Birth Injuries

New Regulations Regarding Partners And Support Persons During Births And Deliveries During COVID-19 Crisis

April 15, 2020
Partners And Support Persons During Births

Table Of Contents


Authored by: Chris Nyberg and Shannon Montgomery

On March 18, 2020, in response to the COVID-19 Crisis, the New York State Department of Health issued an Order that “suspends all [hospital] visitation except when medically necessary (i.e. visitor is essential to the care of the patient) or for family members or legal representatives of patients in imminent end-of-life situations.”

This raised many questions, including whether any visitors would be allowed for patients who were in the ICU with both COVID and/or non-COVID-19 related illnesses, such as stroke, heart conditions, etc. Importantly, it also raised the question about whether a support person, including a spouse, doula, family member, and/or friend, would be allowed to accompany a woman who was going through labor and delivery. This sparked a great deal of apprehension among pregnant women and their partners about whether they would lose the right to have a support person, or for the partners, to witness the birth of their child.

This fear should have been alleviated by the Department of Health’s guidelines issued on March 21, 2020. These guidelines provided that while hospitals “are to suspend all visitation, except when medically necessary (i.e., the visitor is essential to the care of the patient),” the “Department [of Health] considers one support person essential to patient care throughout labor, delivery, and the immediate postpartum period. This person can be the patient’s spouse, partner, sibling, doula, or another person they choose.” Furthermore, the World Health Organization stated that for a safe and positive childbirth experience, all pregnant women, including those with confirmed or suspected COVID-19 infection should have a companion of choice present during delivery.

Unfortunately, New York-Presbyterian Hospitals, followed by the Mount Sinai Health System and other hospitals, made announcements that they were enacting new visitation policies barring all spouses, partners, and other family members or outside support people from the delivery room, as they said it would protect mothers and children during the outbreak.

This caused many expecting mothers, fathers, partners, and family members to become nervous that mothers would be left alone in the delivery room, and that partners would not get to see the birth of their child.

Such fears and criticisms of these hospital policies made their way to social media, with people making complaints about such policies on Facebook, Twitter, and other platforms. In fact, there was even a petition, signed by 613,657 supporters, which was created to “safeguard the right of all laboring people to have support during COVID-19 Crisis.”

Fortunately, Governor Cuomo and the Department of Health issued additional guidelines on March 27, 2020 “in order to clarify that the visitation policy requires hospitals to allow one support person in labor and delivery settings if the patient so desires, and two designated support persons in pediatric settings, provided that only one is present at a time.” The policy also wisely added that the support persons “must be asymptomatic for COVID-19 and must not be a suspect or recently confirmed case” and allows for screening with temperature checks.

This recent spate of legislation raises the question of:

How Important Is It For A Mother To Have A Support Person In The Delivery Room And Why Is It Important?

Two members of the firm, Shannon Montgomery and Christopher Nyberg, who have worked on cases involving obstetrical malpractice and litigated cases involving infants injured during their birth and delivery, provide insight based on both their legal experience and personal experiences.

Shannon Montgomery

Shannon Montgomerey | Medical Malpractice Lawyer Manhattan, NYC

A little over three months ago, I was blessed to give birth to my son at 37 weeks pregnant via cesarean section.  In the weeks prior, I had numerous complications with my pregnancy, including placenta previa (where the baby's placenta partially or totally covers the mother's cervix), gestational diabetes, and vasa previa (where the baby’s fetal blood vessels cross or run near the internal opening of the uterus, putting them at risk of rupture).  I required additional care by a maternal fetal medicine specialist and numerous emergency room visits due to pre-term bleeding.

Although our original birth plan was for a vaginal delivery, I wanted to make sure both my baby and I was healthy and safe.  At about 35 weeks it was clear that vaginal birth was no longer a safe option for us both.  Therefore, a cesarean section was scheduled and I was given instructions that should I have any signs of labor, I needed to go to the emergency room immediately to prevent any harm to my baby or myself.

As a first-time mom, and my personal experience as an attorney with obstetrical medical malpractice cases, nerves were getting the better of me.  Knowing that I wouldn’t be going through it alone was one thing that was keeping me calm. 

Thankfully, the delivery was successful, and my son was born without complications, but that was only the beginning.

The first few hours following my son’s birth were a whirlwind, still on an emotional high from bringing another life into this world, and the spinal block still in my system.  I was in bed for about fourteen (14) hours before my catheter was removed and I was allowed to try and get out of bed.  That first attempt was agony.  I was in excruciating pain where it felt like someone was ripping me in half and burning me at my incision site.  From then on, I was on an emotional rollercoaster, and the rest of my hospital stay was pretty painful.  My husband did everything for my son and me.  Changing all of his diapers, talking with nurses and physicians, supplementing feedings with a medicine dropper, keeping a log of feeding intake and diaper outputs, and making sure I was eating and staying hydrated. There were times when I couldn’t recall things that happened hours before, or where my emotions were so high and then so low that I would break down in tears.  I was unable to easily get out of bed to get my son from the bassinet or help with changing him.  Without the support of my husband being there almost every moment of my four (4) day hospital stay (he would leave for a shower every day and my mom or sister would come take his place), I don’t know how I would have managed to care for my son in those early days.

When I first read about hospitals not allowing women in labor to have a support person with them due to the COVID-19 pandemic, my first thought was “I can’t imagine having to go through that experience alone.”

While I understand the notion that restricting visitation is for the safety of the patients, in this case, mother and baby, and the medical staff, I think the potential harm could be worse.  Not only due to potential complications that arise during labor and delivery, but the care needed during the postpartum period as well. Forcing mothers to go through this physically and emotionally intense period of their lives without a support person not only would put an even larger strain on the nursing staff at these hospitals, who already are spread thin due to the ever-increasing numbers of COVID patients, but I believe would also cause harm to both the mothers and newborn babies who require so much support and care during those first hours and days.

I hope that hospitals across the country are able to come to the same conclusion that a support person is vital to the wellbeing of both mother and infant during this time and that with proper screening, no delivering mom is forced to go it alone.

Christopher Nyberg

Chris Nyberg | Medical Malpractice Lawyer Manhattan, NYC

As the father of an energetic 3-year-old and the husband of a wife who is due with our second son in July, I became very concerned when I found out about the decisions by New York-Presbyterian and Mount Sinai. I was worried that I would not get to see the birth of my second child, but more importantly, I became concerned about the health of my wife.

I have handled numerous cases where the spouse/partner was vital for the health and safety of both the mother and the child.

In one case, a father was required to scream for help in the hallways to find the obstetrician to emergently come to the delivery room, in another, the doctor ignored the pleas of both the mother and her family begging for a C-section only for the child to be born hypoxic and in severe distress.

I have also worked on a case where the father was required to get the nurse into the room because the mother was experiencing pain indicative of a uterine rupture, and yet another case where the mother was continuously bleeding in the Post-Anesthesia Care Unit and the father was important for getting the staff to realize that the mother had a significant change of consciousness indicating that she was bleeding (which allowed the medical staff to act just in time to save her life).

All of these cases highlight the importance of support persons in the delivery room, as often they can help to prevent or at least limit injury occurring to the mother and infant.

Nurses and physicians can often be overwhelmed and too busy to constantly check on the mother and/or to remain in the room, whereas the father and/or support people are continuously present and can help speed the response time when problems arise and can protect the rights of the mother by serving as an advocate. This is why both the NYS Department of Health and the World Health Organization have deemed such persons to be “essential” to labor and delivery.

I had a personal experience during the birth of my first child, which showed me how critical it is for the health of both the mother and the child that a support person is present. Mid-way through my wife’s 28.5-hour labor, I noticed issues with my son’s heart rate, including late decelerations (drops in the heart rate following a contraction, which can often be an ominous sign) and became concerned as to my son’s well-being. I raised this issue with the nurse who told me there was nothing wrong and then proceeded to leave the room. Only a minute later, my son’s heartbeat dangerously dropped below 60 and remained there, but my wife was only partially aware of this and not in a position to call for help. I immediately got on the phone and told the front desk about the problems, and soon thereafter, an entire team of about 5-6 people came into the room to help my wife and to give her Terbutaline to stop the contractions. When I first called, the person answering the phone said, “Can we help you?” seemingly unaware that my son’s heartbeat had dropped.

Without my presence to immediately call for help, treatment could have been delayed and led to injury for my child.

Later on, the physicians finally came to evaluate my wife. We had gone almost 26 hours without being checked by a resident, let alone an attending obstetrician. The physician told my wife that she was just shy of 10 cm dilated as she had a “lip,” and so it would be dangerous to push. We were told she would need to wait for 20 minutes and they would come back and check on her and then let her push. But she was told that in the interim she would need to actively resist the urge to push. Unfortunately, 20 minutes passed, then 40 minutes, then an hour, then an hour and a half. This happened despite me constantly calling the nursing staff asking for the presence of a doctor and inquiring as to the status of the physicians. The wait probably would have been worse if it were not for me advocating for my wife. As it was, my son had to be delivered by vacuum delivery, which has significant risks, because my son was not coming out and my wife was exhausted from actively resisting the urge to push for 1.5 hours.

On a less serious level, I believe my presence was comforting to my wife on many levels. For example, when she was thirsty, I had to constantly go to the ice machine to get ice chips for her (she was not allowed to drink fluids). I was also there to get her personal items such as her phone charger and other things she needed but could not get out of bed to get. My presence allowed me to get her these things without burdening the staff with such requests.

An Advocate Or Support Personal Is Vital And Essential.

Both my experience as an attorney litigating obstetrical malpractice cases and personal experience with my wife showed me how important it is for a woman to have a partner or support person present to help advocate for them, to get assistance when necessary, to emotionally support them, and to get anything they needed. To take away such a support person would increase the risk of harm to both the mother and infant.

I believe the Department of Health and World Health Organization got it right, a support person is vital and essential to a woman going through labor and delivery, and it is reassuring that Governor Cuomo and the Department of Health appropriately recognized this fact.