In August, the Mississippi Supreme Court dismissed a case of alleged obstetric violence. Experts say that decision set a precedent that could make litigating similar cases harder and more costly.
The case, Brown v. Dr. Barbara Davey-Sullivan and The Woman’s Clinic of Mississippi PLLC, began after the 2018 birth of Shani Brown’s third child. When she first arrived at the hospital, Brown signed paperwork agreeing to potential surgical interventions, according to her hospital consent form. During labor, her doctor announced she intended to perform an episiotomy, a surgical cut sometimes made during childbirth to widen the vaginal opening. Brown, who had a previous episiotomy, revoked consent, according to records.
“Please don’t cut me,” Brown told her doctor, according to the legal filing.
The doctor performed the procedure anyway. She did not tell Brown why, according to records.
In 2019, Brown sued her obstetrician-gynecologist for performing the episiotomy. In legal documents, Brown, now 41, said her healthcare provider performed the procedure “with neither consent nor explanation of any medical necessity.”
Seven years after the case began, the state’s highest court dismissed Brown’s case this summer because it said she failed to produce expert testimony. Legal experts say that decision could affect not only pregnant patients – but anyone who elects to withdraw medical consent in a hospital.
“Brown gave consent prior to delivery and then withdrew consent during labor,” the decision of the Mississippi Supreme Court stated. “In such cases, it is not enough to establish that consent was revoked. The patient also has to show that stopping the unwanted procedure was medically feasible without causing harm … ”
A spokesperson with Baptist Memorial Hospital in Jackson, where Brown gave birth in 2018, declined to comment on the case. Stephen Kruger, the defense attorney who represented both Dr. Barbara Davey-Sullivan and The Woman’s Clinic, where Davey-Sullivan works, told Mississippi Today that “as the Supreme Court pointed out, the plaintiffs could not produce a medical expert to say that it would have been reasonable to stop” the episiotomy when Brown revoked consent as the baby’s head was crowning.
Kruger told Mississippi Today he credited Dr. Sullivan’s judgment with the delivery of “a completely normal baby.”
“If she had not done the episiotomy and there had been complications, where do you think we would be?” he said.
In the U.S., 1 in 5 women report mistreatment during maternity care, according to a 2023 survey by the Centers for Disease Control and Prevention. One of the most common types of mistreatment women in the survey reported was “being made to accept unwanted treatment.”
Now, if Mississippians want to sue their physician for not respecting withdrawn medical consent during a procedure, they will need to do so under claims of medical malpractice, not battery, said Mary Ziegler, a professor and reproductive health expert at the University of California, Davis, School of Law.
“And therefore you need expert testimony, which is going to only really be available to people who either have the money … or someone whose injuries are grievous enough that it’s worth it for the attorney to shell out a bunch of money on the front end hiring expert witnesses,” Ziegler said.
Medical consent cases that won’t be affected by this ruling are the rare ones where no consent was given, explained Ziegler. An example, she said, would be if a patient went to the hospital for a knee surgery and doctors took out an appendix. But the vast majority of cases are murkier than that, Ziegler said.
In Brown’s case, the Mississippi Supreme Court found that Brown withdrew consent during the procedure because the court defined the birth – not the episiotomy – as the procedure. Ziegler said this distinction will be confusing for patients in situations that require several interventions.
“What if you don’t consent to one of those things?” she said. “Which of them is the procedure? Is all of them the procedure? I think there’s ambiguity about how you define that.”
The cases that make it to court
The new requirement of expert testimony could stretch far beyond obstetric patients. But those suffering obstetric violence may fare the worst, Ziegler said, with fewer attorneys willing to take on those cases because they tend to result in lower compensation.
Attorneys decide which cases are worth their time based on expected payouts, Ziegler said. Those payouts are calculated from medical bills, lost wages and diminished quality of life. In obstetric violence cases, patients aren’t necessarily harmed in a “classic, easy-to-value way,” she said. Those cases are usually about autonomy, Ziegler said, where the injury is “that you didn’t get to decide what happened to you.”
Fewer lawsuits could mean less incentive for doctors to respect patient autonomy, Ziegler said.
Already, these cases are quite rare because of the costs, time commitment and difficulty of litigation. It’s not surprising Mississippi is only dealing with the issue now, explained Daniel Waide, a Hattiesburg-based attorney who represented Brown from 2022 until the case was dismissed.
While it’s not clear how many states have litigated cases like Brown’s, Waide said he’s aware of a growing body of legal precedent. He highlighted a few examples, including a 2020 case that established a precedent for withdrawn medical consent in Massachusetts, a 2012 case that did so in Connecticut, a 2008 case in Nebraska and a 2000 case in Kentucky. Those cases weren’t specifically about obstetrics.
“Every state just addresses it as it comes up,” Waide said.
The standard of care
Brown now lives with her husband and their three children on Alabama’s coast. Since she gave birth in 2018, she said she faces lasting trauma, nerve damage that requires medication and pain during intercourse and while using the bathroom. In 2022, she underwent reconstructive surgery to repair a weakened vaginal wall.
“You have to have a medical expert identify that damage and then to say that that damage was caused by a wrongful act by Dr. Sullivan,” said Kruger, the defense attorney representing the physician and clinic. He added that Brown did not produce an expert witness.
Brown’s court case is over, but she hopes by speaking out she can prevent other women from enduring similar anguish.
Shani Brown poses for a portrait with her husband and their three children in 2018. Credit: Sarah Watson with Watson Photography“My goal at this point is I desperately want people to know that that can happen,” Brown said. “I desperately want people to read their consent forms.”
If she had known her verbal withdrawal of consent would have been ignored, Brown said she never would have signed the hospital paperwork. She would have gone elsewhere, she said. It’s not clear whether her situation would have turned out differently at another Mississippi hospital.
Brown said she remembers being in a state of shock and emotional distress after the birth of her third baby in 2018. It distracted her from feeling the physical pain of the episiotomy until hours after the birth. Her delivery room was filled with medical students, which she said she also didn’t consent to, worsening her trauma.
“I remember when (my daughter) was placed in my arms feeling just deep sadness, knowing what my body had just went through and what just happened to me,” Brown said.
A year after the birth, Brown started a regimen of anxiety and depression medications to cope with her postpartum trauma. In Mississippi, maternal mental health disorders are a leading cause of pregnancy-related deaths, according to the Mississippi State Department of Health. Pregnancy-related deaths are those occurring during or within one year after the end of pregnancy.
The Mississippi Supreme Court sided with Brown’s doctor. Still, birth justice advocates say violations of consent and obstetric violence happen too often in the U.S. and go unchallenged.
The gravity of violations to consent during childbirth is sometimes lost when filtered through the norms of medical care, said Jacqueline Hammack, a birth justice advocate who represented Brown between 2019 and 2021 before leaving the case for family obligations. While U.S. births primarily take place in hospitals and sometimes involve medical intervention, Hammack said, they are normal physiological events – not inherently medical.
Most people in the U.S. perceive childbirth as purely medical, but that’s “historical happenstance,” said Hammack, adding that other countries have midwifery-centered models of care where providers treat patients more like partners. In the Netherlands, she said, midwives serve as the backbone of the perinatal care system, with obstetricians attending more complex births as necessary. That system has worked well for the Dutch: Maternal mortality in the Netherlands is more than four times lower than in the U.S. Mississippi has one of the highest rates of maternal mortality in the U.S.
The Mississippi Supreme Court classified Brown’s case as medical negligence. In doing so, Hammack said, it could set up other cases for failure. That’s because expert witnesses would be required to show that the physician in question deviated from the standard of care. The defendant in a case of alleged obstetric violence often hasn’t broken with the standard of care, according to Hammack.
“The sad fact is, obstetric violence occurs with such frequency … And what constitutes the standard of care is what the majority is doing,” Hammack said.
Good solutions, according to Hammack, would involve hospitals adopting policies requiring ongoing consent for significant interventions, as well as making clear to patients that consent can be withdrawn.
But meaningful change would go beyond consent policies, Hammack said, ensuring women can access midwives, doulas and other birth advocates. She also said educating lawyers and advocates to recognize violations is important.
“The larger goal is a system in which clinical expertise and patient autonomy aren’t treated as competing values,” Hammack said. “Providers bring clinical expertise, (but) the person giving birth retains decisional authority over their body.”
Brown hopes that by the time her children are grown, things will be different.
“I have two daughters and I just feel like something needs to change,” Brown said.
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