The Conundrum of Obstetrical Supervision of California-licensed Midwives ~ A legal impossibility created & vigorously maintained by organized medicine

Material originally put together for then-AG Jerry Brown in August 2007

 “Connecting up the Dots”

Legislative Origin of Physician Supervision: The 1993 Licensed Midwifery Practice Act (LMPA) repealed the former independent status of midwives certified under the 1917 provision and reclassified the legacy practice of traditional midwifery as a physicaian-dependent medicalized discipline that stipulates supervision by a physician  as a prerequisite of lawful practice. The supervising physician must have obstetrical privileges at a hospital in the same geographical area as the supervised midwife/midwives and is restricted to no more than a total of four licensed midwives. The law states that the supervising physician doesn’t have to be physically present.

This mirrors the original classification in 1974 of nurse midwifery as a physician-dependent discipline.  The medical profession usually refers to this type of practitioner as a “physician-extender”.

The espoused legislative intent for this provision was a consumer safety measure that would provide a stepping stone to appropriate and timely obstetrical interventions in case a childbearing women receiving primary care from a licensed midwife  developed complications during the pregnancy, childbirth or postpartum.

However, no similar requirement applies to pediatric supervision in relation to the midwife’s care of the newborn at birth, immediately afterwards and during the 6 weeks following. During this time the midwife is the primary caregiver for the baby and legally in charge of its health and wellbeing. If the neonate needs care the midwife contacts the pediatrician of the parent’s choice or arranges for hospital transfer.

The Obstetrical Supervisor’s Role as defined by the LMPA: No prior evaluation of the midwifery client or any other form of care is required to be provided by the obstetrical supervisor, nor does the LMPA prescribe any on-going communication between midwife and physician relative to the client’s pregnancy. The physician does not have to pre-approve the plans for giving birth in the family’s home or free-standing birth center, be notified of labor or the impending birth, be involved or present during or after any of the events of labor and birth. There is no chart review after completion of the supervised midwife’s care.

*** Legally, this is not “close supervision”, which is the type of supervision that indicate that the quality of care is dependent on the close proximity of the MD. In ‘close supervision’ the greater experience of the doctor is requited to guide the actions of the supervised care provider.

Physician/Midwife Relationship 1993: Supervision is a mandatory arrangement for the midwife. If a licensed midwife is unable to find an obstetrician in her geographical area who is willing to be formally identified as her supervisor, then the continued practice of midwifery by the LM is a technical violation of the law, and she risks discipline for unprofessional conduct and loss of her license. {note: This has been modified by a 1999 ruling by an OAL ruling in 1999 and by the passage of an amendment to the LMPA in 2000 (SB 1479- Figueroa}

For physicians however, the provision of supervision to a licensed midwife is purely voluntary. Nothing in the Medical Practice Act mandates that California licensed physicians must cooperate with licensed midwives (or clients that are seeing LMs), provide the essential service of supervision or suffer any sanction for refusing to do so. Obstetrical supervision of midwives is the tail that wags the dog, or in legislative terms, the “the poison pill” that makes implementation of the LMPA impossible.

Impact on Licensed Midwives: Federal and state laws require that reimbursement for health care services provided by licensed practitioners who function under physician supervision must have such services signed off and submitted under the authority of the supervising physician. LMs cannot bill MediCal directly or independently. Since no California physicians are willing to provide supervision, California LMs are unable to qualify as MediCal providers.

Fiscal Impact for the State of California: By denying California licensed midwives provider status for MediCal, the State’s MediCal program is locked into exclusive contracts with very expensive, very intensive medical care for the healthy 70% of our childbearing population. That increases the immediate expense to California taxpayers by a factor of approximately ten. However the 30% Cesarean section rate associated with obstetrical management results in many  delayed and downstream complications (some catastrophic) for these women in subsequent pregnancies. This adds significantly to the economic burden for obstetrical care under the MediCal system. Cost-effective systems in the UK and other EU countries provide physiologically managed care by professional midwives to this population of healthy women at about 1/5th the cost to the national health services.

Impact on California Consumers: Because of the technicalities of supervision, LMs are unable to be compensated by MediCal, which means that low-income women are denied this choice. Approximately 40% of the 600,000 annual births in California are paid for by MediCal.

For healthy childbearing women in California who have health insurance or are able to pay out of pocket, mandated supervision and its associated vicarious liability often creates an insurmountable stumbling block to diagnostic and therapeutic medical services. In combination with the officially-sanctioned hostility of the obstetrical profession toward midwives, mandated supervision actually introduces artificial and unnecessary risk to women and babies.

There are many examples of pregnant women being denied access to obstetrical services because they were seeing a midwife. It’s the pregnancy version of “driving while black”, only in this case it’s being pregnant under the care of a midwife. I personally know of a preventable fetal demise that occurred in 2004 because several obstetrical providers in this small town (Chico) sequentially refused to evaluate a midwifery client’s pregnancy over a 3 day period of time. Each one cited the prohibition by their malpractice carrier as the rationale for their inability or unwillingness to help.

The Relationship of LMs to this provision of the LMPA: This legislation was passed over the objection of the midwifery community. By 1993, California consumers had already experienced 2 decades of problems with the 1974 CNM law, which also classified midwifery as a physician-dependent discipline and mandated obstetrical supervision as a prerequisite of lawful practice.

What was supposed to be a ‘stepping stone’ to obstetrical care in the nurse midwifery law turned out to be an insurmountable stumbling block that resulted in an unworkable licensing law for CNMs. That left them unable to provide planned home birth services and, in essence, gave rise to the lay midwifery movement. In fact, it was the impossible nature of the existing nurse midwifery law that fueled six different attempts by consumers and lay midwives over 17 years (1976-93) to get a non-nurse midwifery licensing law passed.

However, the California Medical Association continued to insist on obstetrical supervision of LMs and threatened to kill the 1993 bill if the author (Senator Killea) did not agree to the supervisory clause.  Organized medicine and the trial lawyers’ lobby cited the issue of “patient safety” as their rational. They even promised Senator Killea that if she would accede to these demands, the CMA would:

“see to it that California physicians provided the required supervision”.

This provoked the bill’s author to over-ride the objections of the midwives and insist that “bad legislation was better than no legislation at all”. She assured everyone that midwives could fight the supervision clause in the courts as an unfair business practice and/or return to the legislature to get the Act amended.

So far midwives have been unable to find a lawyer who would take an “unfair business practices” case. According to the lawyers I spoke with, California licensed midwives can’t sue the Legislature or the Medical Board, nor the CMA, ACOG, CAPLI or the trial lawyers lobby, leaving no actionable case against anyone.

Sorry Charlie.

Attempts by midwives in 1999, 2000, and 2002 to repeal or revise supervision in the statute or provide some measure of regulatory relief have all failed miserably. Senator Figueroa was our ‘hero’ in this fight as she carried 3 bills that did amend the LMPA in some useful ways. However, whenCAPLI threatened to sue the Medical Board, the Board immediately retracted the proposed regulations which would have recognized the rights of a childbearing woman to “opt” out of a medically supervised pregnancy and birth for religious or personal reasons. Dr Fantozzi, former chair of the MBC’s midwifery committee, current president of the Medical Board and insider to the organized medicine’s lobbying agenda, has privately stated to me that:

“they will never let you get rid of supervision”.

What has happened is exactly what midwives were afraid of when they rejected the idea of a licensing law that contained the same poison pill as the nurse midwifery law. As it stands, the current wording of the LMPA simply changes the legal predicament of midwives from being prosecuted for practicing midwifery ‘without a license’ to the crime of practicing ‘licensed midwifery without a supervisor’.

In spite of this, over 200 midwives have become licensed in California since the law was passed in 1993. About half of them provide PHB care, in spite of the legal risks to themselves and the vitriolic opposition of organized medicine (death by a 1000 razor cuts!). Can’t say whether midwives are brave or stupid.

The Relationship of Organized Medicine to OOH:

Since 1975 the American College of Obstetricians and Gynecologists (referred to as ‘A_COG’) has had a formal policy prohibiting its members from attending home birth. In 1975, 1979, 1999 and again in 2006, the Executive Board of ACOG published a Statement of Policy entitled “Home Delivery”. Citing “the potential hazards” of normal birth, it stated that “These hazards require standards of safety which are provided in the hospital setting and cannot be matched in the home situation.”  Norcal Mutual Insurance Company (a med-mal carrier owned by California physicians) also has had a “No homebirth” policy for its physician customers since 1979.

Consistent with ACOG’s policy statement, the organization has repeatedly, publicly and officially denounced planned home birth as a dangerously substandard form of care. Obstetricians counsel childbearing women against making such a choice. ACOG is currently promoting the idea of elective Cesarean as the preferred standard of care, so you can see why they’d be unhappy about midwives ‘doing it naturally’. An article in ObGynNews in September of 1993 reported on the newly passed LMPA. It quoted ACOG president Dr. Vivian Dickerson, who acknowledged that the organization has always been officially opposed to planned home birth and had “held out for supervision” as a “disincentive to home birth” during the legislative negotiations.

Implementation of this Provision for Physicians:

Any obstetrician-member of ACOG who might be persuaded to provide obstetrical supervision to a licensed home-birth midwife would ethically be in violation of the policies of the organization that defines the standard of care for obstetrics in the US. This gives rise to an independent category of litigation for obstetricians.

However, the major legal issue is vicarious liability. Obstetrical supervision of LMs creates an unnatural relationship of vicarious liability for the MD, who is forced to take on unlimited liability for the LM’s practice. This is true even though the physician has no active participation or control of any of the events or the care being provided by the midwife in locations also out of his/her purvey (client’s home, etc). The practice of community-based midwifery is a ‘distinct calling’ that bears little relationship to the surgical specialty of obstetrics and gynecology.

In general, obstetricians don’t practice midwifery and certainly don’t provide non-medical birth services in the family’s home. In regard to patient care, an obstetrician’s mandated role only kicks in after the midwife herself has detected the presence of a complication and notified the obstetrician. The doctor’s professional activity is in diagnosing the problem and treating the patient after a transfer of care has taken place. At this point, the doctor’s role would clearly falls under his or her normal practice of medicine and regular liability coverage.

Nonetheless, the perception of unlimited vicarious liability for physicians and the firm conviction that planned home birth is irresponsibly dangerous, has resulted in a total prohibition of supervision by all three of the professional liability carriers domiciled in California. Interestingly enough, these carriers admitted that they have no actuarial data on this topic and that their decisions are not based on actuarial information. According to them, none is needed, since it is just “common sense” that childbirth outside of a hospital and without the presence of a doctor is overwhelmingly dangerous. [CAPLI lobbyist Judge Cologne, audio recording and written transcript of MBC Midwifery Committee, June 1994]

Judge Cologne stated that if an insured doctor were to be found supervising a midwife, the carriers would be ‘forced’ to double his malpractice premium (at that time from 42K to 84K). And at the end of the contract year, the med-mal carrier would be forced to drop the doctor’s coverage in response to his ‘obvious bad judgment’. This opinion does not change one whit even when the LM carries her own liability coverage, since the prevailing ‘wisdom’ in the world of med-mal insurance is that the only thing better than one ‘deep pocket’ is two deep pockets!

Physicians are notified by their liability carriers that they are prohibited from having any formal or even informal relationship with LMs who provide community-based birth services in homes and birth centers. One document from Norcal Mutual [letter dated May 18, 1999] prohibits any insured physician from providing supervision, having any professional association with an LM, providing any advise or even from answering a call for help.

Norcal’s letter stresses that covered physicians must not even respond to an emergency phone call from a home birth midwife, as any information or advise could be

“interpreted by the courts as a supervisory relationship which is prohibited by your contract”.

Its interesting to note that a provision written in to the law by organized medicine and the med-mal lobby has subsequently been used by them as the rationale for prohibiting the participation of physicians in providing consultation and backup services.

The trade organization for California malpractice carriers (CAPLI) has repeated stated its opposition and its prohibitive policies in public and in letters submitted to the Medical Board, which insist that the care of midwives relative to PHB is so risky that they have a fiduciary responsible to prohibit any insured practitioner from either attending PHBs or supervising other professionals who do. [see CAPLI letter for Nov 2005]

Midwife Compliance with this Provision as it currently stands:

During the 14 years since the passage of the LMPA, obstetrical supervision of LMs has remained completely unworkable and totally unattainable. Currently, the only aspect of this provision that actually ‘functions’ is the one that denies compensation to LMs by the federal Medicaid and California MediCal, since LMs are unable to provide the signature of a supervising physician.

With the exception of a single physician assistant-licensed midwife (PA-LM) who provides hospital-based services, no California LM has been able to secure the mandated supervision. A case brought against an LM in 1999 by the MBC sought to revoke her license based on her inability to secure the supervision of an obstetrician per the statutory requirement. California administrative law Judge Roman ruled in favor of the midwife, based on the legal theory that the legislative intent was for childbearing women in California to have access to professionally trained and regulated midwives.

Judge Roman’s decision stated: 

“In reviewing a statutory scheme, this tribunal must be guided by an interpretation that would further the legislative purpose within constitutional limitations. Unlike physicians, physician assistants, physician assistant midwives, registered nurses, or certified nurse midwives who practice within the context of a medical model, licensed midwives practice within the context of a midwifery model.

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.” 

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Conclusion and Suggestions:

The best way to confirm the kinky I-smell-a-rat status of mandated obstetrical supervision under unilateral/asymmetrical terms (physicians are not mandated to provide this essential service) is that organized medicine has fought tooth and nail against every effort of legislators, the Medical Board, consumer groups and midwives to make the LMPA work better, in particular, to eliminate the unnecessary vicarious liability through a “hold blameless for care not rendered” clause and in other ways to address the inability of midwives to fulfill the spirit and letter of the law. You can be assured the midwives desperately want to be in compliance with their licensing law!

During this time various med-mal lobbying groups have threatened to sue the Medical Board on several occasions in regard to the regulatory relationship between the Board and licensed midwifery. While this was often effective at getting what they wanted from the Board, it must also be pointed out that none of these very aggressive, ‘take no prisoners’ lobbyists, who regularly threatened legal action, have, in fact, ever actually taken legal action.

If they believed that consumer safety was really being compromised or even that they had a legally tight case for forcing midwives out of business, they could simply petition a Superior Court judge for injunctive relief, insisting that the Medical Board take disciplinary action against each of the 100 or so LMs who, for 13-plus years, have been publicly providing midwifery care without obstetrical supervision. I am one of those LMs who never misses an opportunity to announce, in public and for the record, that I do not have the essential services of an obstetrician as a supervisor and I am chair of the MBC’s Midwifery Advisory Council. My status is certainly no secret.

But after all that huffing and puffing and threatening to blow the house down, what happened was nada, zip, zero, zilch – you could hear a pin drop!

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There are three people that represent the best source of relatively unbiased legal and political information about this topic.

(1) Former Senator Liz Figueroa

(2) Dr Richard Fantozzi, Current president of the Medical Board of California, and until last April had been the Board member who was in charge of the Midwifery Committee

(3) Administrative Judge Jamie Roman, who found in favor of Alison Osborn, LM in August 1999

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Adopted DECISION Case No. 1M-98-83794
ALISON OSBORN, LM #16,
OAH No. N-1999040052

August 16 – 20, 1999.

Jaime Rene’ Roman
Administrative Law Judge
Medical Quality Hearing Panel
Office of Administrative Hearings

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.

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.

the medical  community of obstetricians is hostile to licensed midwives, [respondent midwife] has been unable to gain supervision by a physician and surgeon. 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 except as referenced in Finding 14.

In reviewing a statutory scheme, this tribunal must be guided by an interpretation that would further the legislative purpose within constitutional limitations.”

Unlike physicians, physician assistants, physician assistant midwives, registered nurses, or certified nurse midwives who practice within the context of a medical model, licensed midwives practice within the context of a midwifery model.

The medical model of birth, the more prominent model applicable to birth in the United States, “presupposes that birth is a series of risks that medical doctors must systematize, control, and fit into an established time frame.” 12   “Physicians determine the need for acute care by calculating the perceived risk; ‘the definition of risk is … central to the medical model of birth.’ In the calculation of risk approach, childbirth is seen and described as a life-threatening situation. 13

On the other hand, “[m]idwifery presumes that childbirth is a healthy and normal event.” Midwifery involves “socially oriented preventive care, which incorporates prenatal care and a concern for the social and emotional aspects of pregnancy and birth in order to meet the individual needs of each woman.”‘ 5 “Decision making is collaborative. . – – ” ”

The models, despite the Legislature’s intent to provide “a multifaceted, cost-effective approach which includes licensed midwives providing prenatal, delivery and necessary follow-up care to families ,²² nevertheless Conflict.²³

Within the context of these models, physicians and surgeons, physician assistant midwives, and certified nurse midwives will not, within the context of the medical model, undertake the delivery of children at home midwives, in contrast, within the context of their midwifery model, which will.

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.

The parties readily acknowledge 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 required by such physicians for licensed physician assistants. Clearly, a different standard was intended by the Legislature; however undefined.

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.

ORDER

The Accusation against Alison Osborn, Licensed Midwife No. 16, is dismissed.

Dated: August 25, 1999

JAMIE RENE ROMAN
Administrative Law Judge
Medical Quality Hearing Panel
Office of Administrative Hearings