Enclosure #2
JLSRC ~ Testimony on MBC Discipline
Mr. Jay DeFuria
Consultant B&P ~ Joint Legislative Sunset Review Committee
State Capital, Room 2139
Sacramento, CA ** 95814
916/445-3435
Example
of the Failures of the Current System
The following are examples of what many of us find so
disturbing about the current combination of excessive and/or ineffective
methodologies that represent the MBC culture of selective enforcement.
This is the outgrowth, in part, of the Presley I & II legislation that
criminalized the entire topography of medical board discipline. This was a
backlash against the preceding century of favoritism, cronyism as evidenced
by the Board’s failure to carry out their legislative mandate to
discipline licentiates and instead routinely protected doctors who were
clearly negligent, incompetent and even in some cases, convicted of murder
and serving a life sentence.
Medical Crimes Make for
Medical Criminals
Once the general
premise of “medical crimes” is accepted by society, it calls into play a
whole plethora of criminal law enforcement techniques -- covert operations,
undercover agents wired for sound, “daring” raids (complete with
bullet-proof vests and media coverage) and the jailing (and strip-searching)
of basically honest citizens. The intimidation value of this is incalculable
and reaches far beyond the personal life of the defendant, as news of these
situations is recounted to other caregivers. It results in a form of
psychological terrorism.
The shame of these law enforcement proceedings is so
great and physicians are so sensitive to unprepared for it (and afraid
of further reprisals) that most are not unwilling to even go on record about
the abuses to which they have been subjected.
In fact, the use of force by DCA investigators assigned to the
medical and nursing boards is not at all uncommon.
As a labor and delivery room nurse and now as a midwife,
the malfeasance I see most frequently is not a major mistake of the sort
associated with revoking a doctor’s license. Rather it is a series of
small, frequent abuses of power that are the equivalent of a temper tantrum,
repeated almost daily, by doctors bent on getting their way or making
“somebody” sorry for some real or imagined offense to the doctor.
This included tactics of revenge against mothers who chose
‘natural birth’ or the nurses and midwives who supported their choice.
As a midwife, I see revenge and retribution routinely used against the
midwife and/or the parents for having chosen a midwife or making other
decisions of which the doctor disapproved. It
seems that the absolute authority granted physicians by society and
reiterated by the MBC not infrequently leads to an absolute abuse of power.
I have spoken at Medical Board meetings requesting specific changes and
written to several different members of the staff and Board but, with rare
(and well-appreciated) exception, thus far no responses has lead me to
believe that my concerns were ever going to be actively addressed.
Outrageous Behavior goes Unnoticed and Uncorrected
I have personally, in the last year or two, experienced
truly unethical and harmful behavior by licensed physicians acting within
the confines of the approved “orthodox” system in a manner that amounted
to physical battery and emotional abuse.
(1) At the planned hospital birth of my Goddaughter's 3
baby, I was shocked when the obstetrician cut a medically unnecessary
episiotomy without the consent or even the knowledge of the mother.
The doctor came into the room just as the baby’s head was crowning
(the nurse was holding back the head to give him time to glove up). Instead
of simply catching the baby that was already slowly emerging, he reached for
scissors to cut a medically unnecessary episiotomy without a word to the
mother. Then he charted on the delivery notes that the mother had a
serious tear (a falsification of documents) while the nurse's notes recorded
that he performed an episiotomy & repair.
(2) A year latter, at this same hospital (but different
doctor), the same thing happened again – just as the baby was about to be
born the doctor reached surreptitiously up for the scissors and holding them
low and out of sight of the mother, cut another medically unnecessary
episiotomy. This happen again
without the knowledge or permission of the mother. He then told her that he
always tries to prevent tears but “sometimes they happen anyway” and she
was going to need a “few stitches”. . (statement of mother on file)
In both of these cases I would have disbelieved my own eyes
if my observation had not been shared by my God daughter’s sister and
L&D nurse in the first instance and the patient’s mother in the
second. We all talked about these occurrences both times when these doctors
left the room. I was ashamed to be part of the healthcare profession or to
admit that I was licensed by the same Medical board as these doctors. After
the second occurrence of this outrageous form of physician battery, I called
another partner in the OB group and reported this to him. His comment was
that reprehensible as it was, there was nothing he could (or would) do –
we simply had to wait for the offending doctor (age 55) to retire.
“Medical Crimes and the Use
of Excessive Force
-- agency intimidation and publicity
(3) In another instance, a very well-respected community
physician and member of the governing board of a local church was “turned
in” by an insurance company for “over-prescribing” vitamin pills! A
small cadre of special investigators from the MBC came to his office in
bullet-proof vests. This combined with what appeared to him to be the
agency’s overwhelming force to “get him” ultimately intimidated him
also into a “stipulated decision” which was unwarranted.
A few years later, a series similar to the OCR’s articles, appeared
in the San Jose Mercury, naming him and listing his “crime”. (Newspaper
accounts on file) These abuses of common sense and common decency are a
natural outgrowth of the current system of casually criminalizing the entire
topic of healthcare, aside from behavior that are already acknowledged as
crimes, such as insurance or MediCal fraud, in which doctors could be
prosecuted by any California court system
(4) In once instance, a single mother with three children
was held hostage in her living room with her three young (and now
hysterical) children for 3 hours while 8 MBC “peace offices” wearing
bullet-proof vests ransacked her house and removed 38 boxes of books,
baby pictures and other “evidence” of midwifery practice. (Newspaper
accounts on file)
(5) In Southern California, the 13 years old daughter of a
midwife (who was home alone) was forced to lay face down on the floor
while MBC peace offices held her at gun-point in the course of serving a
search warrant. (Newspaper accounts on file)
(6) In a midwifery case undertaken by the BRN, a certified
nurse midwife was arrested at her home, leaving her blind husband who could
not drive alone with the couple’s 3 children. She was handcuffed to a wall
with her arms pinned behind her back for 4 hours awaiting transfer to the
local jail. At the time she was just recovering from surgery on her neck and
upper back and was in extreme pain this whole time. After the case was
dropped by the county the BRN convinced another jurisdiction to re-arrest
these same nurse midwives. Eventually the case was dropped by the agency
without any action. The nurse-midwife and her handicapped husband moved out
of state for fear of future incidents of this sort. (Newspaper accounts on
file) While the MBC is obviously a separate agency from the BRN, the culture
of “crime fighting” by the special investigators employed by DCA in the
same.
The following situations do not involve any “alternative
practices” or quality of care issues per se but rather the unchecked abuse
of power by physicians over other physicians, who ultimately used the
medical board as the 500 pound gorilla to go after a doctor with whom they
had a disagreement as to philosophy of practice.
(7) An MD providing home-based midwifery care was the
object of a complaint by another physician subsequent to a homebirth
transfer of a newborn. The circumstances that resulted in the problem were
rare (unexpected premature baby born at home) and were responded to
appropriately by the MD (transfer of the baby to the hospital). The baby was
treated and released from the hospital at 4 weeks and remains healthy and of
normal development. The parents did not file a complaint against anyone.
However, the admitting pediatrician at the hospital
triggered a cascade of events against the MD-midwife that eventually lead to
revocation of her license (stayed, 5 years probation with terms and
conditions). The investigatory process itself was clearly unfair and isa
glaring example of how a principle in the science called “sensitive
dependence of initial conditions”. The power for harm and lack of
accountability that are vested in the special investigator role as currently
configured is almost absolute. In far too many instances they are simply
interested in numbers. Getting a ‘conviction’ overrides common sense and
unwisely leads them to do outrageous and unfair things, including
manipulation of facts and even falsification of documents to achieve that
end. This is invisible to others in the agency hierarchy and virtually
impossible to for the practitioner defend him or herself against.
In this particular case, the expert reviewers hired by the
Board were hospital-based obstetricians (the MD-midwife was a GP). The
consultants had no personal or professional experience with home-based birth
services and one of them was notorious in her community for a cascade of
complaints against homebirth midwives. It was obviously not an
“impartial” review nor was it one that provided parity of specialty or
‘sub-specialty’, which is what a GP providing normal maternity care
would be considered. Even more disturbing was the realization that the
emotional harm purposefully inflected by the doctor who provided hospital
care was found to be acceptable by the agency -- to this day no action has
ever been taken against him.
The baby in question was transferred to the hospital and
its care taken over in the ER by pediatrician who was vitriolic in his
opposed to home birth. After the baby was stabilized (it had a respiratory
arrest on the way to the hospital) the pediatrician admitted the baby to the
nursery and sent the mother home. The baby’s father stayed at the hospital
to accompany the baby to a level three neonatal unit at another hospital.
Within a few minutes of returning home the pediatrician called the mother on
the phone and told her that the baby was brain dead and she should come back
immediately to the hospital to be present while he disconnected life
support. The shocked, grief-stricken
and sobbing mother gave instructions to her family to remove all the baby
furniture and baby clothes from the house while she was gone.
At the hospital, she was greeted by a pediatric resident
from Stanford’s NICU who told her that the baby had pneumonia and would
need hospital treatment but was expected to recovery fully. Faced with what
seemed to her as “unbelievable news” she asked how this could be and
told the Stanford pediatrician of the phone call from the admitting ped and his
insistence that her baby was brain dead and was to be removed from life
support. The Stanford resident continued to insist that while her baby was
seriously ill, it was not terminally so and in fact had a very good
prognosis. He repeated his opinion that the baby could be expected to
recover fully. In fact, the baby did had an uneventful course of care. One
of the administrators of the NICU at Stanford hospital eventually wrote a
letter of reprimand to the admitting pediatrician chastising him for this
vindictive behavior. However, no other action was taken against this
physician.
In spite of this despicable behavior, the pediatrician
apparently did not feel like he gotten his pound of flesh as yet. After the
baby was transferred to Stanford by ambulance (with the father accompanying)
the new mother returned home again (all this of a mother only a few hours
postpartum who should have been in bed herself).
Within a few minutes of her arrival home for the second
time there was a knock at the door and uniformed police officers demanded
entrance to the house. They said they were investigating a report of child
abuse and attempted manslaughter after having been notified by a
pediatrician from the local hospital. The doctor called the police after the
baby was transferred and told them that the parents had given birth at home
to a 6 month premature baby (not accurate) and then tried to drown it in the
bathtub because the parents ethnic beliefs demanded the killing of any
imperfect child (the father was Chinese-American) . None of these things
were true and after talking to the mother and the MD-Midwife, the police
concluded that the report was without merit and left.
The next outrageous action by the attending pediatrician to
file a complaint with the medical board insisting that the MD-midwife
purposefully attended a planned home birth of a 32 week premature baby (not
true -- the mother had been mistaken about the date of conception, and the
baby was expected to be a few weeks early but not premature). Of course it
was the complaining doctor who provided the vast majority of evidence
against the MD-midwife. In the pediatrician’s official MBC disposition
he admitted to the above story -- telling the mother the baby was brain
dead, that he was going to take it off life support and let it die, etc. and
that he also make a specious complaint to the police, etc. He then
explained away his actions with the comment that he considered home birth to
be very dangerous and that he was “verbally spanking” the parents to
teach them a lesson. (Statement of the attending pediatrician to the MBC
in disciplinary actions against an MD-midwife on file)
Even though this information was available to the MBC there
was NO action taken against the complaining doctor for his vengeful
inflecting of extreme emotional distress on the parents by telling the
mother the baby was brain dead and reporting them to the police for
attempted murder.
In the investigation that followed, the testimony was
collected by MBC investigatory staff from hospital-based physicians who were
obviously opposed to home-based birth services and had no personal or
professional experience with domiciliary midwifery. They seem to merely look
for little discrepancies that they could site as ‘proof’ that she had
deviated from the “community standards for California physicians”. The
two expert witnesses did not actually talk to the parents or the physician
herself-- all they had to base their conclusions upon were written records
as provided by the medical board investigators.
These records reiterated the underlying prejudice and
contained a large measure of inaccurate and inflammatory information.
It was the “chart” and not the patient or the actual facts that resulted
in a judgment of negligence by these “experts”.
My physician friend, a 54 year old women doctor who had never had
been the object of a single consumer complaint or malpractice suit in almost
30 years of practice (or even a speeding ticket!), was forced to accept a
stipulated decision revoking her license for 5 years (stayed with terms and
conditions) because none of the other doctors in our area would testify on
her behalf for fear of reprisals.
Malfeasance
cover-up and retaliation against the patient
(8) The next situation also involves the midwifery client
of a home-birth physician (but not a home birth). Unfortunately, it did not
turn out so well as for the baby as the previous case. A second-time mother,
who had had a bad experience during a hospital birth with her first child,
was planning to labor and give birth at home attended by a MD. The mother
was so upset and frightened by her first birth experience that when her
water broke she failed notify her doctor as instructed, for fear she would
be instruct to go to the hospital, as it was obvious that something was
wrong from the abnormal color of the liquid. Not until 30 hours after this
spontaneous rupture of membranes did the mother finally notify the doctor,
who in fact did instructed her to be immediately hospitalized.
This physician followed the parents to their Kaiser
Hospital and stayed with them for several hours afterwards, explaining to
the staff that the mother’s water had broken more than a 24 hours ago,
that the patient had not initially reported this to her and that the
amniotic fluid was very abnormal in character, indicating severe fetal
compromise. The Kaiser obstetrician in charge of the case appeared to be
unimpressed by these facts and after ordering the mother’s labor to be
inducted with IV Pitocin he left the unit.
Six hours later the baby suddenly suffered acute fetal
distress and the mother was rushed into surgery for an emergency CS which
was performed by this same doctor. The baby could not be resuscitated. In
the middle of the operation, before even suturing the surgical wound, the
doctor left the OR to inform the father of the baby death and that claim
that it died because the parents had chosen a home birth and therefore the
parents were directly to blame for this tragedy. He told the father that
had his wife been cared for by an obstetrician in the hospital “this
wouldn’t have happened”.
Of course, the obvious observation is that the mother was
being cared for in a hospital by an obstetrician. In fact, she had been
there for many hours and they had done nothing to intervene. The doctor left
the floor during this period of time. Failure of the mother to accurately
report the rupture of membranes was a factor but not the “fault” of her
home birth doctor. In fact, it was due to great fear on the mother’s part
due to a poor managed by a previous doctor and hospital. The parents (with
some very small justification) felt so guilty that they never made any
formal complaint of this shocking scene to either the hospital administrator
or the Medical Board.
Retaliation
Against OOH Midwifery Patients and Practitioners
The Board recently began to reopen closed cases in
investigations that held licensed midwives as blameless in order to pursue
prosecutions against the LMs for failing to have physician supervision. MBC
official testified at the JLSRC hearing on December 4th that it was
their duty to “protect babies from unsupervised midwives”,
despite the well-documented reality that obstetricians cannot or will not
provide the mandated supervision.
While the MBC turns its limited resources on spurious
midwife investigations, it continues the pattern of utterly failing to take
action against egregious acts of hostile obstetricians who risk the lives
well-being of childbearing women and babies under the care of a licensed
midwife. This and similar events represents an extreme escalation of an
already pernicious situation, as the majority of obstetricians
are now denying both essential and preventive services to
childbearing women who are receiving care from a licensed midwife. In some
many instances, these doctors are actively hostile and take retaliatory
actions against both mother and midwives.
The following bad outcomes were not considered worthy
of the Board’s time to even investigate, much less sanction the physicians
involved or attempt to rectify this dysfunctional system. In response to
consumer complaints the Board took no effective action of any kind resulted.
In one instance of a cesarean section having been performed as a retaliation
against the mother for having “attempted” a home birth, the Board told
the family that it does not investigate “ethical complaints”.
%$#*&@!
(9) There is at least one documented stillbirth directly attributable to
the artificially-created roadblock of physician supervision/vicariously
liability which keeps both midwives and mothers from timely access to
medical services. While the MBC is officially busy “protecting babies
against unsupervised midwives”, no one is protecting babies against the
malfeasance of the organized medicine-malpractice carrier alliance.
In April of 2000 several doctors and the local hospital refused to
perform a “non-stress test” for a mother who was 41 ½ weeks pregnant (NST)
-- electronic fetal monitoring to determine fetal well-being -- because the
she was seeing a midwife and planning a home birth. Over the 5 days (which
included Good Friday and Easter Sunday) that the family was trying to make
arrangements in another near-by town, the baby died in utero of placental
failure – the very condition the NST was designed to detect and
prevent and the reason the midwife advised the mother to have the testing
done. Nothing came of the complaint filed with the MBC by the
obstetrician who ultimately provided care to the grieving mother and
delivered her stillborn in the hospital. This was a “preventable”
death, the result of discrimination against mothers who choose midwifery
care.
(10) There are two occasions of medically unnecessary
Cesarean sections done by physicians as retaliation against midwives and
families choosing domiciliary midwifery. In these two separate incidences,
the licensed midwives each called the respective hospitals to notify them of
an elective (non-urgent) transfer of care for mothers needing labor
stimulation for a slow but otherwise normal labor and were told by the
on-call doctors that they “only did CS on home birth transfers”. These
doctors gave orders by phone to the nursing staff to prepare the laboring
women for Cesarean surgery and immediately performed major abdominal
operations on each woman without prior hands-on evaluation of their status
or attempt to first stimulate labor for a normal vaginal birth.
This is nothing less than a temper tantrum by these
physicians that not only exposed these mothers and babies to the
well-documented dangers of major surgery (anesthetic and surgical accidents,
drug reactions, medication errors, hemorrhage, emergency hysterectomy, blood
transfusion reactions and wound infections) but also expose mothers to the
on-going dangers of post-Cesarean pregnancies which includes a ten-fold
increase in abnormal placentation (placenta previa, accreta and percreta).
These are life-threatening emergencies for both mother
and baby often accompanied by the need to perform an emergency hysterectomy
to control hemorrhage. In spite of the very best care in a tertiary hospital
and 20 units of blood on hand, the maternal mortality rate from placental
percreta is 10%. Exposing childbearing women to this risk because
obstetricians have a “philosophical” objection to licensed midwifery is a
very bad practice of medicine.
Another family member who was a California physician
reported one of these unnecessary CS incidents to the Medical Board and was
told that the Board does not investigate “ethical complaints”. This seems to reflect a pattern of “spare no expense”
response by the MBC to the slightest complaint against a licensed midwife,
including technical violations involving only theoretical issues, while
there is little or no effective follow-up in cases of actual harm to
mothers whose trust in medical care was violated by these doctors.
Nurses and midwives and family members see this ugly
underside of the beast all the time and it account for our frustration with
the current system that is not working properly. These failures also fuels
the general anger towards the MBC that is popularized in articles in the
newspaper focused on the scandalous behavior of local doctors and the
incompetancy of the Board to adequately address it.
.