Persons
Present
Dr
Joas, anesthesiologist appointed to the MBC by
Governor Pete Wilson, & Chair of Midwifery Implementation
Committee, which met 7 times from Mar to Sept 1994
Judge
Cologne, Lawyer and Malpractice Carrier Lobbyist
Joan
Hall ~ California Medical Association Lobbyist
Obstetricians
Dr. Leon Schimel
(Davis, CA) and Dr
Shelly Scalla (Oakland)
Senator
Lucy Killea, California Legislator, San Deigo
Nancy
Chavez, Adm Aide for Senator Killea
Anita
Scuri, Senior Counsel for MBC
Kathy Forcas,
consumer advocacy group "C.A.L.M." (Citizens for Licensed
Midwifery):
Todd
Gastaldo, homebirth father, consumer advocate
Tonya Brooks,
California
Licensed Midwife
Steve
Keller, Lawyer and advocate for the California
Association of Midwives
Dr.
Joas: Legislation is the art of compromise.
... you’ve got to accept it at that point and you’ve got to say "OK,
now we have to go back and get additional cleanup legislation".
That’s how I see it and that’s the name of the game.
Judge
C: Doctor, if I could make a comment on that
very point. We think the CMA has come a long way. When
I used to work for the CMA, which was 4 years ago, I was handed the same
bill and I was told to kill the bill and I did. The bill died. Now
you find the CMA accepting the bill, they supported this bill when it came
through.
Joan
Hall:
This was the first time the medical association was willing to sit
down and discuss it and understand the need to legitimize this process
because you {the midwives} definitely have something to provide.
... we believe that the standards that are in
the bill are standards that make for safe, capable practitioners. Yes, we
believe in the standards in the bill. ...
there will be competent capable practitioners under the standards that are
set up in this bill. So we very much believe in the standards in this bill.
Judge
Colone: If you're talking about a consulting
capacity and that’s the way the bill was worded
originally, we weren't opposed to it because it was consulting and the
doctor was given immunity except for bad advice. Now that’s totally
different from when it was amended and made him a supervisor. He is
liable whether he gives bad advice or not. He might be liable
because he did not investigate well enough the qualifications of this lay
midwife. There are a lot of things that can make that doctor liable.
With the lay midwife, we
knew from the very beginning that what she wanted to do was home deliveries
and in home deliveries, if you have a consulting capacity, we don't have
a problem with that ....
Judge
C: If you went back and said that the supervisorial
relationship will constitute no liability except for
advise for given to the lay midwife which is improper it would solve
an awful lot of problems but the trial lawyers wouldn’t let you
get it through.
Judge
Cologne:
I’m ... talking about the one who is taking on the role of
supervisor. That’s a very significant legal
issue here, because if your a supervisor, you have vicarious liability
... If your a backup doctor and just taking the case that’s presented to
you as an emergency, that’s not a supervisorial role. You may have
some liability but every obstetrician has that.
What were concerned about is the vicarious
liability that a doctor assumes when the doctor takes on this special
relationship as supervisor.
Dr.
Schimel: Obviously, the simplest (solution)
is something we can’t do because we have a legal restraint of requiring
the word "supervisorial" so we can’t turn the clock back at
this time in relation to implementation of this bill which would be simpler
if we didn’t have that and it would eliminate the
vicarious liability.
Nancy
Chavez, Senator killea’s legislative Aide:
...since we keep talking about the problem in the bill with
supervision, since that seems to be the problem, that nobody can control
here, ummm, if it were a consultative relationship
in the law, would none of this discussion have to take place?
Anita
Scrui, Senior Counsel, MBC: That’s
correct
Dr. Schimel:
But would the law been passed that way?
Nancy Chavez:
No
Dr. Schimel: So its a circle
===========================================================
Last MBC Midwifery Implementation Meeting
held at MBC headquarters, Sept 23rd 1994
Dr. Schimel:
That’s different than saying we’re still going to tack on a $50,000 per years surcharge for the vicarious liability which
prices it out of anybody’s functioning under it.
Judge Cologne: I can’t
Dr. Schimel: I understand you can’t guarantee it but I think as representatives of the industry, we need to have
some reassurance as we’re trying to implement this bill that there’s some good
faith, I mean we need that as well as we need good faith from everybody else in this room about how we’re going to work.
Judge C: Let me tell you about one major block and this is something I think everybody here can understand. If you
have 3 people come in and ask for insurance, the premium will be so high. If you have 200 people come in
and ask for insurance, the premium will be a lot less because these people who request insurance have to
spread the loss between all the people who are asking for insurance. So the number of applicants is going
to be a guiding factor. Now I don’t know how many people are going to have a license to practice
midwifery in California. But I can tell you the presence of the people from the insurance industry here today and
I can tell you I have good faith, now I don’t know what’s going on in the board of directors meetings. Now I know
the attorney that represents NORCAL and the underwriting chief were here last time and expressed their
willingness to make this thing work if it can. But there are a lot of obstacles which nobody can address at this
point.
Dr. Schimel: I mean I understand that, I would just say that if the vicarious liability charge, what ever that is determined
to be, is based upon volume as opposed to any level of actuarial experience, I would say that historically, as they
have done in the District of Columbia, and Susan Jenkins was a big part of that case,
all the exposure is already calculated in the obstetrical premium, having nothing to do with additional expense to an insurance company for
working with a midwife, certified or not, becoming licensed in this system that I would say, from what I
understand about this system, that there wouldn’t be any need for a
surcharge.
Judge C: Well there is a surcharge for a nurse midwife.
Dr. Schimel: I understand that and I have just explained why the District of Columbia insurance commissioner
stated there was no actuarial basis for it, you see what I mean. That hasn’t been accomplished in this state.
Judge C: (talkover) That may occur in this state.
Dr. Schimel: (continues):
......actuarially, there is no data to support a
surcharge
========== Jun 1994, Tape Two =====================
Judge Cologne:
I can understand what was going through your mind and of course, what was going through my
mind was how we protect doctors.
Shelly Scalla, Oakland obstetrician:
I actually have a question. I’m quite confused. It seems like from an obstetrician’s
perspective the best role, in terms of actually getting insurance, is a consultant. So why is
it......
{interrupt} -- Judge Colonge:
No let me explain...
Dr. Scalla: ..... because you said that was how you were going to insure obstetricians who were going to backup
midwives, in the consultant role, not as a supervisor........
Judge Cologne:
When the bill was first introduced it was in the language of a consultant not as a supervisor. The
responsibility of a consultant are a lot less. The legislature, in its wisdom, went for the supervisory capacity which
is more responsibility placed on the doctor. When the consulting language was in there it said the doctor would be
responsible only for bad advise. You see now, with the supervisorial relationship, he’s liable for a lot
more....
Dr Scalla: Well, so clearly, its a barrier, being a supervisor is a barrier to me as an obstetrician who
backs up midwives, as opposed to a consultant. I want to know why that’s happened because if we want to implement the
law then we need to have obstetricians that are willing to back up midwives but that will never,
obviously that’s not going to happen...
Joan Hall: From the medical association perspective the
physicians of the association agreed to --?-- the bill they
--?-- the only way they could work was in a supervisory capacity and not in a consulting
capacity.
=========================================================================
Todd Gastaldo, homebirth father:
I think there is a solution to that, the last item on Mr. Laue’s time line was clean-up legislation and Dr.
Joas suggested that I wait till Senator Killea came here to broach the subject. And actually there was a good
preface to the subject when Judge Cologne said he didn’t know why this came under the medical board and why
.... the professional midwives were put under the medical board. The fact of the matter is,
according to Senator Killea’s bill as it was amended in the Senator on April 15th 1993, the bill would require the
state department of health services to issue a license but the initial legislative wisdom was to put it under health
services. And then Joan Hall said after that, she kind of indicated and I think correctly that it wasn’t really
legislative wisdom that changed it from a consultative relationship to a supervisoiral relationship. She said that it
was the CMA, basically.
Senator Killea:
ACOG and the California Medical Association. Yes, that was the only way we could ...
Todd G continues:
OK, but what Judge Cologne termed ‘legislative wisdom’ was actually the
CMA, we are finding out, but I’m saying
Judge Colonge:
untranscribable ... right Lucy...
Todd Gastaldo:
continues: And I’m saying that we could easily go back to the legislation using Mr. Laue time line and
introduce what he called clean up legislation in other wards, clean out that which was put in by the CMA,
expressly, according to Vivian Dickerson of the CAM and ACOG ‘so as not to issue an invitation to home birth’.
In other words according to at least one CAM-ACOG member, who is a professor of obstetrics at UCLA, Dr.
Vivian Dickerson, the CMA’s position, she said, held out for physician supervision instead of a more collegial
relationship, it was collegial not consultative, so as not to issue an invitation to home birth and I say that is counter
productive and I think it ought o be clean out with clean up legislation. And you said you might support it Doctor
Joas.
Senator Killea:
The one problem is, if I may, is clean up legislative also has to go through the whole legislative
process. And the fact that this took so long to do and had so many amendments and it finally got out was
simply because we were able to remove the CMA’s active opposition to it, otherwise it was never
....{untranscrible} the legislative process. So it think that’s reality, we did not have the votes without making this compromise. This is
what we had to come up with.
Kathy Forcas, president of consumer
advocacy group "C.A.L.M." (Citizens for Licensed Midwifery):
And I represent the consumers who go to ,,, midwives. I just wondered, is there a way to take that
supervisory clause and define it such a way that the doctors don’t have liability, that there insurance representative
has trouble with, in other words, if it said consult and not supervise there would be absolutely no problem with
insurance because the doctors wouldn’t be liable. Can the supervisory word be in there but we define it in such a
way that it takes the liability off the doctor?
Dr. Joas: I’m not sure that we can define it any more clearly than its defined without ....?..
Judge Colonge:
If you went back and said that the supervisorial relationship will constitute no liability except for advise
for given to the lay midwife which is improper it would solve an awful lot of problems but the trial lawyers
wouldn’t let you get it through.
Tonya Brooks:
So its the trial lawyer, the insurance companies and the AMA?
Male Voice: and the Medical Board.
Judge Colonge:
You got it.
Joan Hall:
The CMA gets to speak once again. As Senator Killea know we worked with you for months, hundreds
of hours were spend on this legislation. And with the full knowledge that homebirth would be
occurring. And I think one of the things that we’ve heard quite a bit lately, which is why I’m very glad that both Mr. Cologne and
Barnaby are with us today so that some of the angst will be squashed a little bit with respect to insurers actually
pulling insurance from physicians. The thing we’ve heard a lot of is that
automatically that if a physician has any kind of relationship with a license midwife that their insurance coverage is going to be pulled and that in fact, is not
the case. And that’s been restated. If that was the case, there’d be no purpose to this bill -- physicians would not
be getting into relationships with licensed midwives. We certainly entered into this bill in good faith and as Senator
knows it was not real easy to turn the physicians around on this particular issue.
Senator Killea:
You didn’t turned them all around either!
Joan Hall: No, we did not Lucy and I still get a lot of calls! And we want to continue to work obviously in this kind
of environment because the whole purpose of the legislation is that we do have an opportunity for consumers this
kind of services to have this particular kind of choice. I’m not even going to get into your concerns regarding the CMA. But we want to continue to work with you on
this and I think that one of the things I’m certainly going to request my organization to do is take a look at this
particular form that Rick handed out to us and se if maybe that is a workable, some variation of this form might be
some kind of a workable way to identify supervisory relationship where maybe physicians at some point in their
licensure process can verify that yes, indeed hey do work with this particular midwife. You as a regulator have the
responsibility to determine whether or not the 4:1 ratio is met that is in the bill. This may be a mechanism that we
might be able to work on.
