A 20-page document originally prepared for an attorney representing an LM preceptor of a student midwife who facing disciplinary charges by the Medical Board of California in 2006-7
faith gibson, LM
Most recent revised ~ Sept 2007 ~
I am one of the few individuals in either the midwifery community or the employ of the Medical Board who has been involved full-time in the legal and legislative issues of California midwifery before, during and after the passage of the 1993 LMPA.
I have done extensive academic research on the history of the medical practice act and midwifery licensing laws in California and maintain an archival library on the topic. The major sources of historical documentation quoted here are California medical practice legislation from 1876 to 1993, microfilm copies of state legislature bill sets, official letters of legislative intent, daily newspapers of the era, medical periodicals and the copious records provided by the Directories of Licentiates published yearly by the Medical Board.
I’ve been personally present at virtually 100% of the public meetings and major events relative to the implementation and administration the midwifery-licensing program. Upon request, I provide expert information for the Legislative staff, MBC staff members and/or attorneys about customary practices of direct-entry midwifery.
From 1998 and 2001 I administered a professional liability group policy for community-based midwives in three states. More recently I was the lead author for the official Standard of Care for California LMs adopted into regulation by the Medical Board under the authority of SB 1950.
In July 2004, I requested that Senator Liz Figueroa carry legislation to create a Midwifery Advisory Council within the MBC and to mandatory reporting system for the outcomes of so all care given by LMs to clients requesting planned home birth PHB) midwifery services, including hospital transfers and any mortality or morbidity associated with the care of a licentiate midwife. This resulted in SB 1638, which was passed in 2006, marking the 3rd amendment to the LMPA authored by Senator Figueroa. I was appointed to the MBC’s Midwifery Advisory Council and was elected by its member to serves as Chair of the Council.
Before cross-training into midwifery in the early 1980s, I was a delivery room nurse for ten years and ER nurse for seven. However, I chose not to become a certified nurse midwife (CNM) and instead trained as a non-medical midwife because of the ‘poison pill’ in the Nurse Midwifery Practice Act — mandatory obstetric supervision. It was common knowledge among midwives of all backgrounds (nurse and traditional) that supervision was totally unworkable in regard to PHB for several reasons.
For obstetricians, the issues were vicarious liability, policies by their malpractice carriers that prohibited them from having any professional association with PHB (either as care providers or supervisors) and the obstetrical profession’s general hostility to the idea of out of hospital birth. For midwives and mothers, the problem was the deep philosophical difference between medicalized birth practices and the non-medical principles of midwifery.
OB doctors were (and still are) unfamiliar with and distrusting of physiologically management. All around mandatory supervision required of nurse midwives was an incompatible arrangement and one to be avoided. Instead I trained as a ‘direct-entry’ midwife. Currently I am a nationally certified professional midwife (CPM) under the North American Registry of Midwives and California licensed midwife #041 and practice under the regulatory authority of the Medical Board of California.
As an LM, I provide planned home birth (PHB) services as a primary caregiver and hospital-based support services to clients planning a hospital birth under the primary care of an obstetrician or CNM. I am personally familiar with the issue of physician supervision.
As with all other licensed midwives in the state who attend planned home births (PHB), I myself do not have a physician supervisor. Like Ms. H, I have informal relationships with a few obstetricians who, on occasion, permit me to consult with them and who collaborate with me relative to medical evaluation or hospital care of my clients. Midwives have always had informal backup arrangements for their clients, which are identified antepartum and documented in the client’s record.
As for the issue of safety and efficacy of PHB, it must be noted that a consensus of the scientific literature identifies the physiological management of normal birth:
(a) in essentially healthy childbearing women
(b) as provided by experienced midwives in independent birth centers and client homes
(c) with access to appropriate obstetrical services for complications
(d) equally as safe as obstetrically-managed hospital births for the same healthy cohort
These studies assign all complications and mortality to the midwifery cohort, even though the mother may actually have transferred to the hospital at the start of labor, the intrapartum was medical managed and the birth attended by an obstetrician.
As for efficacy of PHB care, the scientific literature identifies a dramatic reduction in the number of obstetrical interventions by a factor of two to ten times, with a CS rate under 4%, (compared to national average of 30.2% in 2005). This reduction in medical interventions is accompanied by the same or slightly improved level of perinatal wellbeing at a 50% or greater cost savings. When maternity care for healthy women adheres to the principles of physiological management, a non-medical setting is as safe as any other location, with the added bonus of conserving expensive medical resources. [encl #1]
Institutional Memory For MBC & Midwifery
Institutional memory is a particular issue in regard to the MBC agency staff person assigned to the midwifery licensing program, as there have been 8 different employees in the first eleven years of the program, starting with Tony Arjil in 1994. The position was sequentially filled by Gloria Maceus, Gizzelle Biby, Kim Marquart, Teri Kizer, Susan Lancara and Herman Hill. Mike McCormick is currently assigned to the staff position.
During the first decade of the midwifery licensing program, the job went unfilled for long stretches. Employment of each of the six initial employees lasted only 6 to 18 months. This high turnover and lack of continuity resulted in much confusion for both the MBC staff and for California midwives. In addition, there have been four different executive directors since 1994.
In light of these circumstances, I offer the following background facts as a source of “institutional memory”. The majority of individuals who worked for the midwifery licensing program or participated in the Midwifery Licensing Implementation Committee are either still working for or are available to the MBC and should be able to corroborate the information provided by me. Audio tapes and written transcripts also exist for much of the material relative to the Midwifery Implementation Committee.
Historical Background ~ Original 1917 & 1949 Midwifery Legislation
State certified direct-entry (i.e., non-nurse) midwifery already has a long and honorable tradition, going back to 1917, when the first midwifery certification law was passed. The original 1917 midwifery amendment was written entirely by physicians, a time before women had the right to vote and without the knowledge or input from the public or practicing midwives of the era.
The 1917 physician-authors of the original midwifery statue were primarily concerned with setting criminal penalties for midwives who engaged in the unauthorized practice of medicine. The title of the 1917 enactment reads: “to add a new section …relating to the practice of midwifery, providing the method of citing said act and providing penalties for the violation thereof”.
This idea is best captured by the idea of ‘girl toys’ vs. ‘boy toys’ –the male profession of medicine want to be sure the female profession of midwifery did not encroach into their territory and use any of the boy toys associated with the practice of medicine. This was a strictly unilateral undertaking, as the girl toys of midwifery were not likewise protected from the encroachment of the medical profession.
However, once passed, midwives were generally compliant with all aspects of its provisions. Unfortunately, earlier forms of the Medical Board (i.e., the Board of Medical Examiners) were not equally interested in being cooperative with the midwives of that era.
In the 73 years of state regulated non-medical midwifery practice (1917 to passage of the LMPA in 1993) there was a total of 217 California certified midwives. Only 3 disciplinary actions are recorded in the Directories of Licentiates from 1918 to 1950 and all three are for overstepping the identified non-surgical scope of midwifery practice established in AB 1375.
State certified midwives Marie Caron (FX-83 -1918), Elena Rinetti (FX-97 -1918) and Caterina Reorda, a graduate of the Royal University of Turin, Italy (F-58 -1925) all had their licenses revoked or suspended for unprofessional conduct, citing “illegal operation” as the cause of action.
It appears from the various documents of the era, including the Directories of Licentiates, that no midwives were ever prosecuted for the illegal, unauthorized or uncertified practice of midwifery, either before or after the passage of the original 1917 provision, and through out the balance 20th century until the Bowland case in 1974 — a total of 97 years (1876-1973).
In 1949, at the request of the Board of Medical Examiners, a bill was passed (SB 966) that repealed the application process for midwifery certification (Article 9) and eliminated the midwife classification from the list of certificates issued by the BME. The reason cited was a lack of interest in midwifery and the opinion that “midwifery was a dead class”.
In the 32 years following the original passage of the 1917 midwifery provision, a qualifying midwifery training program in the state of California was never approved by the Medical Board. This meant that California residents were unable to meet the criteria for licensing, unless the relocated to another country for training.
The midwifery provision did not stipulate any courses in professional midwifery itself, but rather mandated that midwifery students complete the same classes in anatomy, physiology, hygiene and sanitation and a 165-hour course in obstetrics taken from the medical school curriculum for physicians and drugless practitioners’ educational standards.
Ironically, while mandating the same medicalized education as physicians, the provision itself forbid licensed midwives to utilizing the medical skills taught to them in these classes.
Because there were never any Board approved midwifery training programs, the only source for new applicants were either medical students that had completed the obstetrical portion of a medical school curriculum or foreign-trained immigrants – primarily Japanese – who were licensed by reciprocity from one of Japan’s 27 midwifery schools. By far, the largest categories of California certified midwives were Japanese and Italian immigrants.
When one considers that the US was at war from 1941 to 1945with both Japan and Italy and that the Japanese population of California was interned out of state for the duration of WWII, it is not surprising that there were only 9 applications for a midwifery license in the entire decade preceding the request by the Board to eliminate the licensing program. The last two applications in 1947 and 88 (both denied) were for licensing by reciprocity from Japan and Italy.
The legal impact of SB 960 on the practice of already certified/licensed midwives was nil and the 46 midwives who held valid licenses at the time were unaffected. The midwifery provisions defining the extent and the non-medical character of midwifery (Section 2140) and those concerning penalties for unprofessional conduct were left intact (section 2400-08). No criminal penalties for lay or uncertified practice were stipulated in this revision. The last state-certified midwife under Article 24 declined to renew her license in 1990.
After the repeal of the category of ‘midwife certificate’ —1949 to 1993 — no licensing was available in California for non-nurse midwives. However, the practice of traditional midwifery was not statutorily prohibited in either the original 1917 statute or the 1949 repeal of the direct-entry midwife application, i.e., no provision in the original midwifery licensing law or its 1949 amendment created a public offense defined as ‘practicing midwifery without a license’. Under democratic forms of government, what is not expressly outlawed is legal.
A convention of all form of government licensing is exclusive entitlement in both title and scope of practice in the domain of one’s license. Unfortunately, midwives licensed under the 1917 provision did not enjoy this protection. Unlike the professions of medicine, nursing, dentistry, chiropractic and other allied healthcare disciplines, midwives have never been granted exclusive entitlement to their scope of practice as the regulated profession of midwifery.
The original midwifery statue was primarily concerned with setting criminal penalties for what physicians defined as the illegal practice of medicine by midwives, that is, the use of drugs and “instruments” (i.e., primarily obstetrical forceps). The 1917 midwifery provision of the MPA prohibited the use by midwives of any “artificial, forcible or mechanical means”.
It also prohibited the use of instruments to penetrate or severe human tissue beyond the cutting of the umbilical cord. These activities were specifically defined in regard to childbirth as an unauthorized practice of medicine and thus illegal if performed by a midwife (except as a medical emergency under section 2063). As for the entitlement issue, these same physician-authors quietly side-stepped the complexities that licensure created by not including exclusive entitlement language for midwives in the 1917 provision.
One practical reason for not addressing this issue is that physicians and midwives share a common patient base – that is, both provide normal maternity care to healthy women. Were midwives to have been granted exclusive entitlement to their own scope of practice, it would have created the crime of the ‘unauthorized’ or illegal practice of midwifery.
Physicians who also wished to provide normal maternity care to healthy women could be charged with the unlicensed practice of midwifery. This would have required that physicians either become additionally trained and licensed in the discipline of midwifery or that an equivalent midwifery curriculum be incorporated in the medical school education, thus granting physicians an exemption to the midwifery licensing law.
Between 1949 and 1993 the public demand for midwifery care continued on as before, though statistically insignificant as compared to obstetrical care. The 1949 passage of SB 966 repealing the certificate classification of ‘midwife’ withdrew the opportunity for future midwives to become state-certified “professionals”, thus demoting them to the generic classification of “lay” practitioners deprived of professional rights such as employment opportunities, teaching positions and receipt of third-party payments.
In the course of my research I could find no records indicating that the Board of Medical Examiners ever viewed the lay practice of midwifery as an illegal activity through out the 19th and 20th century until the Bowland case in1973.
Contemporary Midwifery Licensing:
The Licensed Midwifery Practice Act was signed into law in October of 1993. It repealed the 1917 direct-entry midwifery provision of the Medical Practice Act (AB1375-Gebhart Bil-/1917 Amendment to the 1913 Medical Practice Act), which had originally established educational qualifications and standards for the state-certified practice of direct-entry (i.e., non-nurse) midwives.
The LMPA set the stage not only for the licensing and practicing of LMs but also for the many facets of midwifery training and the educational relationship between practicing professionals and students of the art and discipline of direct-entry midwifery.
The MBC’s Midwifery Licensing Implementation Committee ~ 1994-95
The LMPA identified the MBC as the licensing and regulatory agency for direct-entry (non-nurse) midwives and mandated that such licensing be in place by July 1, 1994. In March of 1994 the MBC convened the Midwifery Licensing Implementation Committee to assist in the process of implementation per the requirements of the statute. This committee met six times between March and September of 1994 and a seventh meeting was held in September of 1996. Each of the seven meetings was approximately six hours in length.
Medical Board member Dr. Thomas Joas, MD was appointed to be chair of the Committee. Other Medical Board officials included lay Board member Stewart Shaw (note: this is a phonetic spelling of an Chinese surname), MBC agency deputy director Doug Lauey, senior counsel Anita Scuri, legislative analyst Linda Whitney and several other former and current MBC staff.
The California Medical Association (CMA) was represented by lobbyist Joan Hall and Tim Shannon. The California Association of Professional Liability Insurers (CAPLI) was represented by retired Judge Cologne (the CMA lobbyist — Mr. Shannon — currently represents CAPLI). Approximately 12-15 ‘lay’ midwives in leadership roles attended these meeting, including myself. I also audio taped the last four meeting (June 1993 to September 1994). These tapes were transcribed and transcripts made publicly available on the Internet at www.collegeofmidwives.org.
During the approximately 40 hours of lively and frequently contentious discussions on a wide range of thorny issues, the topic of midwifery students, the legal implication of student status and/or any Medical Board policies relative to the legal relationship between midwifery students and other licensed professionals (midwives or physicians) was never discussed or identified as a problem to be addressed on a future occasion.
There were no Board-approved midwifery training programs in the state at that time and the only route to licensing available to California residents was through the LMPA’s “challenge mechanism”. This permitted ‘qualified’ applicants to challenge the educational requirements of the LMPA and, after satisfying other regulatory criteria, to become licensed midwives under the authority of the MBC.
These consistently good outcomes are not merely happenstance or due to avoiding potential harm from unnecessary medical interventions. A study of a religious group that eschewed all forms of professional maternity care was reported in the American Journal of Obstetrics & Gynecology (1984). Researchers identified a dramatically elevated rate of perinatal and maternal mortality in women who had no antepartum care during pregnancy and no experienced attendant during childbirth.
Maternal mortality for this group was an astounding ninety-two times higher. Out of 344 births, there were six maternal deaths and 21 perinatal losses.
In contrast to these horrific findings, a study of lay midwife-attended PHB in North Carolina in 1976 (published 1980) found no maternal mortality and a rate of perinatal mortality for term pregnancies significantly below the rate for the state (3 per 1,000 vs. 7 per 1,000). Sadly, the researchers also identified that planned unattended home births had a perinatal mortality rate of 60 to 120 baby deaths per thousand.
As can be seen from these studies, the presence of a skilled and experienced midwife equates to an educated observer with an emergency response capacity, much like a lifeguard at the beach makes swimming safer.
The legislative intent of the LMPA was to protect the lives of healthy mothers who choose physiological care and to preserve the wellbeing of their unborn and newborn babies. This licensing law must itself be safeguarded in order to achieve these worthy goals. The alternative is a re-emergence of unlicensed midwifery and increased number of risky unattended births. This is both unnecessary and unethical.
An additional factor is the economic aspect of maternity care for healthy women. Ultimately, our success in the global economy is dependent on the US having an efficient and functional maternity care system that matches the rest of the world. We don’t have that at present.
The current obstetrical ‘package’ is associated with an ever-increasing Cesarean section rate. This results in additional maternal deaths, higher medical costs at the time of delivery and from the delayed and downstream complications of surgical birth, which include emergency hysterectomies, secondary infertility, tubal pregnancies and miscarriages, as well as placental abnormalities and stillbirth in subsequent pregnancies. These are human as well as economic disasters. [encl #2]
Worldwide, the negative economic effect of obstetrical interventions used on healthy women, in particular a disproportionately high Cesarean rate, is causing some countries to rethink their national maternity care policy. For example, the Ministry of Health in the UK is reconfiguring the National Health Services so as to reduce the medical costs associated with normal childbirth. By 2009 every expectant mother in the UK will be able to choose among three options:
- Home birth supported by a midwife
- Birth in a local midwife-led unit, based in a hospital or community clinic and promoting natural
birth - Birth at a hospital, supervised by a consultant obstetrician, for mothers who may want epidural
pain relief or may need specialist care to deliver safely
[Encl #3 The Guardian, Feb 6, 2007]
Many developed countries and all of the developing world already use the cost-effective model of physiological management as their standard of care for healthy women. In industrialized countries, that is approximately 70% of the childbearing population. To successfully compete with the rest of the global economy, the US will have to develop a similarly cost effective maternity care system that relies on physiologic practices.
The influence of third party payers in the US, in combination with a large uninsured population, is already rearranging the landscape of health care. Businesses must pass their employee health insurance costs back into the marketplace by increasing the price of goods and services.
To stretch health care dollars, Americans have begun to travel aboard for more affordable medical procedures, dentistry and elective surgery. Another consequence of runaway cost is the growth of medical services in non-acute care settings. Private equity markets in the US have been investing in outpatient surgical centers for two decades. At present the hot investment opportunity is residential and outpatient drug rehab facilities.
Historical background & the modern dilemma of physician supervision
1876-1993 ~ Beginning with California statehood in 1876, the practice of midwifery was fully lawful but unregulated by the state. In 1917 a law was passed creating the category of state-certified (non-nurse) midwives. Between 1917 and 1949, the medical board licensed 217 midwives.
According to a 1949 document from the office of California Governor Earl Warren (that Earl Warren!), state-certified midwives “operate independently and not under the supervision of a physician”. [encl #4] Two hundred state licensed midwives practiced safely and successfully during those 32 years, providing normal birth services to healthy women, consulting and collaborating with physicians as indicated. During this time, only three state-certified midwives were subject to disciplinary actions by the Board of Medical Examiners (BME).
However in 1949 the provision in statute — Article 9, which authorized the Board of Medical Examiners to process the application for midwifery certification — was deleted from the licensing statute at the request of the BME (SB 966), citing a lack of applicants. This reflected two interrelated historical circumstances.
The 1917 provision required midwifery applicants to be graduates of a Medical Board-approved training program. During that period of time, the BME approved 49 midwifery training programs in 6 foreign countries and 7 other states of the US, but no midwifery schools within California were ever approved.
The only approved educational route available in California to students of midwifery was the obstetrical training provided in medical schools. No California students were ever accepted into medical school for the purpose of training in midwifery. As a result, the vast majority of California certified midwives were Japanese immigrants or Japanese American citizens who traveled back to Japan and graduated from one of the 27 Japanese midwifery schools recognized by the BME.
On February 19th, 1942, Executive Order 9066 was issued, resulting in the internment of virtually all of California’s Japanese citizens, including midwives. According to medical board records, Japanese American midwives from California were incarcerated in camps in Arizona, Utah, and Heart Mountain, Wyoming. With the majority of licensed midwives removed from the state, birth registration for midwife-attended births fell to below one percent by the end of the war.
Proponents of SB 966 cited the low number of midwife-signed birth certificates and licensing applications as proof that midwifery was now a “dead class”. Based on these factors, the 1949 Legislature repealed Article 9, thus eliminating the application process. Midwives already certified were unaffected and continued to practice for the next forty years, until the last one retired in 1990.
In 1993 the original midwifery provision was repealed and replaced with the LMPA. At the insistence of the medical profession, the practice of non-medical midwifery was tied to medical supervision by physicians for the first time in the state’s history.
However, this clause of the LMPA has never been able to be implemented. During legislative hearings prior to passage of the LMPA, physician supervision was promoted by the California Medical Association (CMA) as a stepping stone to appropriate obstetrical services and a method to better ensure the safety of California citizens.
Unfortunately, supervision has only functioned as a vehicle for creating artificial and unnecessary vicarious liability for physicians. It is a stumbling block and a legal impossibility that has resulted in at least one preventable fetal demise that I am personally aware of. This occurred when all the physicians in a small town in Northern California (Chico) refused to order an ultrasound or evaluate a pregnant woman who was 11 days postdates because she was the client of a licensed midwife. They cited liability restrictions imposed by their insurance carriers.
The legal impossibility of physician supervision should come as no surprise to organized medicine, as documents in the public domain indicate that as far back as 1978 at least one California-based mutually-owned malpractice carrier consistently prohibited its physicians from having any professional association with planned home birth or any midwife who provided this type of care.
In 1995, NorCal lawyers reaffirmed that their company policy had not changed since the publication the NorCal Mutual News in 1978. It remains the same in 2007.
The impossible nature of this situation became clear to the MBC during the process of implementing the new legislation in 1994-95. During that time, seven 6-hour meetings were held in the conference room of the Medical Board’s Sacramento facility, with representatives from all interested stakeholders attending.
One of those present was Judge Cologne, who represented the California professional liability carriers’ trade organization. According to him, he had been a CMA lobbyist and at the request of his former employer, personally “killed” earlier midwifery licensing bills.
On the topic of physician supervision, Judge Cologne stated repeatedly that none of the physicians insured by the companies he represented (all three California carriers) would permit their physician members to supervise midwives under the terms of their contract.
Judge Cologne frequently noted that it would be a violation of federal anti-trust laws for malpractice carriers to ‘discriminate’ against the lawful activity of planned home birth. As a lawyer himself, Judge Cologne described his former employment with the Justice Department’s Anti-trust Division. He assured us that he was very knowledgeable in this area and that his employers were very careful not to violate antitrust laws.
Referring to the legal right of insurance carriers to limit their risks, he said malpractice carriers could require a vicarious liability surcharge for any insured physician who supervised midwives. When asked how much that might be, he estimated that it would be approximately double the obstetrician’s regular premium. He also noted that the malpractice carriers legally could and no doubt would decline to renew the policy of any individual physician who manifested ‘questionable judgment’ by supervising midwives in the “risky business of home deliveries”.
When asked to provide the actuarial data supporting this assertion, Judge Cologne stated that it was “just common sense” that home births were riskier than hospital births. Their idea that PHB represented an unacceptable liability risk was reflected in the official policy of the boards of directors of all three carriers. None of the parties felt the need for any further ‘proof’’ and he did not anticipate that any of his employers could be persuaded to reconsider.
Dr Thomas Joas (committee chair) and Stewart Hsieh, governor-appointed members of the Medical Board, agency Deputy Director Doug Laue, MBC senior counsel Anita Scuri, Linda Whitney, other MBC staff members and CMA lobbyist Joan Hall and Tim Shannon, all participated in the conversations about the anti-homebirth policies of all three malpractice carriers.
Dr Joas and Mr. Laue frequently acknowledged the legal impossibility of LMs complying with the supervisory provision, citing the issue of vicarious liability and the political positions taken by organized medicine as the reason. On several occasions they both stated that the Medical Board would not take disciplinary action against LMs solely based on the inability to find a supervising physician. Dr Joas repeatedly described the LMPA as a “bad law that needed to be fixed”.
Audio recordings for 4 of the 7 meetings exist and written transcripts of pertinent testimony are available on the internet. They include Judge Cologne’s comments on the liability carriers’ refusal to permit physician supervision of LMs and his ‘kill-bill’ role as a lobbyist for the CMA.
1997~ In response to a request from the California College of Midwives to Ron Joseph (former director), the Medical Board’s July 1997 newsletter “The Action Report”, included an article about the practice of California licensed midwives under the LMPA. It concluded with information on the mandated physician supervision relationship and urged interested physicians to contact the MBC.
Sadly, not a single one of the 100,000 California licensed physicians responded to the Board’s offer to connect them up geographically with LMs looking for a supervising physician. When the request was repeated in the Action Report a few months later, again not one physician responded.
1998 -99 ~ In 1998 a disciplinary action against a licensed midwife by the Board tangentially involved the issue of physician supervision. The Assistant Attorney General prosecuting the case requested that the midwife’s license be revoked or suspended relative for her failure to be in technical compliance with the physician supervision clause. The case went to hearing in 1999 before an administrative law judge, who ultimately ruled in favor of the licensed midwife. (citation #1)
In his decision, Judge Roman acknowledged two different models of maternity care for healthy women — the midwifery and the medical models — and noted the striking philosophical and functional difference between them.
He observed that within the medical model, neither physicians, physician assistants, nurse practitioners nor nurse midwives are able to provide the traditional services of physiological management in a non-medical setting, in which childbirth for a healthy woman is related to as a normal biological process.
It was Judge Roman’s belief that the Legislature’s intent for the LMPA was to replace the original 1917 provision by creating a new category of state licensed non-medical midwives who would be available to families who desired a non-medical form of maternity care. In regard to the safety of that choice Judge Roman stated:
“Sufficient evidence has been provided this tribunal to competently conclude that properly conducted midwife-led home births are as safe as births conducted by physicians in hospitals when effected within standards of practice.” [emphasis added]
As to the legislative intent relative to the supervisory clause, he stated that:
“supervision” as set forth in Business and Professions Code section 2507(c) does not “require the physical presence of the supervising physician” and does not purport to involve, as set forth in Business and Professions Code section 3 501 (f), the overseeing of activity or acceptance of responsibility for services rendered by licensed midwives, as is required by such physicians for licensed physician assistants. Clearly, a different standard was intended by the Legislature; however undefined. [emphasis added]
In regard to physician supervision and the MBC’s official knowledge that supervision was unavailable, Judge Roman declared that the Medical Board was:
“ … cognizant that no physician and surgeon in the State of California, for reasons primarily (and sadly) born of liability or restrictions imposed by their insurance carriers, will supervise a licensed midwife who conducts home births …” [underline added]
Other findings in the case included an acknowledgment that:
- Respondent has presented competent and credible evidence in the form of witnesses and documents attesting to her experience, competency, devotion, dedication, concern, and professionalism for both midwifery and patients. She avidly seeks, along with other midwives, to be part and parcel of the healthcare team that serves the residents of California.
- Midwives employ a midwifery model of practice distinct from the medical model of practice. The testimony of Complainant’s witnesses as to the medical model’s applicability to midwifery is inapposite and summarily dismissed.
- B. Respondent, residing and laboring in an area where the medical community of obstetricians is hostile to licensed midwives, has been unable to gain supervision by a physician and surgeon. As a consequence of such hostility, unsupervised by any physician except as set forth in Finding 14, she lacks a specific physician to whom she might regularly brief regarding clients undergoing midwifery care and treatment, or who might provide care for complications in a hospital.
The evidence presented this tribunal further establishes that, with the exception of one licensed midwife who is also a licensed physician assistant, no California licensed midwife, despite efforts for supervision, possesses a supervising physician …. Nevertheless, the evidence further established that Respondent uses at least one physician for collaborative consult, collaborative assistance, and emergent issues. Respondent, consistent with the extant midwifery standard of care (Findings 17 – 21), transfers patients to physicians or hospitals as necessary. [emphasis added]
The judge also noted that:
“Were this tribunal to employ the medical model on licensed midwifery, as Complainant urges, no home births could be competently assisted. Mindful that licensed midwives, with only one exception presented before this tribunal, possess no hospital privileges, the legislation would function to permit lay persons to possess a license that would not be functional anywhere within the State of California. This tribunal declines Complainant’s offer.” [emphasis added]
Judge Roman’s ruling also acknowledged the functional sufficiency of collegial referral and assistance, collaboration and emergent assistance without direct or accountable physician supervision:
“In an effort to practice their art, virtually all of California’s 109 licensed midwives, including Respondent, have, with the cooperation of physicians sympathetic to their plight and who seek to expand the options available to patients, developed a relationship that involves collegial referral and assistance, collaboration, and emergent assistance without direct or accountable physician and surgeon supervision of licensed midwives.
In an effort to promote the efficacy of the Act, this tribunal concludes, at this time, that a licensed midwife who possesses a relationship with a California physician and surgeon as referenced herein has feasibly and reasonably satisfied the ambit of the Act. Accordingly, cause does not exist to revoke or suspend the license of Respondent pursuant to Business and Professions Code section 2519(e), in conjunction with sections 2507(a) and 2507 (b), for unprofessional conduct arising from lack of supervision as set forth in Findings 13-14 and 17-23. [emphasis added]
In spite of this ruling, the bias against planned home birth and the many stumbling blocks to any form of supervisory relationship continues on unabated. In recent years, malpractice carriers have extended their prohibition to include consultation and collaboration.
NorCal also prohibits insured physicians from consulting or collaborating with midwives, citing the supervisory clause in the LMPA as their rationale (NorCal letter 05-18-99). They claim that the courts might interpret such collaboration as a de facto form of supervision and find the physician and his/her malpractice carrier to be vicariously liable.
A letter from the California Association of Professional Liability Insurers (CAPLI) to the MBC in 2005 confirms, in unambiguous terms, that all its member organizations prohibit supervision of LMs relative to PHB. This is the same trade organization for California carriers that in 1994 employed Judge Cologne as their lobbyist. The 2005 CAPLI letter was written by Tim Shannon, current CAPLI representative who was also one of the CMA lobbyists who attended the Midwifery Implementation Committee meetings in 1994-5. [encl #4 – CAPLI letter 2005; NorCal letter 05-18-99; NorCal Mutual Newsletter; 1978].
It must be emphasized again that the original language for the 1993 LMPA was provided to Senator Killea by the CMA and AGOC (American College of Obstetricians and Gynecologists). Both organizations verbally threatened to “kill” the licensing law unless it required physician supervision. Senator Killea stated this in my presence and it is confirmed by official documents. While she deemed this to be regrettable, she still believed that “bad legislation is better than no legislation at all”.
At the time, this appeared to be a reasonable compromise, since the CMA lobbyist promised Senator Killea that if she acceded to their demand for legislatively-mandated physician supervision, the CMA would “see to it that physicians provided the required supervision”. [Nancy Chavez, Aide, Sen Killea 1993]
The CMA has never been able to deliver on this promise. As a result, no California obstetrician has ever been able, under the terms of his/her professional liability contract, to supervise a licensed midwife who provided planned home birth services. According to published reports from the obstetrical community [encl #5- ObGynNews 09-15-93], preventing PHB by denying licensed midwives access to the essential service of physician supervision was the intended effect of the legislative clause demanded by organized medicine.
Absence of Actuarial Data for Vicarious Liability
Bleak as all this is, a tiny minority of brave physicians is still interested in supporting women who choose midwifery care by offering to supervise licensed midwives in their area. However, their liability carriers inform them that it is prohibited or that a substantial vicarious liability surcharge will be required.
In addition to the expense, any obstetrician formally identified by his/her malpractice carrier as supervising community-based midwives faces the high probability that he will lose his insurance at the end of the contract. Judge Cologne predicted this reprehensible practice during the MBC meetings 1994.
However, the custom by insurance carriers of requiring a surcharge for midwives has not been validated by actuarial data. This was documented in Washington, DC when a vicarious liability surcharge was imposed on a group practice of certified nurse midwives and obstetricians by the National Capital Reciprocal Insurance Company.
The NCRIC was a malpractice mutual company owned and controlled the DC Medical Society. Faced with an increased premium of more than 4,000 percent, the nurse midwives filed a complaint with the DC Superintendent of Insurance. After a two day hearing the Superintendent rejected the surcharge as excessive and discriminatory and rolled the rates back to the previous nominal annual premium. Furthermore, he prohibited the insurer from increasing rates unless it could demonstrate a valid actuarial basis for the increase.
The explanation was straightforward. All insurers share the data they collect about malpractice claims with various national insurance organizations or associations. Insurance premiums are then calculated on the basis of statistical probability, which are derived from data compiled, in aggregate form, for each physician specialty.
The aggregate claim data for each specialty category are then compared with each other. This results in a weighted average factor that is used to determine premium rates for members of that specialty group. Those with the fewest and/or lowest claims play the lowest premiums, while a high claim groups, such as Ob-Gyns, might pay premiums five times higher.
Within the specialty area of Ob-Gyn, all claims – direct and vicarious — are grouped together. No one knows how many reflect direct liability for the physician’s own actions versus claims reflecting ‘vicarious’ liability. The liability insurance industry has never collected (or at least, never made public) any such data breakdowns.
As a result, the total set of all claims against the surgical specialty of obstetrics and gynecology serves as the basis upon which their premiums are determined. In other words, the premium charged reflects both direct liability and vicarious liability claims, to the extent that any vicarious claims exist. All OBs pay this rate, which already accounts for any risk of vicarious liability. At the time of the NCRIC case, no vicarious claims for obstetricians involving care provided by midwives were known to have occurred.
To the extent that any true vicarious liability exists, it has already been covered by the direct premium. In fact, a surcharge represents “double dipping”, as all litigation-related costs have already been factored in initially. This was the basis for rejecting a surcharge as excessive and discriminatory by the DC Superintendent of Insurance.
Malpractice insurance companies that impose surcharges are in violation of state insurance laws, unless they can demonstrate that they have differentiated between actuarial data that accounts for direct liability differently from vicarious liability. However, all insurers use essentially the same data as the NCRIC, so they will not have differentiated data and their surcharges can be challenged as excessive, discriminatory and without adequate actuarial support.
Furthermore, there is no category of actuarial data collected or made available for obstetricians who supervise midwives utilizing the principles of physiological care. Were such data available, physicians who provided physiological management themselves, or supervised midwives who do, would enjoy considerable savings on their malpractice premiums, as the outcomes for this type of care are excellent, with a corresponding low rate of complications.
Reliable sources, including a recent Wall Street Journal article on reducing malpractice costs for normal birth, identify that 50% of all obstetrical malpractice claims involve the administration of artificial hormone Pitocin to induce or speedup labor. In one study, 27% of obstetrical inductions were being performed before the term of the pregnancy. In particular, those pre-due date inductions had a remarkably higher rate of complications, including fetal distress and Cesareans. [encl #6].
Midwives never administer artificial hormones or other powerful drugs in a domiciliary setting that induce or accelerate labor. Obviously these safer practices would lower the rates of litigation for any obstetrician associated with licensed midwives.
However, practices that reduce the litigations risk and other positive factors are not taken into account when med-mal carriers set premiums for obstetrical liability coverage. Potential savings to the insured physician (or reduced revenue to the carrier) may explain why undifferentiated data continues to be used.
In the meantime, no statistical or actuarial data exist that could justify the imposition of a surcharge for physicians who supervise professionally-licensed midwives providing physiologically-based midwifery care in any setting, including planned homes births. (citation #2)
2000-2007 ~ Since the passage of the LMPA in 1993, consumers and midwives and other grassroots organizations have, with the help of Senator Figueroa and Assemblywomen Strom-Martin, made three separate legislative attempts to remove or modify the poison pill of physician supervision from the LMPA. That also included an effort to eliminate the vicarious liability aspect of physician supervision by adding a “hold blameless for care not rendered” clause.
This common sense remedy was opposed by the trial lawyers’ lobby. While these bills had the support of forty organizations, they all failed due to opposition of four organizations — the CMA, CAPLI, ACOG and CAOC (the trial lawyers lobby).
However, coordinated efforts by midwifery and consumer groups were able to improve the situation for licensed midwives and make their care more satisfactory for consumers through passage of three amendments to the LMPA.
In 2000, SB 1479 added language acknowledging that spontaneous childbirth is a normal process and not a disease, that every childbearing woman has a right to choose her birth setting from the full range of safe options on her community and that PHB with a trained attendant is a safe and responsible option for healthy women. SB 1479 also made licensed midwives responsible for documenting specific medical interface arrangement for each PHB client.
In 2002, a second amendment (SB 1950) required the Medical Board to adopt a midwifery-based standard of care to be used in judging any quality of care complaint against LMs. And in 2006 a third amendment (SB 1638) authorized the formation of a MBC/Midwifery Advisory Council. It also provides for LMs to collect and report statistics and other practice data on the number and outcomes of PHB to the Office of Statewide Health Planning and Development (OSHPD). Aggregated data is to be provided to the MBC each year on the number and outcomes of PHB, which in turn must be included in the Board’s annual report to the Legislature.
The MBC’s Dilemma
The Medical Board found it nearly impossible to harmonize the three fundamental elements of the LMPA, i.e., the professionalization of midwifery through:
- a professional curriculum and clinical experience
- testing on those educational parameters and
- state licensing.
Either the LMPA was inconsistent and contradictory OR the MBC interpretation of the statutory scheme created an internal conflict that was not intended by the framers of the legislation.
On one hand, the LMPA described an elaborate and complex system for the comprehensive training, testing, licensing and regulation of the professional discipline of direct-entry midwifery. This was presumed by the MBC to mean that the legal practice of midwifery required that all the various aspects of professionalism be met before any individual midwife was lawfully “authorized” to practice. However, a plain reading of the text of the LMPA does not actually say this in black letter law.
On the other hand, the challenge mechanism of the LMPA clearly acknowledged in black letter law that traditional (ie, direct-entry, non-nurse) midwifery was, at the time the LMPA was being written, an on-going practice that had existed in a legal limbo ever since the repeal of the midwifery application process in 1949.
None of the three statutes dealing specifically with direct-entry midwifery licensing (1917, 1949 or 1993) ever directly criminalized the practice of midwifery by persons not holding a state-issued midwifery license, nor they ever extended exclusive entitlement to licensed midwives relative to their identified scope of practice – maternity care to healthy women with normal pregnancies.
Had any aspect of the law done that, physicians would either have been barred from providing the traditional type of midwifery services — physiologically-based non-medical care — to healthy women, OR been forced to include this type training in their medical school curriculum. With that in mind, it will not come as a surprise that exclusive entitlement language for midwives was also not included in the LMPA.
Only thru the conventional definitions of the Medical Board and its case against Kate Bowland in 1976 (decided by the California Supremes Court in the Board’s favor) practicing midwifery without such a license became a crime, which resulted in the arrest and criminal prosecution of midwives by charging them with the illegal practice of medicine.
Even Medical Board members and staff still speak of the “illegal” practice of midwifery, in actual, technical fact, there is no such ‘crime’ – as any prosecution would falls under the unauthorized practice of medicine, since the practice of midwifery does not enjoy “entitlement” status that means only a professionally licensed midwife can practice midwifery.
The LMPA not only acknowledged these simple facts but emphasized professionalizing the formally ‘lay’ practice of direct-entry midwifery via a legislative scheme which permitted “qualified” midwives (who obviously had been practicing midwifery prior to passage of the law) to challenge the three-year educational process.
If one ponders that for a moment, it is plain that the Legislature presumed that the hundred or more empirically trained and experienced California midwives could adequately demonstrate an appropriate knowledge base and technical skills equal to a graduate of a formal three year training program. Such an assumption speaks of a basic confidence in this formally disenfranchised and frequently denigrated group. It also appears to recognize that a significant number of healthy childbearing families wanted and had a constitutional right to choose normal birth under the medically non-interventive principles of midwifery.
END