New regulations needed because of ACOG’s de facto definition of “supervision”
One of the reasons the proposed ‘regulatory remedy’ is necessary 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 each individual LM and her supervising MD. In theory this was a good idea, but in practice, it provided an opportunity for organized medicine to use the provision’s un-enumerated latitude to disseminate its own preferred definitions of supervision, which states 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, American College of Obstetricians and Gynecologists (ACOG) has repeatedly defined supervision in this language, while the California Association of Professional Liability Insurance (CAPLl) and other med-mal entities adopted ACOG’s definition to determine their own organizational policy.
While ACOG does not use the actual word ‘agency’, its unilateral definition creates a professional arrangement that is legally known as agency-agent – the outdated category called “Captain of the Ship/Borrowed Servant”. 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.
However, obstetrics is obviously a hospital-centric surgical specialty. By insisting that the supervising obstetrician has “final responsibility”, a hospital-based obstetrical standard of care would have to be imposed on each childbearing woman the obstetrician was “ultimately responsible” for. But it is equally apparent that the clients of midwives are women who specifically chose physiological management (i.e., non-medical midwifery care) for normal childbirth in an out-of-hospital setting.
How could such a conflicted and non-consensual arrangement possibly meet the needs of the 3 entities brought together in an involuntarily relationship controlled by an absent 4th party — organized medicine’s own policy definition of supervision:
- The childbearing woman
- The physician as supervisor
- The midwife
From the perspective of the obstetrical profession, the supervisory role as defined by ACOG ultimately requires obstetricians to provide their most valuable professional asset for free.
The legally mandated co-management of the midwifery client/obstetrically–supervised OB patient is based on contract between the childbearing woman and her professional midwife. However there is no such contract between the pregnant woman and supervising OB, which means the obstetrician is volunteering to accept ultimate (legally-binding) responsibility for patient outcome and take on ‘final authority, responsibility and liability’ without any economic compensation.
The language in the LMPA’s supervisory clause does not square with AOCG’s preferred definition, which artificially and purposefully-created vicarious liability. Since 1974 official policies of all three California mutual med-mal companies have prohibited physicians under contract with them from providing any professional services to a pregnant woman known to be planning a home birth. Any obstetrician who provides supervision faces a $25,ooo to $50,000 a year increase in their malpractice premiums and they risk having their liability coverage cancelled. If a physician were to lose his malpractice insurance, they would also lose their hospital admitting privileges and would no longer be able to practice obstetrics.
While it is ACOG and CAPLI that insist on this complex and entangling definition, neither organization is offering to compensate obstetricians for increased liability premiums or prevent the med-mal carriers from dropping their coverage. In theory supervising obstetricians could bill each supervised patient but that would increase the costs of their maternity care by many thousands of dollars. Since a very large proportion of midwifery clients are specifically choosing not to receive care from an obstetrician, billing them for obstetrician services they do not want would be untenable on several levels. Even this would not address the obstetrician’s enormous expense 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.
In addition to compensation, the supervisory provision does not address a most practical issue – that midwifery is a distinct professional discipline based on physiologic (non-medical) care, while medical education in the US during the twentieth century does not teach the physiological management of childbirth as a part of their medical school curriculum. Medical students do not receive clinical training in non-medical management in during their internship or residency, nor do they have any post-graduate experience unless they’ve 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
Documenting 38 years of anti-midwife, anti-PHB policies by organized medicine:
In addition, ACOG’s published policies have prohibited ACOG fellows from participating in planned home birth since 1974, with the same language being re-issued in 1979, 1999, 2002, 2006, 2008. The most recent version was make even more Draconian by adding this paragraph:
“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).” [NOTE: California licensed non-nurse midwives (LMs) are not certified by either of these nurse midwifery groups]
For decades ACOG policies have clearly defined any participation in planned home birth – including groups that support PHB – to be the equivalent of unprofessional conduct. This means no ACOG fellow would be willing to testify on behalf of a supervising physician in any disciplinary proceeding that included OOH midwifery care.
In the OAL case referred to earlier in this letter, the presiding judge did not address the onerous burden this provision places on supervising obstetricians. He did however identify the insurmountable barriers faced by California LMs and the childbearing women who sought out midwifery care. During the week-long administrative hearing, it came to light that organized medicine insisted Senator Killea, sponsor of the 1993 licensing bill, 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.
As early as September 1977 – 16 years before passage of the LMPA — the supervisory provision was well known the failure.
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 but the poison pill of supervision kept the law from being implemented, thus destroying any hope of the much anticipated cost-savings.
This information was documented in a letter from Department of Consumer Affairs advocating AB 1896, which was a new licensing bill for both nurse and non-nurse midwives that specifically did not require any type of supervisory relationship. [read original document MfryBill-AB1896_DCA_4MedBd_Sept1977] According to the DCA’s position paper on the Midwifery Practice Act of 1978 by Deputy Director Michael Krisman:
“ … by limiting the practice of midwifery to only those situations under a doctor’s supervision … the practice of nurse midwifery has been … limited to large metropolitan hospitals where obstetrical services are most abundant. The fact that [3 yrs after passage] only 65 [CNMs] are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”. (emphasis added)
The unnecessary insertion of vicarious liability into SB 350 in 1993 at the insistence of the CMA resulted in exactly the same insurmountable barrier for LMs as befell CNMs as a result of their 1974 practice act. The reason was the same — med-mal insurance policy restrictions and/or personal preference – meant that individual obstetricians either could not or would not volunteer their services as a physician supervisor to licensed midwives.
That the intention of physician supervision was to function as a barrier to PHB services by licensed midwives was openly admitted by Dr. Vivian Dickerson, then president of ACOG, when interviewed by ObGynNews in September of 1993 about the passage of the LMPA:
“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]