A 1976 ruling of the State Supreme Court interpreted the lay (i.e. unregulated) practice of midwives to be an unauthorized and therefore an illegal practice of medicine in the state of California. This was not based on one or more statutes that specially or directly identified childbirth as a medical condition or defined attendance at a normal childbirth to be restricted to those with a license to practice medicine, or restricted to those who held a state-issued license to practic midwifery.
It was instead predicated on the idea that the study of childbirth-related medical practice, or obstetrics, is taught in medical schools.
Any doctor who volunteers to supervise a midwife risked the lost of his medical malpractice insurance and childbearing women who sought the services of a midwife expressly because they did not want to be under the care of an obstetrician.
Killea Che Guevara quote — http://www.sandiegoreader.com/news/2011/mar/09/radar-lucy-killea-cia-network/
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Strengthen motivation of (fill in blank) MBC staff, Legislatures, other supporters, while exposed the distortions that continue to cause the public and the medical profession to incorrectly assume the mfry care is an inherently risky form of maternity care, and that the routine use of obstetrical interventions makes normal childbirth safer for healthy women and their babies.
Argument for why the Cal leg meant for mfry to be distinct calling for the physiological management of normal childbirth in essentially healthy women w/ normal pregnancies, in which the official purpose of ….
The knowledge and skills of obstetricians used primarily to provide advice, support and expertise for those women who have complicated pregnancies‘(ref-1a). Whatever adjectives are used to describe the interface btw midwives and physicians, the potential participation of the physician cannot be so defined as to eliminate access to state-regulated midwives.
According to the record of the Legislature’s actions through over the last 136 years, there have been 3 basic motivators of mfry-related legislation.
The first was a historical acknowledgment of the traditional human right of healthy childbearing women to be cared for during normal childbirth by knowledgeable and experienced members of their own gender. The California “Healing Arts’ statutes, first passed in 1876 and amended for times in the following 41 years , never defined care during normal childbirth to be a medical activity, or restrict the provision of such care to MDs only. The words “childbirth”, “midwife” and “midwives” do not appear in anywhere in the Healing Arts legislation until passage of the 1917 mfry provision, which introduced state certification by the Medical Board for currently practicing midwives who met stipulated qualification and payment of fees, and those in the future who successfully completed a midwifery training program approved by MBC.
However, this statutory scheme never made the practice of midwifery per se by non-certified individuals a criminal offense or defined such activity to be an illegal practice of either or medicine or midwifery. Statutory penalties associated with the state-regulated practice of mfry expressely stipulated that certified midwives were NOT authorized to practice medicine or surgery and that they faced severe disciplinary action for the use of drugs or performing surgical procedures such as abortion and forceps or the failure to make a timely referral of women and newborns with stipulated complications to the care of an MD.
Statutory penalties associated with the 1917 provision for a state-regulated practice of mfry expressely stipulated that certified midwives were NOT authorized to practice medicine or surgery, and that they faced severe disciplinary action for the use of drugs or performing surgical procedures such as abortion and forceps, and any failure to make a timely referral of women and newborns with stipulated complications to the care of a physician.
The second and more contemporary motivator was to acknowledge that a substantial numbers of healthy childbearing women in California were extremely interested in an alternative to the standard obstetrical model of maternity care which restricted where and how childbirth occurred and who was ‘allowed’ to be present. These vocal families objected to the routine use of medical intervention during a normal labor and the use of invasive obstetrical procedures during a normal birth. As a result of intense lobbying efforts by this outspoken groups of California residents, the Legislature passed a nurse midwifery act in 1974, which for the first time, tied the lawful practice of midwifery to the individual supervision of each CNM by a particular physician who was willing to take on vicarious liability for the nurse-midwives provision of care. As was obvious from the beginning, mandatory physician supervision functioned legally as a restriction or denial of midwifery care by nurse midwives who found that the state’s med-mal carriers forbid obstetricians to supervise wives unless they provided care in hospital obstetrical units. as did not work
As a result of intense lobbying efforts by this outspoken groups of California residents, the Legislature passed a nurse midwifery act in 1974, which for the first time, tied the lawful practice of midwifery to the individual supervision of each CNM by a particular physician who was willing to take on vicarious liability for the nurse-midwives provision of care. As was obvious from the beginning, mandatory physician supervision functioned legally as a restriction or denial of midwifery care by nurse midwives who found that the state’s med-mal carriers forbid obstetricians to supervise wives unless they provided care in hospital obstetrical units. as did not work.
Nurse-midwifery licensing was expected to provide cost-effective midwifery care in hospital, birth center and OOH settings that would be only 1/3 to 1/2 as expensive as the services provided by obstetricians.
However, the new mfry law made it extremely difficult for midwives to practice, as physician supervision provision was interpreted by the American College of Obstetricians and Gynecologists’ requiring the supervising OB to the ultimate authority, responsibility, and liability. This relationship was defined by the med-mal carriers as creating vicarious liability, which was not covered by their normal insurance and additional premiums would cost-prohibitive.
In spite of these disincentives, a few OBs in urban areas were willing to be identified as supervising nurse midwives but only if they agreed not to attend OOHs. In rural areas, where nurse-midwives were expected to have the most impact, doctors were unavailable, unable to do med-mal issues or simply unwilling to be involved with non-physician birth attendants, who were often seen by the medical community as competitors.
The third time that midwifery and planned home birth came to the attention of the legislature was just 3 years later in 1977 when the first on 7 bills were introduced to the legislature to create a new, licensing scheme. This second whack at this ball was motivated by disappointment with the 1974 nurse midwifery bill. This new category of maternity care provider was promoted as a way to reduce the costs for healthy low-income women whose care was being paid for by the MediCal program. This was to better serve low-income childbearing women, and the greatly reduce the fiscal burden to the State, which was paying the childbirth costs for 40% of all babies born in California
The purpose ofAB 1896 was to put professional mfry under an entirely different model of state-sanctioned practice that included nurse midwives as well as the licensing of direct-entry (i.e., non-nurse), and equally important, removed the stumbling block of mandated physician supervision.
A paper on the Midwifery Practice Act of 1978 by Michael Krisman, Deputy Dir. DCA described the history of the nurse midwifery practice act, noting negative impact when the practice of midwifery is limited to “only those situations under a doctor’s supervision”:
“In 1974, the California Legislature authorized the practice of nurse midwifery. This new program reflected concern over a perceived shortage and mal-distribution of obstetrical services in rural areas and the lack of prenatal care through the state. The nurse midwife is authorized to attend cases of normal childbirth and provide prenatal, intrapartum and postpartum care under the general supervision of physician.(The physicians need not be physically present, but are responsible for the actions of the nurse midwife.) Regulations have been established to implement the law; but for a number of reasons, including the restrictive nature of the regulations, only about 65 nurse midwives are presently certified in California.”
“… the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant. The fact that [3 yrs after passage] only 65 are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”.
As noted above, mandated physician supervision is generally interpreted as making the doctor “responsible for the actions of the … midwife”. The legal term for this is ‘vicarious liability’, and is the specific situation that produced “structural barriers”, or unintended consequences referred to above. In the 39 years since the passage of the California nurse-midwifery act, nurse midwives have been was unable to serve low-income population and women seeking ‘alternative’ care as was anticipated by the framer of this legislation. CNMs are generally unable to get hospital privileges which is a combination of vicarious liability issues and a fear by the obstetrical profession of economic competition.
Except for a very few large teaching hospitals, nurse-midwifery services have either been blocked by hospitals or their obstetrical department or in some cases closed down. More than a few obstetricians were not shy to state in public that from their perpective, every time a nurse midwife delivered a baby, it meant one less delivery for themselves or their obstetrician colleges. Hospital administrators have been quoted as defending their decision to close a hospital-sponsored nurse midwifery services because the care of nurse midwives, which focuses on supporting normal childbirth without the routine use of medicalization, did not generate the same level of ‘billable units’ as the OBs on staff, and also that the Medicaid reimbursement rate for nurse-midwife attended birth was 1/3 less than if an MD provided the same type of care.
In particular, physician were either unable provide supervision due to prohibition of med-mal carries or unwilling due to the issue of economic competition to supervise CNMs who wanted to provide OOH birth services (free-standing birth centers and planned home births). However, a consistent 1% of families are high motivated to have their babies outside of the world of standard, hospital-based obstetrical care. This substantial number of healthy women who were unable to get care from within “the (healthcare) system”, eventually created its own ‘alternative’ caregivers — tradition or lay midwives — who stepped into the gap.
The structural barriers to practice inherent in the California law leaves nurse midwives with few, if any, career opportunites to do that they are trained to do – attend normal births in essentially healthy women. The vast majority of nurse-midwives in the state work in doctors’ offices, clinics and as maternity care or L&D nurses. California’s problems are made worse by Medicare-Medicaid rules that prohibits any direct reimbursement to ‘midlevels’ practitioners, including nurse midwives. These federal laws authorize the physician to be paid their full MD-fee for care provided by nurse-practitioners in their employ. Under this strange system, there is no cost saving to the taxpayer and nurse-midwives are blocked from providing care independently to low-income population unless the woman or her family are able to pay out-of-pocket. The sum total of this situation has devastated the nurse midwifery profession. Annual enrollment in nurse-midwifery training programs has fallen from a national average of 500 new students to an all-time low last year of only 200 students.
By 1977, grass-roots organizations of consumers and lay midwives began lobbying the Legislature to pass laws that either legalized lay midwifery or created a new category of ‘direct-entry’ (i.e. non-medical, non-nurse) midwives that would not be saddled by these same ‘structural barriers’ as discussed in the 1977 DCA letter referred to above.
NOTE __ mandated Phys Superision turned legislation envision as stepping stone into a stumbling block – instead of linchpin that enabled, it is being used to systematically disable — add note to history of mfry legislation that state-certified midwives functioning under 1917 provision (last MF licensed did not renew in 1981) were never required to have phys supervision quote memo from the office of Gov. Earl Warren in 1949 saying “etc …..
began as a cause, becomes a business and devolves into an exploitive scheme (organized crime)
Terms of Services:
(1-a ref: UK – Expert Maternity Group entitled Changing Childbirth (Department of Health, 1993 Department of Health, 1993, p 41).
Nurse mfry training programs have had approx. 500 students each year but recently that number as dropped to only 200. This reflects the inability of nurse midwives, who are trained and licensed to attend normal labor, the birth and care for the new mother and baby for
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The Licensed Midwifery Practice Act of 1993 (LMPA) defines the contemporary practice of traditional midwifery in California. This 1993 licensing law repealed the original 1917 provision for state-regulated direct-entry midwifery practice by non-medical, non-nurse practitioners, and replaced it with a modernized level of training and practice defined by the LMPA as “equivalent, but not identical,” to nurse-midwifery.
The LMPA enumerates an educational curriculum, specified clinical training and a professional scope of practice. Under the LMPA’s regulatory authority, the Medical Board adopted a standard of practice for licensed midwives in March of 2006 that is consistent with providing professional midwifery care to healthy women in out-of-hospital settings.
The LMPA makes it clear that licensed midwifery is neither a ‘lay’ practice, nor a sub-set of medical practice. In fact, the practice acts for CNMs and LMs as passed by the California Legislature both explicitly state that the holder of such a license “is NOT authorized to practice medicine or surgery”.
@@@ – w-n-p–> When combined with the 5,000 history of midwifery, which predates the practice of medicine as formal discipline by several mileineeia, the subsequent historical and contemporary tradition of midwifery as qualitatively different from the practice of medicine, the intent of the California Legislature defined the midwifery to be a practice of medicine during its entire 136 year history since statehood (1876), but instead has treated the practice of midwifery as distinctly different from medicine or the surgical specialty of obstetrics — a legal category known as a “distinct calling”
during which time it never but (one must conclude that the practice of midwifery . puts the professional practice of midwifery into
As a non-medical, non-surgical discipline, midwifery is a separate healthcare profession with its own unique history, training and methods
midwives provides non-medical support for the normal biology of childbearing in healthy women. This model of supportive care is technically described as physiologically-based management. Physiologic care includes an on-going evaluation of well-being for both mother and baby and does not routinely utilize any medical treatments or interventions.
The only exceptions to this model of non-interventive care fall under scope of practice authority that permits midwives to respond to minor variations — such as providing IV fluids to a laboring women who becomes dehydrated, to repair an uncomplicated perineal lacerations and to provide emergency measures under the very strict standard of a bona fide emergenc
which would put LMs into a category known as ‘physician-extenders’.
Under California law, physician-extenders or ‘mid-level’ providers practice medicine under the authority of a supervising physician. In this instance, the physician legally deligates medical activities such as diagnosing medical conditions, providing medical treatments and performing surgical procedures to a nurse practitioner or physician-assistent employee as an extension of the doctor’s own medical license.
However, state-licensed midwives in California are not physician-entenders, as
Neonatal outcomes are similar to low and moderate-risk women who have planned hospital births.
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Overview of California Midwifery Laws ~ 1917 to the Present
The Licensed Midwifery Practice Act of 1993 (LMPA) establishes the contemporary practice of traditional midwifery in California. The Act enumerates a formal educational curriculum, specifies a period clinical training and includes a professional scope of practice. Taken together, the training and practice of licensed direct-entry midwives is described in the LMPA as “equivalent, but not identical,” to nurse-midwifery.
The 1993 LMPA makes it clear that licensed midwifery is neither a ‘lay’ practice, nor a sub-set of medical practice that creates a category that doctors describe as a ‘physician-extender’. According to the licensing laws for both CNMs and LMs, the holder of a license to practice midwifery is “not authorized to practice medicine or surgery”.
Since full implementation of the law in 1996, approximately 275 midwives have been licensed, with about 125 LMs actively providing OOH birth services in 2011. By comparison, there are about a 1,000 certified nurse midwives (CNMs) licensed under the 1974 nurse-midwifery practice act. CNMs in this state are generally employed in medical offices, clinics, birth centers and a very small number of hospital-based midwifery services. Due to the physician supervision issue, it is very rare for California nurse-midwives to provide out-of-hospital (OOH) birth services.
Under the regulatory authority of the LMPA, the Medical Board adopted a standard of practice for licensed midwives in March of 2006 that is consistent with providing professional midwifery care to healthy women in OOH settings. Since 2007 annual reports for all licensed midwives have been complied and published by the Officie of State-wide Health Planning and Development (OSHPD). During 2011 California LMs provided prenatal care to over 3,400 women and attended approximately 2,600 PHB.
The normal spontaneous birth rate for childbearing women attended by California LMs is 92%, with 7% Cesarean section rate among those women who were transfered to the hospital before or during labor. Premature birth rates for California mothers receiving prenatal care from LMs is under 1%, while the overall rate in the US is 12%. The reduced numbers of premature babies and Cesarean deliveries lowers the cost of medical care, which results in a substantial saving to the State’s Medi-Cal program. (get accurate numbers for all categories from last yrs LMAR and other references)
Historial Background of mfry legislation in relation to Physician supervision:
The 1993 licensing law repealed the original 1917 provision for state-regulated direct-entry midwifery practice by non-medical, non-nurse practitioners. From its implementation in 1918 to the retirement of the last certified midwife in 1981, 217 state-regulated direct-entry midwives practiced under this law over a span of 65 years. The great majority were first and second-generation Japanese who attended one of the 27 formal training programs in Japan.
It is important to note that from 1917 to its repeal in 1993, the laws defining the state-certified practice of midwifery did not require physician supervision or mandate any specific a priora relationship between non-nurse midwives and physicians, except that any pregnant women, labor patient, new mother or newborn who developed a complication be referred to the care of a physician or transfer to a hospital.
In regard to the issue of mandatory physician supervision prior to the 1974 Nurse Midwifery Practice Act, a Legislative Memorandum to Governor Earl Warren’s Office dated July 8, 1949) made the following clarifying comments:
“Some comment should be made … with regard to midwives and nurses, for the duties and powers of the two classes are quite different. Section 2725 of the B&P Code outlines the duties which may be performed by nurses. All these duties are to be perfored under the supervision of a physician. *Such is not the case with regard to midwives*, for according to Section 2140 of the same Code this type of practitioner operate independently and not under the supervision of a physician.”
The profession of midwifery first came under the authority of the obstetrical profession in the nurse-midwifery practice act in 1974. This new category of maternity care provider was promoted as a way to reduce the costs for healthy low-income women whose care was being paid for by the MediCal program. However, organized medicine insisted that mandatory supervision was a vital public safety measure that would reliably provide a stepping stone to effective and timely physician care. Unfortunately, this “stepping stone” turned into a permanent stumbling block.
The legislative purpose in passing the nurse midwifery licensing was to provide cost-effective midwifery care in hospital, birth center and OOH settings for low-income, MediCal-eligable women that would cost 1/3 to 1/2 less than the conventional obstetrical services.
However, the supervisory provision of the new nurse-mfry law made it extremely difficult for CNMs to practice. The American College of Obstetricians and Gynecologists interpreted the provision as requiring the obstetrician to have ultimate “authority, responsibility, and liability” for the midwife’s maternity patients. Immediately the med-mal carriers defined such a relationship as creating vicarious liability. According to the medical malpractice world, customary insurance premiums did not cover ‘vicarious’ liability. This meant that supervising OBs would have to pay a very large ‘surcharge’ in addition to their normal premium. Since this was cost-prohibitive, and since nurse-midwives were in other ways an economic competitor, obstetricians had multiple reason not to work with CNMs.
In spite of these disincentives, a few OBs in urban areas were willing to supervise nurse midwives but only IF they agreed NOT to attend any OOH births.
In rural areas, where nurse midwives were expected to have the most impact by providing maternity services to low-income women, doctors were frequently not unwilling to make themselves available. Sometimes they were prohibited by med-mal companies from providing supervision or simply unwilling to be involved with non-physician birth attendants, who were seen as competitors.
In 1977 there was the first of 6 legislative attempts to fix the problems in the nurse midwifery practice act. The second whack at the ball was motivated by disappointment with the 1974 nurse midwifery bill.
background paper on the Midwifery Practice Act of 1978 by Michael Krisman, Deputy Dir. DCA described the history of the nurse midwifery practice act, noting negative impact when the practice of midwifery is limited to “only those situations under a doctor’s supervision”:
“In 1974, the California Legislature authorized the practice of nurse midwifery. This new program reflected concern over a perceived shortage and mal-distribution of obstetrical services in rural areas and the lack of prenatal care through the state. The nurse midwife is authorized to attend cases of normal childbirth and provide prenatal, intrapartum and postpartum care under the general supervision of physician.(The physicians need not be physically present, but are responsible for the actions of the nurse midwife.) Regulations have been established to implement the law; but for a number of reasons, including the restrictive nature of the regulations, only about 65 nurse midwives are presently certified in California.”
“… the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant. The fact that [3 yrs after passage] only 65 are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”.
As noted above, mandated physician supervision is generally interpreted as making the doctor “responsible for the actions of the … midwife”. The legal term for this is ‘vicarious liability’, and is the specific situation that produced “structural barriers”, or unintended consequences referred to above. In the 39 years since the passage of the California nurse-midwifery act, nurse midwives have been was unable to serve low-income population and women seeking ‘alternative’ care as was anticipated by the framer of this legislation. CNMs are generally unable to get hospital privileges which is a combination of vicarious liability issues and a fear by the obstetrical profession of economic competition.
Except for a very few large teaching hospitals, nurse-midwifery services have either been blocked by hospitals or their obstetrical department or in some cases closed down. More than a few obstetricians were not shy to state in public that from their perpective, every time a nurse midwife delivered a baby, it meant one less delivery for themselves or their obstetrician colleges. Hospital administrators have been quoted as defending their decision to close a hospital-sponsored nurse midwifery services because the care of nurse midwives, which focuses on supporting normal childbirth without the routine use of medicalization, did not generate the same level of ‘billable units’ as the OBs on staff, and also that the Medicaid reimbursement rate for nurse-midwife attended birth was 1/3 less than if an MD provided the same type of care.
In particular, physician were either unable provide supervision due to prohibition of med-mal carries or unwilling due to the issue of economic competition to supervise CNMs who wanted to provide OOH birth services (free-standing birth centers and planned home births). However, a consistent 1% of families are high motivated to have their babies outside of the world of standard, hospital-based obstetrical care. This substantial number of healthy women who were unable to get care from within “the (healthcare) system”, eventually created its own ‘alternative’ caregivers — tradition or lay midwives — who stepped into the gap.
The structural barriers to practice inherent in the California law leaves nurse midwives with few, if any, career opportunites to do that they are trained to do – attend normal births in essentially healthy women. The vast majority of nurse-midwives in the state work in doctors’ offices, clinics and as maternity care or L&D nurses. California’s problems are made worse by Medicare-Medicaid rules that prohibits any direct reimbursement to ‘midlevels’ practitioners, including nurse midwives. These federal laws authorize the physician to be paid their full MD-fee for care provided by nurse-practitioners in their employ. Under this strange system, there is no cost saving to the taxpayer and nurse-midwives are blocked from providing care independently to low-income population unless the woman or her family are able to pay out-of-pocket. The sum total of this situation has devastated the nurse midwifery profession. Annual enrollment in nurse-midwifery training programs has fallen from a national average of 500 new students to an all-time low last year of only 200 students.
By 1977, grass-roots organizations of consumers and lay midwives began lobbying the Legislature to pass laws that either legalized lay midwifery or created a new category of ‘direct-entry’ (i.e. non-medical, non-nurse) midwives that would not be saddled by these same ‘structural barriers’ as discussed in the 1977 DCA letter referred to above.
Between the passage of the nurse midwifery practice act in 1974 and the 1993 LMPA, there were 6 unsuccessful attempts to pass new midwifery legislation in California. Because the nurse-midwifery act failed to establish midwifery as an independent profession, the practice of nurse midwives could not, did not reliably expand access to care for low-income women. This same problem — the physician supervision issue — also meant that CNMs could not legally provide OOH birth services. Lay midwives, many of who were already nurses, saw no benefit in going to nurse midwifery school, since they still would not be able to practice lawfully after they graduated.
Into this breech stepped Governor Edmund G. Brown Jr’s first administration. Working through the Department of Consumer Affairs, he authorized state resources in 1977 to develop bills as legislative initiatives. Gov. Brown officially supported both of the midwifery bills introduced (AB 1986 and SB 650) while he was in office. These bills, which were sponsored by Assemblyman Gary Hart and Senator Barry Keene, were also endorsed by the California Department of Health.
Several of these bills sought to combine the education and scope of practice of nurse and direct-entry midwifery into a single category of state-certified midwives. None of the bills introduced between 1977 and 1992 contained the kind of mandatory physician supervision provision required of nurse midwives. Instead all 6 defined a variety of arrangements for consultation and/or collaboration between the midwife and physician.
Language in SB 650 (1981) include hospital privilages for state-regulated midwives, a ‘hold blameless for care not rendered’ clause for MD that protected doctors from malpractice claims for care provided by certified midwives and expressly stated that state-regulated midwives were to be reimbursed when providing care to women covered by the state’s MediCal program.
In 1980, AB 1896 (Hart) established a pilot program to study the feasibility and safety of lay midwife practice under the Health Manpower Pilot Projects Program (HMPP). In 1982 and 1986 the California Assembly Health Committee held a number of well-attended public meetings in various locations around the state on “Alternative Childbirth Practices”, which determined that there was a significant consumer group who wanted to have midwife-attended OOH births. Based on data for low and moderate-risk mothers receiving such care in other jurisdictions, the Assembly Health Committee determined that OOH births attended by experience midwives with access to medical care when indicated was comparable in safety for mothers and babies to hospital-based obstetrics.
Senators Lucy Killea and John Vasconcellos co-sponsored bills in the late 1980s and early 1990s but like all previous bills, they were also killed in committee.
The Perfect Storm
In August of 1991 agents of the California Medical Board arrested a Mennonite midwife practicing under the State’s religious exemptions clause (section 2063) as a lay practitioners. The midwife charged with illegally practicing medicine based on the 1976 Bowland Decision by the California Supreme Court, which ruled that the lay practice of midwifery was an unauthorized practice of medicine.
However, the State medical board has no jurisdiction over unlicensed persons, so the case was turned over to the county district attorney’s office to be criminally prosecuted for five misdemeanor counts of practicing medicine without a license. A Santa Clara County DA pursued this case over the next 20 months but in April of 1993, had an unexplained change of heart and dropped the case. This had far-reaching political effects, as the DA was quoted in local newspapers as saying that it didn’t seem wise or useful to prosecute lay midwives for doing what any other resident of California could do — that is, it is lawful for any person to assist a woman during normal childbirth.
The construction of the criminal case against this midwife was based on the premise that her actions became a crime specifically because she was trained in midwifery and by ‘holding herself out’ as knowledgable and able to provide support care for normal childbirth, she had crossed over the invisable line into the illegal practice of medicine.
The opinion of the DA as voiced to the reporter was shared by many others. Fortunately, this was amplified in newspaper editorials published in May of 1993 that criticized the 20-year record of the California Association of Medicine. For decades the CMA had been using their political influence to block all efforts to pass a new midwifery licensing law while simultaneously urging the Medical Board to arrest lay midwives. These editorials called on the CMA to instead use its wealth of resources to get a new law passed that would license the approximately 500 or so direct-entry (non-nurse) midwives that were providing supportive care for planned home births. This perfect-storm of events broke up the political log-jam that for so long historically had blocked legislation.
Mfry legislation – “A bad bill is better than no bill at all”
In early June of 1993 Senator Killea was approached by representatives of the CMA who wanted to broker a deal. They promised to get a direct-entry licensing law passed if the Senator would in return agree to included the 1974 nurse-midwifery language mandating physician supervision. This included the promise by the CMA that they would “see to it that physicians provided supervision” to licensed midwives.
It is helpful to mention here that Senator Killea is was nobody’s fool. She has a PhD and worked in military intelligence in Europe during the Second World War. She and her future husband (Jack Killea) were two of the first three people hired by the CIA when it was formed in 1947. They were both assigned to the American Embassy in Mexico City when Che Guevara was killed. She went on to become the highest ranking woman in the U.S. Intelligence Service. As a Catholic and pro-choice candidate for state senate, the Bishop of San Diego banned her from taking communion at her local parish, thus making her the first politician to be punished in such a way for her political views. Have a career forged in furnace of these extraordinary experiences, she was the perfect ambassador for midwives and the inevitable legislative dust-ups with organized medicine.
Senator Killea was aware that was it both inappropriate and unworkable to have the profession of midwifery under the supervising authority of the obstetrical profession . But she was also astutely tuned to political realities. The best of efforts of Governor Brown’s administration, all the California legislators who sponsored previous mfry bills, thousands of members of consumers, midwives and other professional groups had all been unable 6 times in a row over the previous 16 years to even get a mfry bill out of committee.
Consumer groups and midwives were (not surprisingly!) outraged and ready to fight any legislation containing the same ‘poison pill’ of supervision that had already blocked CNMs from being able to practice within their scope of practice for the previous 20 years.
After years no progress Senator Killea saw this as a step in the right direction — an opportunity for the camel to at least get his nose under the tent. She was convinced that midwives and consumers would ultimately be served by taking the CMA up on their offer to move the legislative ball forward. as written — I sat next to each other during one Assembly Health committee hearing and in regard to the issue of supervision, assured me that “a bad bill is better than no bill at all”. Despite on-going problem over the last 20 years, I have to agree with that decision.
SB 350 (Killea) created the Licensed Midwifery Practice Act of 1993. It declared itself to be neutral to the nurse-mfry act but repealed the original 1917 mfry provision for the practice of traditional or non-nurse midwifery and replaced it with a modernized level of training and practice defined by the LMPA as “equivalent, but not identical,” to nurse-midwifery. As noted above, 275 midwives have been licensed since the Act was implemented in 1996.
*The LMPA as a Work-n-Progress*
In the 19 years since Senator Killea got the LMPA passed, it’s functionality has been significantly impacted by a 1999 ruling from the Office of Administrative Law (OAL) and three amendments authored by Senator Liz Figueroa — SB 1479 ~ 2000, SB 1950 ~ 2003 and SB 1638 ~ 2006. The 1999 MBC case that grew out of the inability or unwillingness of obstetricians to provide supervision to licensed midwives. OAL Judge Roman’s ruling provided a legal framework for practicing midwifery when LMs don’t have access to obstetricians who are willing or able to provide supervision.
Statutory Duties of Supervising Obstetricians:
Under the provision for obstetrical supervision in the LMPA as amended in 2000 by SB 1479 (Figueroa), the role that physicians are thrust into by the LMPA as the ‘supervisors’ of midwives is a strictly unpaid volunteer position. Only if the doctor actually provide care to the LM’s clients will the doctor receive any monetary compensation. Even this depends on the ability of the patient to pay through insurance, MediCal or out-of-pocket.
As for their duties, supervising obstetrician have no statutory duty in the LMAP to provide any kind of prior medical oversight to the clients of midwives. An obstetrician who volunteers to supervise a LM is not required to examine or ‘pre-approve’ childbearing women before they can be accepted for care by the LM. Nor do supervising physicians co-manage or otherwise direct the care of midwifery clients during prenatal care, active labor, the birth or mother’s 6-week course of postpartum care. Supervising obstetricians also do not have a role in providing care or advice about the neonate at birth or during the first 6 weeks of life while it is under the care of the midwife.
As a practical matter, the professional or ‘supervisory’ skills of the MD only come into play if or when the childbearing woman needs some form of medical service that falls outside of the licensed midwifery scope of practice or beyond the individual midwife’s level of skill. In these cases, the midwife or client seeks medical assistance from the physician because the pregnant or newly-delivered mother needs to be medically evaluated or treated either in the physician’s office or admitted to the hospital for some form of care.
This arrangement was best described by an ACOG represenative during the Aug 2012 Mfry Council meeting. Dr Laure Gregg suggested new language for a proposed regulation that descried this as a “midwife-directed physician consultation” .
At an operational level (i.e. functionally) these circumstances are, in fact, a consultative and collaborative relationship between the midwife, mother and medical doctor. Under these circumstances, the licensed midwife, who is trained in midwifery, is responsible for her practice of midwifery, while the MD, who is trained in allopathic medicine and the surgical speciality of obstetrics, is only responsible for services provided in his area of training and expertise – the practice of obstetrical medicine.
However, official documents from med-mal carriers, CAPLI and ACOG (from 1974 to the present), attest to the fact that the industry has chosen to define or interpretert the supervision of licensed midwives in California in such a way as to create vicarious liability — a decision that prohibits any kind of a professional relationship of btw MDs and LMs who provides OOH birth services.
The following is taken from a letter written May 18, 1999 by the NORCAL Mutual Insurance Company to Dr. Connie Basch, MD, director of a medical clinic in McKinleyville, Ca:
Re: Risk management recommendation on the supervision of midwives.
EXCLUSIONS AND LIMITATION ON COVERAGE
a. physicians cannot supervise, consult with, or back-up any midwife for a *homebirth
If an unlicensed or a home birth midwife calls for advice of any kind, explain that *you cannot give advice (otherwise you are engaging in supervision, which is not covered under your policy, as discussed above). {*emphasis in original}
If an unlicensed or a homebirth midwife calls to report an emergency situation, tell him/her to call 911 in order to have the patient transported to the hospital. Do not give any other advice. Document the conversation.
Background & Legislative History of the Current Impasse
According to published records of the legislative hearing in August of 1993 (Assembly Health Committee), lobbyists for CMA described physician supervision as increasing ‘patient safety’ in the interest of the public. The CMA promoted supervision as a stepping-stone to comprehensive obstetrical services whenever the client of a midwife develops a complication during pregnancy or in relation to childbirth.
If the process worked as the CMA promised, LMs could easily consult and collaborate with obstetricians, and individual doctors would be able to provide the midwife’s PHB clients with direct access to required medical care and hospital-based services. But whatever the relationship btw midwives and physicians is called, it must live up to that purpose as identified by the CMA officials, who personally insisted that it be added to SB 350 [press release Senator Killea’s office, June 7, 1993].
During negotiation with Sen. Killea, she only agreed to the last-minute addition of supervision after the CMA personally promised her that they would “see that physicians provided the necessary supervision”. This was a promise they could not (and did not) keep. Equally important, the supervision-vicarious liability status is as onerous and detrimental to obstetricians and childbearing women, as it is to professional midwives.
New regulations needed because of ACOG’s de facto definition of “supervision”
One of the reasons for this ‘regulatory remedy’ is because the LMPA does not itself define ‘supervision’. This was originally done to avoid inappropriate legislative entanglement (i.e. unintended consequences) and allow maximum freedom between the LM and MD. In theory this was a good idea, but ACOG took advantage of the provision’s un-enumerated latitude to promote and disseminate its own preferred definitions of supervision, which state that:
1. The physician is ‘ultimately responsible for patient outcome’
2. The supervising physician has ‘final authority, responsibility and liability’
Since passage of the LMPA in 1993, ACOG has repeatedly defined supervision in language adopted by CAPLl and other groups to determine organizational policy. While ACOG does not use the actual word ‘agency’, its definition unilaterally creates a professional arrangement of agency-agent.
This de facto definition of obstetricians as having ‘final responsibility’ makes the midwife’s client into the de facto patient of the obstetrician, with the LM functioning as the physician’s agent. Logically-speaking, this would impose a hospital-based obstetrical standard of care on a childbearing woman who had specifically chosen midwifery care and childbirth in an out-of-hospital setting.
How could such non-consensual arrangement possibly meet the needs of:
1. midwifery client
2. the physician as supervisor
3. or the midwife?
From the perspective of the obstetrical profession, this supervisor role as defined by ACOG requires obstetricians to provide their most valuable professional asset for free, since the co-managed midwifery client-patient is technically contracting with the LM and not the MD. Under the preferred definition ACOG, the obstetrician is volunteering to accept ultimate (legally-binding) responsibility for patient outcome and ‘final authority, responsibility and liability’, and do so without compensation.
The LMPA does not provide any mechanism to reimburse physicians for costs associated with their voluntarily assumed supervisorial role, such as increased med-mal insurance premiums and the potential loss of liability coverage for being associated with PHB midwifery, which has consistently been prohibited by all three California mutual med-mal companies since 1974.
The LMPA’s supervisory provision also does not address the obstetrician’s cost of defending him or herself against possible disciplinary charges relative to taking on the “final authority, responsibility and liability” for the community-based practice of midwifery, which is a distinct professional discipline based on physiologic (non-medical) care.
However, medical students in the US do not study the physiological management of childbirth as a part of their medical school curriculum, nor do they receive clinical training during their residency or have any post-graduate experience, unless they have worked in other countries where physiologic childbirth is the norm. It would be illogical for an MD who trained in the US to assume responsibility and liability for a midwife’s practice of midwifery.
In addition, ACOG’s strongly worded policies have prohibited ACOG fellows from participating in planned home birth since 1974 (re-issued in 1979, 1999, 2002, 2006, 2008, with the most recent version made more stringent by adding this statement:
“ACOG does not support programs that advocate for, or individuals who provide, home births. Nor does ACOG support the provision of care by midwives who are not certified by the American College of Nurse-Midwives (ACNM) or the American Midwifery Certification Board (AMCB).” [As non-nurse midwives, LMs in Cal are not certified by either group]
For decades ACOG policies have clearly defined participation in planned home birth in any way – including groups that support PHB – to be the equivalent of unprofessional conduct, which means no ACOG fellow would be willing to testify on behalf of a supervising physician in any disciplinary proceeding.
In the OAL case referred to earlier in this letter, the judge did not address the onerous burden this provision places on supervising obstetricians. He did however identify the insurmountable barriers faced by California LMs. During the week-long hearing, it came to light that organized medicine insisted that the sponsor of the 1993 licensing bill (Senator Killea) add the same ‘supervision’ language used in the nurse-midwifery law to SB 350, even though this provision had already proven to be an insurmountable barrier to practice for nurse midwives.
The failure of the supervisory provision was well-documented in a letter from Department of Consumer Affairs as early as September 1977:
“ … limiting the practice of midwifery to only those situations under a doctor’s supervision … the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant. The fact that [3 yrs after passage] only 65 are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”. [Paper on the Midwifery Practice Act of 1978; Michael Krisman, Deputy Dir. DCA]
The unnecessary insertion of vicarious liability into SB 350 in 1993 at the request of the CMA created exactly the same insurmountable barrier for LMs as for CNMs — due to med-mal policies or personal preference, individual obstetricians either could not or would not volunteer their services as physician supervisor to licensed midwives.
This was confirmed in a statement published in Ob-GynNews by Dr. Vivian Dickerson, president of ACOG, when interviewed about the passage of the LMPA in September of 1993:
“ACOG has been strongly opposed to home births for more than a dozen years. What that means, in practical terms, is physicians held out for a guarantee of supervision rather than a more collegial sort of relationship, which was, we felt, an invitation to home births. What that means, in practical terms, is that instead of the midwife being in charge and telephoning physicians for consults or referrals, the physician is ultimately responsible for the patient and sets protocols in a formal relationship”. [Sept 15, 1993]
It must be noted that ACOG-based policies and protocols referred to above would of themselves prohibit the provision of planned home birth by qualified midwifery attendants, a fact that was pointed out by Judge Roman in his ruling.
Based on this considerable body of evidence, Judge Roman established a legal foundation for the practice of midwifery under the LMPA. In essence, his ruling stated that the Legislature, in passing the Licensed Midwifery Practice Act, acknowledged the right of childbearing women in California to choose maternity care that is ‘alternative’ to the medical model of obstetrics and furthermore that the Legislature determined that access to physiologically-based (i.e., traditional, non-medical) midwifery care by professionally-trained and state-regulated midwives was both appropriate and necessary to substantively and realistically support the constitutional choices of healthy childbearing women in a manner that was also consistent with the principles of public safety.
Under this legal theory, such fundamental patient rights and associated issues of public safety cannot be abridged or functionally nullified by corporate policies of med-mal carriers, competing professional organizations or what were described in Judge Roman’s own words as the evident “hostility” of the obstetrical profession – all situations that ultimately deny LMs access to obstetrical supervision as mandated by the same organizations which insisted that such a requirement be added to SB 350 in June of 1993.
Under Judge Roman’s decision, licensed midwives are responsible for making a “good faith effort” to find a supervising physician – an MD with obstetrical privileges who practices in their geographical area who is able (according to his med-mal carrier) to provide supervision and is willing to voluntarily take on the legal burdens of vicarious liability and substantially increased insurance premiums. If no physician-obstetrician in the LM’s geographical area is willing to provide the mandated supervision (the obvious norm!), then the LM, in conjunction with each of her clients, must develop an alternative plan that provides appropriate and timely access to both elective and emergent medical services. This document is then signed by both client and LM and included in the patient’s chart.
The 1999 ruling by the OAL judge was followed in the year 2000 by an amendment to the LMPA (SB 1479 ~ Figueroa). This new provision removed some requirements of the original supervisory clause and replaced them with a requirement that closely approximated Judge Roman’s decision. SB 1479 required the MBC to create a document to be used by LMs to create a specific plan in conjunction with each of their clients for medical interface (elective and emergent) during ante, intra, and postpartum-neonatal periods. This written document must be signed by both client and LM and included on the mother’s chart. SB 1479 also expanded the requirements for informed patient consent relative to OOH midwifery care, disclosure and documentation of whether or not the midwife carries professional liability insurance, and consumer info on how to file a complaint with the Medical Board about a licensed midwife who care was somehow unsatisfactory.
In 2003, the LMPA was amended again. SB 1950 (~ Sen. Figueroa) directed the MBC to adopt into regulation a midwifery standard of care and a second regulation defining the ‘appropriate level of supervision’ between LMs and MDs. A regulation defining supervision was proposed by the Medical Board in 2003, but eventually dropped because organized medicine declined to support the wording recommended by the MBC’s Midwifery Committee. However, a formal midwifery standard of care for planned home birth as mandated by SB 1950 was approved by the OAL in March of 2006.
At the February 3rd 2012 Board meeting, the two proposed regulations presented to the Board were authorized under the legislative mandate of SB 1950. The goal of these regulations is to provide a workable solution that that is in the interest of pubic safety, consistent with the intent of the LMPA and with Judge Roman’s ruling in 1999.
To accomplish this requires two specific changes. ACOG’s definition that obstetricians have “final authority, responsibility and liability” has been accepted as a pro-forma or de facto regulation by all California med-mal carriers since the passage of the LMPA in 1993. ACOG’s unofficial or de facto definition as adopted by CAPLI must be rejected as the basis for organizational policy because it unnecessarily creates vicarious liability. Supervision-vicarious liability resulted in a ‘categorical’ discrimination against licensed midwives and their clients because it prevents obstetricians from collaborating with licensed midwives and also prevents them from providing non-emergent obstetrical services to midwifery clients. It also prevents midwives from accessing necessary lab and ultrasound services on behalf of pregnant women they are caring for.
The other needed change in regulatory language is defining the “appropriate level of supervision” so it can actually and practically ‘promote the public safety’. The only realistic option lies in a consultative and collaborative relationship between the obstetrical profession and midwives relative the medical needs of the midwife’s clients. Because this collaboration regulation eliminates vicarious liability, it simultaneously provides midwives and their clients with reliable and timely access to comprehensive obstetrical services. Access to medical care is undeniably in the interest of public safety.
As responsible citizens, we are ever mindful that ideologies about safety in relation to women’s health — whether called ‘public’ safety or ‘patient’ safety — must be supported by more than rhetoric and claims of possible benefit. To validate these claims, they must be accompanied by actions that realistically and effectively reduce harm, while protecting, preserving and promoting states of health. In the 19 years since supervision was inserted in the LMPA as ‘stepping stone to obstetrical services’, the concept of physician supervision has, in actual fact, created an insurmountable barrier to the very quality of care it was suppose to facilitate.
In addition, the imposition of this particularly flawed ‘safety’ measures as a prerequisite for access to midwifery care, also fails to acknowledge and account for the constitutional autonomy of healthy, mentally-competent adult women relative to their reproductive healthcare needs.
Midwifery clients are by legal definition healthy women who choosing midwives as their providers for maternity care. Since the inception of maternity care in the early 1900s, its goal and purpose has been to preserve and protect the health of already healthy childbearing women without introducing any unnecessary harm or unproductive expense. Healthy women choose midwives to meet their maternity care needs because they sincerely believe that the current standard obstetrical care in the US involuntarily exposes them to unnecessary, unwanted risks and they wish to avoid. The routine use of medical interventions included increased number of inductions, invasive procedures, rate of premature births, a 32.8% Cesarean section rate.
Healthy women choose midwives to meet their maternity care needs because they sincerely believe that the current standard obstetrical care in the US involuntarily exposes them to unnecessary, unwanted risks and they wish to avoid. The routine use of medical interventions included increased number of inductions, invasive procedures, rate of premature births, a 32.8% Cesarean section rate. The routine use of medical interventions included increased number of inductions, invasive procedures, rate of premature births, a 32.8% Cesarean section rate.
Cesarean surgery-specific complications and post-Cesarean reproductive risks include a 6% secondary infertility rate and increased maternal mortality associated with complications in subsequent pregnancies. This includes increased risk of post-Cesarean embryo implantation in the uterine incision requiring a hysterectomy. For viable post-Cesarean pregnancies, serious complications are abnormal placenta placement or invasive growth into the uterine wall, torrential hemorrhage at the time of surgery requiring blood transfusions and emergency hysterectomy, a pulmonary embolism, drug or anesthetic reactions, admission to the ICU, and a host of more mundane post-op complications and problems such as MERSA infections and surgical adhesions.
Under an amendment of the LMPA (SB 1479, Figueroa, 2000) childbearing women in California have the right to choose ‘alternative’ forms of care for a normal birth, including PHB. Even if supervision did not create a risk to their physical well-being, it would, if implemented as ACOG defines its, deny women access to that very ‘alternative’ form of care by making them into involuntary de facto obstetrical patients. This force them back into the ACOG-defined standard obstetrical model of care, which restricts care to hospital-only birth services.
As judged by these criteria, the insurmountable barriers for both midwives and childbearing women that result from the present, untenable situation are inconsistent with the legal function of supervision as a protective measure in the interest of public safety and accounting for the right of healthy women to choose the manner and circumstance of their normal childbirth.