Rosanna ~ part 2: Ideas and possible language relative to VBAC issues


Should VBAC be added to the list of risk-factors and conditions believed to benefit from mandatory obstetrical evaluation?

There are three specific issues that must be addressed before embarking on regulations that would include vaginal birth after a Cesarean (VBAC) on the list of medical circumstances that mandate obstetrical evaluation.

  1. The question of relative value for obstetrical evaluation relate to VBAC women: VBAC is vastly different category than pregnancy-related maternal or fetal disease or abnormal conditions, such as elevated blood pressure, symptoms of diabetes and conditions affecting the fetus such as poly/oligo-hydraminosis (too much or too little amniotic fluid), a small-for-gestational age baby, etc.

For the vast majority of pregnancy-related diseases, physical exam by medical providers, laboratory tests and diagnosis procedures allow doctors to confirm whether or not the problem exists, and if so, how severe it is. Nearly all such non-VBAC-related pregnancy problems also have a medical course of treatment specifically developed to address the particular issue.

However the situation is quite different for pregnant women with a previous-Cesarean since prior physical exam cannot determine the integrity of the uterine scar under the conditions of labor at some time in the future. No matter how experienced or technology-equipped the examining physician is, there is no medical examination, laboratory test or diagnostic procedure that is currently able to provide such information.  We all wish there were.

The statistical occurrence for previous Cesarean scar separation or rupture during normal labors that do not include the use of any labor inducing or accelerating drugs such as cervical ripening agents, misoprostol, or Pitocin is approximately 1 our of either 200 or 300, depending on which study is cited. (need to find these references — ICAN rep?). The only currently recognized medical ’treatment’ to circumvent such a possibility is to schedule a repeat Cesarean section before the mother-to-be goes into labor.

However, ACOG recognizes that the medical risk of a VBAC is relatively low, while the risks of repeat Cesarean surgery are substantial. For reasons too complex to address here, the first CS is far safer than all subsequent Cesareans and those risks increase in number and severity with each additional C-section. One example is a particular type of abnormal implantation of the placenta that is so sever a Cesarean hysterectomy is required. For that reason, ACOG officially recommends that women one or two previous C-sections plan a vaginal birth after Cesarean unless there is a repeating medical reason or a new complication that requires Cesarean delivery.

In spite of support from ACOG, nearly 50% of California hospitals not to “allow” women with a previous CS to labor. The institutions deny obstetrical services to any mother-to-be who declines a repeat C-section because she wants to labor and give birth vaginally. There are various reasons for this, the biggest being medical malpractice concerns. Also med-mal liability premiums are lower for hospitals and obstetrical practices that agree not to provide vaginal birth services for women with breech babies, twins and previous Cesarean surgery.

  1. The stated purpose of VBAC evaluation and the reality.  

As noted in section 1, there is no medical or diagnostic procedure that would provide information to the examining physician to determine the integrity of the uterine scar under the future conditions of labor. The cost-benefit ratio is wrong from the perspective of the family and insurance company.

Nonetheless, if VBAC women are required to have an obstetrical evaluation, the examining physician is legally required to state his or her professional opinion about the integrity of the uterine scar and whether it is either “likely” or “unlikely” to “affect” the client’s pregnancy or childbirth. Unfortunately the categories of “likely” and “unlikely” do not provide any valid measure for such a determination by the physician. Is it more likely (51%) than not (49%) to ‘affect’ the pregnancy (one must presume negatively) or is it simple more likely than would be the case for a woman who has not had a previous Cesarean?

Without such a stated metric, this type of determination is more of a ‘best guess’ than a ‘professional opinion’ supported by medical evidence. And without a valid medical method for determining the future integrity of the uterine scar, these evaluations would be of dubious value to the childbearing woman.

  1. Creation of Vicarious Liability for evaluating obstetricians; suggested “work-arounds” by representative of organized medicine that turn evaluation by “midwife-friendly” obstetricians into a pro-forma exercise

Mandating obstetrical evaluations for VBAC women has another troubling issue that must be acknowledges — the potential (or at least perceived) risk of vicarious liability for examining obstetricians. As a class, obstetricians in California are generally unhappy about the whole issue of independent midwifery care and OOH birth services. It shouldn’t surprise anyone that the obstetrical profession is united behind the idea that all childbirth should occur in an acute-care hospital under obstetrical supervision by obstetricians, nurse-midwives and in rare cases, family practice physicians.

As a result only a tiny number of California obstetricians regularly cooperative with licensed midwives. They graciously agree to see pregnant women with minor medical problems and are willing to take over care if the woman develops a serious complication. But evaluating a midwifery client relative to a vaginal birth after cesarean is a very different can of worms.

First, there is no current method to determine the integrity of the patient’s uterine scar under the conditions of a future labor. Then as a surgical specialist in obstetrics and gynecology, the obstetrician has to record on the patient’s chart that in his or her professional opinion, the identified risk-factor (i.e., previous CS scar) would or would NOT be “likely” to affect the course of her labor and birth.

Obviously an evaluating obstetrician is well aware that such a mother-to-be is not currently under the care of an obstetrician, (the whole reason for an obstetrical consult!) and thus she is NOT planning a hospital birth. Unless the mother-to-be is going to leave the country, the only other option is to labor and give birth in an OOH setting. Citing the current language in AB 1308, a plaintiff’s attorney can simply claim “vicarious liability” if anything goes wrong and leave it up to the obstetrician’s defense attorney to try and prove otherwise in court (at $1,500 dollars an hour). Fearing future litigation, the safest thing for a consulting obstetrician to say is ’no’ to VBAC clients of midwives.

It’s important to note that the request for VBAC to be including in the regulatory list of condition mandating obstetrical evaluation comes directly from ACOG as an “interested party”. Also interesting is that these same ACOG reps insist that such a regulation poses no problem, since evaluating obstetricians are only being asked to address a simple yes-no question of the risk-factor and do so in a manner that has nothing to do with mfry care of OOH birth service.

According comments by ACOG reps in various pubic meetings, all the obstetrician has to determine is whether or not the risk-factor or condition, as an isolated entity having nothing to do with mfry or OOH birth, is likely to affect the pregnancy or childbirth. Period, with no reference to the fact that the mother-to-be is obviously receiving care from a category of professional midwives that do not have hospital privileges, and can only provide childbirth services in OOH settings — client homes and small maternity homes or birth centers.

I would describe this as a ‘wink-wink/nod-nod system’ that claims to provide plausible deniability for obstetricians, and thus entice them to volunteer as OB evaluators. But unfortunately this ‘wink-wink/no-nod’ idea violates one of the foundation elements for legally establishing malpractice liability: “What a physician knows or should have known”.

There is no way an obstetrician in modern American could convince a jury that he or she had absolutely “no idea the patient was seeing a midwife and planning to labor in an OOH setting”. Obstetricians as a class are astute enough to realize this and are not willing to play pretend.

It should also be noted that when ACOG representative are questioned about many of the systemic problems facing childbearing women, such as VBAC, vaginal breeches and twins and routine induction at 41 weeks, these representative freely admit — often and in public — that obstetricians and ACOG neither one have any control over restrictions imposed by med-mal carriers or hospitals. This is the explanation for why so many obstetricians and hospitals that don’t “allow” woman with a previous CS to labor.

Secondly, representatives of organized medicine admit that the number of ‘midwife-friendly’ obstetricians is very small, but believe it is adequate. When LMs express concerns about adding VBAC to the regularity list of mandatory MD evaluation, representatives of organized medicine insist that these same OBs would be willing to examine VBAC clients and, unless there is a glaring problem, say the magic words “unlikely to affect” the mother’s labor and birth.

For the reasons discussed above, particularly ‘ vicarious liability’, I believe these MF-friendly obstetricians would sincerely like to help but when it come to VBAC, their med-mal contract will prohibit such consultations or the liability carriers will require a huge increase in premiums that apply to any insured doctors that provides VBAc such evaluations.

 VBAC mandatory exam is a No-Go 

A regulation requiring medical evaluation would be merely a pro-forma event — an expensive, feel-good  activity of no real value to the childbearing family. Yes, mfry-friendly OBs may be willing to provide the mother and midwife with the legally-essential and positive ( i.e. “not likely to affect”) evaluation so the mother-to-be can continue with midwifery care and her plans for an OOH VBAC. But mandating this formality would also cause women in rural areas much grief in finding and affording these obstetrical evaluations.

For other women, obstetrical evals would be unavailable or rejected by the family, which result in a denial of services. Many such women live in areas were hospital policies do not ‘allows’ VBAC births. Under these circumstances, some women plan to labor at home unattended and when they think the birth is imminent, make a mad dash for the hospital. Other are so strong motivated to stay out of the hospital that they ask a lay midwife to help them and stay home to give birth unless there is an emergency.

Conclusion — VBAC regs are a set up that will result in denial of service 

Legally any regulation requiring obstetrical evaluation and approval is a disguised restriction on maternity care services and a direct denial of service to this category of childbearing families.

From the standpoint of the LM, it is has exactly the same legal dynamics and consequences that the ill-fated of unworkable physician supervision that lasted for 20 years. Supervision could not and did not work because a law sponsored by organized medicine mandated that midwives obtain a legally essentially service from obstetricians, and yet compliance with that same law on the part of obstetricians was completely voluntary.

Mandatory obstetrical evaluation for VBAC women has exactly the same fatal flaw, in that it mandates a legally essential service for these childbearing women while making compliance totally voluntary for the obstetricians.

From the standpoint of the profession of licensed midwifery in California, this is disguised restriction of services under NAFTA and an unfair business practice and a restraint of trade under California law.

Personally my suggestion is that ACOG, CALM and CCM all focus on a mutually-agreed upon and formally-determined informed consent for OOH VBAC, using the previously published version that was part of standard of care adopted into regulations in 2006 as a starting point and including the points i have enumerated below.


If ACOG wants to meet us in the middle and work out compromise language, the proposed reg. would have to include the following prerequisites and provisions:

Prerequisites for VBAC care of women with previous Cesarean surgery:

  • (1) not more than 2 prior Cesarean surgeries with low-transverse incision
  • (2) no use of pharmaceutical drugs for cervical ripening, induction or augmentation of labor
  • (3) Provision of information necessary to make informed consent/decline decisions on the relative risks and benefits associated with:
  • (a) elective repeat Cesarean
  • (b) normal labor after a previous Cesarean VBAC
  • (c) additional risks associated with laboring in an OOH setting
  • (d) benefits of ultrasound examination during the 3rd trimester to determine that there are no indication of a placenta percreta (no low-implanted anterior placenta that encroaches into the uterine muscle or bladder) and after providing information for informed consent or informed refusal, recommending this examination prior to 36 6/7 wks weeks of pregnancy.

(4) After being fully informed of these enumerated risks and benefits, an appropriate consent form developed by the MBC’s Midwifery Advisory Council shall document  the client consented or decline to the specified course of care; after being signed by client and licensed midwife, this document shall be included in the client’s chart.

Additional regulatory stipulations relative to VBAC consultation must:    

(1)  use the standard civil law definition of  probability — i.e. “more likely than not”  or 51% vs 49% — in relation to any examining physician’s determination of: “likely to affect pregnancy or childbirth ”

(2) identify VBAC consultation by ACOG members to be a professional obligation **

(3) acknowledge the mother’s right to decline prophylactic diagnostic procedures and prophylactic medical and surgical interventions in non-urgent circumstances per ACOG committee opinions #166 and 214 and DC Court of Appeal decision in 1991 ***

(4) include an ‘exceptional circumstances’ clause that considers the regulation mandating VBAC evaluation to be legally satisfied under the principle of “due diligence” when such a service is unavailable —  that is, the childbearing woman is unable, after honest efforts, to arrange an obstetrical consult that is accessible to her and affordable; parameters for accessibility and affordability are:

[a] accessibility for CB families as within a 60-mile round trip from their home

[b] affordability is an out-of-pocket consulting fee to the patient not to exceed $300

(5) acknowledge the religious exemptions clause of the Healing Arts, Chapter 5, section 2063, to permit the decline of VBAC physician consultation by members of organized religious groups (Christians Scientists, other orthodox and fundamentalist faiths covered by section 2063

(6) acknowledge a humanitarian exemptions for women with suffering symptoms of PTSD subsequent to physical or sexual abuse, or a previous traumatic hospitalization resulting in Cesarean surgery;

[a] this is to be documented in the client’s chart by either a notarized statement by the childbearing woman herself, or letter signed by a physician, psychologist, attorney, priest, minister, rabbi or emom, a confirming the mother-to-be’s statement to them that she has symptoms of PTSD and honestly believes that she would be further traumatized by elective hospitalization the medicalized care routinely provided during normal labor and birth in such a setting

** willing to take out this if ACOG District IX agrees to send letters to all its members stating such

*** proposed language includes attach text of two pertinent ACOG opinions


Denial of Services is unacceptable ~

@@ No compromise on 100% accessibility for VBAC families, need to restore the informed consent/informed decline relationship with VBAC stipulated in the SCCLM of 2006

Current law creates a category of childbearing women who will either be forced into obstetrical service they don’t want and didn’t voluntarily agree to, or will have unattended labors and dash off for the hospital at the last minute.

Other women in this category choose to have an unattended birth at home and call 911 if there are any problems. This is the very problem that the LMPA of designed to prevent.    

ACOG definition of a pregnant woman’s right to choose is wonderfully elegant and its principles respectful, but they do not apply to women receiving care from midwife.  AB 1308 lang. saying if woman refuses OB evaluations, California LMs can’t legally provide midwifery care under any circumstances.

When the SCCLM was being developed, ACOG’s Committee Opinions on “Informed Refusal (166) and “Patient Autonomy: The Maternal-Fetal Relationship” (214) was the model used to develop the legal language for Section V.

Opinion 166 (Informed Refusal) notes:

Almost universally, informed consent laws have been liberalized … from the relatively paternalistic “professional or reasonable physician” standard to the “materiality of patient viewpoint” standard. … In the “patient viewpoint” standard, a physician must disclose … the risks and benefits that a reasonable person in the patient’s position would want to know in order to a make an “informed” decision.

ACOG Opinion 214 states that:

  • … medical knowledge has limitations and medical judgment is fallibleExisting methods for detection … are not always reliable indicators of poor outcome, and there is often insufficient evidence for risk-determination or risk-benefit evaluation
  • The role of the obstetrician should be one of an informed educator and counselor, weighing risks and benefits ….and realizing that tests, judgment and decisions are all fallible.
  • Abiding by the patient’s autonomous decisionwill provide the best care for the pregnant woman and the fetus in most circumstances.
  • In the event of an emergency … the obstetricianmust respect the patient’s autonomy, continue to care for the pregnant woman, and not intervene against the patient’s wishes regardless of the consequences.

ACOG Committee Opinion 214 also identifies serious negative consequences when a patient’s autonomy is violated:

  • A woman is wrongedand may be harmed, whether physically, psychologically or spiritually.
  • The patient’s subsequent loss of trust in the healthcare systemmay reduce the health care provider’s ability to help her and may deter others from seeking care.
  • There may be other social costs associated with this violation of individual liberty.

Nothing I could say in support of logic, rationality and the practical necessity of respecting the autonomy of childbearing women could exceed, or even closely match ACOG’s very own published policies.

But apparently ACOG has an unpublished policy that restricts their noble principles to its own obstetrical patients, while not offering this same respect for autonomy to women being cared for by licensed midwives.


NOTE: The above excerpt of ACOG Committee Opinions is re-posted and expanded on in Part 3, which has other valuable legal information and legal citations. These include excerpts from Gabbe’s Obstetrics, chapter 42 on “Legal and Ethical Issues in Perinatology“, 1991 Court of Appeal decision reiterating ACOG’s Committee opinion that pregnant women have the right of informed refusal, even under critical circumstances, and story from Harper’s Magazine on an egregious violation of patient rights that resulted in a forced Cesarean and stillborn baby in 2009.

It’s very informative in regard to the questionable legality of AB 1308’s repeal of the SCCLM, which included the very same language, since I used the principles and language from ACOG opinions 166 and 214, and the 1991 court decision when developing section V of the SCCLM.