I
enjoyed meeting you at the Midwifery Task Force meeting on November 7th.
I apologize for the delay in contacting you per our conversation after the
Tack Force meeting. On behalf of the members of the California College of
Midwives, I look forward to working with you in regard to the regulatory
process for SB 1950.
I have
already forwarded a letter to Teri Kizer in response to the Board’s
request for feedback on your October 6th proposal, which was
rather acrimoniously discussed at length at the Task Force meeting in
November. My earlier letter focused primarily on defining an
“appropriate” standard of care and crafting regulatory language relative
to physician supervision. I continue to believe it possible to use the
regulatory process to greatly improve the ability of LMs to be in compliance
with this provision and to vastly expand the access to appropriate
obstetrical services by childbearing women. In this letter I wish to
explore possible methods, regulatory and otherwise, to design a logical
rational response to this apparent dilemma.
I will
only address the technicalities of practice standards and physician
supervision and focus mostly on the issue of “special circumstances” –
i.e., identified risk factors in a healthy woman with a normal pregnancy for
whom one can reasonably anticipate a spontaneously progressive labor, normal
vaginal birth and healthy neonate. This would include normosomic frank
breech; post-cesarean pregnancies with low transverse incision / single
previous CS or previous NSVD and twins at term. These are of particular
concern to childbearing women because they are physiologically “normal”
states of parturition but at present the obstetrical community no longer
offers the option of a “normal” vaginal birth. Because the issue
of elective Cesarean and post-cesarean births is so controversial and
technically complex, I have enclosed a stand-alone document that is based on
a scientific examination of the issues, with excerpts, references and
citations of published studies.
Appropriate
Standard of Care:
California licensed midwives are resolute in their opinion that the only
appropriate standard of care for licensed midwifery in the state of
California would be one developed primarily by the professional
organizations of California licensed midwives. This is the origin of the
standards used by the professions of nurse-midwifery and obstetrics.
Fortunately, the California College of Midwives and the California
Association of Midwives, which is the oldest organization and has the
largest membership, both have similar documents that fulfill the criteria
for a professional “standard of care”. These were developed in
conjunction with the International Definition and Code of Ethics for a
Midwife, as well as traditional standards of midwifery practice used in
various jurisdictions around the world and recommend by the W.H.O. These
standards of practice are similar (but not identical) to those developed by
the American College of Nurse Midwives (ACNM) and ascribed to by California
certified nurse-midwives (CNMs). A specific variation of these
sources has already been recognized as “appropriate” for community-based
midwifery practice by Judge Roman in the Alison Osborn case in August of
1999.
Documents from all
these sources formalize the philosophy and the principles of competent
practice and provide general standards of conduct rather than “laundry
lists” of specific directions. The wisdom of this method rests in the
ever-changing nature of evidenced-based health care in which the advance of
scientific discovery continually changes the science-based response to
specific medical situations. For example the CDC changed its recommendation
relative to antepartal testing for Group B Strep just this last June. In
August, they modified those protocols yet again. By the time specific states
of pathology of this sort are identified and regulated, the medically
appropriate response has often dramatically changed.
The
purpose of professional standards of practice is both for consumer safety
and to advance the professionalism of community midwives. A secondary
function is a measure of an individual midwife’s care as competent (versus
negligent). In this regard the function of Standards is to protect competent
midwives as well as providing the structure for disciplinary action against
incompetent / negligent midwives. Protection of the competent midwife is
actually quite important. Without this formal guide for midwifery practice,
which first guides and then guards the individual midwife who adheres to
this professionally defined standard, there is no positive model to both
protect consumer interests and stabilize the profession of midwifery.
Therefore standards must be more than just a list of contraindications and
prohibitions. They also must establish the positive specifics of
standardized practice so that we can identify midwives who have
successfully met that standard and are thus to be held blameless even in
circumstances where midwifery standards differs substantially from
medical standards.
Legislative
History:
California midwives have been working with Senator Figueroa for the last
three years in an attempt to amend the LMPA so that midwives would be able
to be fully compliant with our licensing law. Prior to the passage of the
LMPA in 1993, non-nurse midwives in California introduced seven separate
legislative bills and worked for 17 years to get a midwifery licensing law
passed. Midwives want to be professionally licensed and we want to be able
to be in compliance with the provisions of that licensure. Despite 25 years
of earnest efforts to bring these things about, LMs in California cannot
currently comply with the physician supervision provision as physicians
uniformly and almost universally are unable to provided the mandated
supervision (due to malpractice carrier restrictions) or unwilling to do so (see copy Norcal letter May 1999).
California midwives have merely gone from being prosecuted for practicing
midwifery without a license to charges of practicing licensed
midwifery without a physician supervisor.
One of
our concerns about the Washington State Home Birth Project proposal as
communicated in the October 6th letter is how LMs would manage
those situations in which the midwife was directed by the regulation to
‘consult’ with physicians but local physicians continued to refused to
provide any such consultation, either by phone or otherwise. The enclosed a
copy of a letter by Norcal specifically forbids physician under contract
with Norcal Mutual to provide any advice to licensed community
midwives, either by phone or in person, lest they be “accused” of having
a de facto supervisory relationship with the midwife and thus create
vicarious liability for the malpractice carrier. This particular letter
specifically addresses emergency situations by saying that the only
advice that insured physicians may render in an obstetrical emergency is
to recommend that she call 911. Period.
LMs
don’t have to “consult” with a physician in order to avail our clients
of emergency medical services. In order for regulations requiring the
midwife to consult with a doctor to work, we must either have doctors who
will answer their phones and provide their consultative services or we need
a regulatory mechanism to acknowledge this situation – for example, a
directive to the LM to file a formal ‘incident report’ each time this
occurs so that the midwife can establish her good faith attempt to comply
and the medical professional’s refusal to perform.
Undue
Influence of Organized Medicine: This deplorable and dangerous situation which blocks
midwives and mothers from appropriate medical services was brought about on
purpose by organized medicine for its own political purposes. At first
glance, physician supervision (including mandatory consultation) seems to be
a sensible and beneficent stepping stone to guarantee timely and appropriate
entrance to medical care. In reality physician supervision, as currently
interpreted, is a stumbling block that prevents childbearing women who are
seeing a licensed midwife from receiving preventative and essential services
from physicians in their community.
This
political agenda is clearly revealed by the various obstetrical
organizations (ACOG
and CAOG -- see enclosed Ob.Gyn.News Sept 15, 1993). This article states that the California Medical Association
successfully demanded a supervisory clause (which created unnatural and
unnecessary vicarious liability) as a “disincentive to home birth”.
Their plan was to make it impossible for LMs to be in compliance with their
licensing act via the “poison pill” of mandatory supervision which was
and is impossible for doctors to provide in its current “unregulated”
form. This type of unlimited, uncontrollable liability is prohibited by
virtually every malpractice carrier for good reason –it doesn’t work for
anyone, under any circumstances and in fact, that is why it was chosen.
However, the 1999 decision by Judge Roman calls into question the idea that
physicians would inevitably be the target vicarious liability and opens the
way for important regulatory relief.
In 2000 Senator Figueroa introduced SB 1479
specifically to remedy this problem. In its original version, it would have
replaced the vicarious liability of supervision with the “firewall” of
physician collaboration, in which no liability accrued to the physician
unless and until the doctor actually provided care directly. As we all know,
this legislative relief did not survive in SB 1479. According to Senator
Figueroa, SB 1950 establishes a regulatory framework for an “appropriate
standard of care” and “level of supervision” via regulatory
recognition of the appropriate standard of care and level of physician
supervision as identified by administrative law Judge Roman in the Alison
Osborn decision. According to Judge Roman:
"The effect of each model posited by the parties is to
meet the Legislature's primary interest in the implementation of license
practice acts: protection of the public. Sufficient evidence has been
provided this tribunal to competently conclude that properly conducted
midwife-led home births are as safe as births conducted by physicians in
hospitals when affected within standards of practice. Accordingly, without
dismissing either model or deferring to either model, protection of the
public can be effectuated, and the licensure of professional lay midwives
promoted by this tribunal's adoption of the midwifery model of practice to
licensed midwives as referenced in Findings 14, 17 - 21, and 23"
Judge Roman’s ruling recognizes the legal
difference between the practice of medicine as applied to medical
complications (which is statutorily prohibited) and the practice of
midwifery, which appertains to healthy women with normal pregnancies. For
example his ruling states:
“Unlike physicians, physician assistants, physician
assistant midwives, registered nurses, or certified nurse midwives who
practice within the context of a medical model, licensed midwives practice
within the context of a midwifery model. Complainant contends that the
medical model should function to define the scope of a midwife's
practice.”
Judge Roman rejected that opinion of the MBC. His
decision established that:
1) Midwifery is a separate and distinct discipline from that
of the practice of medicine
2) Midwifery standards of practice are unique from that of
medicine
3) It is inappropriate for midwifery practice or its practitioners to be
judged by medical doctors imposing medically-based standards
The Osborn Decision is available on our web site (www.collegeofmidwives.org)
to make familiarity with it convenient. The easiest way to find it is to
click on the “Site Search” subdirectory top right on the home page and
type in the words “Alison Osborn Decision”. You will note that Judge
Roman clearly acknowledges the duty of the midwife to fully inform and
recommend medical care to any mother with an identified risk factor. He
simultaneously acknowledged the right of the fully informed childbearing
woman to formally decline in writing the medicalization of her pregnancy,
even in the presence of a significant risk factor such as frank breech. It
should be noted here that the perinatal mortality for all breech births in
the large multi-center study (which included footling breech babies) was
identified as one and a half percent (N =5) for CS and five percent (N =13)
for vaginal birth.
The
numerically small quantity of vaginal breech mortality included two SIDS
deaths (obviously not attributable to delivery). The study’s
recommendation – that it was ‘safer’ to deliver all breech babies by
Cesarean section -- did not account for any of the excess maternal
mortality and morbidity from Cesarean surgery such as hemorrhage, blood
transfusions, emergency hysterectomy, pulmonary embolism and post-op
infection. Elective CS delivery triples maternal mortality -- 1
maternal death out of 5,000 surgeries versus 1 out of 16,666 for vaginal
birth. While elective Cesarean surgery provides a theoretical advantage of 3
½ %, which is statistically significant, this number also does not
factor in ANY of the complications occurring down stream in post-cesarean
pregnancies -- infertility, miscarriage, abnormal placentation (previa,
abruption and accreta/percreta) and emergency hysterectomy, uterine rupture
or neurologically-damaged infant. According to a study on the risks of
Cesareans, one baby is subsequently lost in a post-cesarean pregnancy for
every 500 primary Cesarean performed.
While there are
many situations in which parents seek home-based care in the presence of
less than idea circumstances, the ones that are of the most regulatory
interest are those conditions that the obstetrical community currently declines
to offer the option of a normal vaginal birth. Unfortunately
there is no “zero risk” option, no perfected solution at present for any
of these situations. Informed consent theory and the legal aspects of
parental autonomy acknowledge the right of a childbearing couple to decline
“prophylactic” Cesarean surgery which puts the mother’s life and
babies in future pregnancies at risk in return for a statistically small
gain which the parents have no guarantee of receiving.
The
current ACOG policy against vaginal breech births (even for a multipara with
a ‘proven’ pelvis -- i.e.,
had delivered vaginally before without problem) is a legal strategy chosen
without input from the childbearing families affected by it as best
protecting doctors against litigation. This is not of itself unethical
except that ACOG goes to great lengths to hide this agenda and instead,
makes it seem that the mother who wants to avoid non-emergent Cesarean
delivery is selfish and irrationally putting her baby’s life at risk. Were
the same theory of “zero risk” to be applied the mother’s care,
virtually all routine obstetrical interventions would have to be prohibited
as these very same interventions dramatically increase intrapartum and post
partum complications, the Cesarean rate and maternal mortality.
Organized
medicine went to great lengths over the last century to convince the
childbearing population that choosing an obstetrician (instead of a midwife)
guaranteed a perfect outcome. These assumptions and expectations were
never founded in any scientific reality. Predictably, unrealistic
expectations cannot be met and so when physicians fail to deliver the on the
zero risk promise, they got sued and the malpractice rate sky-rocketed. In
regard to breech babies the situation is further devolved by absence of
appropriate training, as obstetrical residents are no longer being afford
the opportunity to manage vaginal birth since Cesarean surgery is now the
default standard.
Statutory Foundation for “Exceptional
Circumstances”: Judge Roman’s ruling in the Osborn case identified a
statutory foundation for permitting LMs to provide care under a variety of
these exceptional circumstances. His ruling states:
“… to the facts and law herein; particularly
where, as here, the Legislature failed to specifically preclude breech
presentation and relied, instead and consistent with its deference to
developing healthcare models, on professional standards of care.”
(emphasis added)
Judge
Roman established that such a professional standard of care for community
midwives must also include specific criteria applicable to the status of the
pregnancy and the midwife’s skill level. This is not an “anything
goes” free pass but falls squarely within a regulated framework of
responsibility on the part of the midwife and includes advanced practice
training when appropriate. LM Osborn completed the same Advanced Life
Support in Obstetrics (ALSO) course as attended by family practice
physicians in management of vaginal breech delivery. The mother was fully
informed and declared her decline of medical advise in writing. The criteria
for home-based care were specified, including the experience level of the
midwife and the results of a recent ultrasound confirming a normal weight
for the baby and that it was in a frank breech position with flexed
head. Judge Roman commented
that:
“A midwife's assistance in a breech presentation that
fails to meet such specific criteria violates the midwifery model's
standard of care and/or practice and would be unprofessional conduct.”
[emphasis
added]
Regulatory Directives: A document developed
for this specific purpose would inform the prospective parents that the
identified condition (breech, vbac, etc) included a higher than average risk
of developing complications during labor and birth and that such
complication would be more successfully treated or even prevented in an
acute care hospital. For this reason the LM’s formal recommendation must
be that women with any of the listed conditions plan to labor and give birth
in an appropriate medical facility under the care of professional midwife or
physician. The form should permit up-to-date, evidenced-based information
specific to the client’s situation and require the mother/parents to sign
an ‘informed decline of standard medical care’ should they decline the
advise to plan intrapartum care in an institution.
Physician Supervision: Judge Roman’s ruling calls
into question the historical assumption that supervision automatically
equates with vicarious liability on the part of the supervising physician,
thus offering us an opportunity to develop logical principles defining a
workable relationship between doctors and midwives. In regard to supervision Judge Roman stated:
“The
parties readily acknowledge that "supervision" as set forth in
Business and Professions Code section 2507(c) does not "require the
physical presence of the supervising physician" and does not purport to
involve, as set forth in Business and Professions Code section 2501 (f), the
overseeing of activity or acceptance of responsibility for services rendered
by licensed midwives as required by such physicians for licensed physician
assistants. Clearly, a different standard was intended by the Legislature;
however undefined.”
The
technical explanation of this legislative “undefined” standard is
explained by the legal theory of “close supervision”. Judge Roman’s
decision acknowledged that California LMs provide care without “close
supervision” and thus their professional status is consistent with nurse
midwifery regulations promulgated by the Board of Registered Nursing.
The theory of “Distinct Calling”: By these
criteria, professional midwives are agents in their own behalf – a
legal status known as a “distinct calling” – and are statutorily
authorized to provide normal ante, intra, postpartal and postnatal midwifery
care without “close” supervision. The principle here hinges on
the expert or “distinct” nature of the skill in question, as “close
supervision” can only be exercised when the supervising authority has a
greater mastery of the skill than the agent or employee being closely
supervised. Close supervision by a physician could only appertain to aspects
of medical practice such as a licensed physician’s assistant (PA) or
office employee. By statute, midwifery is definitely not the practice
of medicine (section 2507e).
Midwifery is distinct in origin, philosophy, training
and practice both from the practice of medicine. Physicians, while
trained, skilled and licensed to practice medicine, are not
themselves licensed as midwives and are neither trained or experienced in
midwifery, especially as a ‘physiological’ (i.e., non-medical)
discipline provided in a domiciliary (i.e., non-medical) setting. To avoid
incurring unnecessary or “vicarious” liability, a physician would not
contract to “supervise” (or purport to exercise control) over the
practice of midwifery but would instead defer to the “distinct calling”
of the midwife in regard to the conduct of normal midwifery services to
healthy women with normal pregnancies, spontaneous labors, healthy neonates
and normal postpartum recoveries.
Independence, Inter-Dependence and Dependence: The
distinct calling of certified nurse and licensed midwives under physician
supervision acknowledges three distinct aspects of the physician-midwife
relationship, divided by qualities of medical dependence. The first – independence
-- is the classical practice of physiological midwifery as a ‘distinct
calling’ in which neither the mother or baby ever required medical
services and the physician was never consulted or involved. The second is interdependence
between midwife and physician in which information, advice or consultation
specific to the management of a particular patient’s care is offered. In
this category the medical interface is circumscribed to a specific medical
issue or finite period of time. The third is medically-dependent, in
which the midwife depends fully on the medical care provider for medical
orders. This is co-management in which drugs are being prescribed or
administered at the direction of the doctor (for example a GBS+ mother
receiving antibiotics) or the mother has an on-going situation that needs
the constant in-put of the physician to appropriately manage her or the
neonate’s care.
The legal distinction between the practice of midwifery
and that of medicine, when fully acknowledged, should protect the physician
from liability for domiciliary (non-medical, non-institutional) midwifery
care. The legal concept of “distinct calling” delineates litigious
culpability along the lines of the enabling legislation's statutory
definition of a healthcare professional's scope of practice. As
acknowledged by Judge Roman, the appropriate standard of care for midwifery
is distinct from that of allopathic medicine.
Thus it is the distinct calling of midwives to
practice midwifery and the distinct calling of physicians to practice
medicine. With this in mind, physician liability would be limited to
negligent commission or omission of medical care provided. The doctor would
be shielded from culpability for the care provided independently by the
licensed midwife. Other aspects of vicarious liability would also be in
abeyance. For example, the doctrines of “borrowed servant” and
“caption of the ship” are not applicable to independently practicing
healthcare professionals such as midwives who provide care without “close
supervision”. This means “vicarious” liability would apply only
to those situations where the midwife is a bona fide employee or agent of
the physician. Obviously this would not be the case for community-based
midwifery practice, as no California physicians employ LMs to provide
home-based birth services as agent or employee to the doctor’s obstetrical
patients.
Regulatory Remedy ~ Consumer Protection thru
Improved Access to Physician Services: When a midwife enters into an
arrangement with a physician for medical interface, it is to the advantage
of client families by creating continuity of care between the two
professions, as well as access to consultative services, referral and
emergency services. Therefore, the best protection of the public would be
passage of regulations that acknowledge the distinct calling of LMs so as to
provide protection for physicians from threat of vicarious liability
litigation. This would address the false assumption by malpractice carriers
that any interaction between a doctor and LM creates vicarious liability and
instead open the way for physicians to make themselves available whenever
the mother or baby have a medical need. The language currently used in the
BRN regulation for CNMs would be an excellent foundation for this:
“…..midwives
may provide supervision, care and advise to women during inter-conceptual
periods, conduct deliveries on his/her own responsibility ... including
preventive measures and the detection of abnormal conditions in the mother
and child, obtaining physician assistance and consultation when indicated
or providing emergency care until physician assistance can be
obtained"..
This
is protective and preventative and in alignment with the intent of the
licensing law to safeguard the consumer.
Identified Risk Factors - “Special
Circumstances” Informed Consent/Decline of Standard Care
The Horns of a
Dilemma: A recently published
Britain midwifery text --"Professional Studies for Midwifery
Practice" -- contains a lengthy chapter on midwifery ethics and ethical
decision-making process. This book makes a useful distinction between a problem
and a dilemma. The authors define a problem as a situation
with a straightforward solution. However difficult, expensive or
time-consuming, the solution -- what needed to be done --
is still clear and mutually agreed upon. A dilemma is a situation
that has instead two or more possible conclusions, each of which presents
only a partial solution or solves the identified problem by introducing a
secondary set of problems. Depending on the perspective of the decision
makers, these downstream issues may be equally undesirable, leading to
considerable controversy and difference of opinion as to what is the best
choice.
The topic of
identified risk factors is a dilemma for childbearing parents, midwives and
the Board. Unlike a problem with an easily identified solution, this
situation presents everyone with a set of unique difficulties with no
obviously superior conclusion. The mother who finds herself being swept into
obstetrical interventions such as non-emergent Cesarean for a breech, twin
or post-cesarean pregnancy is often disturbed to discover that our current
tort system cavalierly exposes her to painful risky surgery without any
acknowledgment of the less frequent but extremely serious, sometimes fatal
risks of that surgery or the many well-known
downstream complications. Under tort law the physician’s
culpability for surgical “procedures”, such as vaginal and operative
deliveries, is concluded when the “procedure” is successfully completed.
One of the common sequelae of obstetrical forceps is incontinence (20%
according to one study) and/or pelvic organ prolapse. The post-cesarean
woman faces infertility, ectopic pregnancy, miscarriage, abnormal
placentation (previa rate is 1:40). Both long and short-term sequelae are
deemed to be not the “fault” of the physician performing the
original surgical procedure.
This limited liability is necessary for the stability of
the profession of medicine. If not, former patients could re-appear decades
later, blaming all their ill-health on the doctor that took their appendix
out at age 7 and claiming to recover monetary damages in court. However,
this appropriate aspect of tort law is accompanied by an inappropriate
application relative to the consent process. Since physicians are not liable
for complications that may arise at a later date, the current convention is
that practitioners are also not required to reveal any of these
pathological sequelae as a part of “informed consent” process for
obstetrical procedures. Obviously obstetrical interventions offer both
opportunities and dilemma to patients and practitioners alike.
Value-Added versus Value Subtracted: Obstetrics has
always presented itself as “Value Added” to the basic childbirth
services provided by midwives. Historically speaking, midwifery is the
original or “standard” form of maternity care and obstetrics is an
add-on, a process that seeks to refine, improve, extend and invent
medically-predicated methods to accomplish the same goal – preserving and
maintaining the health of already healthy mothers and babies and restoring
the unhealthy to a functional level of wellness. The increased professional
fees charged for obstetrical care (in contrast to midwifery services) assume
a “value-added” element to the care they provide. The tradition of
medicine also includes the principle of ‘primum
non nocere’ or “in the first place, do no harm”.
For women with pregnancy complications, the obstetrical
goal of “value-added” service is successfully accomplished. Obviously
infant outcomes are improved and maternal suffering relieved or prevented
when appropriate medical services are available to women with dysfunctional
reproduction. Unfortunately for healthy women with normal pregnancies (70%),
obstetrical management does not automatically add value and can even be
counter-productive. This is an example of the “if it ain’t broken,
don’t fix it” theory. But obstetrical care does indeed add value for the
mother who needs pain medication or epidural anesthesia. And when a baby
needs to be delivered by Cesarean, the “value added” aspects of
obstetrical management is in fact life-saving.
What all these circumstances have in common is that they
are consensual – the mother wants and consents to each of these medical
interventions. However, these same medical ministrations are not perceived
to be “value-added” when the mother does not want or, medical speaking,
actually does not need these interventions. Presently a patient with a frank
breech baby, twins or a post-cesarean pregnancy is predestined for surgical
delivery, whether she want it or not. She will be told this is for her
safety or for her baby’s benefit and that there are simply no other
“safe” choices. She will not be told that ACOG policies are being
implemented (standard of care as defined by the obstetrical profession)
whose foremost purpose is to protect her obstetrician against being sued by
her.
Under current conventions of tort law, the doctor is best
protected if he performs a cesarean, even when that surgery is unwanted and
unwelcome by the mother. This equates to non-consensual obstetrical care. By
any accounting, being forced into medically unnecessary surgery under false
pretences is value subtracted. According to some legal scholars, is
also a form or battery. The very
well-respected British medical journal --the Lancet (May
2002), recently published a
study acknowledging the problem of institutionalized violence against women
in reproductive services. These authors identify the use of medical
interventions, procedures and Cesarean surgery for the convenience, economic
advantage or legal protection of the physician to be a form of violence
against women.
However, women are
not the only ones to be negatively impacted by this ACOG-originating
industry standard. ACOG’s policies also mean that even doctors have no
real “consent” in these matters. Since
ACOG recommends only Cesarean delivery for women with a breech baby, it
becomes substandard care under tort law for an individual physician
to offer vaginal breech birth, as doing
so would expose the practitioner to a judgment of negligence by the courts.
Many hospitals have actually adopted policies prohibiting doctors on staff
from doing vaginal breech deliveries.
Consensual versus Non-Consensual Obstetrical Care:
The same type of physician-centric restrictions were recently extended to
post-Cesarean pregnancies, prohibiting the majority of doctor from providing
care for spontaneous VBAC labors. In contrast to this directive by ACOG
promoting casual use of Cesarean, many post-cesarean women have become
extremely knowledgeable about the on-going dangers of Cesarean surgery and
are extraordinarily committed to avoiding non-emergent operative
deliveries in any future pregnancy. A significant number of these
women were horrified to learn the long list of serious intra-operative,
post-operative and “down-stream” complications. Often they were already
upset about a possibly unnecessary primary Cesarean and felt betrayed by the
medical profession for failing to give them the full story. Shocked and
angry they often refuse, during subsequent pregnancies, to return to what is
to them the “scene of the crime”. (See
enclosed article from Sept 2002 Mothering Magazine)
However, they are
presently forced to choose between a “prophylactic” cesarean delivery
that they do not want or, if they are “lucky”, a prophylactically
medicalized vaginal delivery in which they are confined to bed for the
entire labor, tethered with IVs lines and the electronic fetal monitor. To
them, this type of care is indeed the “scene of the crime” as it was
these very interventions that contributed to the unwanted Cesarean in the
first place. And for many families even this problematic option requires
them to drive as much as a 100 miles while in labor to one of the few
hospitals that will “permit” a natural VBAC labor. (see LA Times VBAC article)
As with the breech
situation, this denies to childbearing family the normal range of options
and results in women with identified risk factors choosing home-based
midwifery care as their only hope to avoid this type of over-treatment and
the far-reaching risks of major abdominal surgery. This is far from an ideal
situation for all parties and one which begs for a more elegant solution –
i.e., the best outcome being physiological management in an institution
under the midwifery model of care. I personally am not likely to live long
enough to see this rational solution implemented but hope springs eternal.
Since the majority of Cesareans are performed on well
educated, middle and upper class women with private health insurance, it is
no surprise that post-cesarean mothers have done extensive research of
scientific literature. Aware of the many serious and on-going complications
of post cesarean pregnancies, some have published articles in various
magazines on the dilemmas facing women such as themselves. They call us to
look at the real but relatively rare risk of issue of uterine rupture during
a normal spontaneous labor in a new light. Reputable studies identify
rupture rate (including both benign dissidence and true ruptures) as between
0.6 % and 0.3 %, with perinatal demise of 5% of that small
number or one out of 2000 post-cesarean vaginal births
[ObGynNews,
Vol 37, May 1, 2002; Perinatal Death Risk in Term VBAC Pegged at 1:1000].
One of the most recent and extensive studies on VBAC safety (from Scotland)
identified the perinatal risk for a VBAC patient as identical to a
first-time mother. Post-cesarean mothers lose the “multip advantage” –
the biological benefit of having successfully delivered vaginally before.
But it is not lost on post-cesarean mothers that their situation,
statistically-speaking, is no different than it was the first time around.
Many of them are far more comfortable with and willing to accept the
irreducible physiological risk than the increased rate associated with a
“prophylactic” cesarean and its long-lasting consequences.
Those mothers who have experienced the intense
medicalization of labor as counter-productive and realize that as
individuals they are powerless to impact on the ACOG “system”
(unfortunately an accurate perception), choose to labor out of the hospital
and assuming they progress normally, give birth at home. They will do this
with or without professional attendants. If licensed midwives aren’t
allowed help her, the baby’s father, a women “friend” or some other
unskilled, inexperienced and unequipped helper will be substituted.
Regulations prohibiting LMs from attending a spontaneous (i.e., lowest-risk)
VABC labor are counter-productive as they deprive both mother and baby of a
professionally trained, skilled, experienced and equipped midwife. This is a
human rights issue for the baby who needs to have his mother receive care at
the highest level she will permit. In particular the unborn /newborn baby
benefits by having a skilled first responder present as the normal garden
variety risks to the baby are 12 times more likely to be a problem than
his mother’s VBAC status.
MBC’s
Relationship to Non-Consensual Obstetrical Care and Full Disclosure of Risks
Associated with Obstetrical Treatments: The particular dilemma for the MBC has three aspects. The first
question is the issue of non-consensual obstetrical interventions. Does the
MBC think it appropriate to be part of a system that forces women to choose
between non-consensual and risky medicalizations or the risky “options”
– a professionally unattended labor and birth? How can one square that
with the MBC’s legislative mandate to protect and provide for consumer
safety? How does the BMJ/Lancet study of institutionalized violence against
women in reproductive services relate to the issue of non-consensual
medicalization of pregnant women with identified risk factors?
Secondly, what is
the role for the Board to assure that childbearing women are actually in
full possession of all pertinent facts for both up-stream and down stream
complications in regard to maternity care offered by California licensed
practitioners (both doctors and midwives)? LMs must, ethically speaking,
reveal the full picture in regard to all identified risks associated with
each particular mother’s pregnancy status as well as how community-based
midwifery care differs from obstetrical services in a hospital. It is
equally appropriate for obstetrical providers to reveal both long and
short-term complications of all obstetrical interventions and procedures
(including the consequences of non-physiological management of normal birth)
so that consent or decline of treatment by maternity patients is based on a
full set of facts.
The third thorny
dilemma for the MBC is the question of exactly what mathematical model to
use to determine the basis for an “acceptable/unacceptable” risk for
mothers and unborn or newborn babies -- some theoretical number or rate of
perinatal and maternal losses which would be used to determine whether a
laboring woman "qualified" for care by California licensed
midwives. The legal theory of non-discrimination would require this
mathematical formula to account for the risk ratio of the entire spectrum of
pregnancy-related conditions and medical interventions. Midwifery risks and
obstetrical risks would be analyzed side by side, on a risk-rated continuum
with healthy women, spontaneous labors and normal childbirth under midwifery
(physiological) management at one end and the most intensive and extensive
medical and surgical interventions and Cesarean surgery under obstetrical
management at the other end.
For example, the
fetal loss rate of amniocentesis is approximately 1%. In general, society
recognizes the right of the childbearing family to decide to have this
procedure performed and if the results indicate a possible congenital or
chromosomal abnormality, to have the pregnancy terminated (a procedure with
a 100% mortality rate). Should amniocentesis be the benchmark that we would
use to measure identified risk factors such as vbac, which in spontaneous
labors (no Pitocin, Cytotec, prostaglandins, epidural, forceps or
vacuum extraction) are four times safer (1:400) than the 1% rate of fetal
demise rate for amniocentesis. What ever mathematical model was used, it
would be necessary to assign numerical values to the tripled rate of
maternal deaths, emergency hysterectomies, and other complications of the
"maternal choice” Cesarean and figure them into the perinatal loss
ratio for an aggregate number.
In addition it
would be necessary to acknowledge that the “physiological” management of
labor is the ‘basic’ and safest management of normal birth – the
“Gold Standard” of safe maternity care. Therefore, the increased risk
ratio associated with elective inductions, off-label use of Cytotec and the
vastly increased rate of operative deliveries associated with these and
other interventions that accompany the use of continuous electronic fetal
monitoring and epidural anesthesia would need to be quantified and assigned
a relative rate of “excess” risk. Statistically speaking, the
“identified risks” under discussion for midwives have a significantly
smaller risk-ratio than the “routine” interventions that currently
accompany the typical medicalized and mechanized labor under obstetrical
management.
A Better Way:
May I suggest a straightforward way to transform this situation from a
prickly imponderable conundrum into a simple “problem” with a reasonably
straightforward solution for the Board. I would like to encourage the MBC to
acknowledge that the current legislative language of the LMPA is the best
definition of “appropriate” scope of practice for licensed midwives.
Since 1917, the midwifery provision of the MPA has consistently defined the
scope of practice of a midwife to be that of attending a “normal” birth
– childbirth in essentially healthy woman in which labor occurs
spontaneously, without the use of “artificial forcible or mechanical
means”.
Artificial,
Forcible and Mechanical Means - Pathology and the Practice of Medicine:
For 85 years the use of hormonal drugs to artificially induce or accelerate
labor, the use of mechanical forces such as “boggies” to dilate the
cervix or fundal pressure to hasten delivery, the use surgical instruments,
obstetrical forceps, vacuum extractors to cut, suck or pluck the baby out
– all these are defined as “not normal” or “abnormal” parturition
which is both the practice of medicine and the legal and ethical purvey of
the physician. Functionally speaking, “normal” translates into a normal
pregnancy at term, fetus/fetuses in a stable vertical lie,
spontaneous onset and spontaneous progress of labor without evident
medical complications for either mother or baby. Pregnancy-specific
informed consent must accompany all activities of California licensed
practitioners, and that includes special consideration of any identified
risk factors and/or exceptional circumstances.
Were we to accept
the historical and contemporary language of the LMPA as the appropriate
definition of a midwife’s practice, we would have the opportunity to focus
our finite time and energy on other important issues. For example, the Home
Birth Demonstration Project from British Columbia (see Outcomes of planned home birth
versus planned hospital birth after regulation of midwifery in British
Columbia; 2002, Journal of Canadian Medical Association)
included an expert review panel that reviewed and made recommendations
relative to all home births in which there was an emergency transport, an
adverse perinatal outcome or some interagency or interprofessional
communications issue. While that maybe a bit ambitious, it certainly would
be possible for LMs to report adverse maternal-infant outcomes and for those
records to be reviewed by a standing midwifery committee and recommendations
relative to improved continuing education or other measures designed to
prevent similar problems.
But regardless of
how the above dilemma is resolved, it would be a violation of my conscience
and the ethical obligations of my religion to fail to respond to the genuine
needs of mothers and unborn or newborn babies, even in the face of an
identified risk factor. Whether I practice under state licensure or as a
religious practitioner under the religious exemptions clause (sec 2063), I
cannot abandon these ethical responsibilities. If the mother can face the
small but real risk of her situation as a laboring woman, is brave enough to
cope with many hours of active labor and give birth without anesthetics,
then it behooves me to face the small but real risk to myself as a guardian
of the well being of her and her unborn/newborn baby.While this may seem
odd, one must consider what we would think of a police officer who refused
to answer an emergency call because he heard gun shots or a fire fighter who
declined to enter an occupied building in which someone reported smelling
smoke, out of fear for their personal safety. Many emergency personnel
climbed those twin towers in NY on 9/11 and did not flinch in the face of
such obvious danger.
Laboring women and
their babies are always safer with an educator observer with emergency
response capacity providing care than they will be alone with only family
members or an untrained, ill-equipped and inexperienced lay provider. As
long as there are healthy women having normal labors and giving birth at
home, there will be a need for community midwives. What would be best would
be to equip them to do this difficult job at the very highest level
possible.
I apologize for the length and complexity of this letter.
Unfortunately, it is a complex topic and a complex situation. I look forward
to our next meeting at the Jan 30th Midwifery Task Force meeting
in LA.
Warm Regards,
Faith Gibson, LM, CPM
Executive Director, ACDM, California College of Midwives
========================================================================
Cc:
Dr Gary Gitnick, MD, President, MBC
Dr Michael Karlan, MD, President, DOL
Dr Richard Fantozzi, MD Mfry Task Force
Salma Haider, DOL, Mfry Task Force
Donna Gerber, DMQ, Mfry Task Force
Enclosures:
(1)
Exploration
of Specific Identified Risk Factors in Healthy Women – Breech,
VBAC
(2) A Table
of Contents for a master copy of three-ring notebook for the MBC
staff (Sacramento office). It contains articles on the LMPA/SB 1479
amendment and Judge Roman’s Decision, examples of Standards of Midwifery
Care for nurse midwives, MANA and New Zealand, the nature and advantage of
physiological (i.e. midwifery) management and the routine practices and
interventions of obstetrical practice, especially “elective” Cesareans,
post-op complications and post-cesarean pregnancies issues. Sources are
various peer-reviewed studies and other professional sources such as
Ob.Gyn.News and the lay press.