Document Type


Publication Date

Fall 2011


South Carolina Law Review





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This paper is a case study from “barbarity” to “regularity” examining comparatively the first ever “unnecesarean” lawsuit arising out of an 1858 cesarean section malpractice case next to a modern forced cesarean section malpractice suit. It positions the modern “unnecessarean” epidemic, in which 30% of births today are by cesarean section, in a historical medical malpractice context. This case study primarily examines a controversial 1858 lawsuit arising out of the first documented cesarean section performed by the revered Dr. Elias Cooper in California. The surgery left Mary Hodges’s bladder, womb, and intestines permanently fused together and left her permanently disfigured. The plaintiffs contended that Dr. Cooper performed the surgery, even knowing that the fetus was dead, to advance his own professional reputation because he expected her to die anyway. This 1858 case, positioned in the backdrop of the California gold rush, the pioneering spirit of individuality, and the emerging role of science in the medical profession, presents a dynamic and revealing case study to uncover the early underpinnings of the medicalized childbirth debate. The case occurred in a transformative moment – indeed a war – over how the medical community would regulate itself and its role in obstetrics. This case is contrasted with a 1996 forced cesarean section case. Both women litigated questions of interventionist childbirth at transformative moments in the history of childbirth – from the positioning of cesarean sections as “barbarity” to their “regularity.”

This case study reveals that the phalanx-like institutional presence of the medical community drives standard of care decisions, distinct from malpractice liability. It reveals unique consent considerations for the “birthing mother,” distinct from the fetus/mother considerations. Finally, it reveals the irreconcilable and paradoxical acceptance of medical uncertainty and rejection of maternal uncertainty. It is a paradoxical story of progress and entrenchment. It reveals the vindicating power of organized medicine that Dr. Cooper so candidly sought; lingering patient-physician relationships just as fraught with ambiguity as Ms. Hodges’s faced; and a startling lack of clarity regarding the effective resolution of medical uncertainty within obstetric standards of care.



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