INFORMING CONSENT: MEDICAL MALPRACTICE AND THE CRIMINALIZATION OF PREGNANCY.

• Author: Cohen, Laura Beth
• Position: NOTE

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women's civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers' duties to obtain informed consent from their patients before administering medical tests. Malpractice liability can deter providers from forcing women into the Child Protective Services system and forestall the use of civil child protective laws to criminalize pregnancy.

INTRODUCTION I. EXAMINING THE LEGAL AND POLITICAL PROCESSES HOLDING WOMEN LIABLE FOR PRENATAL DRUG USE II. THE DOCTRINE OF INFORMED CONSENT III. STRATEGIC APPLICATION OF MALPRACTICE LITIGATION TO DETER PROVIDERS FROM DRUG TESTING PREGNANT WOMEN WITHOUT INFORMED CONSENT CONCLUSION INTRODUCTION

In late July of 2014, Tammy Loertscher stopped using illicit drugs when she realized she was pregnant. (1) She had been self-medicating with methamphetamine and marijuana since she lost her job and thus her ability to pay for her much-needed thyroid medication. (2) On August 1, she went to the Taylor County Department of Human Services (DHS) for help finding and paying for prenatal care and thyroid treatment. (3) DHS sent her to a nearby medical clinic. (4) She told the clinic staff that she had used drugs, had a thyroid condition, and suspected she might be pregnant. (5) The staff asked her for a urine sample, which she provided. (6) She tested positive for methamphetamine, amphetamine, and THC. (7) The clinic also determined that Ms. Loertscher had severe hypothyroidism, depression, and fatigue. (8) She agreed to enter the Behavioral Health Unit (BHU) for treatment. (9)

After she was admitted, clinic personnel shared Ms. Loertscher's medical records with DHS, a branch of the Wisconsin Department of Children and Families. (10) While Ms. Loertscher was in the BHU, her social workers repeatedly threatened her with civil confinement if she did not waive confidentiality regarding her medical records. (11) They also told her that failure to acquiesce to DHS's demands would result in her baby being taken away from her upon birth and put up for adoption. (12) In the meantime, Taylor County appointed an attorney to be the guardian ad litem for Ms. Loertscher's fetus. (13)

On August 4, Ms. Loertscher attempted to leave the BHU but was not permitted to do so because Taylor County had issued a custody order requiring her to stay. (14) At the time, Wisconsin had a law that allowed fetuses (and thus women) to be taken into custody by the state if there was evidence of prenatal drug use. (15) On August 5, Taylor County convened a phone hearing to determine whether it would detain Ms. Loertscher. (16) The hearing included counsel for Taylor County and the fetus's guardian ad litem, but it did not include legal counsel of any kind for Ms. Loertscher. (17) During the call, Dr. Jennifer Bantz, an obstetrician who had briefly met Ms. Loertscher, provided Ms. Loertscher's confidential medical information to the judge. (18) At the end of the hearing, the county commissioner entered a custody order against Ms. Loertscher which required her to remain in a treatment facility for the duration of her pregnancy. (19) No evidence was presented regarding harm to the fetus.

Defying of the custody order, Ms. Loertscher checked herself out of the clinic on August 1. (20) Four days later, her fetus's guardian ad litem filed a motion for the Taylor County Court to hold Ms. Loertscher in civil contempt. (21) At the contempt hearing, Ms. Loertscher was again not provided with legal counsel, and the fetus's guardian ad litem "admit [ed] all of the allegations against Loertscher" on behalf of the fetus. (22) As a result, the court held Ms. Loertscher in contempt and ordered her to check into an inpatient treatment program or spend thirty days in jail. (23)

Ms. Loertscher ended up spending eighteen days in jail. (24) During the first few days of her incarceration she was denied her much-needed thyroid medication. (25) Then, when she experienced "cramping, pain, and vaginal discharge," her requests to see an obstetrician were denied. (26) The jail physician told Ms. Loertscher that there was "nothing" they could do about a miscarriage without first confirming the pregnancy, even though Ms. Loertscher's pregnancy was the reason she was in jail in the first place. (27) When Ms. Loertscher refused to take a pregnancy test, she was placed in solitary confinement. (28)

The solitary confinement cell was a room without windows containing only a toilet and a metal bed frame. The room was cold and filthy. The floor, walls, and toilet area had hair and feces on them, and there were fingernails visible beneath the mattress frame. There was no mattress on the bed. Ms. Loertscher was given only a roll of toilet paper. A guard provided a thin mattress and blanket in the evening and another guard took these away first thing in the morning. Ms. Loertscher remained in this cell for approximately 36 hours. (29) Ms. Loertscher was denied prenatal care for the duration of her incarceration. (30) DHS determined that Ms. Loertscher had committed civil "child mistreatment" three months before she "delivered a healthy baby boy." (31)

A Wisconsin district court recently held the law used to confine Ms. Loertscher unconstitutional, (32) but there are women all over the country with experiences like Ms. Loertscher's. These women face grave consequences stemming from prenatal drug tests administered by their medical providers. Like Ms. Loertscher's obstetrician, these doctors and nurses do not alert their patients to the adverse consequences that can stem from prenatal drug testing, including civil confinement and losing custody of their children.

Medical providers owe a duty to their patients. Before administering a test or performing a procedure, they must obtain their patients' informed consent. (33) This means that providers must give enough information so that their patients can make informed decisions about whether or not to undergo a procedure. (34) If providers take action without first obtaining informed consent, they have committed malpractice and are consequently liable to their patients. (35) When providers perform prenatal drug tests without warning their patients of the potential adverse consequences, they have failed to obtain their patients' informed consent to the tests and should be liable. Litigants can use malpractice liability to stop providers from drug testing pregnant women without their consent and thus forestall the use of child protective laws in criminalizing pregnancy. (36)

This Note examines how litigants can strategically utilize malpractice liability. Part I describes the political and legal circumstances surrounding drug use during pregnancy in the United States. Part II explains the doctrine of informed consent, including its normative underpinnings and jurisdictional differences. Part III suggests a way in which litigants can use medical malpractice litigation to stop medical professionals from drug testing pregnant women without their informed consent.

1. EXAMINING THE LEGAL AND POLITICAL PROCESSES HOLDING WOMEN LIABLE FOR PRENATAL DRUG USE

   In the 1980s and 90s, a massive media frenzy endorsed the view that crack use during pregnancy would create an inferior generation that would burden social services, especially the education system. (37) For example, in 1989, Charles Krauthammer wrote in the Pittsburgh Post-Gazette that "[t]he inner-city crack epidemic is now giving birth to the newest horror: a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth." (38)

   Recently, however, the studies that caused the "crack baby" panic have been largely debunked; the effects they falsely attributed to cocaine are now understood to stem from poverty. (39) While alcohol and cigarettes have been shown to have long-term adverse effects if used during pregnancy, (40) the same has not been shown to be true of other recreational substances, including illicit drugs. (41) At this point, crack, meth, opiates, and other illicit or illicitly used drugs have not been shown to have significant, long-term adverse effects on users' children. (42) Depending on the substance ingested, an infant may experience withdrawal symptoms upon birth. (43) For example, if baby was exposed to opiates in utero, he or she may experience Neonatal Abstinence Syndrome (NAS). (44) But, if treated properly, even NAS has not been shown to pose long-term health risks. (45) Scientists have reached similar conclusions regarding cocaine, (46) crack, (47) methamphetamine, (48) and marijuana. (49)

   In the midst of this "crack baby" frenzy, a number of states looked for ways to penalize drug use during pregnancy. (50) Two routes presented themselves: the criminal justice system and the civil child protective system. (51) Prosecutors in a variety of jurisdictions have attempted to use existing criminal statutes to try to punish prenatal drug use. (52) These efforts have been generally unsuccessful, (53) but the South Carolina and Alabama supreme courts have nonetheless endorsed these tactics. (54) Additionally, some states have passed affirmative statutes that either add fetuses to the list of potential victims for existing crimes or explicitly criminalize drug use during pregnancy. (55)

   States also use their civil child protective services (CPS) (56) in a way that punishes women who use drugs during pregnancy. (57) CPS agencies...