RE:
MBC Prosecution Policy ~ “practicing midwifery without a physician
supervisor ”
Short
cut to Supportive Documentation
Dear Mr. Joseph,
I
would like to bring to your attention to a situation that concerns me
greatly. Yesterday a California licensed
midwife sent me copies of two MBC letters signed by the supervising
investigator of the Pleasant Hill district office. (exhibit
1 ~ 3 letters, Discussion Paper, Phys Superv Regs - MBC)
The letter dated 10-31-01 informed her that a closed case had
been reopened and forwarded to the State Attorney General with a request
they consider disciplinary action against her license for practicing
midwifery without a physician supervisor. The original letter, dated
7-16-01, informed her that a “quality of care” complaint had been
resolved in favor of the midwives after an investigation which included a
meeting and chart review by a neonatalogist engaged by the Board. The
original letter stated: “the conclusion of our expert reviewer was that
your actions were within the standard of care and we are closing our
file on the matter…”. If
rumor is correct, identical disciplinary action by the Board is in the
process of being implemented against 6 other California LMs. As there are
only 75 California LMs currently practicing in the state, this figure
represents 10% of the total pool of professional midwives providing
community-based birth services.
As we are all painfully aware,
California physicians are unable and/or unwilling to provide supervision for
LMs, with one tiny exception – those LMs who are actually in the employ of
a physician and function only in that capacity, (i.e. do not attend
births). Licensed midwives all over California have, en masse, sent
certified letters to every obstetrician listed in their area in an attempt
to secure supervision. Doctors either did not respond or returned their
letters marked “Not interested” or “No, my malpractice carrier will
not permit me to supervise home-birth midwives”. The California College
of Midwives has more than a 100 of these refusal letters on file. (exhibit
2 ~ sample letters from physicians, unable/refuse to supervise, transcript
MBC meeting - Judge Colonge, Norcal, Doctors Co lobbyist The Alison Osborn Decision acknowledged the
legal impossibility of compliance with this provision in August 1999. In the
fall of 2000 the Senate Office of Research conducted a statewide “LM
practice survey” at the request of Senator Figueroa, with more than 50% of
California LMs responding. (exhibit
3 ~ 16 page report from S.O.R.) This S.O.R. study again documented
that physician supervision is not available or workable for California LMs
who provide community-based birth services.
The unavailability of
professional liability insurance for community midwives was often identified
by CMA spokespersons as the real “reason” that doctors dare not have any
professional association with midwives but in fact, the American College of
Domiciliary Midwives secured a group malpractice insurance policy in July
1998 without any improvement in the “locked-out” status of insured
midwives. I too “practice
midwifery without a supervisor” despite my twenty years of experience
as a L&D nurse, an excellent reputation as a community midwife, 3 years
of professional liability insurance and my best efforts to be in compliance
with every dot and juttel of the LMPA.
As an example of how much worse
this situation has become I have included a copy of a letter from an
obstetrician sent to a client of mine. (exhibit
5 ~ client letters documenting refusal of medical care) Their OB
group had been providing “concurrent” care to a mother who was only 7
months pregnant. This insured and medically compliant pregnant woman was
summarily discharged from their care when the nurse midwife accidentally
learned that the mother was hoping to give birth at home if her pregnancy
remained healthy and her labor at term was normal. The letter explained that
their malpractice insurance contract prevented them from even providing
prenatal care to any pregnant woman known to be seeing a midwife, for
fear the physician might be sued for care rendered by the midwife.
These same malpractice carriers
do not prevent obstetricians from consulting, collaborating or providing
concurrent care to pregnant women who are seeing other practitioners --
physicians, chiropractors, acupuncturists or nutritionists or other kinds of
healthcare providers. Malpractice carriers do not prevent obstetricians from
accepting referrals of the very highest-risk mothers who may be drug
addicted, non-compliant teens, HIV-positive, carrying triplets, in premature
labor or suffering from complex medical problems such as cancer, kidney or
heart disease. In theory doctors “could” be sued in any and all of these
complicated circumstances but only the small theoretical risk attributed to
licensed midwifery (one not substantiated by any statistical analysis) spurs
this drastic and near-total lock out of medical interface. The answer to
this seeming conundrum is that doctors, chiropractors and other healthcare
providers are not subsumed under the supervision of physicians. As
independent practitioners they (and not the obstetrician!) are responsible
for their own torts and as a result, the obstetrician is not prevented from
being available to consult with them or to provide medical services to their
patients.
As someone personally involved in
the original passage of the LMPA, it was obvious that the American College
of Obstetricians and Gynecologists’ insisted on a mandatory “physician
supervision clause” precisely because it would not work for doctors or
midwives, thus guarantying that domiciliary midwifery would remain
technically illegal in spite of the passage of a licensing law. (exhibit
4 ~ ACOG, CAOG policy statements) This anti-midwife, anti-homebirth
agenda by ACOG was documented in public statements made by District IX AGOC
representative Dr. Vivian Dickerson in the trade paper OBGyn.News
(Sept 1993).
In public ACOG portrays physician
supervision as stepping stone to guarantee access to medical services and
therefore crucial to consumer safety. In actuality mandated physician
supervision is the “poison pill” purposefully chosen to be a stumbling
block. Dr. Dickerson revealed this not so subtle agenda in ObGynNews,
saying: “….physicians held
out for a guarantee of supervision rather than a more ‘collegial’
sort of relationship, which was, we felt, an invitation to home births.
….” “What this means in practical terms, is that instead of the
midwife being in charge and telephoning the physician to consult or for
referrals, the physician is ultimately responsible for the patients…”
In the letter from Norcal (malpractice carrier) dated 5-18-99, this
is reiterated as “The M.D. has the ultimate responsibility, liability
and authority.”
During MBC Midwifery
Implementation committee meetings in 1994, Judge Colonge, lobbyist for
Doctors and Norcal insurance companies, referred to the language of the
original bill (which identified the physician-midwife relationship as
‘consulting’ before being amended at the request of the organized
medicine lobby to read ‘supervision’), saying: “we
[malpractice carriers] weren’t opposed to it because it was consulting and
the doctor was given immunity except for bad advise. Now its totally
different [since its] been amended and made him a supervisor. He is liable
whether he gives bad advise or not”. Judge Colonge goes on to say: “I’m
…talking about the one who is taking on the role of supervisor. That’s a
very significant legal issue here, because if you’re a supervisor, you
have vicarious liability. …What we’re concerned about is the vicarious
liability that a doctor assumes when the doctor takes on the special
relation as a supervisor”. In short ACOG purposely put its
obstetricians uninvited into the position of having unnecessary and
unnatural liability and then points to that vicarious liability to establish
why doctors can’t possibly provide the very supervision their own
professional organizations insisted upon.
There has already been one
documented stillbirth directly attributable to this artificially created
road block which keeps both midwives and mothers from timely access to
medical services. Two physicians (one OB and another a perinatalogist) and
the director of nursing for the only Chico hospital all refused the request
over a 3 day period of time of licensed midwife Diane Lawrence to provide a
non-stress test (NST) to a mother who was 41 ½ weeks pregnant. The baby
died in utero of placental insufficiency (the very condition a fetal NST is
designed to reveal so interventions can be implemented to prevent a bad
outcome) before the parents could make arrangements in a near-by town. 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 and in some many instances, are actively
hostile and even take retaliatory actions against both mother and midwives.
Retaliation Against OOH Midwifery
I know of two occasions of
medically unnecessary Cesarean sections done by physicians as retaliation
against midwives and families choosing domiciliary midwifery. In these two
separate incidences, licensed midwives Tosi Marcelene and Veronia Falcao
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% (exhibit
6 ~ five articles on placental & other complications of CS from
ObGynNews). To expose childbearing women to this risk because
obstetricians have a “philosophical” objection to licensed midwifery is
a very bad practice of medicine.
A family member who was herself a
California physician reported one of these unnecessary CS incidents to the
Medical Board. The Board told the family that they do not investigate
“ethical complaints”. A
complaint against the Chico perinatalogist was filed by the obstetrician who
ultimately delivered the stillborn at another hospital and yet there was no
disciplinary action taken against the perinatalogist that refused
preventative care to its mother. 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.
To add insult to injury, these
same non-compliant or retaliatory physicians happily and repeatedly file
complaints with the medical board whenever midwives appropriately transport
a laboring woman to the hospital. All of this has occurred simultaneously
with the passage of the LMPA amendment (SB 1479 as authored by Senator
Figueroa), which identifies normal childbirth as a normal biological process
and not a medical condition and that childbearing women anticipating a
normal birth have the right to choose maternity care from the safe options
in their community, including midwifery and home based birth services.
However, if “practicing midwifery without a physician supervisor”
is categorized by the MBC as a crime, there will be no “state-regulated”
options for community-based birth services available in California.
“A Collaborative Relationship with Physicians
…. Satisfies the Ambit of the Law”
I believe the following quotes
from the Alison Osborn decision by Judge Roman are both informative
and instructive. Judge Roman noted, “No California physician supervises
licensed midwives who undertake home births for reasons related primarily to
liability exposure (i.e., malpractice insurance does not extend to cover
physicians who undertake such supervision). It is also established that a
small minority of California physicians object to licensed midwives
and will not undertake their supervision on philosophical grounds*.”
His finding of fact goes on to
identify that the “the medical community of obstetricians is hostile to
licensed midwives”. “The evidence presented this tribunal further
establishes that, with the exception of one licensed midwife who is also a
licensed physician assistant, no California licensed midwife, despite
efforts for supervision, possesses a supervising physician except as
referenced in Finding 14. …
“… avidly seeks, along with other midwives, to be part and
parcel of the healthcare team that serves the residents of
California.” …
“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.”
…."[m]idwifery presumes that childbirth is a healthy and normal
event. … Midwifery involves "socially-oriented preventive care, which
incorporates prenatal care and a concern for the social and emotional
aspects of pregnancy and birth in order to meet the individual needs of each
woman.” “Decision making is
collaborative.”
“Were this tribunal to employ
the medical model on licensed midwifery, as Complainant urges, no
home births could be competently assisted. Mindful that licensed
midwives, with only one exception presented before this tribunal, possess no
hospital privileges, the legislation would function to permit …. persons
to possess a license that would not be functional anywhere within the State
of California. This tribunal declines Complainant's offer.”
“In an effort to promote the
efficacy of the Act, this tribunal concludes, at this time, that a
licensed midwife who possesses a relationship with a California physician
and surgeon as referenced herein has feasibly and reasonably satisfied
the ambit of the Act. Accordingly, cause does not exist to revoke or
suspend the license of Respondent pursuant to Business and professions Code
section 2519(e), in conjunction with sections 2507(a) and 2507(b), for
unprofessional conduct arising from lack of supervision as set forth in
Findings 13-14 and 17-23. *underline
emphasis added
When I met with Dr Kohatsu last
April he stated that he did not consider the Osborn decision to have
any precedent-setting function. He subsequently sent a letter to me (exhibit
1) reiterating that the Osborn decision was not
“precedential” and the official policy of the Board was that LMs are
obligated to be in full compliance with all provision of the LMPA including
physician supervision, irrespective of its legally established
impossibility. (exhitit
7 – letter from NorCal Malpractice carrier
doctors “cannot supervise, consult with or back-up any midwife for
home birth). I was surprised and concerned about this last spring. In
light of the events of September 11th, I am more than a little
perturbed about a policy that seems to me to violate the public trust and
sacrifice public safety.
It appears to most Americans that
we desperately need to improve and expand public health and medical
services, given our obvious vulnerability to weapons of mass destruction and
injury from biological, chemical and nuclear warfare. This contemporary
situation provides us with a long over due opportunity to set aside the
medical community’s irrational bias against midwifery and instead
integrate community-based midwifery and LMs into an improved and dynamic
health care system.
As community/domiciliary
practitioners, we have a particular type of healthcare education and
practical skills (ones that function even if the electric power goes out!)
that would be generally useful if or when high tech hospitals and medical
services were overloaded by terrorists attacks or natural disasters. Under
these circumstances it would be unthinkable to expose healthy mothers and
babies to the biohazards of a hospital environment contaminated by large
numbers of patients gravely ill with smallpox or other contagious diseases.
Because licensed midwives are so intimately involved in community and family
life, we are in an excellent position to be first responders / first alert
via our opportunity to detect early signs of infectious or unusual diseases
and report them to public health official. Midwives would be ideal
practitioners to deal with the many “worried well” that are scared but
probably not ill. Experts report that for every one person actually affected
by a real disease, between 10 and 20 people will seek emergency room
services, triggered by anxiety and fear, further swamping emergency medical
services.
Were hospitals called upon to
provide emergency care to a large number of ill or injured citizens, who
would be better able to triage and provide safe maternity care to healthy
women than community midwives? In such extreme situations we do not want the
limited number of hospitals and other scarce lifesaving medical resources to
be misdirected to healthy women when many critically ill patients will die
without immediate medical attention. National civil defense manuals
published after World War II identified that normal childbirth is not a
medical condition and in times of national emergency, laboring women should
not be hospitalized for all the above reasons. Obviously it would be an
unnecessary tragedy if my grandchildren or your family members could not get
life-saving medical care because 20% of hospital beds were unnecessarily
devoted to normal maternity care, on the mistaken assumption that there are
no other options for safely managing normal childbirth. Given the same
cohort of healthy women with normal pregnancies, midwives have a surgical
delivery rate of 2 to 10% in comparison to obstetrical rates of 22% to 40%.
In a national emergency it would be vital to have access to this traditional
knowledge base for avoiding unnecessary cesarean surgeries.
It appears that public safety
requires us to put aside the historical prejudice, turf wars and
institutionalized non-cooperation between medicine and midwifery. Instead
physicians and midwives must learn from one another and develop a functional
trust and appreciation of one’s another’s professional abilities so that
we can work together in the public interest in times of crisis. This is a
golden opportunity for the Medical Board to take on a leadership role in
this need for an improved and highly functional emergency medical care
system in the state of California.
A Midwife’s Plea for Gentleman’s Agreement
It appears that Judge Roman’s
finding in the Osborn case provided the Board with ample information and
instructions to resolve this impasse. These legal theories were subsequently
reiterated and expanded upon in the Figueroa amendment to the LMPA (SB 1479)
and it’s finding that normal childbirth is not a medical condition and
identifying midwifery as protective and preventive health care. (exhibit
8) Judge Roman identified that midwifery is distinctly different from
medicine as it is based in a social relationship between mother and midwife
that is quite different from the remedial medical therapies offered by
physicians, physician assistants and nurse midwives. Legal issues should
therefore be judged by midwifery and not medical criteria. (see accompanying
report to 1994 MBC Midwifery Implementaion Committee)
In medicine, the physician is the
‘essential’ ingredient. In midwifery, it is the mother who is
essential. In the latter equation, the skilled midwife is engaged in the
art of working with the natural characteristics of healthy biology. In many
areas of modern life we engage the services of healthcare professional
depending on what we hope to achieve. We expect their knowledge base and
skills as a practitioner to be perfectly tailored to the demands of their
specific professional discipline. For example, we would not go to a
orthopedic surgeon for back pain if what we wanted was a chiropractic
adjustment or acupuncture treatments. Hospital-based ob-gyn surgeons excel
in interventive medical and surgical interventions but have little or no
first-hand experience or skills in physiological management of unmediated
labor and spontaneous birth. Their 20-plus % CS rate is evidence that the
expertise of obstetricians lays elsewhere. Logically a healthy childbearing
woman who has chosen to employ the subtle systems of normal biology and who
is seeking physiological (instead of medical) management of her pregnancy
and parturition, would need to have unfettered access to a licensed
community midwife in order to achieve her goals.
In regard to the issue of
physician supervision, Judge Roman identified that “it satisfies the ambit
of the law” when midwives have made a good faith attempt to secure a
supervisory relationship and failing that, to have a method identified for
physician collaboration. Since the passage of the amended LMPA, this would
extend to the documentation of medical interface arrangements as mandated in
2508. According the Senate Office of Research, 83% of respondent midwives
(84.7% of LMs practicing in the state) LMs have some combination of
collaborative and/or consultative medical relationship (i.e. “working
arrangements”) either with individual physicians or with teaching/tertiary
care hospitals. (exhibit
8 ~ SB 1479 LMPA amendment / Intent
section, Informed Consent UCSF Home Birth transfer + 9 sample letters to
midwives from physicians or institution)
Last but not least, there is the
urgent need, in light of the events of September 11th, to
integrate licensed midwifery into our public health care system. There is a
growing concern about the MBC’s use of its limited resources of monies and
staff to engage in the selective prosecution of competent midwives for
failure to have a legally impossible relationship with obstetricians who,
frankly, do not want (nor are they legally mandated) to supervise midwives.
This prosecutory policy simultaneously wastes the professional education and
capacities of midwives to contribute to the public safety and welfare while
it also turns a blind eye to retaliation by obstetricians.
Asking medical doctors to create
an unnecessary and unnatural vicarious liability for themselves by
volunteering to supervise practitioners of an entirely different and
non-medical discipline is a very curious thing to do and in the final frame,
a fatally flawed strategy that is not consistent with its goal of consumer
safety. Physicians are neither educated or licensed in the non-medical
discipline of midwifery, they are not professionally familiar with
community-based birth services, have never attended or even been present
during a domiciliary labor or birth and have no interest in ever providing
home-based services themselves. In addition to this natural tension is also
the undeniable reality that physicians and midwives are economic competitors
and this fact of life prejudices obstetricians against cooperating with
midwives. For the last hundred years the balance of power has been
extremely weighted toward organized medicine and away from midwifery, to the
determent of the public safety.
My request is two-fold.
First we are asking for specific information on the current number and
status of disciplinary actions against LMs. In particular, we need to know
how many midwives are currently being investigated or prosecuted for
practicing midwifery with a physician supervisor? And the second request
is that, in the name of consumer safety and the legislatively acknowledged
right of childbearing women in California to choose the “safe option” of
a licensed midwife and home-based maternity care, the Osborn Decision
be accepted as the operative foundation for medical board policy. I look
forward to your response. I already mailed a position paper on this topic to
the Sunset Review Committee and look forward to seeing you at the hearing on
December 4th.
Faith Gibson, LM, CPM
Executive Director
California College of Midwives
CC:
Senator Liz
Figueroa, California Legislature
Bill Gage, Joint Legislative Sunset Review Committee
Frank Cuny, California Citizens for Health Freedom
Carrie Sparavohn, LM, California Association of Midwives
John
Kennedy, Attorney
Snyopsis
of 1994 Report for MBC Mfry Implementation Committee
(origin -- CNM legal source)
/ How to protect physicians from vicarious liability
Exhibition
Directory:
1.
Sample Documentation on Physician Supervision Controversy ~
(a) Legislative Memorandum,
Office
of Governor Earl Warren, 1949 repeal of mfry application for state
certification -- notes that midwives, unlike nurses "operates
independently and not under the supervision of a physician";
(b) 1977 Letter from Chief of OB-GYN,
Stanford University Hospital, vitriolic opposition to midwifery
licensing bill;
(c) Three Letters from MBC to à
Faith Gibson,
to Dana Fox Letter
July 01, Dana Fox Letter Oct 31,
(d)
Discussion Paper, MBC Phy Supervision
from 1994 Mfry Implementation Committee Meetings,
(e) Transcript
Judge Colonge, Lobbyist for 3 doctor-owed California
malpractice carriers, former lobbyist for CMA
(f) 1997 MBC "Action Report"
quarterly newsletter to all 100,000+ California doctors, requesting
all those interested in providing physician supervision to contact MBC
(there were no responces);
2.
Sample letters from
physicians, why they are unable to have supervisory relationship
under provisions LMPA
(a) Letter from
Marsden Wagner, MD, MSPH
(b) letter from obstetrician
Don Creevy Re: AB1418, supporting midwives and collaborative
relationship between LMs and obstetricians;
(c) Midwives writing to
obstetricians asking for their participation as supervisors and several
their negative responses from those physicians: 1. Sue
Tinseth; 2. North County Coastal
Midwives letter and replies 3. Certified Letter receipts from Midwives writing to
obstetricians asking for their participation as supervisors
3. Senate Office of Research
13-page report on the Survey of California LMs
4. ObGynNews 9/15/93 article,
ACOG policy statements on Home birth
and Abortion, CAOG letter
1980, CAOG letter & List of
accomplishments, Mar 2000 & CAOG
letter & Doctor's Opinion on LMs, May 2000
MBC Status Report on Health Policy
1993 "allied health care
professional has not done really done anything to benefit patients ...due to
the way they are used....they. really only serve to increase income of
physicians",
5. Client letters documenting
refusal of prenatal care because they were seeing a midwife and/or
planning a home birth
6. Letter from Norcal Insurance
Company May 1999 stating that doctors “cannot supervise, consult with or back-up any midwife for home birth”
7. World-wide
CS and Infant mortality rates compared -- US one of highest CS rate
without lowing infant mortality; Synoptic articles from ObGynNews
on the short and long-term complications of Cesarean surgery, including abnormal
placentation such as previa, accreta and percreta ~ ElectiveC-Section
Revisited - Aug 1, 2001; Placenta
Previa, Hx C-Section up Risks Accreta Risk, Sept 15, 2001; Cesarean Rate Portends Rise in Placenta Accreta,
Mar 1, 2001; Cesarean
Birth Associated with Adult Asthma, Jun 15, 2001
8. SB 1479 Intent
Section, UCSF Home Birth Consent
Concurrent care and/or hosp. transfer; Synopsis of 1999 Osborn
Decision on Phys Supervision; Specific
Arrangement for Access to Medical Care for Clients of California LMs;
+ letters to
midwives from physicians or institution documenting successful methods
for appropriate
interface between clients of midwives and medical careproviders 1. North
County Clinic; 2. Loma Linda
Univ Hosp 3. From Karen Baker,
LM; 4. San Francisco Gen Hosp;
5. Working arrangement between OB
group and Six San Deigo LMs & CNMs