Deny this patient right at your own legal risk

There has been a lot of discussion in the news recently regarding the legal right of a breastfeeding mother to nurse in public. However, there are still many situations where mothers are harassed, mistreated and scorned for engaging in this protected activity.

Responding to a breastfeeding mother, or complaints about such mother, is an issue for which practices must be prepared to respond. Patients in the waiting room, physicians and other healthcare providers and staff may be uncomfortable observing breastfeeding, but it’s important to know the law and respond appropriately.

An Oregon dentist recently got into trouble when he encountered a mother breastfeeding in his office and failed to comply with legal requirements to allow her to do so publicly. In this case, the woman is suing the dentist for discrimination based on sex and violating state law, which allows breastfeeding in any public location. The woman claims the dentist stopped her from breastfeeding in one of the patient rooms while her older child was there to have a tooth pulled. The dentist refused to pull the child’s tooth if she was in the room because the breastfeeding made him feel uncomfortable. A similar situation could easily arise in a doctor’s office.

How should such a situation be handled in your practice? Many breastfeeding mothers are very respectful of others and may themselves feel shy about public breastfeeding. These mothers tend to ask for a private place to nurse or use a blanket to be discreet. These are the situations that rarely lead to conflict or complaint. When possible, I advise my clients to offer a private spot for nursing moms, but they are not required to actually use it. A nursing mother should not be made to feel shame or embarrassment and must be given the opportunity to stay with her family members in the doctor’s office.

Although breastfeeding is a natural human activity, there is no question that a bare breast in public makes some people uncomfortable, adults and children alike. Even as a mother who breastfed, I am sometimes shocked by the activities of some breastfeeding moms I have encountered. But whether a nursing mother is respectful of this discomfort is entirely her discretion, and the law largely protects her rights.

From the perspective of the practice, there is no situation where any action should be taken to make the breastfeeding mother feel unwelcome or uncomfortable. If patients are uncomfortable and complain, the practice should have a script ready to inform the patient of the state law.

For physician practices that have yet to confront this situation, it is important to be aware and train your staff on how to handle this scenario so that if it arises, neither you nor your practice are sued. Here are four steps to follow:

• Consider whether your practice layout has a space that could be used for breastfeeding and add signage to let people know it is available. Sometimes, mothers are simply too shy to ask for a private area and do not know it might be available to them. Posting signs in an office about the availability of a private space might also be a good idea, especially in offices where this may be more likely to occur, such as pediatricians and pediatric dentists.

• If a patient complains about a breastfeeding mother, explain to the patient that under law the mother has the right to breastfeed and the practice will not interfere. If the patient is unruly and poses a risk, ask the patient to leave or consider calling security or the police.

• A practice employee can always offer a mother the right to use a more private space, but it should be at her sole option and should not be done in a manner that brings attention to the mother or makes it seem like she is unwelcome to breastfeed in the main waiting area.

• Patients should in no way be prohibited from staying with a family member because they are breastfeeding, and this is true even if it makes the physician or healthcare provider uncomfortable. If it is a male healthcare provider and he feels especially uncomfortable, it is appropriate for him to ask that a nurse or another female provider be present. The breastfeeding mother’s rights do not mean that others do not have a right to address their own discomfort (in a legally appropriate manner).

Breastfeeding is a topic that makes some people uncertain and uncomfortable. Practices, physicians and their staff, must be aware of - and comply with - the law, regardless of their feelings on this topic. Make sure to find out more about the rights of breastfeeding mothers in your state.

Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute and HIPAA. Erica has been writing for Physicians Practice since 2011.