Should Physicians Force Patients to be Incarcerated?

The issue of a court ordering patients to submit to care by physicians has been raised in this weeks issue of The New England Journal of Medicine.

In an editorial written by Dr. Julie Cantor, MD JD, she relates the case of Samantha Burton, 25 weeks pregnant when her membranes ruptured, and was admitted to Tallahassee Memorial Hospital and prescribed bed rest for the next three months. When she tried to leave she was physically bared from leaving, and a court ordered that she be forced to submit to the care of the physicians at Tallahassee.

The court heard argument from the hospital-state attorney, and from the obstetrician, who was now considered the “unborn child’s attending physician.” Ms. Burton testified by phone, but did not have an attorney, or an expert, or a physician testifying on her behalf.

The judge ruled that THM and their health care providers could administer any care to preserve the fetus’s life and health, and ordered Burton to comply. Sadly, several days later the doctors delivered a dead fetus by C-section.

If you ever wondered about big brother- this case sums up the issues.

The courts took away this woman’s right to care, and her own body and subjected her to the needs of a fetus. This brings up a simple question- when a patient comes to me for care as a physician, I am the patient’s physician. What ethical obligation do I have to abandon the patient, leave them without a physician, incarcerate them in a hospital, and act as the physician for another entity? The court did not grant this woman, or others, the ability to have their own physician, their own legal council at the administrative hearing – and essentially made them a prisoner without normal sixth amendment rights.

I cannot abandon my patient, but apparently I can if I were an OB-GYN living in Florida, where I could not only instantly abandon the patient but have her brought back to the hospital, even though she is in labor, and require her to undergo a C-section.

The forced intervention of medical care should be unique, rare, and not place the needs of one person against another, or against a fetus. In the article Dr. Cantor brought out that you could open the door that parents should give their kidneys to their children. This is more than a slippery slope – this is an avalanche.

In my opinion the OB-GYN physicians who abandon Ms. Burton should be stripped of their medical license for unethical behavior. Not only did they operate under the veil of court protection thinking they could avoid their own ethics, they operated on her, not to “save the life of the fetus” as the fetus was dead at this point, but for not reason any can see who have reviewed the case.

Forced surgery, forced incarceration is not what modern medical ethics are made of- this is what why we fought Germany and the Nazis.

There are reasons to force incarceration: TB patients who refuse to take their medicine and are endangering the public with infection. Minors, whose parents refuse them care for religious reason (those who have appendicitis and parents might think they could pray that away).

Perspective: Court-Ordered Care — A Complication of Pregnancy to Avoid
Julie D. Cantor, M.D., J.D.
N Engl J Med 2012; 366:2237-2240June 14, 2012

Dr. Terry Simpson About Dr. Terry Simpson
Dr. Terry Simpson received his undergraduate and graduate degrees from the University of Chicago where he spent several years in the Kovler Viral Oncology laboratories doing genetic engineering. He found he liked people more than petri dishes, and went to medical school. Dr. Simpson, a weight loss surgeon is an advocate of culinary medicine. The first surgeon to become certified in Culinary Medicine, he believes teaching people to improve their health through their food and in their kitchen. On the other side of the world, he has been a leading advocate of changing health care to make it more "relationship based," and his efforts awarded his team the Malcolm Baldrige award for healthcare in 2011 for the NUKA system of care in Alaska and in 2013 Dr Simpson won the National Indian Health Board Area Impact Award. A frequent contributor to media outlets discussing health related topics and advances in medicine, he is also a proud dad, husband, author, cook, and surgeon “in that order.” For media inquiries, please visit

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Latest Comments

  1. Lynn says:

    My understanding of the Florida medical system (an understanding that comes from an article in a magazine for Jewish women) is that Ob-gyns in Florida have the highest malpractice insurance rates in the US and that could cause a cognitive distortion in the minds of Florida Ob-gyns. There are laws in Florida restricting the types of patients who can give birth in free standing birth centers as well as which women can have VBACs. Those women who are inconvenienced by the law sometimes attempt to give birth at home, sometimes without proper medical supervision.
    I have read of women whose doctors went to court when the women went against medical advice regarding the scheduling of c-sections because they wanted vaginal births. The “rights” of a fetus are hazy because on the one hand, abortion is legal in America, up until a certain point in pregnancy, and I don’t know what that point is. OTOH, if a pregnant woman decides, to smoke heavily, take drugs, drink alcohol excessively, avoid pre-natal care, and otherwise endanger the health of the fetus, there is often little protection for the fetus who may spend his or her entire lifetime paying for the mother’s negligence. There are also choices such as allowing a woman to choose to deliver at 36 weeks to avoid the weight gain of the 9th month. Should she have the right to choose that when the baby could suffer as a result?
    As far as forcing one person to undergo a procedure for another, I remember a story where a man need a bone marrow transplant and several relatives were tested. The only positive match was a cousin who chickened out. The man who needed the bone marrow went to court to try to force the cousin to donate but I think that the court ruled in favor of the cousin.

  2. The Doc says:

    It is unethical for a physician to abandon a patient. It is unethical for a physician to not allow the patient autonomy. Those are basic standards in our ethics. These physicians violated that. They are not immune from malpractice just because a judge told them to do what they needed to do- nor is the judge immune from sanctions. But, I would rather see this battle not fought out in a court, but in the medical establishment where we can adequately police our own

  3. Lynn says:

    I thought that doctors had to practice what was the standard of care for their community. As you stated, there is no standard protocol that advises a c-section for a stillbirth at 25 weeks. She might have a hard time suing for malpractice though, unless she can prove that the surgery caused harm. For a woman wanting 10 children, it might be argued that a weakened womb won’t perform as well but a jury might not be convinced that she was severely harmed by the needless surgery.
    Does the patient’s right to autonomy stretch to allow decisions made for a fetus that are harmful to the fetus? The woman always has the right to an abortion in early pregnancy if she does not want to adopt a safe lifestyle and if she decides to carry the pregnancy doesn’t she have the same obligation to the fetus as she will have to the child after it is born? Can a judge put a pregnant drug addict in prison to safeguard the baby and then find a nice home for the child after the birth?

  4. Lynn says:

    There is another question and that is who is truly the physician for a fetus? Most pregnant women get the majority of their medical care during pregnancy by professionals who view both the woman and her fetus as patients. Occasionally pregnant women get sick or injured and this involves other professionals who may have to weigh up which patient, the woman or the fetus, gets higher priority. In the case of a brain dead pregnant woman who is kept alive for the sake of the fetus, it is obviously the fetus who takes priority. A pregnant woman with a malignant brain tumor may not be able to choose to save her fetus or she and the baby will die. Of course, patient autonomy might dictate that the patient can choose death over abortion but then what if the pregnant patient with the brain tumor or other malignancy is a minor? Does a child have the right to decline life-saving measures? Does patient autonomy extend to children? What if the patient is of a religion that does not allow sick women or minors to undergo abortions? I guess that an adult could choose death over a religiously objectionable abortion but what if a minor chooses not to follow the parent’s religion and wants to abort? Can the physician petition the courts for the minor to abort, whether or not the minor wants to die rather than abort?
    Do we allow pregnant women to undergo elective surgery such as breast augmentation in order to allow autonomy? (silly example but there are limits to autonomy).

  5. Lynn says:

    Uh, sorry but one more comment…
    I looked up this case and apparently Samantha Burton was a smoker. She apparently did not impress her physicians as having the ability to make a sound decision. Women with ruptured membranes are in danger of infection if they engage in marital relations. Possibly sitting in a hospital also puts them at risk of infection but maybe the doctors had to choose the lesser of two evils. Maybe Samantha had not impressed the doctor as being in a safe relationship and he was afraid that she would come back septic.
    There is now a teenager in Wales “sentenced” to 6 months in a hospital to bring her weight down from 63st. She may want her freedom but it could kill her.

  6. thedoc says:

    We are doctors- we do not have a badge. Our obligation is to the patient, but we must respect patient autonomy- our own judgement only allows us to decline to have them as a patient, it does not allow us to incarcerate them- no matter what they may be doing. That is not a part of our ethics. We go into depths about physician ethics in other places on this site.
    In terms of someone “sentenced” – if a court does that to someone, they have to have a law to back them up – if there is a law in Wales against obesity- perhaps they can do that to people. We could not do that here – we have both the rule of law, and we have ethical obligations of physicians.

  7. Lynn says:

    The “sentenced” teenager probably cannot leave under her own steam. She cannot work or care for herself and her parent’s home had to have a wall dismantled in order to rescue her. I don’t know if her “incarceration” is similar to that of a psychiatric patient who is committed by court order or if she simply does not have the ability to leave, even if she wants to leave. Her life on the street would be measured in hours or days. She is recovering from multiple organ failure.
    A woman who is in premature labor at 25 weeks, if she delivers a live child, will give birth to a child who may live a tragic life and be a burden on society. Children born at that gestation are at great risk for major handicaps, as I am sure you are well aware. If she goes home to resume her duties as a mother of small children who must be diapered and bathed and chased after, her chances of delivering at 25 weeks are great. Must a physician just sit back and allow that to happen? Does the court have a right to protect the child as well as the cost to society? If the pregnancy can last even another month, the child has a better chance of a normal life. Is 25 weeks now considered viability as opposed to 20 weeks which is clearly non-viable?
    Doctors can’t force medical treatment down the throats of patients or force them to remain hospitalized; with that I agree. As you have said earlier though, if a minor child needs treatment and the parents are not allowing the child to receive treatment, the law can intervene. Is a 25 week fetus a minor or merely an expendable appendage of his mother?

  8. Lynn says:

    I spoke to my husband who is knowledgeable about this subject. At present, a fetus has no legal rights and women have the right to turn down treatment that might save the life or preserve the health of the fetus. The doctor has 2 patients, the mother and the fetus but the mother and her wishes are primary and the fetus is secondary. There are those who are trying to change the law regarding women who abuse alcohol, drugs, cigarette smoke, or other dangerous behaviors while pregnant. These women would be charged with child abuse. Personally, I feel that women who get pregnant have a responsibility to the fetus if they decide to carry the pregnancy. Doctors of irresponsible women can, as you said, not accept them as patients. In some cases, however, it hard for a doctor to for see what he or she will have to deal with.

  9. Lynn says:

    I saw an article written by some obstetricians which stated that since the advent of fetal medicine, it is harder to define ethics when the needs of the fetus conflict with the desires or beliefs of the mother. The mother is understood to have an interest in the needs of the fetus and she usually does but when she behaves irresponsibly, the doctor has an ethical issue on his hands and must walk a fine line between the autonomy of the mother and the future of the unborn child. These doctors also view abortion as the escape hatch when a mother does not want the responsibility of taking care of herself for the sake of her fetus but if she goes ahead with the pregnancy, she is responsible for it. They also feel that patient autonomy does not give pregnant women the right to make dangerous choices about how to give birth.

  10. The Doc says:

    They do indeed have two patients- but they cannot abandon one in favor of the other. In the case of this woman’s choice to want to have a vaginal birth of her stillborn child, there was no medical reason she needed a C-section. There was an economic one.

  11. Lynn says:

    I wonder how often economics drive medical decisions and worry that it may be more often than we think. For example physician extenders such as nurse practitioners, PAs, optometrists, podiatrists, pharmacists, certified midwives, etc can often do as good of a job as a physician can for some medical conditions at a lower cost than a physician may charge. This is often the medical model in countries with socialized medicine. The sprained ankle in Australia may be treated by a nurse in the pharmacy, sans x-ray. The nurse in that situation is not worried about a lawsuit for a missed fracture or torn ligament. Most of us don’t shop around for price when deciding on medical care. I wonder how many needless prostatectomies will still be performed, despite studies that prove that they are unnecessary, partly due to fear of lawsuits and partly because urologists depend on these surgeries to survive financially. I wonder how many doctors will still insist on mammograms for pre-menopausal woman, despite the concern that they lead to needless intervention, cumulative radiation and rarely save lives in that age group. Back surgery is very common in the US, despite the low success rate for eliminating back pain. Chiropractors often relieve back pain but due to some quacky stunts that they pull as well as some dangerous neck work, most doctors would rather operate than refer to them but part of that may also be economic.
    I wonder how much of that is fear of lawsuits which is an economic fear. I wonder how many more people could have medical help in under-served areas of the country if physician extenders were more heavily utilized. One concern with the new health care laws is that increasing the rate of insured individuals will increase the need for medical care. That basically says that at present, economic concerns prevent many people from receiving medical care.

  12. thedoc says:

    We are evolving our medical knowledge as time goes on. If we have a community standard of care, and deviate from that standard, and the patient has an adverse event- then fear of malpractice reigns.
    In terms of Chiropractors- they have no role in medicine today, or ever, and need to be relegated to the pile of history.
    In terms of economics driving any of our work- I don’t know of a surgeon who wants to do unnecessary surgery. I am sure there are some, but most of us want to avoid such. While some of us push the boundaries of surgical intervention, those who push boundaries, also are less likely to do a procedure for which the indications have been proven to be false.

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