MBC-Midwifery Licensing Implementation Committee 

Meeting #3, June 6, 1994 

/ Tape 1 (of 3), side b

Sacramento, Medical Board Office

Verbatim transcription of audio tapes recording the preceding of the Midwifery Implementation Committee -- Dr. Joas and Stewart Hsieh, Co-Chairman

Members MBC present: -- Dr. Joas, MD; Stewart Hsieh, JD; Dr. Schumacher, MD

MBC staff present: Linda Whitney, Anita Scuri, JD, Tony Arjil, Rick

California Legislators: Senator Lucy Killea

Lobbyists: Joan Hall, CMA; Judge Gordon Cologne, JD and Mr. Barnaby -- malpractice carriers

Consumers: Todd Gastaldo,DC; Kathy McChesney

Other professional witnesses: Steve Keller, JD; Shelly Scalla, MD (obstetrician from Oakland)

Midwives (partial list) : Tonya Brooks, CPM; Shannon Leahy, Maggie Bennett, CPM; Maria Iorillo, CPM; Faith Gibson, CPM

Continuation, side b - cassette { prior conversation regarding challenge process}

Dr Shelly Scalla -- Collorbration versus supervision
Judge Cologne -- Anti-trust and discrimination against midwives
Steve Keller, JD -- on lack any any data identifying home-based care as riskier

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New Topics

Dr. Joas, addressing Dr. Shelly Scalla, (obstetrician): We always ask a ‘new person’ to introduce themselves:

Dr. Shelly Shalla: My Name is Shelly Scalla, I’m an Ob-Gyn. I haven’t been to the meetings so I don’t know what you have been discussing.

Dr. Joas: We’ve been discussing implementation of midwifery.

Dr. Scalla: I understand that. So what I can only talk about is my general feeling about that. What I feel is that although I’m an obstetrician, and as an obstetrician I have some skills and knowledge that I can impart to midwives, midwives certainly have a lot that they can teach an Ob-Gyn, particularly about normal birth. It is clear that ... with midwives, even with a similar population, they have a lower cesarean section rate than obstetricians so clearly they have something to teach us as well. 

So what seems to happening is that we’re leaning towards physicians directing midwives but I think we maybe need to look at it from the other way as well. What about if every time I did a cesarean section I would consult with a midwife to see if that section was appropriate because they have much more knowledge about that, about avoiding cesarean sections. So I think its important that we look at both side of it and see how we can both learn from each other and not just think of it in terms of physicians regulating midwives.

Dr. Joas: I don’t think we are looking at it in terms of physicians regulating midwives and I’ll use that term ‘regulate’. I think were using the word ‘supervise’ in its broadest term and perhaps we can even use the word ‘collaboration’, to take something from the Netherlands, O.K. And I would agree with you when you said that perhaps the cesarean section rate is different, taken from the Netherlands. How do you see your role in sort of a collaborative, supervisory role, placing yourself on the line for somebody else’s actions in the field?

Dr. Shelly Shalla: Well, I see my role as a collaborative one rather than one who is required, -- let me backtrack. I think it is collaborative and it should be mutually collaborative. As I said before, there are ways midwives can teach me and things that I can teach midwives. And I would say that if we would were to say that ... midwives were required to have physician backup than perhaps physicians should be required to backup midwives. That’s one point.

Dr. Joas: How do you feel about signing some kind of contractual arrangement with the midwife’s client and the midwife and yourself or having a contract between the midwife and the client on which your name might appear as the backup physician. That the first part of the question.

Dr. Shelly Shalla: Well, I wouldn’t have a problem with that if it was a midwife that I knew and I knew her practice .....?.... I think that there is also the issue of insurance.

Dr. Joas: That was the second part of the question.

Dr. Shelly Shalla: Well it seems to me is that physicians that backup midwives aren’t able to get insurance. And I think that’s actually a major problem and so I think that we have to require insurance companies to back us up if we are going say that we need to backup midwives.

Dr. Joas: Thank you.

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Shannon Leahy: So does the fact that insurance companies don’t have coverage of home birth midwives prevent you from backing up midwives?

Dr. Shelly Shalla: Definitely, even thought in my heart I want to do that, I would feel totally constrained, not being able to because of insurance concerns.

{missed dialogue -- unable to hear Shannon Leahy’s question}

Tonya Brooks: Could that be looked at as a restraint of trade issue?

Dr. Shelly Shalla: Yes, definitely.

Dr. Joas: Anita, can you address the restraint of trade issue?

Anita Scuri, JD: I’ll try. I’m not sure what the restraint of trade argument actually is...

Male Voice: I could talk about it but I’m not sure what the issue of restraint of trade really is..{unable to transcribe}.

Dr. Joas: Somebody explain restraint of trade to me.

Judge Gordon Cologne, JD: I don’t profess to be an expert in the subject either. However my first job out of law school was with the anti-trust division of the US Department Justice and I don’t say that this give me any better qualifications than Anita has, but I would say this, that the insurance companies do have a right to impose certain regulations. For instance, we will not insure an ophthalmologist to do cataract removal unless that doctor has the experience, background and special training in that subject and we will not give him coverage for removal of cataracts if he doesn’t have those things. Same thing with a surgeon, we won’t give him insurance to cover lipo-suction for example, unless he has training . If there are certain elements that impose a heavy risk, for example, in their practice, we can select certain risks that are outside the scope and in the past we have said, now I don’t know how they will do it in the future, none of us know, but in the past they have said home deliveries create a special risk and we don’t insured on them.

Now in an anti-trust action, if they were to bring it, they would say that your insuring physicians but your not insuring physicians against all their risks and who knows what the Supreme Court would say. They might say .. ‘but if you insure physicians and exclude the lay midwives’, for example, that might be an exclusion but if they say you exclude home deliveries because of an increased risk, that would probably be all right. And to my knowledge nobody has ever excluded the use of any professionally-licensed person for the doctors extraordinarily coverage, provided of course, its within a risk they wish to assume.

So anti-trust is designed to cover a broad field where there is no other exclusion except discrimination, they are discriminating against a profession, and if you find the insurance carriers discriminating against a profession that’s one thing. If you find them discriminating because of an increased risk factor, that’s another thing. And I should also tell you that if these regulation occur, and there are a lot of doctors who want it, I’m sure the carriers make a determination of what the risk factor is and will probably provide that insurance but at a premium that will reflects that extra risk factor and not in a discrimination against the midwives.

Dr. Joas: What about the possibility of imposing on the insurance companies some sort of regulation that says ‘if you want to do business within state of California, you have to accept the ----?-----, and the liposuckers and so forth? Is that a conceivable thing or would you say O.K, we choose not to do business in California and we’ll go to Illinois or someplace where the legislation is more conducive to our business purposes?

Judge C: I would think you could do that, you would have to do it by legislation and if the company choose to stay in California or they could leave California as they did in 1975. If they choose to leave California, there is nothing you could do about it. The firms that Mr. Barnaby and I represent are all dedicated to stay in California and assure physicians we would stay here, but to do that we would have to make a premium commensurate with the risk. And if we had to carry every doctor, whether he had training or not, we would probably have an outrageous premium for the doctor to pay.

Steve Keller, JD: If it were commensurate with the risk, I mean I think no one here would suggest that the insurance company be required to insure someone without a rational analysis of the risk. But to say, just off hand, like you seem to be assuming that there is some massive increase in home birth risk, especially with people who have the qualifications they will have under this licensure, seems to me is assuming a lot.

Judge C: All I’m telling you is what our underwriters tell us. We haven’t had an analysis by an actuarial firm because we haven’t had a request for those kinds of services. Most of our physicians are willing to operate in a hospital and they get coverage for that and we have determined the exposure there and are covering doctors, no matter who they use, if they use them, a licensed person, in an acute care facility.

Dr. Joas: Let me quote here from the British Journal of Obstetrics, 1986. This is a comparison between the organization of obstetrics in Denmark and Netherlands and what they are really talking about is the movement in Denmark to more in-hospital deliveries in comparison to the Netherlands, which is staying in an out-of-hospital birthing situation. I’m just going to chose three words -- one of them is ‘perfectionism’, the other is a quote ‘labor is only normal in retrospect’ and the third is ‘collaborative’. That’s where I got a lot of my most of my recent information, thanks to Faith {Gibson}and Don Creevy and an interview with Don Creevy that Linda Whitney and I had over the early part of May during one of our traveling expeditions around the state of California. Reminding you again of what I said this morning -- that if we had a comparable social organization to what exists in the Netherlands and Denmark, then perhaps we wouldn’t need to be sitting here today.

And then spinning on from there, I’d like to talk about supervision in terms of what happens in other states, how do other states handle the term ‘supervision’ or the term ‘collaborative’ and so forth and I think Rick has some information with regard to that and can enlighten us a little bit.

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Cross talk between Dr. Joas and Tonya Brooks -- can’t transcribe--
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{Major discontinuity -- (10-20 minutes) conversation about finding a suitable educational program and a midwifery school in California for the licensing of already practicing midwives. Legislative changes were being discussed between Tonya Brooks and Joan Hall}

============================ resume dialogue================

Joan Hall: No, actually, the CMA didn’t want a challenge mechanism, quite frankly, and we had opposed initially a challenge mechanism. So we sat down with the midwifery community and said "OK, let’s talk about this" and we did talk about it and said the challenge mechanism should be similar to that required for CNMs and that is what you have in the legislation and that is what was mandated in the law.

Tonya B: Well that ----?---- helps a lot because there are no schools recognized in this state for lay midwives, there are schools out there but they are not recognized and they certainly don’t have accreditation...

Joan Hall: Well, those are the facts as they are now. I’m not going to belabor the point at all with you...

Todd G: referring to an earlier comment by Tonya B. about sueing the Legislature: You don’t sue the legislature, you write a bill, you ask somebody to write a bill

Dr. Joas: That’s what I said.

Todd G: ....and actually that’s on the time-line on Doug Lawe’s original time-line, the last item, I believe, it was for July, was to introduce clean-up legislation. And you as a member of the medical board have come up against a wall that she is describing, it looks like a restraint of trade thing and in fact, in Ob-Gyn news of September 15th 1993, CMA member and ACOG member Vivian Dickerson was quoted as saying that ‘physicians held out for a physician supervision clause so as not to issue an invitation to home birth’. So I don’t know about restraint of trade against individual practitioners but they were definitely intending to subvert, apparently to subvert in advance, the homebirth provision of the bill.

And so I would ask that the medical board look at this fact and the Medical Board to get behind legislation. This would be the first time in history that the Medical Board got behind it and ask somebody to write a bill, perhaps taking physician supervision out. The midwives never ask for it, they ask for a consultative relationship so that’s something the Medical Board could do. These midwives have been running since 1978, I believe, maybe a year or two before that, and they have been constantly trounced. And the last time, when Judge Cologne was here, he said his liability insurance carriers didn’t have a problem with the bill until the midwives put in a physician supervision clause, but they all just shouted out in unison "The CMA put that in" and Vivian Dickerson tells us why, to subvert home birth, that’s my word. {cross talk from Joan Hall} No, its a quote from Ob-Gyn News, it says ‘so as not to issue an invitation to home birth", that’s there.

Joan Hall: But for the record, the legislation was not crafted to prohibit home birth. The legislature was crafted to insure that there was a quality practitioner out there, to insure that wherever birthing is taking place, regards of whether or not it is in a hospital setting or in a home setting, it is done in a manner that is done safely and you have a practitioner that the consumer of these particular services can rely upon. {cross talk, Todd G:} And I’m not going to argue that point with you either.

Todd G: The CMA was insisting that hospital births are safest, that’s been the myth for 30 years and it is no longer, there is no evidence to show that, so to say that your in favor of safe birth, they can say they are in favor of safe birth, they just don’t have....... Here’s the San Jose Mercury News editorial on the subject of this SB350 bill. The Mercury News said ‘Why are we working to keep midwives out? Because the powerful medical establishment, lead by the CMA, doesn’t like the competition’. It s right in the San Jose Mercury News.

Joan Hall: Obstetricians and family physicians have more births than they can handle. We have over 600,000 births in California, but we’re way off the track here.

Todd G: I think its right on the track.....

Dr. Joas: Let me respond, if we can’t come to a conclusion, an enactment of the legislation with this particular venue or the Medical Board can’t do that, we can take it under advisement and perhaps reach sort kind of an agreement at that level and the Board move in the direction that your suggesting.

Todd G: Ok but your going to go home to a legal practice and their going to go home to a semi-legal, kind of illegal practice. {end of tape one, continued on cassette #2-aa}

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