Nurse & Direct-entry Mfry legislation, the failed policy of obstetrical supervision & Sen. Killea as our heroine

by faithgibson on January 18, 2013

The 1993 licensing law repealed the original 1917 provision for state-regulated direct-entry midwifery practice by non-medical, non-nurse practitioners.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 performed 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 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. A 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.

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.

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.

Legislative Remedies – If at first you don’t get it right, try, try again!

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’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 practitioner. The midwife was 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 casereferred 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 Alison Osborn (the defendant) and other California LMs. During the week-long administrative 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.

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.