My comments on yesterday’s Mfry Council meeting and ACOG’s proposed bill (AB 1308)

by faithgibson on March 17, 2013

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

This is a re-posting of the last half of yesterday’s report on the Council meeting. 

I am troubled by ACOG’s proposals for a couple of reasons

As many of you know, I organized a professional liability insurance consortium that covered 55 LMs and CNMs providing OOH birth in three states (Ca, NM, Fla) for three years (1998, 1999, and 2000). Ann Geisler from Dean Insurance was our broker. Over a three year period, the 55 of us paid out $250,000 in premiums.  Let me say that again to be certain we all properly appreciate what a GREAT big number came from such a tiny number of midwives!

A small group of supposedly poor midwives paid on average from $1200 to $2500 annually. That was $100-200 a month as a proportional premium based on numbers of birth attended the previous year (generally from 10 to 25 births a year). That scraggily little handful of midwives paid a total of more than a 1/4 million dollars in premiums.

In spire of this considerable expense (and three years of massive unpaid work on my part!) California LMs who carried professional liability insurance discovered that the general anti-midwife/anti-PHB stance of ACOG and our local obstetricians remained unchanged. Several doctors and ACOG reps said: “The only thing better than one deep pocket is two deep pockets“.

With that, I and all the other LMs discovered that being insured made no difference whatsoever. As Dr. Klein from the Canadian Maternity Care Discussion Group has remarked in relation to the obstreperous nature of obstetrics (defined by Webster as “noisy and defiant”): “when you don’t want to do something, then one reason is just as a good as another“.

What if we had either self-insured OR spent our Big Bucks to buy our own politician instead?

I couldn’t help but wonder how this situation would have turned out if we’d spent that same $1/4 million dollars to get good legal advise, hire a hot lobbying firm in Sacramento, identify legislators willing to support mfry-friendly legislation and then contributed ‘generously’ to their re-election campaigns. Organized medicine should not be the only one who can play the game of the “best damn government money can buy”.

Instead we dumped 1/4 million bucks into the coffers of Evanston Insurance and Royal Surplus Lines. By the way, none of the quarter million went to benefit a harmed childbearing family, as no claims were ever paid out.

And according to very reliable sources,  there has never been a successful vicarious liability lawsuit in California relative to OOH midwifery.

Changes in ACOG policy need to accompany changes proposed by ACOG to the LMPA

If District IX ACOG is serious about having their Fellows formally cooperating with California LMs who provide PHB care as matter of law (new amendments to the LMPA), then their national anti-PHB policies will have to be amended. Since 1975, physician participation in PHB or having a working arrangement with a PHB midwife  has constituted a substandard practice of obstetrics for an ACOG fellow. Should there be a lawsuit, no med-mal carrier could successfully defend an obstetrician, as no ACOG-certified ‘expert’ witness could or would testify on his behalf.

In addition, plaintiff attorneys could admit into testimony the many policy statements warning issued in 1975, 1979, 1999, 2004, 2006 and 20008 (unsure of last date) counseling against the participation of obstetricians. Over the years, these have only grown more strident. Plaintiff’s attorney could line obstetricians up around the block to recount the many papers published in peer-reviewed obstetrical journal filled with dire warnings. They routinely defined PHB as sub-standard care any physician trained in the surgical specialty of obstetrics. The most recent was presented in November 1012 at an international conference in Paris. It states that the risks of planned home birth can only be eliminated by planning a hospital birth.

As obstetricians, the standard for any care they supervise must be consistent with the standard for the surgical specialty of obstetrics. From the other end of the same conundrum, they  can’t reasonably be expected to supervise a profession that they are not trained in themselves and have no idea what is and isn’t an appropriate practice of midwifery. As of this moment, ACOG remains on the horns of a dilemma, a prisoner of its own project to control the economic competition of midwifery by mandating its supervision by the obstetrical profession.

Back to basics ~ Any LMPA amendment must first and foremost improve the midwife-physician relationship 

My second trepidation with ACOG’s legislative plan is that we are no longer working on a plan to improve the working relationship between midwives and physicians.

Instead we have taken a major left turn, and now we are:

  • Trying to make supervision work by getting med-mal carriers to cover OBs who supervise OOH midwives
  • Getting legislation to create a new State-sponsored JUA
  • Figure out how to take $$$ from California’s share of the ACA and redirect it to medical malpractice carriers

Perhaps I am naive, but i’d like to see California’s share of ACA money go to expand healthcare coverage for the uninsured, provide better quality services, and create or expand educational and support programs to reduce obesity, type II diabetes and other expensive chronic diseases.

So far, my take on AB 1308 is a diversionary tactic that is to keep us all busy elsewhere, instead of working to actually change the relationship between midwives and physician for the better. Insuring midwives on the public dole of the ACA is not necessary and its not good public policy.

What we need instead is parity of obligations — any obligation that ACOG wants to impose on midwives must be mirrored in an equal obligation by obstetricians to fully cooperate with achieving the legislatively identified goal. If ever the old-fashioned expression “What’s gravy for the goose is gravy for the gander” applied in modern times, it is in regard to the idea of equal obligations between our two professions.

The track record of cooperation by ACOG  over the last 39 years is abysmal — in fact, its an unbroken record of non-cooperation. Twenty years ago this June the CMA promised Senator Lucy Killea that if she would let them insert the same physician supervision clause in the LMPA already proven not to work in the Nurse Midwifery Practice Act, CMA would “see to it that physicians provided supervision to licensed midwives”. We all know how that turned out.

Considering such a poor record, any midwife-physician relationship defined in legislation or other policies to be used to propagate such regulations,  much have provisions in the authorizing legislation for the following:

  • Collaboration and consultation by California licensed obstetricians with California licensed midwives must be acknowledged as a normal obligation of the license to practice of medicine in California
  • Professional liability insures who are domiciled in California (therefore regulated by the California Insurance Commission) must cover any incidental liability (either vicarious or direct) associated with the normal professional relationship between MDs and LMs as a normal part of the premiums already paid for standard obstetrical liability insurance
  • Compliance by physicians with new legislative-defined relationship must be be measurable and must identify a method to formally track outcomes (i.e., reports of non-compliance)
  • A ‘sunset clause’ must be included in the legislation that requires to be re-visited by the legislature in 2 years to determine the success or failure of these new rules

Tomorrow I will explain why I resigned yesterday as a member of the Mfry Council, and what that means for me and others.

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