This testimony is to be accompanied by a document packet passed out to each of the 7 senators. It has excerpts from 3 dozen documents, usual a single page or two containing a specific quote highlighted in bright yellow. It is in the form of a report booklet with ten sections, each one with a numbered tab so that the reader may turn directly to the specific information, as any of us refer to the topic while speaking.
Two Table Demonstration: Two card tables, each covered by a blanket, one on each side of the speaker's table. One represents the certifications/qualifications, skills and equipment of professional midwives. The second represents the lack formal qualitifcations, training, equipment, etc of birth attendants practicing lawfully under the religious exemptions clause.
The first will have an example of the normal equipment and emergency supplies that midwives are trained and skilled to use (doptone, BP cuff and stethoscope, lap-top sized electronic fetal monitor, cylinder of 02 & Ambu bag, pulse oxymetery, IV fluids, anti-hemorrhagic drugs, etc) plus framed certificates of my California license, national CPM certificates, neonatal resuscitation and my malpractice insurance.
The second table has nothing on it. At the appropriate time in my testimony i will uncover the two tables with an explanation of each. The point is to offer legislators the opportunity to choose which system appears to best protect consumer safety. At present the well-trained and equipped LM is the "illegal" practitioner and the unequipped birth attendant is lawful.
I want to thank you for the opportunity to bring the concerns of many people besides myself to the attention of this legislative body. I am speaking today on behalf of the California College of Midwives, which is a professional organization representing the legal and legislative interests of California licensed midwives. In addition to my professional duties as a California licensed midwife I am also a mother, a grandmother and a citizen concerned about the ever-increasing cost and limitations of choice in health care for consumers coupled with decreasing safety and satisfaction.
Before addressing the specific issues of SB 1479 I would like to provide a little background information on myself and the topic of midwifery:
I am the mother of 3 adult children and for the last several years have lived with my daughter’s family in an inter-generational household which included 2 small grandchildren. Professionally I was an Labor and Delivery and Emergency room nurse for 17 years before cross-training in midwifery. I practiced lawfully under the religious exemptions clause as a Mennonite midwife for 14 years. In 1994 I was nationally certified in midwifery by the North American Registry of Midwives. In 1997 I became licensed under the LMPA. I have been present at approximately 3500 birth, the majority in hospitals and about 700 in domiciliary setting, either client homes or free-standing birth centers. I continue to provide labor support services to mothers planning hospital births in order to keep current in both realms. As a community-based midwife I have never had a bad outcome for either mother or baby that was the result of my midwifery care or the parent’s choice of a home birth. CS rate in my practice for mothers beginning labor at home is 1% and perinatal mortality rate is zero. In spite of these favorable statistics, the number of physicians willing to provide supervision is also zero.
I’m the current director of the California College of Midwives. I have also testified in court as an expert witness in midwifery cases and have been identified by the Medical Board of California an expert reviewer in regard to consumer complaints and disciplinary matters. In the last 12 months I have developed a set of evidence-based guidelines and standards of practice for California licensed midwives by combining practice standards & protocols from jurisdictions which have a successful direct-entry midwifery programs and community-based birth care as a part of their national maternity care system. These sources include the WHO (1), the Netherlands, England and British Columbia. Our guidelines, which are entitled "Characteristics of Clinical Competency", [35, 36] have been favorably reviewed by physicians, lawyers, consumer advocates, nurse midwives and an expert in evidence-based obstetrical and midwifery care. They are currently posted on our web site for critique by the public and California licensed midwives. After incorporating this feedback a final version will be voted on by our membership.
Two years age I organized a professional liability insurance consortium for community midwives. Currently I administer a group policy under the umbrella of the American College of Domiciliary Midwives which provides affordable malpractice insurance to 53 licensed and certified nurse midwives in three states. [38] We have $500,000 coverage for home-based care and 1 million for birth centers and hospitals. [41] Our insured midwives have attended approximately 1200 births with only one reported incident. Our claims history over the last 18 months is zero. Were the supervisory clause removed from the LMPA we would be able to organize a separate group policy to cover consulting physicians.
I have the distinction of being the only midwife in California to practice simultaneously under the provisions of both the LMPA and the religious exemptions clause. However I am notorious in that I was arrested in 1991 by agents of the Medical Board and held in jail on a $50,000 bond. There was no bad outcome or consumer complaint involved in the criminal prosecution of me, instead it was an attempt to use me as a test case to nullify the religious exemption clause in regard to midwifery practice. After 21 months, 16 pre-trial hearing and $30,000 in legal expenses the charges against me were dropped and the deputy district attorney of Santa Clara county acknowledged that my practice under the exemptions clause was lawful.
The dismissal of the criminal case against me followed a conversation with the DA in which he acknowledge that any lay person in California could legally assist a women during normal childbirth and that it made little sense to prosecute a midwife for doing what any other citizen could legally do. At that point he recounted a conversation with the Medical board about my case. The DA said "I told those guys at the Medical Board that if they wanted me to keep prosecuting midwives they were going to have to get some new legislation passed." I want to mention here that this occurred 8 years ago under a different director of the agency, one who was forced to resign not long after. There have been a lot of positive changes in the Medical Board since that time and I harbor no grudges against them for this incident.
Within 45 days of these events the CMA approached the author of SB 350. A compromise was struck in which the CMA was permitted to gut the bill as written by midwives and replaced it with a slightly modified version of the nurse midwifery statues. Legally speaking the LMPA creates a category of direct-entry midwifery that is "equivalent but not identical" to a certified nurse midwife. This includes a 3 year training program based on the same educational curriculum and the same scope of practice as CNMs. In addition to the same misspelling of the word "episiotomy" in both statutes, the LMPA also contains the same "fatal flaw" -- that is the mandating of physician supervision which originated in the 1974 CNM bill. Before 1974 California midwives were not required to have a physician supervisor. A memo from Governor Earl Warren’s office in 1949 regarding the status of certified non-nurse midwives, states that the duties and powers of nurses and midwives were quite different and that midwives operated independently and not under the supervision of a physicians and would continue to do so despite the other changes in the midwifery provision. [11]
When the language of the midwifery practice act was taken over by the CMA it made ongoing problems both for midwives and the families we serve. The original version of SB350 was a pilot project that would have created a study in which each midwife’s practice would have been registered and evaluated for 3 years by a local family practice physician or obstetrician in order to collect data on the safety of her home-based midwifery services. Since this protected the doctor from vicarious liability, it would have given midwives an opportunity to develop positive and cooperative relationships with physician in which we could learn from one another and about one another. It would also have given the midwifery community time to develop California-based professional training programs and the opportunity to develop guidelines and standards of practice to enhance consumer safety through uniformity of practice. This plan for the orderly professionalization of what was formally known as "lay midwifery" was swept away when the CMA usurped our own law for its own purposes. Direct-entry midwives are slowly rising above these difficulties but it has been an up-hill struggle.
For the last 25 years the American College of Obstetricians and Gynecologists has formally declared that birth services be restricted to acute care hospitals which meet the standards of their organization. ACOG just reaffirmed this official opposition to home birth again in 1999. [15, 16] Technically speaking it would be a violation of professional standards of practice for a board certified obstetrician to provide supervision to a community-based midwife since such an arrangement is condemned by ACOG as unprofessional.
It is a conflict of interest of the highest order for a competing profession to be put in the position of gatekeeper over midwifery practice. [12] It must be noted that the LMPA does not mandate that doctors provide supervision to midwives, only that midwives obtain supervision. Also it is totally illogical for a medical profession which is not trained in midwifery to be put in a position of "sole" authority over home-based birth services provided by midwives. Medical schools do not teach the philosophy, principles or technical skills of midwifery to med students. {21] This obstetrical textbook does not even contain the word midwife in the index. Of these two textbooks on the table the one written in the US has only 2 out of 1500 pages on the conduct of normal childbirth. [22] The other one, written for world-wide distribution, has 3 full chapters on physiological labor and birth and includes extensive discussions contrasting medical and "midwifery" thinking. In the US doctors are not trained or permitted to even attend a planned home birth so their direct experience is zero.
In spite of the official opposition by organized medicine, some knowledgeable obstetricians have a very different viewpoint . I quote from correspondence between obstetricians posted on the ObGyn Internet discussion group for medial professionals: The topic was non-nurse midwives and the safety of home-based birth services and most comments were negative. However Dr. Garry E. Siegel wrote:
"As an Obstetrician, I have learned that when things are left to themselves, things usually turn out ok. In essence, we represent expensive "insurance policies" to those giving birth in a hospital under our care. ... how could we ever get enough numbers to compare outcomes with ... midwives, given the infrequent ... complication rate of childbirth, especially seemingly low risk ... ones". ~ ob-gyn-l@obgyn.net 1/17/97.
In response to critical comments about non-nurse midwives Dr Beverly Miller said: "all major studies EVER done (see the literature) support the fact that trained ... midwives (i.e., pass a licensure exam ... etc) have as good or better stats in out of hospital settings than obs do in hospital. The morbidity/mortality rates are lower in comparable pregnancies, the midwives frequently do a better job of risk reduction management, score higher in perceived quality of care (time element and rapport development count a lot here). I've heard physicians say that if one of the midwives they backed up lost a baby, they were convinced that they, too would have lost it. There are rotten apples in every barrel, my friend. Pluck them out and go on. Don't sacrifice the benefits of utilizing the rest for the well-being of community maternal-child health. Find a good midwife in your area and give her some support". ob-gyn-l@obgyn.net 1/31/97 [?? 9 & 10]
Irrespective of these enlighted words it is abundantly clear that attempts to mandate physician supervision are unworkable and unsatisfactory for many reasons. It doesn’t work for doctors, [18] midwives, [26] the Medical board, malpractice carriers and in regard to consumer safety. It creates an unnatural vicarious liability for the physician, [27] makes it impossible doctors to find other physicians to take call for them and by their own account, threatens their hospital privileges. [20] Six years after the passage of the LMPA only one out of 111 LM has been able to secure a lawful physician supervisor and she is also licensed and practices as a Physician Assistant. Since the ascendancy of managed care, supervision has become unworkable from the standpoint of the families as 80% of Californians are members of an HMO which would not pay for care from the midwife’s supervising physician.
Supervision is unworkable from the perspective of physician-owned malpractice carriers who have no actuarial data to support their discrimination against community-based midwifery care but do so in fear that the supervisory will clause an increase in litigation. [17] Their directives have resulted in doctors being told they may not provide concurrent care to any patient planning a midwife-attended home birth [19] and that they may not have any professional association with midwives providing community-based care, [18] may not consult by phone or even offer advise in event of an emergency.
The supervisory clause is also unworkable for the Medical Board. In 1997 they ran a short article in the Action Report which has a circulation over 100,000 physicians, asking for potential physician supervisors to contact them. [13] They received no responses. Now statutory law is in conflict with case law. In a precedent-setting case brought by the MBC "direct or accountable physician supervision of licensed midwives" was deemed legally unavailable in a disciplinary action against a licensed midwife accused of unprofessional conduct for failing to have a physician supervisor. [14] After 5 days of testimony the judge found in favor of the midwife and went on to say that the midwife defendant along with other licensed midwives, were clearly seeking to be part and parcel of the healthcare team that serves the residents of California." The decision stated that:1) midwifery was a separate and distinct discipline from that of the practice of medicine;
2) midwifery standards of practice were unique from that of medicine’s
The judge observed that no home births could be competently assisted if the supervisory clause were strictly interpreted as the enabling legislation, instead of authorizing professionally-based midwifery care, would (and I quote) "function to permit trained persons to possess a license that would not be functional anywhere within the State of California." In essence he found that the law as written represented a legal impossibility. He ruled that if midwife had made a good faith attempt to find a supervising physician and being unable, consulted, collaborated, referred and transferred care to at least one physician she had fulfilled the spirit of the law and her license could not be revoked. Under such circumstances the midwife "has feasibly and reasonably satisfied the ambit of the Act".
I’d like to mention that midwives provide care to both a mother AND a newborn baby and yet the supervisory clause only applies to obstetricians, not neonatalogists or pediatricians. The supervisory clause keeps midwives from getting the cooperation of obstetricians while we are easily able to easily confer with perinatologists. Without vicarious liability the baby’s doctor is free to interface with the midwife without fear. By recognizing that midwifery and the practice of pediatric medicine are two separate disciplines, a natural "firewall" is created which protects the physician and increases easy and timely access to medical care, to the benefit of the baby and in support of consumer safety.
The only current function for physician supervision is as an insurmountable barrier to the technically lawful practice of licensed midwives while remaining totally irrelevant to unlicensed birth attendants and those functioning under the religious exemptions clause. The supervisory clause is also no barrier for those many families who are choosing an unattended birth which is 30 times more risky than ones with a trained midwife. All it does is set a trap for state certified practitioners while increasing the demand for care from unregulated and at times, inexperienced birth attendants.
Organized medicine has attempted for the last 100 years to eliminate the independent practice of midwives, always assuming that if they could block the training programs, prevent state licensing and/or the practice of professional midwives, then childbearing women would on their own accord all come to hospitals to be cared for by doctors. However, this has never been the case. For the last 30 years a constant 1% of childbearing women in California have chosen to give birth outside of hospitals. This figure applied before, during and after the passage of contemporary midwifery licensing acts. Those families deserve access to a skilled and state certified midwife. Most especially their unborn and new born babies have a fundamental human right to have the health of their mother’s pregnancy be monitored with the assistance of a skilled practitioner and their births be attended by an experienced professional. [23] Good care requires that each childbearing woman have as much access to medical services as her circumstance allows and her family is willing to utilize. For the last 30 years community midwives have been making specific ‘working arrangements’ for each and every mother, depending on geographical location and her health insurance or MediCal status (or lack of thereof). These arrangements generally fall into one of the following 5 categories and represent the various types of backup /referral/ transfer of care.
Mother-initiated / HMO -- The most mutually satisfactory arrangements are for families who belong to HMOs, especially Kaiser, as they simply see their HMO caregiver in early pregnancy for lab work and to create a hospital record of the pregnancy. These mothers subsequently receive the bulk of their antepartum, intrapartum and postpartum/postnatal care from the midwife. If there is any need for additional lab work or diagnostic tests they return to Kaiser. If a transfer of care during labor is necessary, the midwife simply accompanies them to the Kaiser facility and provides a report (and chart records) to the admitting physicians or nurse midwife. HMOs likes this as it save them money.
Mother-initiated / Tandem or Concurrent Care-- Families with good healthy insurance coverage may arrange for concurrent care -- seeing an obstetrician through out the pregnancy, independently of the midwifery care.
Mother-initiated / Family Doctor -- A small number of client families have prior relationship with a physician who is willing to see them occasionally during the pregnancy and has agreed to provide care for them in the hospital should they change their mind about laboring at home or need medical services.
Midwife-initiated Informal Arrangements with Specific Physicians - In some communities there are specific obstetricians willing to take referrals, occasionally consult by phone and accept a transfer of care during labor. Most of these doctors do not want to see the patient ahead of time as that creates vicarious liability. They will only make themselves available in event of a transfer of care in which they had no prior contact with the expectant mother before she is admitted to the hospital.
Hospitals as Proxy -- In some communities there are such a small number of options due to geographical circumstances or hostility by the medical community that no physicians are willing to consult or accept a transfer of a mother who planned a home birth. In those communities families must agree to be transported to a specific hospital and cared for the resident staff or on-call physician in the event of an emergent circumstances for either mother or baby. [24]
As a religious practitioner I am not required to have a physician supervisor. My practice under 2063 is lawful even if I have no formal training, no certification of skills, carry no emergency equipment, no malpractice insurance, have no compelling guidelines for practice or mechanisms for obtaining medical care for mothers or babies.[39, 40] Personally have a background of hospital delivery room nursing, am nationally certified, state licensed, carry professional liability insurance and maintain the same equipment and skills to as would be found in any of the thousands of small community hospitals in the US. But even if it had none of these qualification, it continues to be legal for me to assist women during a normal birth who ask for midwifery care under the Religious Exemptions Clause.
However, as a licensed midwife I am in technical violation of the LMPA of 1993 and risk loosing my licensed because there is not a single physician in my community willing provided the mandated supervision. Two table demonstration (1) O2, IV fluids, EFM, doptone, BP cuff, stethoscope, pulse oxymenter, MBC license, nat’l certificate, neonatal resuscitation certificate, Certificate of Insurance; and CCM guidelines (2) nothing but a "a wing and a prayer"
California midwives have never provided care under physician supervision. Such a relationship was not available before the passage of the 1993 LMPA, it has not been available since the passage of the LMPA and it is not required for those practicing under the religious exemptions clause. Before the licensing law was passed midwives were prosecuted for practicing without a license. After its passage they are being prosecuted for practicing without a physician supervisor. As a result about 1/3 of the experienced midwives in California have declined to become licensed. This state of affairs was brought about by organized medicine who wrote the supervisory clause into the midwifery law for their convenience and not the benefit of the citizens of California. [12]
SB 1479 is not about eliminating physician supervision because in fact, there is no physician supervision. SB 1479 would simply change the words in the LMPA so that they match the reality of midwifery practice. Without that change families will continue to be forced to either employ uncredentialed, unregulated and perhaps unskilled birth attendants or to have unattended labors. The mortality rate for babies under such circumstances is 30 per 1000 compared to 3 per thousand for births attended by midwives. Families who can find a licensed midwife will continue to be refused reimbursed by their health insurance carrier or MediCal because the midwife cannot supply the name and provider number of a supervising physician. From the standpoint of the State of California and its collection of vital statistics, the supervisory clause plays a part in the inability of midwives to file birth certificates for those babies they deliver at home. This eliminates direct accountability on the part of the individual practitioner and the opportunity to track the work of midwives through outcome statistics. [28, 29]
Worse yet, it fans the flames of an adversarial relationship between physicians and midwives by making midwife-friendly physicians fear that will be falsely identified as a supervisor and loose their malpractice insurance. At the same time it gives unfriendly physicians the perfect opportunity to report (or at least threaten) to report the midwife to the Medical Board for not having a supervisor. That makes midwives afraid to seek out medical help. It also means the resources of the medical board are going into a paper chase, instead of being able to focus the Board legal resources on healthcare providers who are incompetent or engaged in illegal practices.
Midwives attend virtually all normal births in Denmark and France, 90% of normal births in Germany, 70% or greater in Ireland and the UK. These countries all have better maternal-infant outcomes than the US.[2] Ample scientific evidence has established that midwives are the most appropriate caregivers for healthy women with normal pregnancies, a fact proven repeatedly over the last century. [1 --> 7] This is not to say that bad outcomes never happen to families that give birth at home because that is certainly not true. Nor does it imply that no individual midwife has ever been found to practice dangerously. In 1997 a California midwife violated the most elemental and common-sense midwifery standards. Her poor judgment combined with an illegal practice of medicine in a home birth situation contributed to and may have even caused a stillbirth. She is currently facing criminal prosecution. Even in this instance we can’t escape the detrimental effect of the historical opposition by organized medicine which blocked the professionalization of non-nurse midwives for nearly 100 years. It was the absence of professional training programs and licensing which gave rise to lay midwifery. So instead of a smaller number of formally trained professional midwives, we have a larger number of midwives which unfortunately includes a few who have caused harm, which brings us back to the important issue of accountability and birth registration by home birth midwives. Cases like this prove how vital it is to have midwives register all the births they attend. Only in this way we will have a statistical record of community-based midwifery care and we can identify individuals who have problematic outcomes.
The safest and most efficacious form of maternity care provided world-wide is midwifery care. [2 -- 7] This is an important fact in a global economy. Sixty percent of all the babies born in the world are delivered by midwives in domiciliary settings -- maternity clinics or the family’s home -- at a few hundred to a few thousands of dollars. Many families in California are already making that choice. While OOH midwifery will never take the place of physician and hospital care with its access to pain medications and anesthesia, it is important not to stand in the way of self-correcting market forces. Over the last 25 years we have seen the Berlin Wall and the USSR both fall without a shot being fired. We are on the cusp of a global economy with the information superhighway and world-wide communications through the Internet being the growth edge of many important social changes. About the only thing that hasn’t changed is the opposition by the medical establishment to out of hospital birth options and the lateral practice of midwives.
Whatever reasons lie behind the resistance of organized medicine, many Americans are questioning the wisdom, expense and safety of non-essential hospitalization. Some of those people are choosing community-based midwifery care because it is affordable and avoids the well-know dangers of over treatment. Families are also drawn to the midwifery model of care because it more closely meets the social, psychological and educational needs of healthy women having normal pregnancies and the needs of new parents than the risk-management, cost-containment style of corporate medicine. [6, 7]
I closing I would like to read two short excerpts that address the contemporary problems of cost effectiveness and safety in the culturally dominate model of care. You will find a copy of these documents in the back of your booklet under section number (?10):
The first is a memo written by Dr. del Junco, [30] a former president of the medical Board, in a report on a meeting of the Tack Force for Health Policy and Resources: Dr del Junco says: "...we have a glut of physicians and allied health professional and yet the problem of undeserved areas persists. ...the hiring of additional allied health professional has not really done anything to benefit patients. ... the manner in which they are being hired and used now (is) really only serving to increase the income of physicians. Although physicians are hiring more Physician Assistants and Nurse practitioners, and often patients never see the physician, the patients are charge the same amount for an office visit. This in income for the physician but here is no cost savings to the patient."
The second quote is from a guest editorial in the January 2000 issue of ObGyn News entitled "Managed Care is Not the Problem". [31] Dr David Lawrence states that "the safety of healthcare provided in the country is the single most important issue in healthcare today. Quality of care is the problem, not managed care. In citing the landmark medical practice studies on the frequency of medical accidents published in the 1991 New England Journal of Medicine he reports that "The studies documented diagnostic mistakes, failure to apply critical precautions, medication errors and equipment failures. Extrapolating from these hospital studies to health care in general, one can conclude that the third-leading cause of death is the US is fatal mistakes. Two thirds of the health care accidents are preventable. Such accidents account for more than 400,000 death annually and that number doesn’t include .... the impact of overzealous care."
The end product that we all are seeking is a civil society. Midwives want to give good and useful service to the citizens of California. We can best achieve that goal by reconciling the LMPA, case law and the reality of community based midwifery practice. SB 1479 does that by replacing supervision with a horizontal relationship between the medical community and licensed midwives, thus creating a firewall for malpractice carriers. It would permit the midwife to be in technical compliance with her licensing authority and it facilitates appropriate timely access to medical care for mothers and babies whenever indicated. It is a win-win solution which i urge you to support. [documents supporting 2-7]
Thank you for your time and attention and happy to answer any questions you may have .