
They ended up filing for bankrupcy, spiltting and basically just lost everything because they couldn't afford another child. They took the doctor to court and judge ruled that the "joy of a child outweighed any discomfort possibly brought upon the parents"
I see that wrongful c-sections are viewed in the same light.


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## ProtoLawyer (Apr 16, 2007)

Quote:


Originally Posted by *Turquesa* 

No chance I can sweet-talk you into taking this path with your career???









You're welcome, and...heh...I've not considered med-mal but there may be something there...maybe I'll use that for a paper topic if I take health law next year.

And, *Storm Bride*, that's an interesting point about battery. That didn't come up--I'll bounce that off my torts prof/mentor and see what she says.

...and crossing my fingers for a successful HBAC!


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## mamoma (Apr 5, 2007)

I'm interested in the battery idea - what do you mean when you say operating without consent? Are you saying that doctors begin the operation over the mother's objection?


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## pampered_mom (Mar 27, 2006)

Quote:


Originally Posted by *mamoma* 
I'm interested in the battery idea - what do you mean when you say operating without consent? Are you saying that doctors begin the operation over the mother's objection?

Yup! Check out the link that SleeplessMommy posted. I think this would especially be true in cases where docs have literally wheeled women down to the OR screaming "No" and that they "don't consent to the c/s".


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## mamoma (Apr 5, 2007)

Wow. I just read the link to the MDC poster's story - what a horrible story. I don't know if it's the best example of what we're talking about here, though.... first off, her case(s) settled - which is great, and usually the best option all around - but she didn't "win" in court (or lose - she never got there) so there's no precedent. Also, it seemed from her post, that the compensation she received was as against the CNM who used an internal monitor - that'd she had never used before, and so she repeatedly reinserted it - in a woman who she knew to be a rape survivor.








:

I don't think there were any consequences against the OB - she didn't describe any, anyhow. And I'm having trouble even thinking up a hypothetical case where a CS could be considered "wrongful" after the fact, you know? How would you know a CS was "unnecessary" without access to the alternate universe where we could know the result of a vaginal birth?

Any other cases?
This is a really interesting idea....


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## SleeplessMommy (Jul 16, 2005)

I am speculating here, but the story implied that the c-section was also coerced. "The judge says sign the consent form for c-section or he will take your baby away." (a paraphrase)

Once you sign the consent for for a c-section, you have "consented" ...but in this case there was coercion to sign the consent form, just like if the Dr had put a gun to her head to make her sign the form. Part of the story has been edited out, but I think the baby was also vaccinated without a signed consent form. There is no need for "legal precedent" here - it has always been wrong to coerce a patient to agree to any unnecessary surgery.

In a case like this, the lawyers for the plaintiff will find as many "at fault" people as possible - the Dr, the CNM, the hospital, etc. Multiple lawyers will be on the defense, and when the offer to settle is made, each team puts up part of the cash. The insurance for the cnm, the hospital, and the dr will have all paid at least $10K each here, maybe much more. The plaintiff had many expenses, such as a lactation consultant, therapy, etc. I expect that the OB/GYN's malpractice annual insurance cost went up by a noticeable amount, because of the stupid thing he did. Had the case gone to trial, it would have cost the defense lots in legal fees... at least three parties being sued, the lawyers bill at $500/hour plus (each) for a case like this.

By the way, if you are given a paper consent for at a hospital, you can cross out (and initial) any parts of it you don't like, before you sign it, for example cross out the consent for an episiotomy. Make sure you bring the changes to the attention of a dr/nurse. You can also, in theory, withdraw consent after you have signed the consent form, but before the procedure is done.

The MDC momma and her partner did a great job in a very difficult situation, by standing up to the hospital, and by bringing in their lawyer as early as they did (to get a custody order to take the baby home!) The hospital and drs were way, waaay out of line in this case.

By the way, I am not a lawyer. This is speculation not "legal advice"


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## Storm Bride (Mar 2, 2005)

Quote:


Originally Posted by *mamoma* 
I'm interested in the battery idea - what do you mean when you say operating without consent? Are you saying that doctors begin the operation over the mother's objection?

Yes. I was given an IV (after several attempts) and doped with general anesthetic while in transition labour...and the last things I remember saying were "No - No - I don't want a c-section - No"...and a fair bit of swearing. That was in 1993.

My two subsequent sections were a different story. I was bullied and coerced into consent, but I actually did show up and go along with it. I didn't go along with my first.

And, my story is a love-tap compared to some I've read. I was in too much shock at the sudden change (labour had been going great, until they found that ds1 was breech...I was fully dilated already) to resist, other than verbally, so at least I wasn't actually held down or physically forced.


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## laralee16 (Nov 12, 2005)

Quote:


Originally Posted by *mamoma* 
I'm interested in the battery idea - what do you mean when you say operating without consent? Are you saying that doctors begin the operation over the mother's objection?

Ah yup. That happen to me. I said no, I dont want this and sat up (the doctor was not even in the room yet) and the drug guy (cant spell it, did the epi) shot something in my iv that put me to sleep.

I know in my heart that a c/s would not have been needed if they had not strapped me to my bed from the time my foot was in the door till after I had my son. But, looking at my records, they covered there butts VERY well. All my "requests to ambulate" were never writen down. If you were reading my chart you would think I asked for the pit and c/s.


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## pampered_mom (Mar 27, 2006)

Quote:


Originally Posted by *laralee16* 
If you were reading my chart you would think I asked for the pit and c/s.

I hate the way they do that in medical records. There is actually literally no documentation in my medical records of the events that transpired prior to my c/s. There's just the chart that they put all the appt info in, the late term u/s results, and then the operative report that says "patient elected primary cesarean for suspected fetal macrosomia". I remember reading that and being a little shocked. That's not how I remember things happening.

I'm very certain they do it on purpose. I mean...who are they going to believe? It's your word against theirs. Of course, now that I've written my previous OB a letter expressing my disagreement with the way things were portrayed I'm sure my medical records have me marked as some crazy loony!


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## Storm Bride (Mar 2, 2005)

The records are a sick joke. Mine from my first section note "patient weepy and upset - reassured". This is their summary of me freaking out, swearing, crying and saying "no" right up until the anesthetic put me out. I guess that's "weepy and upset" - I'd call it devastated and refusing consent. As for "reassured"...gues that must have been when the nurse said, "it's best for your baby, dear". UGH!


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## laralee16 (Nov 12, 2005)

Quote:


Originally Posted by *Storm Bride* 
The records are a sick joke. Mine from my first section note "patient weepy and upset - reassured". This is their summary of me freaking out, swearing, crying and saying "no" right up until the anesthetic put me out. I guess that's "weepy and upset" - I'd call it devastated and refusing consent. As for "reassured"...gues that must have been when the nurse said, "it's best for your baby, dear". UGH!

OMG! That is just what mine said. I guess that must be doctor code for "questioning our rights to do what we want to her body" Grrrrrrr


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## LemonPie (Sep 18, 2006)

In Jennifer Block's book, she talks about a mother who tried to do a pop-n-drop to get her VBAC. She was ready to push when she arrived, had one nurse telling her to push, and another nurse telling her NOT to push. They then told her that they were going to put an "oxygen mask" on her--it was actually general anesthesia and she woke up hours later having had a c-section. She didn't say whether that mother took legal action, but I hope she did.

Anyway, yes, performing any procedure on a patient without consent is considered assault and/or battery. First year medical students know this. I believe it's a felony and if you're convicted, you can lose your license.

Jen


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## Turquesa (May 30, 2007)

Having worked in the health care trenches, I know that to many providers medical charts serve as little more than shields from lawsuits. ANY twist, spin, or even lie about a situation will go down as gospel truth . . . and all unbeknownst to the patient.

I definitely like the battery angle. It's more than a legal recourse; it's a way to frame the whole argument against unnecessary, non-consent c-sections.


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## nyveronica (Jun 1, 2005)

I'm an L & D nurse and about halfway through "Pushed". I have so many questions about what my obligations are as a patient advocate and where I can start to become in jeopardy of losing my license for saying too much!

In just one week I've had 3 patients who most definitely were sectioned for convenience, one woman who demanded more time to labor-- her section was "called" at 10pm and she delivered vaginally at 2am!!!! And countless, non-consented amniotomies, episiotomies & invasive monitorings...


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## kungfumoose (Feb 8, 2006)

I have a question, does anyone with legal knowledge know if I have grounds for a suit?

I had my baby in a US military hospital (Oversea in Okinawa, Japan)
I was coerced, and lied to several times. They said I had pre-e, I asked for a UA and they said that they couldn't, because it would take too long to get the results. They already had results of a UA at the time, and it proved that I did not have Pr-e. They lied to me though. They pressured me, and I finally stopped saying no to Mag-sulf.I never said yes, I just stopped saying no. Labor stopped, they gave me pit, I asked for an epidural, and the doctor said "we'll have to monitor the baby more closely, is that okay?" I said yes, and got the epidural. Then they forced an internal monitor. I struggled, I screamed,I kicked (I was molested by a man who said he was a doctor when I was 4 years old) I swore, I screamed no, but they said that I "consented" After it was all over, they reminded me that the doctor said he would have to moniotr the baby more closely, and I said yes. ummm.....that's not informed consent!!!
The Pit was causing decels in my baby's heartrate, so they stopped it, and said I had to have a c-sec. I siad no, adn asked for the mag to be turned off so I could continue labor on my own, they refused. I begged, they refused. my only option was a c-sec.
The doctor cut my baby's face when he cut me open, he denied it, and said that she "scratched herself with her nail" so she was not stiched up, and will have a scar for life. He also left a huge piece of placenta inside me. It was 4 in. long, 2 in, wide, and 1/2 in thick. It came out 3 weeks later. ( i have a copy of the lab report, however, the doctor found out that I was trying to get it, and he deleted the record)

I guess I felt that it was the "christian thing" to not sue, but i am seriously thinking I need to. I need to stand up for others that can't, or don't know they can.

Oh, and they also kept my baby hostage for 5 days. They overswaddled her. (I kept saying she was too hot, and they said she needed two blankets. Everytime I unwrapped her, they came in, and got mad, and rewrapped her.) She got a "fever" so they had to take blood, and keep her until the results came back three dyas later. I tried to leave with her AMA, and they wouldn't let me remove the baby. I tried to walk out, but was physically restrained.
It's been 14 months. Can I still do something?


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## Can Dance (Sep 18, 2006)

Quote:


Originally Posted by *kungfumoose* 
I have a question, does anyone with legal knowledge know if I have grounds for a suit?

I had my baby in a US military hospital (Oversea in Okinawa, Japan)
I was coerced, and lied to several times. They said I had pre-e, I asked for a UA and they said that they couldn't, because it would take too long to get the results. They already had results of a UA at the time, and it proved that I did not have Pr-e. They lied to me though. They pressured me, and I finally stopped saying no to Mag-sulf.I never said yes, I just stopped saying no. Labor stopped, they gave me pit, I asked for an epidural, and the doctor said "we'll have to monitor the baby more closely, is that okay?" I said yes, and got the epidural. Then they forced an internal monitor. I struggled, I screamed,I kicked (I was molested by a man who said he was a doctor when I was 4 years old) I swore, I screamed no, but they said that I "consented" After it was all over, they reminded me that the doctor said he would have to moniotr the baby more closely, and I said yes. ummm.....that's not informed consent!!!
The Pit was causing decels in my baby's heartrate, so they stopped it, and said I had to have a c-sec. I siad no, adn asked for the mag to be turned off so I could continue labor on my own, they refused. I begged, they refused. my only option was a c-sec.
The doctor cut my baby's face when he cut me open, he denied it, and said that she "scratched herself with her nail" so she was not stiched up, and will have a scar for life. He also left a huge piece of placenta inside me. It was 4 in. long, 2 in, wide, and 1/2 in thick. It came out 3 weeks later. ( i have a copy of the lab report, however, the doctor found out that I was trying to get it, and he deleted the record)

I guess I felt that it was the "christian thing" to not sue, but i am seriously thinking I need to. I need to stand up for others that can't, or don't know they can.

Oh, and they also kept my baby hostage for 5 days. They overswaddled her. (I kept saying she was too hot, and they said she needed two blankets. Everytime I unwrapped her, they came in, and got mad, and rewrapped her.) She got a "fever" so they had to take blood, and keep her until the results came back three dyas later. I tried to leave with her AMA, and they wouldn't let me remove the baby. I tried to walk out, but was physically restrained.
It's been 14 months. Can I still do something?

ohmygod.







:







I can't believe they DID that to you. I would feel an absolute burning desire to DO something as well, I would be SO ANGRY. but can you sue if its military? I was told you couldn't. and you know even if you couldn't, I would at least draw A LOT of attention to this...not sure how though in Japan. maybe the English newspaper?


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## kungfumoose (Feb 8, 2006)

Quote:


Originally Posted by *Can Dance* 
ohmygod.







:







I can't believe they DID that to you. I would feel an absolute burning desire to DO something as well, I would be SO ANGRY. but can you sue if its military? I was told you couldn't. and you know even if you couldn't, I would at least draw A LOT of attention to this...not sure how though in Japan. maybe the English newspaper?

As far as I know, I can't sue the doctor, he's protected, but I can sue the navy. (It was a Naval Hospital) My husband cannot sue the military, because he's a miltary member. I am a dependant, and as far as I know, i can.
I live in ND now, and I will soon be moving again.

I went to complain to the hospital, and they said I had to submit my complaint to them by email. I sent it four times, and they said they never got it. I brought a hard copy printout in to them, and they refused it saying I could only complain through email. Yeah....now i know why that hospital has a very low compaint record. They just "never get" the complaints.


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## ktmama (Jan 21, 2004)

Mama Moose - I'm so sorry this happened to you! I'll bet that hospital would have no "memory" problems if they received a letter from your ATTORNEY! Yes, I think you should pursue this. Good luck.


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## Storm Bride (Mar 2, 2005)

Quote:


Originally Posted by *nyveronica* 
...one woman who demanded more time to labor-- her section was "called" at 10pm and she delivered vaginally at 2am!!!!...

That kind of happened while I was being sectioned with Aaron. My section was called as an emergency, and another woman who "needed" a section had to wait until the OB, OR, etc. were available again. While I was being cut, she delivered her baby vaginally. For me, it's the one bright spot in this whole nightmare.


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