Dr. Neal D. Kohatsu, MD, MPH
Medical Director, MBC
1426 Howe Ave, Suite 54
Sacramento, CA 95825-3236
RE: April 6, 2001 Meeting
with Midwives at MBC offices
Dear Doctor
Kohatsu,
I want to thank you for your
time and kindly attention to the concerns of California Licensed Midwives. I
am especially pleased to have forged the first tentative link relative to
regularly scheduled communication with key members of the Medical Board
staff. I hope that it is a mutually fruitful arrangement.
There remains some confusion
among us as to the particulars of the current policy of the MBC relative to
physician supervision agreements, the Osborn Decision, amendments to the
LMPA as introduced by Senator Figueroa, relative information documented by
the Senate Office of Research and on-going investigations and potential
disciplinary actions by the MBC which arises out of the inability of
midwives to secure physician supervision agreements.I am writing to you for clarification.
If I understood correctly, the
MBC’s current policy is to investigate all reports of LMs practicing
without a physician supervision agreement, a policy unchanged by Judge Roman
decision in the 1999 Osborn case. You explained that a judge’s ruling in a
single case does not have any particular legal significance (i.e., is not
precedent-setting), as it may well be overturned by another judge in a
future case. You also mentioned the possibility of a midwifery case going
into the criminal court system with an entirely different or contradictory
ruling. However, other participants in the meeting understood you to
indicate that you have an opinion from the Attorney General’s office that
requires the MBC to investigate & discipline midwives for unprofessional
conduct if they do not have physician supervision agreements. If so we would
appreciate a copy of this ruling. If not, we need to know the specifics of
your policy and its rational.
It is the general understanding
in the midwifery community that the Osborn Decision modified the Medical
Board’s enforcement responsibilities in regard to the physician
supervision clause, as it officially acknowledged that compliance with the
supervision clause is a legal impossibility. Inability of LMs to
technically comply with the statute was ascribed by the judge to the
“hostility of obstetricians” toward community-based midwifery, the fact
of economic competition between doctors and midwives and prohibitions placed
on physicians by malpractice insurance companies. Were the MBC’s premise
in the Osborn case to have prevailed (i.e. revocation of licensure
for LMs found to be practicing midwifery without a physician supervision
agreement) the consequence, as noted by Judge Roman, would be that no
childbearing woman in the state of California who chose to have a home birth
could be competently attended by a state-certified midwife. Judge Roman
concluded this would render the utility of professional licensing for
direct-entry midwives nil, as this classification of practitioner would be
unable to provide the very services for which they are trained and otherwise
licensed to provide.
Based on these facts Judge Roman
acknowledged other criteria for satisfying the ambit of the licensing law,
criteria that addresses the rational behind the supervisory clause (i.e.
access to appropriate medical services as a necessary consumer safety
requirement). In this aspect of his ruling Judge Roman recognized the
midwife’s faithfulness to the spirit of the law through physician
consultation and other working “arrangements” even when the politics of
organized medicine prevent her from being able to fulfill the letter of the
law. Under this interpretation the amended midwifery practice act (SB1479)
provides a formalized mechanism for informed consent, which also documents
how the midwife and mother together are prepared to meet any potential
medical needs that may arise during pregnancy and birth. This is done by
identifying a physician or group of physicians that the childbearing women
would have access to for consultation or transfer of care, a hospital that
she could transfer during the intrapartum and emergency arrangements for
mothers and babies.
If the impact of the Osborn
Decision and the newly expanded “informed consent” mandated by SB 1479
does not affect the Board’s official policies relative to the acknowledged
inability of midwives to secure physician supervision agreements, then our
organization and its members needs to know the particulars as soon as
possible.
I look forward to your
clarifying comments and copies of any pertinent documents such as an opinion
by the Attorney General.
Warm regards,
Faith Gibson, LM, CPM
Director, ACDM/CCM
cc:Senator
Liz Figueroa, author SB 1479 Ron
Joseph, Executive Director, MBC Carrie
Sparrevohn, LM, CPM, Chair, California Association of Midwives Frank
Cuny, Director, CCfHF