College of Midwives

Excerpts from Transcripts 
of Medical Board of California Midwifery Implementation 
Committee Meetings:

Quotes relating to legislative history of Physician Supervision

Comments identifying multible reason  why physician physician cannot work (such as vicarious liability)

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. ... youíve got to accept it at that point and youíve got to say "OK, now we have to go back and get additional cleanup legislation". Thatís how I see it and thatís 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 thatís 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 thatís 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 wouldnít let you get it through.

Judge Cologne:       Iím ... talking about the one who is taking on the role of supervisor. Thatís 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 thatís presented to you as an emergency, thatís 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 canít do because we have a legal restraint of requiring the word "supervisorial" so we canít turn the clock back at this time in relation to implementation of this bill which would be simpler if we didnít have that and it would eliminate the vicarious liability.

Nancy Chavez, Senator killeaís 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:     Thatís 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:  Thatís different than saying weíre still going to tack on a $50,000 per years surcharge for the vicarious liability which prices it out of anybodyís functioning under it. 

Judge Cologne: I canít

Dr. Schimel: I understand you canít guarantee it but I think as representatives of the industry, we need to have some reassurance as weíre trying to implement this bill that thereís some good faith, I mean we need that as well as we need good faith from everybody else in this room about how weíre 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 donít 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 donít know whatís 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 wouldnít 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 hasnít 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. Iím quite confused. It seems like from an obstetricianís 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, heís 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 thatís 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 thatís 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. Laueís 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 didnít 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 Killeaís 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 wasnít 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 Ďlegislative wisdomí was actually the CMA, we are finding out, but Iím saying 

Judge Colonge:     untranscribable ... right Lucy...

Todd Gastaldo:     continues: And Iím 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 Ďso as not to issue an invitation to home birthí. In other words according to at least one CAM-ACOG member, who is a professor of obstetrics at UCLA, Dr. Vivian Dickerson, the CMAís 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 CMAís active opposition to it, otherwise it was never ....{untranscrible} the legislative process. So it think thatís 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 donít 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 wouldnít 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:     Iím 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 wouldnít 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 weíve heard quite a bit lately, which is why Iím 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 weíve 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 thatís been restated. If that was the case, thereíd 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 didnít 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. Iím 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 Iím 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.

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

Judge Gordon Cologne, JD:     I donít 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 donít 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 doesnít have those things. Same thing with a surgeon, we wonít 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 donít 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 donít insured on them. 

Now in an anti-trust action, if they were to bring it, they would say that you're insuring physicians but you're not insuring physicians against all their risks and who knows what the Supreme Court would say. They might say .. Ďbut if you insure physicians and exclude the lay midwivesí, 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 thatís one thing. If you find them discriminating because of an increased risk factor, thatís another thing. And I should also tell you that if these regulations occur, and there are a lot of doctors who want it, Iím 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 Ďif 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 weíll 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 Iím telling you is what our underwriters tell us. We havenít had an analysis by an actuarial firm because we havenít 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. 

Iím just going to chose three words -- one of them is Ďperfectionismí, the other is a quote Ďlabor is only normal in retrospectí and the third is Ďcollaborativeí.  Thatís 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 wouldnít need to be sitting here today.

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