holding for rational basis w/ logical criteria for classifying btw non-physician practitioners as “physician-extenders”

by faithgibson on March 17, 2013

in AB1308, new regs & new legislative efforts, Physician Supervision Issues

Cal govt. code section 11349.1 that requires regulations to conform to the following 6 criteria:

necessity, authority, clarity, consistency, reference, and non-duplication

http://transform.childbirthconnection.org/reports/liability/

Fact Sheet #1 for Stakeholders from Maternity Care and Liability Report *

Problem: The liability system poorly serves maternity care providers, childbearing women and families, and those who pay for maternity care. Traditional liability reforms have prioritized interests of maternity care providers and insurers (e.g., trying to reduce liability insurance premium levels by limiting access to courts and the size of payouts), but not those of women and newborns and maternity care payers. Even with respect to the narrow aims, compelling evidence about the effectiveness of traditional reforms in maternity care is lacking.

  1. Despite widespread implementation of reforms over many decades, troubling problems persist. Narrow aims, such as reduction of liability insurance premiums, cannot be expected to address the breadth of problems. Needed progress requires a broader vision.

Fact sheet #3 —

In comparison with most other clinical areas, maternity care providers are at elevated risk for liability claims and legal proceedings, and many believe that non-meritorious claims are widespread. These are sources of deep discontent.

Report findings:

A large carefully conducted state-level study with random samples found that about 0.6% of childbearing women and about 0.2% of newborns sustained negligent injury while receiving care in U.S. hospitals.

That and a replication study in two additional states found that the negligent injury rate in hospital labor and delivery units ranged from 0.8% to 1.8%.

While childbearing women may be several times as likely as newborns to sustain negligent injury, newborn injuries overall are more severe.

Across ten clinical areas in the initial study, childbearing women had the highest rate of negligence among adverse events, at 38.3%. Subsequent research clarified that these landmark studies greatly underestimated rates of harm, but replications in maternity care have not taken place.

Tracking the initial cases that experts identified as meeting the legal standard of malpractice and not separately reporting maternity-specific data, investigators found that from 1.5% to 2.5% of patients who sustained negligent injury filed a claim.

Tracking claims from the initial study to closure, investigators found that less than 1% of those with negligent injury received compensation. A recent closed claims analysis from five insurance companies in four regions of the country, including 23% with maternity-related claims, found that 54% of all compensation payments (and 78% when claims involved harmful errors) went to lawyers, experts, and courts, with a minority going to plaintiffs.

The closed claim analysis found that about 13% to 16% of dollars expended were associated with non-meritorious claims. The legal system does a fairly good job of sorting these out. Dr. Steven Clark, Medical Director for Wom- en’s and Children’s Clinical Services within the nation’s largest hospital system, reports that defense teams have repeatedly found that about 75% of paid claims in maternity care involved substandard care.

Takeaways: One of the two widely accepted objectives of the liability system is to attend to the needs of those who are injured as a result of negligence. Available evidence, not separately available for maternity care, suggests that the present liability system fails in about 99% of cases to compensate people who are injured as a result of medical error. Those who are compensated following injuries due to error may retain for their own needs about one-quarter of the money awarded.

The estimated 25% of paid claims in maternity care that are non-meritorious is substantial but is dwarfed by the roughly three-quarters associated with substandard care. Claims involving negligent injury appear to involve disproportionately greater legal costs.

The report found that in the practice of an average obstetrician-gynecologist, negligent injury of mothers and newborns appears to occur more frequently than any claim (warranted or not, obstetric or gynecologic), and far more frequently than any payout or trial.

======================synopsis from NorCal May 18, 1999 letter=====================================

The official policy of all three California med-mal carriers prohibits obstetrical providers from collaborating with or even providing information or advice to out-of-hospital midwives. According to a letter on this topic from NorCal (May 1999), if a midwife contacts a physician in an emergency, the doctor is not to reply or provide any information except to instruct the midwife to contact 911.

The reason it gives is particularly telling – because there is supervision provision in the LMPA, physicians are prohibited even in an emergency from participating or giving advice. The med-mal carrier’s explanation is that the courts might interpret these actions by a physician as constituting ‘supervision’, and since their policy contracts all forbid the holder from entering into any type of supervisory relationship, they would not be covered was responding in an emergency.  Since the CMA has always insisted that the purpose of supervision was increased consumer safety, it is shocking to read that the mere presence of the words “physician supervision” in the licensing law prohibit physicians from providing care to mfry clients even in an emergency.

==========second synoptic version of NorCal May 18, 1999 ========== Connecting Up the Dots ==========

CAPLI, ACOG, and the CMA consistently define the rule of a supervising physician as have ‘ultimate authority, responsibility and liability”.

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 to supervise, collaborate, backup or accept transfers or enter into a professional relationship of any kind with an LM who provides maternity services in OOH  settings. This ban on cooperation extends to providing any advise or even from answering an emergency call for assistance.

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]

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