The lawsuit I brought against Better Birth LLC was focused mainly on two examinations performed by ex-employee Ester Werbach (who now deceptively goes by Nueve Lunas Maternidad online). The first examination entailed Ester Werbach digging her fingernails into my cervix during a contraction, ignoring my pleas for the examination to end because of the excruciating pain.
I have a transcript of the first trial (which was transcribed by Better Birth’s attorneys, in case anyone is wondering about bias in the statements). Here is an exchange between Suzanne Smith and the judge about patient vaginal exams:
10:58:13 Judge: Alright, so it’s essential that you do this.
10:58:14 Smith: Yes, it’s essential.
10:58:18 Judge: Yeah, but what about her claim that she said stop, this is causing too much pain, and …
10:58:10 Smith: I was not in the room when that happened, but I was right outside the door.
I could hear what was happening, and I did not hear that. Now she may
have said it quietly enough that I didn’t hear it, but regardless! um, there
was no way to provide care without doing the vaginal exam. And she had
given consent to the exam.
She is referring to the consent to care that I had signed previously. That’s “consent” to a vaginal exam. Literally once you sign the paper you agree to let a midwife jam their hand inside you until *they* decide for it to stop. That was Suzanne Smith’s position during the first trial. Its pretty obvious that it was their position if you read the email that Suzanne Smith LDEM sent me after I complained. Here is a relevant quote:
Sometimes it is necessary or helpful to see whether the cervix changes during a contraction. When an exam has been consented to and is in progress, it can be a fine line, (particularly when the exam is painful and when it is with a first-time mom who is unfamiliar with the sensations of both contractions and exams), between when it should be completed and when it should be abandoned without obtaining the information in pursuit of which it was undertaken in the first place.
If there is a “fine line” of deciding it means that the midwife is making the decision on purely subjective standards.
Better Birth also used Tara Tulley LCSW as a witness in the case to bolster their claim that midwives do not have to stop examinations when patients demand them to end. I will make a post about Tara on Safer Midwifery Utah, as her testimony is more useful as evidence of the way that the Midwifery Community in Utah reacts to breeches of ethical behavior than an indictment of Better Birth specifically. Tara Tulley did not disclose the conflict of interest that existed between herself and Better Birth, and so her testimony was set up to say whatever it takes for her friends to win. She echoed Better Birth’s sentiments about continuing exams on patients who beg for it to stop to be standard.
The judge in my case advised me to file an appeal and bring an expert, for that was the only reason he felt compelled to rule in Better Birth’s favor. They had an expert and I didn’t, and therefore they had more evidence than I did.
I filed an appeal and Better Birth hired expensive attorneys to represent them. I got someone I could afford. As Noam Chomsky insightfully pointed out once, “[In capitalism] Freedom is one of the commodities that is for sale, and if you are affluent, you can have a lot of it.” I believe the same is true of justice.
In the appeals case Suzanne Smith claimed that exams stop when patients request that they do, immediately. Ester Werbach also testified that she stopped (despite both parties previous refusal to cooperate with the police in investigating my complaints). It may have been because so many promises were made on their web page about these issues that they couldn’t argue it any other way. Watching them both sit up there and lie was difficult.
I feel a bit of unease about this situation. I have no idea if this situation has taught Better Birth the importance of respecting patient autonomy or if they just learned how to march in lock-step with each other when patients complain. My gut leans towards the latter because of the way that the midwifery community has defended negligent killers in Utah like Valerie El Halta and (allegedly) Vickie Sorensen. After all, if Better Birth can prevail against me despite having spoke candidly about how my say-so didn’t matter, how would a future patient who is violated have any chance at having the event acknowledged at all? I am sure they learned a lot from having to deal with me, I just don’t know if they learned that they can get around patient autonomy, or if its simply not worth trying to because of the hassle. Only time will tell. Suzanne Smith is the first woman to get licensed as a home birth midwife in Utah, co-authored the law on home birth midwifery, owns a birth center, and is a former instructor at Midwives College of Utah. If she didn’t know that exams need to stop when women say so after all that time and education… it is hard for me to believe that my lawsuit (which she completely resented and rejected as being legitimate) would change her mind.