Interview with Dr. Stuart J. Fischbein

A few days I spoke on the telephone with Dr. Stuart Fischbein, an obstetrician who is currently fighting his hospital's ban on VBAC and vaginal breech birth. Below is the transcript of our interview.

Some blog posts worth revisiting in the context of this interview:

• Book review of Policing Pregnancy
• Time article on repeat cesareans, and the back story to the article
• Ethics of refusing to perform ERCS
• My comments on Wendy Savage's book Birth and Power--she's a British OB who underwent a highly publicized trial for her "unconventional" and obstetrically unpopular support of vaginal breech, VBAC, etc.
• Pregnant women are second class citizens

Stand & Deliver: Tell me more about your residency and how you came to where you are now.

Fischbein: I went to medical school at the University of Minnesota and did my residency at Cedars Sinai Medical Center in Los Angeles. As part of my residency program--there were no midwives at Cedars--I spent four months at LA County’s USC Hospital. Those were the days when they were doing 23,000 deliveries a year, about 65 deliveries a day. So we saw everything. There were midwives upstairs who took care of a lot of the low-risk stuff, and occasionally I encountered them. I had a really good experience talking with them and learning from them. But it didn’t really influence me much during my residency program.

When I finished my residency and started my private practice, I was approached by a couple of local midwives who were running a birth center and they asked if I would be their backup physician. At that time, of course, I was looking for business anywhere I could get it. You’re starting to build a practice, you’re hustling, you’re covering ERs, you’re delivering at four different hospitals. It was a different era in those days. So I said “sure.” That was the beginning of my real exposure to midwifery.

About 5-7 years into my practice, in 1995 or 1996, I was approached by a couple of midwives and a good friend about opening a collaborative midwifery practice with hospital deliveries. We looked for a hospital on the west side of Los Angeles that would allow midwives to do deliveries and we couldn’t find one. None of them were allowing midwives to do deliveries. UCLA might have been a place, but it wasn’t on our radar screen. The only option we could find was in Ventura County. So we opened a practice out in Ventura County and called it the Woman’s Place for Health. Even there we were met with a lot of suspicion and resistance, despite the fact that the track record for midwives is excellent, despite the fact that they take care of low-risk patients and have very strict protocols that they follow, despite the fact that they have excellent outcomes and a very low c-section rate, even compared to other obstetrical models that take care of low-risk patients. It’s always been a battle.

Stand & Deliver: I’m surprised that there is so much resistance to nurse-midwives from the obstetrical community.

Fischbein: I find out there that is a lot of ignorance about what a midwife means. A lot of people think of midwives as somebody who wears Birkenstocks and a long skirt, doesn’t shave her legs, and delivers babies in barns! They don’t have an understanding of the exquisite training that a certified nurse-midwife gets. They don’t differentiate between a CNM, a LM, a CPM—all of which are licensed by the state boards where they practice—and something called a lay midwife who, in California, can’t legally practice unless they have a religious exemption. But they’re all lumped in together and they’re constantly called lay midwives or just midwives by their detractors. There’s no distinction. It’s not malice so much as it is ignorance, I think.

Stand & Deliver: Are there more hospitals now in the LA area that allow CNMs to attend births?

Fischbein: No, I don’t think there are. CNMs’ ability to deliver in hospitals is still very restricted. I think UCLA has them. Kaiser, much to their credit, has always used the midwifery model, where the midwives take care of the low-risk laboring patients and the obstetricians come in when there’s a problem. That, to me, makes much more sense. It doesn’t make sense to have a board-certified OB/GYN tied up doing a normal vaginal birth.

Stand & Deliver: What are some of the things that your practice—two nurse-midwives and yourself—do that are different from your physician colleagues that account for your low cesarean rate? It’s so much lower compared to everyone else in your hospital and also compared to our national statistics.

Fischbein: We follow the midwifery model of care, which exhibits a lot more patience than the obstetrical model of care. It treats pregnancy as a normal function of the body. In contrast, the obstetric model treats pregnancy as a disease that needs to be treated, as opposed to something that just needs to be nurtured. In our practice, we don’t automatically induce somebody because they’re a few days overdue. If someone ruptures their membranes and they’re not in labor, we let them stay home. If they answer a few questions correctly and the baby’s doing okay, we let them stay home. There’s no reason they need to be in the hospital starting Pitocin right away. Other practices will bring them in immediately and start Pitocin. This often leads to a cascade of interventions that end up in c/section. They have some sort of panic about the 24 hour mark; if they’re not delivered in 24 hours, the misconception is that the baby will die of sepsis. The midwifery model also teaches women to be calmer, more educated, more secure, less anxious patients. We have fewer problems with labor itself. Our epidural rate is not quite as high, but I support the use of epidurals when needed. So it’s not about the old-fashioned idea of completely natural childbirth; there are differences. We’ve always allowed VBACs in our practice. However, nowadays the midwives don’t do VBACs or breeches. I’ve always done them, except now I’m under threat of losing my privileges and suspension if I do another VBAC or vaginal breech delivery at the hospital.

Stand & Deliver: Does your hospital have a formal VBAC ban?

Fischbein: Yes.

Stand & Deliver: How long has that been in place?

Fischbein: A couple of years, I believe. The problem with VBAC bans is that it puts the needs of the hospital and the other health care workers ahead of the rights of the patient. I understand why they do that, but I just think they are misguided. They ban VBACs under the guise of patient safety. But patient safety is a euphemism for “we don’t have a good evidence-based reason to do it, other than we don’t want to get sued, it’s more expedient, and we make more money from c-sections—the hospital does, not necessarily the physician, but the hospital does—so we’re going to ban it because it’s easier for us, and we’re going to say it’s for patient safety because of the risk of rupturing the uterus.” But you know what? That risk should be something that the patient decides. Patients have a right to be given informed consent, free from misinformation or coercion, free from skewing information that benefits the practitioner or the hospital. And they have the right to consent or refuse to accept the treatment that’s offered. That right is frequently being denied.

Stand & Deliver: Since the right to refuse treatment is part of most hospitals’ patient’s bills of rights, how can the hospital justify sanctioning you for upholding a woman’s legal right to refuse treatment? What are their grounds for that?

Fischbein: It’s Goliath versus David. Essentially the hospital has unlimited funds. There aren’t a whole lot of doctors like me in this community or across the country. Doctors who support midwives are few and far between. They are sometimes or harassed, ridiculed, or isolated. They face the potential of a disciplinary hearing, requiring a report to the medical board, which every doctor fears. Not because they’re necessarily doing anything wrong. But the cost of defending yourself against such a thing is enormous. Literally all you can win is the right to go to another hospital, because the hospital is still not going to change its policies. It becomes a lesson in futility to fight for what’s right, unless you’ve been pushed to the limit and are much more concerned about maintaining your values and your ethics. The choice they give you is what I call a Sophie’s Choice: keep your practice and compromise your values, or compromise your practice to keep your values. Either way, you’re screwed. I think that you should be able to keep your practice and keep your values. But it’s a real battle, and I’m facing it right now.

Stand & Deliver: Did your hospital ban VBACs because they couldn’t meet the ACOG’s new recommendation of 24-hour in-house OB and anesthesia?

Fischbein: Yes.

Stand & Deliver: Some hospitals that can meet those requirements still ban VBACs.

Fischbein: They do that for two reasons. The reason that a lot of hospitals ban VBACs anyway—and this isn’t very well known to most people—is because their insurance carrier will tell them that if they allow VBACs, their premium will be much higher. Rather than pay higher premiums, they just ban VBACs and do so under the guise of patient safety. The hospital lawyers, the insurance company lawyers, the insurance company executives, and the hospital administrators are making decisions for patients and then lying about why they’re doing it.

Again, they use the idea of the 24-hour anesthesia as a reason not to allow VBACs. Most emergency c-sections, the ones that occur suddenly, have nothing to do with a uterine rupture. They are for placental abruption, prolapsed cord, or prolonged fetal heart rate decelerations. And somehow the hospital can manage to take care of those situations. If hospitals can take care of those things, why can they not take care of VBACs? If they can’t do VBACs, should they be doing obstetrics at all? I don’t think it would serve American women very much to have all hospitals that can’t have 24-hour anesthesia close down.

It’s always baffled me that they use the 24-hour rule as their reasoning--that it’s for patient safety. But if it’s not safe to do VBACs, how is it safe to do any laboring patient? Far more often, it’s something unrelated to the VBAC that causes an emergency.

Stand & Deliver: The ACOG’s evidence for their VBAC policy was not based on scientific evidence, but on consensus opinion. The AAFP found that there is no evidence to restrict VBAC only to tertiary care hospitals that have 24-hour OB and anesthesia coverage.

Fischbein: Ultimately it won’t matter to the hospital. It’s not about evidence-based medicine. It’s very clear to me in discussing this with the committees that they don’t care. They’re being told by the risk managers, the lawyers, and the insurance companies that they cannot do VBACs. And that’s the final word. The anesthesia departments are also often behind VBAC bans. They talk about patient safety, but really it is that reimbursement is so bad and they don’t want to have to sit around in the hospital all day long and they are fearful of being sued. Sadly, a legitimate concern in today’s litigation happy society. Even in the absence of any negligence, one frivolous lawsuit can destroy a career.

This is separate from the patient’s rights issue. These are two separate issues. I think that patient’s rights trumps the other issue, but other people don’t. That’s where the disagreement lies.

Stand & Deliver: So what do they say when you talk about patient’s rights to refuse surgery? Basically, they’re telling you that you have to force your patients to have surgery, or you have to lie to them and say that they can’t even consider it as an option.

Fischbein: They’ve even put in writing to me that, when I am counseling patients, to be sure that they comply with the hospital’s VBAC policy. I’m supposed to tell patients that they have to go elsewhere if they want a VBAC, that they can’t stay in their own community, that they have to drive 50 miles. Even if their families are benefactors of the hospital or their father is on the board of directions, they have to go elsewhere. I’m not supposed to tell them that they have the option of showing up in labor and refusing surgery. The hospital actually put in writing that I should avoid telling them that. They’re telling me to skew my counseling, and they have no shame in doing so.

Stand & Deliver: That is astounding to me.

Fischbein: Here’s the argument that they put forward: Dr. Fischbein, how do you feel about the fact that the anesthesiologist, the nurses, and the pediatricians feel that your patients’ decision is putting them at risks that they don’t want to take? My answer to them is: “listen, I understand that. But you really only have two options here. You can close the unit, or you’re asking that patient’s rights should be subservient to what healthcare workers want.” That’s an easy one for me. But their whole concern is that it’s putting other healthcare workers at risk by allowing patients this choice. If they still have an opinion like that, they’re not going to change it easily. Logic is out the window here. It’s not about logic. It’s not about evidence-based medicine. It’s not about outcome data. This seems to be how we’re supposed to practice medicine. Even though ACOG comes up with stupid stuff sometimes, if you go on their website—the back part, where members can go—they have paragraph after paragraph about patient’s rights, patient’s autonomy, the right to informed consent and refusal, the right not to be harassed or threatened if they make a decision that is different from what the hospital would want, the right to sanctity of their bodies free from fear of reprisals.

Stand & Deliver: So why does this not translate into obstetric and hospital practice more often?

Fischbein: Well, I think I’ve already gone over that. One reason is litigation mitigation. Other reasons are for economics and expediency. For physicians who are not really committed to doing VBACs or breeches, it’s a lot easier to do a section. You get paid about the same. With a section, you can do the surgery at 7:30 am and you’re in the office by 9 am. If you have a breech or a VBAC, you have to cancel your day or spend the night at the hospital. It’s a lot more work, and you don’t get paid any more for it. So you really have to be either dedicated or crazy or somewhere in between. You have to keep your ethical feet well-grounded.

It’s really hard when doctors are squeezed financially, by fear of liability, by this axe hanging over their head. Nobody who I went to medical school or residency with ever believed that they’d spend the rest of their lives with an axe hanging over their head. Every day that they go to work. It’s untenable. It’s a situation that wears doctors down, and they don’t have the fight in them any more.

For hospitals, it’s easy. Does a hospital make more money off a practice that has a 5% c-section rate or a 25% c-section rate? That’s an easy question. Although they will never admit that; it will always be patient safety. Clearly, there’s no incentive for them to offer a VBAC to anybody.

Stand & Deliver: What could possibly get us out of this crazy state of maternity care—the fear of litigation and the administrative bureaucracy that dictate much of obstetric practice nowadays?

Fischbein: There’s one big answer. This trend will be hard to reverse in any situation, but will be impossible without tort reform. If I had five minutes to spend with Obama, that is would I would recommend. President Obama spoke to the AMA in San Diego a few months ago, and he said exactly the opposite. He said that tort reform is not on the table.

The one thing that needs to be changed in this country is malpractice tort reform. It has to happen. If you want a single-payer system, if you want rationing, if you want patient’s autonomy restored, you have to get the trial lawyers and the money and the greed out of medicine. You have to stop defensive medicine. You have to let doctors make the decisions. You have to keep insurance companies from dictating policies because their actuaries have determined that it’s cheaper to do X or Y.

A few decades ago, Ford made a car called the Pinto. During tests, they found that if you rear-ended it, it blew up. But they marketed it anyway, because their actuarial data found that the number of lawsuits they would have did not justify pulling the car off the market. The number of dead people was not worth pulling the car off the market. They got busted for it, but none the less, that’s the way the decision was made.

Until you have tort reform, you’re never going to have any change in this kind of policy. You have to have malpractice reform. There has to be immunity for physicians, unless there was real malice. Then the civil courts can take care of that. Most doctors don’t intentionally hurt people. There are bad outcomes despite the best doctors’ efforts. When 70 to 80% of obstetricians in this country have been sued, that doesn’t mean that we’re all bad. It just means that we all pay a fortune in malpractice insurance, and that cost has to be transferred somewhere. If doctors can’t pass the costs on to the patients, like other businesses can, they basically say, “I’m not going to go out on a limb for somebody, because they’ll sue me at the drop of a hat anyway.” So the one thing that needs to be done, more than anything else—whether or not you agree with VBAC or breeches or midwifery—is tort reform. All obstetricians should unite with midwives and other doctors over the issue of tort reform. It is the one key issue. It all has to start with tort reform.

Stand & Deliver: Do you think that we’re so entrenched in our current maternity practices that we’d actually be able to break away from that?

Fischbein: If you eliminate tort reform, you might be able to make changes by improving competition. If you get rid of some of the restrictions on businesses, you might see more competition start up. You might see more birth centers open, or birth centers that actually have operating rooms, little maternity hospitals. Just like we’ve seen specialty surgery centers open up recently. For years hospitals tried to squelch these things because they know they can’t compete with them. Some day, maybe the major hospital model will go out of business. And would that be so terrible? We have specialty hospitals that do heart surgeries, gastric bypass, or plastic surgery. Why not specialty hospitals that just do maternity? Run by doctors and midwives.

Stand & Deliver: Not administrators and bureaucrats.

Fischbein: It’s very hard to get financing or insurance to open something like that nowadays. It’s very hard to get an insurance policy for this kind of thing, because all it takes is one angry patient to destroy a life’s work.

Stand & Deliver: What explains our country’s high litigation rate? Is it in part because patients have the perception that they can almost be guaranteed perfection—that if they do all the right things, they can have a perfect baby? I wonder if the rate of litigation is more patient-led or more trial lawyer-led, or is it led by the way obstetricians advertise their services. Where is it coming from?

Fischbein: I don’t think obstetricians, or anyone in medicine nowadays, promises perfection any more. Increasing the cesarean rate from 15% in the 1970s to 32% in 2009 has not decreased infant mortality or improved outcomes one bit. All it’s done is increase the section rate and the potential complications that come from that. So I don’t think that anyone’s preaching perfection. I think we do live in a society where if something goes wrong and people think they can get money for it, we don’t have a society where shame or public condemnation means anything anymore. We’re so big and diffuse. If you’re in a small town and you sue the only doctor in town for something that was not his fault, other people in town might give you a hard time, and you may think twice about doing it. But in big cities, there’s no reason not to. It costs something like $180 to file a claim. And we’re pumping out attorneys like Washington’s printing money, and they need work. They make the laws. That’s one reason that tort reform is not on the table with Obama. His leading supporter is the Trial Lawyers of America. They gave more money to Obama than any other lobbying group, I believe. You’re not going to see them cutting their own throats. The more that lawyers can push papers around, the more they make money. There’s no reason to resolve any issue if you’re a lawyer charging an hourly fee.

There should be a catastrophic fund for babies who are born severely brain damaged or handicapped, even if it’s Down’s. A lot of cases with bad outcomes never get sued with the midwifery model, because midwives have such good relationships with their patients. Clearly it’s known that lawsuits are much more common in large OB groups or Medicaid patients or patients who go to clinics, because there’s no face behind the care. The thinking is: the doctor has malpractice insurance; that’s what it’s for. You’re not hurting the doctor. Little do they know what it does to the doctor’s life, career, sleep, family life, and malpractice premiums.

Stand & Deliver: I’m sure it’s devastating.

Fischbein: One bad case for a physician, despite the best intentions all their life, can destroy them. There’s no other profession where that happens. I think that tort reform is the key. Without tort reform, it’s only going to get worse. Without it, all the arguments in the world are not going to get a hospital to change its VBAC policy or its breech policy or its persecution of midwives or the midwifery model. But if you get tort reform of some sort, where doctors are protected as long as they did not have malicious intentions, we can start to see some changes. And, like I said earlier, we need to improve competition. I would love to open a birth center, but trying to find funding, trying to get anything open in California, is a nightmare. Getting the permits, malpractice insurance, and approval from the right federal and state organizations is a monumental task that has defeated a lot of people I know who wanted to open birth centers.

Stand & Deliver: Let’s talk about breech birth now. Talk to me about how you were trained in breech and what a typical breech birth with you looks like.

Fischbein: I trained in breeches during residency in 1982-86, and vaginal breech birth was commonly done at Cedars and USC. I feel very comfortable doing them. I follow the literature on breeches. I know that there are certain risks to breech deliveries. I do what’s known as selective breech deliveries; they have to meet certain criteria. Patients who qualify under those criteria are given options, including c-section. Certainly we try all the tricks first. We offer chiropractic, acupuncture, certain positions and exercises. And then we offer everybody the option of external version, and around 50-70% of the time that’s successful. Then you still end up with a few patients who have breech babies.

The criteria are very simple. They have to have an adequate pelvis. In the old days, we used X-rays or CT scan pelvimetry. Nowadays I just use my clinical judgment with an exam. The baby has to be between 2500-4000 grams estimated fetal weight. The baby’s had has to be flexed. The baby has to be either complete or frank breech. The fetal heart rate tracing has to be good. Patients have to go into spontaneous labor. It’s pretty rare I’ll ever induce a breech. But I will augment a breech in labor; if a patient gets an epidural and labor spaces out, I would augment them.

Those are the criteria. If they meet those criteria, then all the evidence, including ACOG's guidelines, say that decisions for breech delivery should be based on the experience of the practitioner and the desire of the patient. I understand that breech delivery is not for everybody. Certainly there are a lot of people who will never do breech deliveries because they’re not trained any more. Unless we bring vaginal breech delivery back into residency training programs, we will soon find that that skill is gone forever. Having that skill gone is more than just a c-section problem. Every now and then, a woman is going to show up in labor, come in completely dilated with a butt in the vagina, and no one is going to know what to do. No one will know how to put on forceps to get the head out. They’re going to be rushing to push the baby’s body back up and do a c-section. Quite frankly, the morbidity of that is so much higher. So it is going to be a major loss, because women are going to show up complete and breech in labor & delivery, and no one is going to know what to do.

In Canada, the SOGC is no longer recommending routine c-section for breech babies. Part of it’s for cost savings, probably. But part of it is because the evidence does not support sectioning every breech patient. The evidence is there to give patients the choice. This gets back to my primary issue, which is informed consent. This should not be a decision where the doctor tells the patient what to do. If the doctor does not know how to do breeches, they should say to the patient “I can’t do your breech delivery but I really think you are a good candidate for it. Why don’t you see doctor X for a second opinion.” That’s the honorable thing to do. But of course that would cost doctors money, and a lot of doctors don’t want to give up the money.

My hospital says if I do another VBAC or elective breech delivery, they’re going to “summarily suspend my privileges.” Until I can solve this problem one way or the other, if I do another breech delivery or VBAC, I’m going to jeopardize all my patients’ care. I’m going to have to tell my patients that if they want a vaginal breech delivery, they’re going to have to go some place else.

Stand & Deliver: Is there anywhere else in the LA area that offers vaginal breech birth?

Fischbein: I have some colleagues who work at Cedars who still might rarely allow vaginal breech deliveries. But I can certainly see other doctors not wanting of offer patients that choice, saying that the safest way is to have a c-section. If all I told you was that if you have a VBAC, you could rupture your uterus and your baby could die, if that’s all you heard, you would never choose to have a VBAC. There’s a study that came out in the American Journal of Obstetrics & Gynecology last December that found the morbidity of a repeat cesarean section is higher than a successful VBAC. A successful VBAC occurs about 73% of the time. If a hospital bans VBAC, they’re basically telling 73% of women that they have to undergo a surgical procedure that carries more morbidity than if they had a vaginal birth. That’s outrageous to me. It leaves me speechless, and for me that’s no small thing! The same model applies to breech deliveries. Some women are being told to have a procedure that carries more morbidity than a vaginal delivery. But they are never being told the numbers or given the option.

Stand & Deliver: Let’s turn to home birth now. How might home birth midwives improve the way they practice? What could obstetricians learn from home birth midwives? In other words, what could each group learn from each other to improve maternity care?

Fischbein: I think home birth providers right now are under an extreme microscope. There’s a witch hunt right now. Home birth providers have to follow every single protocol they have to the letter. They can’t go out on a limb or individualize. It’s really hard for them to practice that way. But it’s a sign of the times that any bad outcome in a home birth is magnified a hundred times. You could have a thousand bad outcomes in a hospital and nobody cares. But you have one bad outcome in a home birth, and ACOG is looking for you to call in on them, almost like a spy. Did you see the recent post on my blog? Can you believe that? They don’t care how many successes there are; they’re just looking for failures. Last year ACOG said that hospital births are safer than home births. This year they’re only now collecting data to try and prove their point? Don’t you think they should have done it the other way around?

I don’t know that modern obstetricians are ever going to support home birth because the model that they’re trained with—the obstetric model—treats pregnancy as if it’s a disease. In their minds, a disease is best treated in a hospital. They’ll never look at pregnancy as something that is beautiful and safe most of the time and that is rarely an emergency, especially when you cherry pick your patients and only have low-risk patients to start with. They’ll never see it that way. Again, it gets down to a choice issue. Some physicians just do not believe in the informed consent and refusal modality that I believe in. They believe strongly that home birth is dangerous and therefore they won’t even offer it to their patients. Any patients who mentions it gets the “Oh my g-d, are you out of your mind?” comment. Once that happens, it’s out of the question. I don’t think that there’s going to be a whole lot of change here. It needs to be consumer-driven, and patients have to demand it. I don’t know how that’s going to happen without a coordinated effort. Like what you’re doing, and what I’m doing, and the Birth Survey is a start. There are so many groups out there, but we’re all disjointed. There’s no one clearing house for all these groups. It’s starting to change a little bit, I’ve noticed, as I’ve been more active on the internet. It seems like everybody knows everybody. But trying to get the word out to people who aren’t already fellow travelers is really difficult.

Stand & Deliver: Yes, it is. The biggest thing that has happened so far is Ricki Lake’s documentary and book. As far as mass influence and really getting the word out there, her book and her documentary have been extraordinarily successful. She’s reaching very mainstream women.

Fischbein: She has power to get us exposure. We need to get people on Oprah or 60 Minutes or 20/20. We need to do a 20-minute segment on walking up to the CEOs of hospitals and saying to them, “Here’s your mission statement from your hospital, yet you’re telling patients that they have to have surgery.” Confront them and embarrass them a little bit. I don’t know why maternity issues like these are not more popular, because every family in America is affected by what’s going on. It’s off the radar screen.

We have an abortion rights movement in this country that, the minute anything happens regarding abortion, they’re up in arms about it. Yet women are losing the choice of how they give birth, and no one seems to care.

Stand & Deliver: It affects so many people. I wonder why there isn’t more uproar.

Fischbein: Maybe it’s because pregnant women feel very vulnerable, and once they have the baby they’re too busy dealing with life. The power of having 10,000 pregnant women march on Sacramento or march on Washington would be fantastic. Maybe we need a Million Pregnant Women March! It would be a marvelous thing to raise awareness. I’m at the mall right now, and everywhere I go there are pregnant women or women pushing their kids in strollers. 33% of these women have been delivered by cesarean section. And it’s only going to go up.