Link back to part 2: How to tell the difference between midwifery care & the idea of ‘performing a delivery’ ~ background & context: part 2

The customary care of a midwife begins by providing prenatal care over the many months of pregnancy and developing a personal relationship with the mother-to-be. During the intrapartum (labor, birth of the baby, postpartum & neonatal period) the midwife’s supportive role is that of guardian, guide and “educated observer with emergency response capacity”, which is consistent with the role of a lifeguard.

The seamless progression of official duties by the midwife during the three stage of labor includes on-going monitoring of maternal-fetal-neonatal wellbeing and many other specific tasks. These duties are NOT perceived by either the midwife or the family as a series of separate services that in the medical model* would be called “billable units” and result in a series of separate charges. [*see March 4, 2013 TIME Magazine’s article by Steven Brill titled “Bitter Pill”]

In the midwifery model, all the services provided during the intrapartum period are simply part of a basic professional fee for midwife’s childbirth-related assistance. This global reimbursement covers the midwife’s prenatal care, the entire intrapartum irrespective of its length or complexity (including hospital transfers), follow-up house calls after the birth, and on-going care of  both mother and new baby during the following six weeks.

For the midwife, the intrapartum is an eventful period of time with a set of activities engaged in by both midwife and mother-to-be. The midwife’s responsibilities include supporting and managing the entire spectrum of active labor and perineal phase, which is technically last part of 2nd stage, during the few minutes just before the baby is born. This phase of labor culminates spontaneously when mother gives that last big push and voila! — the baby comes out.

It should be noted that it is the mother (not the midwife) who labors and gives birth, and gets to personally take the credit for all that hard work. This is why the mother (and not the midwife) gets to keep the fruit of her hard labor — her lovely new baby!

For the midwife, this last push by the mother and the spontaneous arrival of the baby is is just one of many biological events that have or will occur during the intrapartum period. It is very clear to midwives that normal childbirth is not the result of any special medical skills or surgical techniques used by us.

As soon as the baby makes his or her appearance, the midwife’s attention turns to the newborn and her responsibility to make sure the neonate takes its first breath and subsequently establishes regular respiration with stable cardiac-pulmonary function (pink and pretty!).

After placing this new bundle of joy in its mother’s arms, the midwife’s caregiver duties continue on as the normal biological process rolls seamlessly into the third stage. This is the 6 to 20 minutes between the birth of baby and when the mother spontaneously expels the placenta. After the placenta is out, the midwife must check the mother for excessive bleeding, and the placenta for its completeness.

Anytime during any of these stages that labor is not progressing as expected, or if other medical issues arise for mother or newborn, the midwife will initiated a timely hospital transfer.

This is to emphasis again that midwives do not ‘perform deliveries’. Under the California Licensed Midwifery Practice Act of 1993, it is an illegal practice of medicine for professional midwives to provide any type of care that requires the use of ‘artificial, forcible or mechanical means’ — no Pitocin during 1st stage to speed up labor and no use of forceps or vacuum extraction during second stage to ‘deliver’ the baby. Midwives do not ‘deliver’ babies — mother push, midwives catch, that is how midwifery works.

The good news is that over 80% of women in the care of California licensed midwives do not require  anything that falls in the category of “artificial, forcible or mechanical” help. This means they have a normal labor and continue under midwifery care after a spontaneous birth. For their midwife, her duties do not end simply because the baby is born and the placenta has come, as she is directly responsible for both mother and baby until both are in a stable and satisfactory condition or unless medical assistance has been arranged.

To personally assess the on-going physical well-being of the new mother and baby during the first hour after the birth, the primary midwife, second-call midwife and whoever is assisting (mfry student or other helpers) generally remain in the room.

These professional midwives and mfry assistants are able to directly watch, assess wellbeing and meet the evident needs of mom and neonate. This includes monitoring vital signs of both, providing warm dry blankets for the new baby as needed, encouraging the new mother to drink fluids, and helping the baby to latch on to its mother’s breast for the first time.

During the second hour after the birth, more attention is paid to establishing breastfeeding and explaining how to manage the baby’s nursing. Later on the mother will be helped to the bathroom to shower and use the toilet. While she is in the bathroom, the midwife or one of the assistants will put fresh linens on the mother’s bed.

Next on the primary midwife’s duty roster is to do a complete (systems specific) physical exam on the newborn. This includes making a separate chart for the baby, and then gathering statistics on its head and body measurements, weight, length, vital signs, and Ballard gestational-age assessment.

The midwife records all the neonate’s statistics, plus gender, parents names, Apgar scores and health status at and since the birth on the baby’s chart. A copy of this will be provided to the parents to give to the family doctor or pediatrician so he or she will have information about the birth, physical exam and other pertinent findings.

The next set of tasks is to prepare the family to take over the responsibility for the care of both new mother and new baby. The primary or second-call midwife spends considerable time describing normal newborn behavior and giving instructing to the parents on when to call the midwife relative to minor problems, and how to tell if emergent medical care becomes necessary for either mother or baby (i.e. calling 911).

Then the parents need additional information and tips on how to manage breastfeeding, monitor maternal bleeding, tracking the number and nature of changed diapers, what to do about breast engorgement, etc. “Best practices” also includes providing the parents with a chance to ask questions and get additional information about issues not covered or not understood.

The final arrangement before the mfry team packs up and head home is scheduling return house calls at 1 1/2 and 3 1/3 days, as well as information about arranging for newborn genetic testing, and directions for filling out the preliminary paperwork to register their baby’s birth.

This model of midwifery care includes the full-time presence of the primary midwife during all stages of active labor, and arranging for a second-call midwife to be present for the last 1-2 hours of second stage labor/perineal phase and the first 1 or 2 hours hours after the birth. Under California regulations, the standard of care for licensed midwives requires that at least one midwife remain with the new parents for a minimum of two hours after the birth, longer if necessary. Typically the midwives and assistants are present and helping the new family for 3 to 5 hours postpartum.

During this time the primary midwife is often responsible for the clinical training of a midwifery student enrolled in a program recognized by the MBC. While students do in the course of their clinical training ‘assist’ the midwife and the mother-baby, students are not primarily present at births as an assistant to the midwife.

Responsibilities of the primary midwives to students of midwifery and non-creditionaled helpers

The primary responsible of the midwife is to teach clinical judgement and clinical (hands-on) technical skills to her students. The primary goal of the student is to learn clinical skills and clinical judgement at a level consistent with her training, a joint decision by student and midwife that accounts for the needs and safety of the family as well as the stage of training for the student.

In other instances, the primary midwife may call on members of the family (ex., laboring woman’s mom), a professional labor attendant (or doula), or another lay person to provide some kind of non-medical help or do something for the mother-to-be, such as getting food or helping her to the bathroom. While these non-credentialed assistents are helpful to the midwife and the mother, they are never asked to provide clinical care such as a vaginal exam or managing maternal bleeding, or to perform a procedure such as suturing a perineal laceration.

However, when the midwife is gloved or otherwise physically unable to do something in a timely fashion, these non-medical helpers may occasionally be asked to hold the fetal heart doppler probe to the mother’s abdomen so the midwife can listen to the unborn baby’s heart rate and rhythm. They many also be asked to hold a light or open a sterile package while the midwife reaches in with a gloved hand to retrive an syringe, instrument or packet of suture.

To put this in perspective, one must remember that the legal issue in this instance is not the mechanics of gathering data (such as using an electronic blood-pressure cuff with a digital readout), but the clinical judgement for what action/non-action is appropriate based on that information. The clinical role and responsibility of the primary midwife lies in what she does with the information. Ultimately the midwife is the person responsible for making the correct clinical determination.

A licensed midwife’s professional responsibility also includes not asking those present to perform any careprovider acts or engage in clinical treatments or procedures that they are not trained for (i.e. students) or that would constitute an illegal practice of medicine (i.e, lay assistants).

Conclusion:

Midwives don’t perform deliveries as a medical-surgical activity. Those who assist the midwife and the mother during the intrapartum are not ‘assisting the midwife during a delivery’, but are instead helping the midwife to provide the physiologic care that is associated with labor, spontaneous birth and on-going care of the new mother and new baby.

After noting the extensive length of time and the sheer number of professional responsibilities and normal caregiver acts required over the course of a typical intrapartum (4 to 10 hours), it is obviously a labor-intensive activity for the midwives and her assistants and keeps all those present very busy. However, this never requires non-credentialed helpers to do anything that would be considered an unauthorized or illegal practice of medicine.

I hope this addresses the questions about ‘delivery’ vs. assisting during a normal birth. But let me leave you with this definition, which at least expresses our experience as midwives:

Birth is something the mother does, while being born is what happens to the baby.

The only ‘delivery’ associated with a midwife-attended normal birth and her mfry students or lay-helpers is when the pizza guy delivers a double cheese and pepporoni pie after it is all over.

Good bless the delivery guy, ’cause by that time we are all ravenous!

link back to part 1 ~ Written Testimony-Sunset Review: Do midwives ‘perform deliveries’ plus controversy over mfry assistants

Legal distinctions between:

* the lawful assistance by California-licensed midwives during a normal childbirth
* the obstetrically-based surgical procedure of ‘performing a delivery’ while being assisted by non-credentialed ‘lay’ person during a ‘delivery’ as seen from the perspective of the medical model

The first and foremost issue is that midwives don’t ‘perform deliveries’, which is medical terminology describing the surgical procedure used by obstetricians and other physicians during the last 5 to 15 minutes of the mother’s labor just prior to and during the birth.

For certified nurse-midwives and licensed midwives, the midwifery practice acts of both professions specifically state that the license to practice midwifery does NOT authorize the holder to practice medicine or surgery. During normal childbirth midwives are never engaged in ‘performing’ (i.e., a medical terminology) the surgical procedure known by its billing code as a “vaginal delivery”. As a result, anyone helping  the midwife would not be involved in assisting during the surgical procedure of ‘delivery’.

Terminology such as “performing deliveries” commonly refers to hospital-based obstetrical care, which customarily divides the intrapartum services for childbearing women between the two professions of nursing and medicine.

In this regard, the medical model is dramatically different from the midwifery model, which traditionally treats pregnancy and childbirth as ‘whole cloth’ experience. The goal of midwifery care is to provide continuity-of-care, so the professional midwife who cares for the pregnant women during the prenatal period is the same person who provides care during her labor, also attends her while the baby is being born and seamlessly continues to care for both mother and new baby immediately after the birth and during the 6 weeks-long postpartum and neonatal period.

Hospital protocols are quite the opposite, as physicians are not directly involved during the mother’s labor or after the birth and they never provide any services to the newborn.

In the medical model the nursing staff of the Labor and Delivery unit manage all of the first stage and most of the 2nd stage of labor. This includes phoning the obstetrician to get a doctor’s order for medical treatments and drugs, or to notify the physician of a possible complication. Typically the doctor is only present on the L&D unit after being contacted by the nurse when she anticipates the birth of the baby within the next 5 to 15 minutes.

The surgical billing code for vaginal delivery reflects the technical definition a ‘surgical procedure’ in many ways. Unlike labor that goes on for hours and hours, the procedure of vaginal delivery is a desecrate activity with a specific start-and-stop time. This describes a situation in which surgeons do not customarily provide on-going medical services to the patient during the ‘pre-op’ period before the scheduled operation or procedure, or afterwards during the ‘post-op’ phase of recovery. Relative to normal childbirth, nurses provide all the pre-op care (i.e., the labor), as well as the post-op care (postpartum recover period and all care of the newborn). The physicians/obstetrician is called in only to perform the ‘op’, that is, the delivery, which typically takes from 12 to 45 minutes.

True to that definition of normal birth as the surgical procedure, the physician is only present in the laboring woman’s room during the last few minutes of the perineal stage. This is when the baby’s head is so low in the mother’s pelvis that there are visible indicators that the birth is imminent, such as a few centimeters of the baby’s head being visible at the outlet of the birth canal.

The doctor’s responsibility for the procedure of delivery includes managing the final 5 to 15 minutes of expulsive stage, as the mother spontaneously pushes her baby out. Sometimes the doctor has reason to believe that obstetrical interventions are necessary, and performs an episiotomy and/or using forceps or a vacuum extractor to deliver the baby.

In either case, the surgical billing code of this delivery-as-procedrue will determine the level of reimbursement based on the number and magnitude of medical interventions and surgical procedures performed by the physician.

High Contrast, Non-Medical Model: the un-surgical, non-procedure in a non-medical setting of a midwife assisting at a normal labor, spontaneous birth and postpartum-neonatal care

While midwives do attend births, which includes ‘catching babies’, midwives don’t “perform deliveries” as a legally defined surgical procedure that appropriately falls under a surgical billing code. As defined by a century of midwifery textbooks, there is no separate activity for midwives described as ‘performing the delivery’.

As taught in textbooks and clinical practice, there are 3 stages of labor:

• 1st stage, when uterine activity (contractions or ‘labor pains’) progressively dialates the mother’s cervix
• 2nd stage when stronger uterine contractions and both voluntary and involuntary muscular efforts of mother helps her to spontaneously push the baby out (give birth)
• 3rd stage when the placenta separates from the uterine wall, is spontaneously expelled by uterine contrastions, and the uterus continues to contract regularly for the next several days to prevent excessive maternal bleeding

Within the midwifery model, the last couple of minutes before and the moment of the birth (when the baby is born) is experienced as the normal and expected culmination of second stage of labor.  The English Code of Conduct — a handbook of rules for midwives — include rules for managing second stage that never uses the word “birth” to create any distinct period of time or responsibility by the midwife. The culmination of second stage is part of the seamless progression of biological events occurring under the watchful eye and care of the same professional midwife as birth attendant.

The midwifery model doesn’t have a “hand-off” of responsibility between two professions which requires a professional nurse to hand her responsibility over to a member of another profession (medicine). As a result, midwives don’t think about or define the few moments during which the mother pushes her baby out and the midwife ‘catches’ the baby and hands it immediately up to its mother, as a surgical procedure. It not experienced as different or unique that would be described as having “performed the delivery”. As a midwife birth attendant, there is no separate bill for a professional service that is separate from the care provide by the midwife to the mother both before or after the baby made its appearance.

Continue to part 3 ~The Midwifery Perspective of Normal Childbirth (link below on web page)

The following is an excerpt from my written testimony submitted for the California Legislature’s record relative to the Sunset Review 2013. Feel free to use any part of this in your own written (or oral) testimony.

The first hearing will be March 11th, but that will NOT be the end of the -midwifery-related activities of the Sunset Review Committee. I don’t know what the deadline is but it probably won’t be until sometime in April. If you haven’t already, please submit written testimony ASAP.

The background material quoted below is from MBC Sunset Review document under New Issues, page 16  (Appendix I):

My Testimony In Response

Appendix I of the MBC Sunset Review states that: The issue of the midwife assistants should be addressed with legislation.

I do not agree with the Board’ assessment. I believe their conclusion is the result of a misunderstanding, in which the difference between the childbirth practices as a part of the practice of medicine and those associated with the lawful practice of midwifery in the State of California was not fully understood.

The LMPA already provides authority for LMs to manage the intrapartum (labor, birth, PP + newborn), which includes her legal responsible for the actions of others who are present and ‘assisting’ the midwife to carry out her formal role as a primary-care practitioner, and also helping the labor woman/new mother/new baby.

* Present authority already include the ability to have mfry students assist them with clinical care AND to have non-student, non-credentialed ‘lay’ persons help the mother and the midwife with non-clinical care and non-medical tasks.

* Nothing in the LMPA restricts who may be present at a normal childbirth in a non-medical setting or otherwise proscribes/prohibits who may ‘assist’ either the mother or the birth attendant. It is a principle of constitutional democracy that all activities are lawful UNLESS they are prohibited or proscribed by statute. In this case, no such limitation exists.

* No new legislation is needed that would create an additional classification of mfry provider and the licensing of ‘Mfry Assistants’. California citizens would not benefit from attempts to statutorily define what ‘helpers’ may do when present at a midwife-attended labor and birth in non-medical setting.

* Bottom line: How an LM makes use the assistance of enrolled mfry students and non-credentialed ‘helpers’ during an OOH birth is part of her professional exercise of clinical judgement.

As the licensed professional, the midwife is the place where the buck stops. As a part of her official duties, she is directly responsible for seeing that no one is assigned duties that include performing unauthorized acts or engaging in the illegal practice of medicine.

If she were to fail in that duty, it is she who could or would be charged with unprofessional conduct or in some instance, the more serious crime of aiding and abetting the unauthorized practice of medicine. 

Continue to Part 2 ~ BACKGROUND & CONTEXT:  How to distinguishing between the lawful assistance of professional and midwives during normal childbirth, and the obstetrically-based surgical procedure of  ‘performing a delivery’ or assisting at a “delivery” as customarily defined within the medical model.  

LINKS to original sources for historically crucial document

Section One

Copy of CCM letter to CEO of a California hospital  relative to the issue of physician supervision

Enclosures for above letter

#1  BMJ study on Planned Home Birth, as reported in ObGynNews July 15, 2005

#2  “Cesarean Birth Triples Maternal Death Risk” – CNN report on “Postpartum
Maternal Mortality and Cesarean Delivery” by Catherine Deneux-Tharaux, MD, MPH, et al; OBSTETRICS & GYNECOLOGY VOL. 108, NO. 3, PART 1, SEPTEMBER 2006

• Cesarean a Risk Factor for Emergent Hysterectomy; Obstet Gynecol 2003 Jul; 102
•  Voluntary C-Section Results in More Baby Deaths; NYT report on paper published in Birth: Issues in Perinatal Care 2006; Dr M. Malloy et al
• C-Section Lawsuit A Plaintiff’s Verdict: Meador vs Stahler & Gheridian; post-CS unwanted and unnecessary cesarean surgery;  www.forensic-psych.com,
• Myth of the Ideal C-Section Rate; Dr RM. Cyr, MD Am Jour Obstet Gynecol 2006

#3   The Guardian, United Kingdom; Feb 6, 2007;

#4   Legislative Memorandum, Office of California Governor Earl Warren, 1949

#5  California Medical Malpractice Carriers and their lobby – California Association of Professional Liability Insurers:

• a. NorCal Mutual Newsletter 1978; 
• b. NorCal letter 05-18-99;
• c. CAPLI letter 2005

#6   ObGynNews Sept15, 1993

#7   New Practice Reduce Childbirth (Litigation) Risks; Wall Street Journal; 2006 J

Section Two

Contemporary History ~ California licensed midwives, 
the LMPA of 1993, its implementation, the challenge mechanism
and on-going regulation by the Medical Board of California

Enclosures for above document

1. AB 1375 – Newspaper for March 26, 1917, announcing the passage of the Gerhart Bill, which created the original midwifery provision of the Medical Practice Act

2. Directory – Board of Medical Examiners, March 1, 1918  ~  Physician, Surgeons, Osteopaths, Drugless Practitioners, Chiropodists, and Midwives  ~

3. BME Total of all licentiates from 1876 thru 1959 
(midwives 1917-1959)

4. Midwifery Law Grandmother Clause — 1917

5. Midwifery Law 1917 Educational Requirements (same as for OBs)

6. Midwifery Training Schools — 49 approved programs, 8 countries, none in California

7. List of BME Approved Mfry training schools >> NONE!

8. List of Midwives credentialed under Grandmother Clause 1917-1929

9. List LA County 53 licensed midwives (40 w/ Japanese surnames)

10. Partial List of Japanese American Midwives in Internment Camps 1941-1946

11. Original Midwifery Certificate Defined 1917-1949

12. Statutory requirements for Cal licensed midwives 1917-1949

13. SB 966 — the repeal of the midwifery application — Article 9 — and removing the word “Midwifery Certificate” from list of 4 certificates previously issued by the BME

14. 1949 Inter-Department Memo to Gov. Earl Warren from BME director, Mr. Arnerich, approving the repeal of Article 9 and supporting passage of SB 966

15. Legislative Memorandum July 1949 to Gov Ear Warren from his staff explaining SB 966 and pointing out the difference between the duties and powers of the two classes of maternity caregivers – midwives and nurses — and noting that midwives practice independently under the 1917 midwifery provision and NOT under the supervision of a physician.

16.  1949 letter from the Department of Public Health on SB 966

17.  Inter-Department Communication, Office of the Attorney General on SB 966 ~ July 5, 1949

18. Midwives Code of Practice ~ Policy on MF-physician relationship ~ United Kingdom – 1960 

19. Two Bowland Decisions — Jan 1976 Appellate Court finding that midwifery was NOT an illegal practice of medicine) and the July 1976 California Supreme Court decision reversing the Court of Appeals and ruling that midwifery without a state license was an illegal practice of medicine

20.  Angry letter in opposition to AB 1896 from Dr Heinrichs, Chief of Obstetrics @ Stanford 1977

21. The Midwifery Practice Act of 1978 — AB1896 — background information paper circulated by the Department of Consumer Affairs (notes that AB 1896 is materially supported by then Gov. Brown)

22. Sept 1980 – OSHPD information on the Midwifery Pilot Project requested by in 1978 by state Senator Gary Hart

23. March 1980 – The Professional Midwifery Practice Act of 1980 – background paper

24. Oct 1980 – original Midwifery Advisory Council as organized by the Department of Consumer Affairs — Claudia Ford, Chairperson, MAC

245 1980 letter from California Association of Obstetricians and Gynecologists to the CAOG members, announcing notable accomplishments of the year, including the defeat of the midwifery legislation

26. March 1981 Press release from state Senator Barry Keene (of the Keene-Bagley Act!), on SB 670 — creating state licensure for midwives

27. Midwifery Practice Act of 1981 – fact sheet from the Department of Consumer Affairs on SB 670 (march 16, 1981)

Section Three – Contemporary Commentary

28. More on the 1976 Bowland Decision & why it needs to be reversed ~ by Faith Gibson, 2006 

Link to the original historical document

A MIDWIFE’S CODE
of PRACTICE

No 1. — Midwife/Doctor Relationship

The Midwives Act, 1951, give statutory recognition to the position of the midwife as a professional practitioners in her own right.

The Board consider the responsibilities of the doctor and the midwife are so inter-related and complementary that the necessary degree of cooperation can only be ensured by a mutual recognition of their respective professional positions.

The conditions vary widely in the midwives practise, whether the confinement takes place in the home, in hospital or elsewhere. In the great majority of cases a registered medical practitioner is concerned to some degree, but the Board find it impracticable in widely varying circumstances to define the professional relationship of practising midwives with registered medical practitioners. They consider it desirable, however, to indicate certain principles which midwives should follow in their professional relationship with doctors.

The Nursing and Midwifery Council is the regularity body for all nurses and midwives in the UK.  They set standards of education, training, conduct and performance and can investigate those who fall short of the standards.

http://www.nmc-uk.org/Publications/Standards/

1 May 2008

The people in your care must be able
to trust you with their health and wellbeing.

To justify that trust, you must:

• make the care of people your first concern, treating them as individuals and respecting their dignity
• work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community
• provide a high standard of practice and care at all times
• be open and honest, act with integrity and uphold the reputation of your profession.

As a professional, you are personally accountable for actions and omissions in your
practice, and must always be able to justify your decisions. You must always act lawfully, whether those laws relate to your professional practice or personal life.

Failure to comply with this code may bring your fitness to practise into question and
endanger your registration.

This code should be considered together with the Nursing and Midwifery Council’s
(NMC) rules, standards, and guidance available from www.nmc-uk.org

The code ~

Make the care of people your first concern, treating them as individuals and respecting their dignity.

Treat people as individuals:

1. You must treat people as individuals and respect their dignity.
2. You must not discriminate in any way against those in your care.
3. You must treat people kindly and considerately.
4. You must act as an advocate for those in your care, helping them to access
relevant health and social care, information and support.

Respect people’s confidentiality:

5. You must respect people’s right to confidentiality.
6. You must ensure people are informed about how and why information is shared by
those who will be providing their care.
7. You must disclose information if you believe someone may be at risk of harm, in
line with the law of the country in which you are practising.

Collaborate with those in your care:

8. You must listen to the people in your care and respond to their concerns and preferences.
9. You must support people in caring for themselves to improve and maintain their health.
10. You must recognise and respect the contribution that people make to their own
care and wellbeing.
11. You must make arrangements to meet people’s language and communication needs.
12. You must share with people, in a way they can understand, the information they want or need to know about their health.
. . . .

Ensure you gain consent:

13. You must ensure that you gain consent before you begin any treatment or care.
14. You must respect and support people’s rights to accept or decline treatment and care.
15. You must uphold people’s rights to be fully involved in decisions about their care.
16. You must be aware of the legislation regarding mental capacity, ensuring that people who lack capacity remain at the centre of decision making and are fully safeguarded.
17. You must be able to demonstrate that you have acted in someone’s best interests if you have provided care in an emergency.

Part II

Non-physician primary care providers seen as a threat to Organized Medicine (OM): 

In November of 2004 the AMA launched an aggressive, well-organized and well funded campaign to further restrict the legal ability of non-physician practitioners to provide primary care and be fairly compensated for these services.

Non-physician practitioners who exercise critical judgments similar to physicians include pharmacists, podiatrists, optometrists, physician assistants, nurse practitioners, nurse anesthetists and professional midwives. However, the AMA’s policy opposes anything that: “alters the traditional pattern of practice in which the physician directs and supervises the care”. Of course, this is 19th century thinking and totally irrelevant to the health needs and economic realities of a 21st century population.

Nonetheless, the AMA has particularly targeted the area of reimbursement to concentrate its political influence.  It’s official ruling body — the AMA’s House of Delegates — has passed a number of policy resolutions to prohibit physician assistants, nurse practitioners, nurse anesthetists and other non-physician primary caregivers from being directly reimbursed by government programs such as Medicare and Medicaid.

What that means is that MDs can continue to bill and get reimbursed at MD rates for care provided by the salaried non-physician practitioners in their employ or providing care under legally mandated physician supervision.

The AMA and its role in the Scope of Practice Partnership: 

The AMA created the Scope of Practice Partnership (SOPP) in 2004 as a coalition comprised of itself (the AMA) and the Federation of State Medical Boards, plus six national medical specialty societies and six state medical associations. These include the California Medical Association, Colorado Medical Society, Maine Medical Association, Massachusetts Medical Society, New Mexico Medical Society, and Texas Medical Association.

The perspective of the Scope of Practice Partnership characterizes all non-physician practitioners as ‘physician extenders’. The phrase “physician extender” perfectly conveys its MD-centric perspective, one that sees the proper role of all other healthcare professionals as support staff whose job is to carry out the orders of the allopathically-trained medical profession, while these non-physician practitioners (NPPs) are expected to silently allow their physician-employors be directly compensated for the care they provided.

Physicians profits from the labors of non-physician practitioners in their employ by billing a third party at MD rates. Licensing laws in 28 states already reflect this MD-centric philosophy by legally restricting non-physician practitioners to the subordinate status of a physician-extender, thus prohibiting any form of independent practice or reimbursement.

According to statements published by the SOPP’s Steering Committee, this group intends to use its political, financial and legal resources to turn back the clock and sweep back the ocean – or as they put it, to end what they characterize as “the illegal practice of medicine by non-physician practitioners”.

In the 22 states and District of Columbia that already license non-physician practitioners as independent professionals, SOPP members plan to introduce legislation to repeal these laws. In the 28 states that have restrictive laws on the books already, the SOPP will vigorously fight any effort by nurse practitioners and other non-physician practitioners (NPP) to lift these restrictions.

At the national level, SOPP members are working to get federal legislation passed which will permanently block direct reimbursement of non-physician practitioners (NPP). Last but not least is a strategic plan to elect or appoint physicians sympathetic to SOPP’s policies to state medial boards and subsequently force all non-physicians practitioners under the control of the medical board in each state. {Note: In Feb  2012 it appears the SOPP succeeded in getting 2 members of its own groups — Dr Bishop, from the Am Society of Anesthesiologists, and Dr. GnanaDev, recent past president of the CMA — appointed to a 4-year term on California’s Medical Board.}

The SOPP wants to usurp the regulatory authority of the professional boards that currently license and regulate the practice nurse practitioners, midwives, pharmacists, naturopaths, chiropractors, etc. Instead they want state medical boards to take control of all non-physician practitioners (NPPs), based on the spurious notion that their current professional  boards (BRN, etc) are illegally authorizing such licentiates to practice of medicine without a license, thus depriving the medical profession of its legitimate income.

The AMA has so far maintained an iron grip on its MD-centric system for the last hundred years. The AMA’s Partnership continues to fixate on eliminating alternative forms of health care and the independent practice of non-physician practitioners, which also means that the hub of the health care wheel – high-quality primary care – will continue to be disabled or dysfunctional.

How organized medicine developed its iron grip:

The tap root of our medicalized health care system traces directly back to the lack of a scientific foundation for the medicalized system of an all-alllopathic model of sickness care invented by the AMA in 1904. Plans by influential leaders in the AMA to close half of all medical schools and make medical care exclusive allopathic were based on a political and economical agenda, and not on established scientific principles.

However, medical ‘science’ as we know it today (i.e. evidenced-based) did not yet exist and instead, the determination of medical efficacy was legally based on the authority of state-licensed physicians as “expert opinions”. Just as the opinion of the US Supreme Court is “supreme” — that is, its findings are accorded the status of a ‘fact’, so too is the ‘expert opinion’ of an MD as to whether a medical action (or omission of medical intervention) is therapeutically-effective (i.e. ‘competent’) or isn’t (i.e. medical mal-practice) based entirely on the statement/professional opinion of an MD.

Case law actually rejects any opinion about a medical topic if the speaker is not him or herself a medical doctor. This often gives rise to an exchange in a court of law in which a witness makes a definitive statement about some medical procedure or drug being unnecessary or incorrectly performed. Then the attorney from the other side cross-examines the witness and says: “Oh yeah, and just what medical school did YOU graduate from?”. At this point the jury is instructed by the judge to disregard the statement as irrelevant, since non-MDs have right to express such opinions about the practice of medicine simply because they are not MDs.

It was the opinion of MDs that the bio-scientific foundation for allopathic medicine was already (or soon would be) so effective against all diseases states and all mental and physical conditions, and under all circumstances of the human condition, that all other forms of ‘health-related care would become unnecessary. But they went even further by representing all non-allopathic disciplines and practitioners as a form of ‘quackery’ perpetrated by ‘charlatans’ — snake-oil salesmen, herbalists, naturopaths, midwives, Chinese medicine, etc.

However, the above opinions must also be seen in the historical context of the time. In the last 1800s and early 1900s,  the naturally multi-disciplinary  system of the time had produced a  glut of healthcare providers — MDs as well as drugless practitioners, midwives, and the like. As a result,  the average income of an MD had been driven down to little more than the “weekly wage of a mechanic” (to quote documents of that era).

In an effort to address this and other problems, the AMA’s Council of Eduction (CME) published a report in 1905 on medical schools in the US and Canada which was essentially a ‘hit list’ to force the closing of schools that did not ‘measure up’ to the AMA’s idea of a proper ‘scientific’ curriculum or other factors that ran counter to the AMA’s agenda. This was a nebulous idea defined as schools that taught courses in any non-allopathic topic such as naturopathy or acupuncture. It  resulted in the disproportionately loss of schools that admitted women, blacks and other ethnic minorities, immigrants and those of limited financial means.

In 1908 the AMA directly solicited the help of President Henry Pritchett of the Carnegie Foundation to rework the findings of the 1905 CME report and publish it under aegis of  Carnegie Foundation. The following is a brief summary of the motives and actions of the parties as recorded in AMA’s Minutes of its December 1908 meeting, Dr. Arthur Dean Bevan (chairman of the Council from 1904 to 1928) as published in JAMA and recorded in other historical documents:

“Recognizing the need for overall public support of its efforts, the Council approached the Carnegie Foundation … to enlist its aid as a neutral party.”

“… it occurred to some of the members of the Council that, if we could obtain the publication and approval of our work by the Carnegie Foundation .. , it would assist materially in securing the results we were attempting to bring about.”

With this in mind we approached President Henry S. Pritchett of the Carnegie Foundation, presented to him the evidence we had accumulated and asked him to make it the subject of a special report on medical education to be published by the Carnegie Foundation. He enthusiastically agreed to this proposition.”

Minutes of the December 1908 meeting of the AMA’s Council (New York):

“At one o’clock an informal conference was held with President Pritchett and Mr. Abraham Flexner of the Carnegie Foundation. Mr. Pritchett had already expressed, by correspondence, the willingness of the Foundation to cooperate with the Council in investigating the medical schools.

He agreed with the opinion previously expressed by the members of the Council that while the Foundation would be guided very largely by the Council’s investigation, to avoid the usual claims of partiality no more mention should be made in the report of the Council than any other source of information.

The report would therefore be, and have the weight of an independent report of a disinterested body, which would then be published far and wide. It would do much to develop public opinion.”

“The Council and the Carnegie Foundation believed that the observations and recommendations in the report would be more widely accepted if they came “from a neutral educational foundation of high standing”

“Although the Foundation would be directed fundamentally by the Council’s previous investigations, it was decided that to guarantee the objectivity and partiality of the final report, the Council would be mentioned only as a source of information.”

“The Foundation responded enthusiastically and appointed Abraham Flexner, MA, to conduct a continuing investigation of the medical schools.

In 1909 the AMA loaned Dr. N. P. Colwell, a very influential member of its Council on Medical Education, to the Carnegie Foundation to assist Mr Flexner in his efforts to incorporate the Council’s recommendations into a new document attributed to the Foundation.

After reading the CME’s 1904 report and other materials provided by the Council, he and Dr. Colwell concluded that there were too many medical schools in the USA, and too many doctors were being trained. Their goal was cut the number of MD-granting institutions from 160 to just 31.  This reduction of medical schools was to be promoted was a public safety campaign and good faith effort to modernize medical education.

Together Flexner and Colwell set about to create and publish policies that would reduce the number of  medical schools by half between 1910 and 1935. This master plan was distributed in 1910 as Carnegie Foundation Bulletin #4, more commonly referred to as the Flexner Report.

Whatever the actual motives behind these drastic reductions, it resulted in male-only admittance programs to accommodate a smaller admission pool. Another consequences of the AMA/Carnegie/Flexner plan was that medical education became much more expensive, putting such education out of reach of all but upper class white males.

Also a disproportionate number of schools targeted for closure were those that admitted women, blacks and other ethnic minorities, immigrants and others of limited financial means. Since these students could rarely afford six to eight years of university education, they were denied admission to university-affiliated medical schools. In general, the standardization of medical education as promoted by the Flexner Report led to the domination of American medicine by well-off white males.

Another aspect of the AMA’s success in forcing the mergers and closures of medical schools was that all state medical boards gradually adopted and enforced Flexner Report recommendations. Through the combined work of each state chapter of the *AMA, the 1905 recommendations and decisions of the CME came to have the force of law in all 48 states. With no successful opposition to this plan, there were only 66 American medical schools left standing in 1935.

Over that same 25 year period, the AMA also successfully eliminated all non-allopathic practitioners except for chiropractors, who used the ballet initiative system in California and other states to get their own independent practice act.

As the annual number of medical school graduates sharply declined, the availability and affordability of medical care became problematic.  By reducing the number of MDs available to the population, and eliminating the multi-disciplinary nature of health care (often my by charging its practitioners with the illegal practice of medicine), it became dramatically more difficult for people of color, residents of rural areas, and for those of limited means generally to obtain medical care in any form.

**State chapters of the AMA include the California Association of Medicine or CMA.

Click here for more on the Carnegie Foundation’s relationship with the AMA and it’s insider role in creating the Flexner Report :

Politics masquerading as science:

The public and other professionals assumed that the AMA used a scientific method of evaluation (statistical research and comparative studies) to determine the evidenced-based or ‘best practices’ model of health care: would it be multi-discipline or exclusively allopathic, MD-only care? Or would it be a cooperative and complementary model of MDs, non-allopathic physicians and non-physician practitioners, with the type of treatment and category of practitioner determined by the kind of care the patient required or requested? As we know only to well, no rational process was used in 1910, nor has one been applied in the 99 intervening years.

The uncritical acceptance of an unscientific premise:

Without understanding the long-term implications, states began adopting the exclusively allopathic, MD-centric model in 1910. The most immediate consequence of these policies was to eliminate women and minorities from the mainstream practice of medicine and dismantle and eventually discard the multi-discipline tradition of healthcare.

For instance, in 1909 California had a multi-discipline Board of Medical Examiners with 11-members — 5 MDs and 6 non-allopathic physicians. In 1911, the Medical Practice Act was amended to eliminate all 6 non-allopaths and replace them with a 12-member all-MD medical board, which is still in place today.

This same MD-centric, authority-based model provided the platform and push-off point for an exploitive form of corporate medicine that has doubled our troubles with the extremes of non-treatment and over-treatment, excessive cost and increased mortality.

Too long medical politics has masqueraded as medical science and corporate politics has triumph over fiscal responsibility. As we rightly credit medical science with saving lives, so we must credit medical politics for costing lives.

Of course, this returns up to the intro to part 1 ~ questions of why our current healthcare system, which looks much different after reading about how our current problems came about and what to do to repair, rebuild, reform, and rehabilitate by rediscovering our original tradition of multi-disciplinary care providers. Of economic and practical necessity, this must include the retooling of professional education for all health-related disciplines, accompanied by the independent practice non-physician primary-care providers as part of a strategy to replace our sickness care system with pro-active, protective and preventive HEALTH care:

• doesn’t work for so many of us — answer: because what we have now is a very expensive but ultimately ineffective ‘sickness-care’ system
• isn’t sustainable — answer: because a ‘sickness-care’ system is too expensive to maintain without millions of uninsured, quotas for care and ultimately, some form of ‘death panels’
• why America has entrenched such a dysfunctional system — answer: the AMA‘s successful strategy via the Flexner Report in 1910 to eliminate multi-disciplinary HEALTH care and replace it with “chokepoint medicine” — MD-centric, allopathic-only medical care that only comes into play after people become sick
• why chokepoint medicine doesn’t serve us — answer: because it chokes up the point of entry into the health system by making everyone cools their heels in a doctor’s medical office BEFORE they can get access to non-physician healthcare services
• what to do to repair the damage and fix the problems — answer: replace chokepoint medicine with a truly multi-discipline healthcare system that includes the independent practice of non-physician primary care practitioners as a normal part of its mainstream services

The following is background information on the politics of multi-disciplinary healthcare that includes the independent practice of nurse practitioners, CNMs and LMs. It is an excerpt from a much longer essay that explores why our current healthcare system:

• Doesn’t work for so many of us . . . answer:  because what we have now is a very expensive but ultimately ineffective ‘sickness-care’ system
  
• Isn’t sustainable . . . answer:  because a ‘sickness-care’ system is too expensive to maintain without millions of uninsured, quotas for care and ultimately, some form of ‘death panels’

• Why America but not other comparable countries has entrenched such a dysfunctional system . . .answer:  the AMA‘s successful strategy via the Flexner Report in 1910 to eliminate multi-disciplinary HEALTH care and replace it with “chokepoint medicine” — MD-centric, allopathic-only medical care that about managing people after they become sick
• Why chokepoint medicine doesn’t serve us:answer: because it chokes up the point of entry into the health system by making everyone be seen first by doctor BEFORE they can get access to non-physician primary-care services (nurse-practitioners or professional midwives)
• What to do to repair the damage and fix the problems: answer: replace chokepoint medicine with a truly multi-discipline healthcare system that includes the independent practice of non-physician primary care practitioners as a normal part of its mainstream services

The Numbers ~ Everyday Non-urgent Health Care: 

Approximately 90% of all medical appointments are for non-acute healthcare needs. This category includes “self-limiting conditions” i.e., temporary situations that resolve spontaneously. By definition, self-limiting conditions do not need or benefit from sophisticated medical technology, prescription drugs or surgery.

The illustration often used is that a cold, if untreated, will go away in seven days; if treated, it will go away in one week. Ordinary, garden-variety complaints include mild illness or minor injury, psychological states such as anxiety or mild depression, normal biological conditions such as pregnancy, breastfeeding, newborn follow-up, well-woman care (contraception, pap smear), normal aspects of aging, life-style issues (diet, exercise and questions about sexual topics), school and work physicals, vaccinations, testing for STDs, managing a stable chronic disease, etc.

Challenging Chokepoint Medicine:

In the early 1900s, primary care was provided by a mixture of MDs, non-allopathic physicians (osteopathic, naturopathic and eclectic doctors) and non-physician practitioners (including midwives). In 1910 organized medicine chose to do away with the traditional multi-discipline form of health care and replace it with an exclusively allopathic one.

The decision to get rid of non-allopathic physicians and non-physician practitioners occurred without any prior scientific research and without making any distinction between ambulatory care — non-urgent care for everyday self-limiting health-related conditions — and urgent medical intervention for serious and acute medical problems. Nonetheless, it was widely assumed by the medical profession, as well as many members of the public and all the state legislatures, that the allopathic model of medical care was the only scientific method and it represented 100% of what we now call “modern medical care.

Chokepoint Medicine is born

As the one and only way to to provide health-related care,  medical doctors believed and the state legislatures passed laws that “modern medicine” as a model built about a chokepoint. This specific configuration meant that every non-urgent patient must first go thru the eye of a needle to see and be seen by a medical doctor before any other aspect of the health care system can be accessed.

The big question is whether 9 to 13 years of extremely expensive medical school training in life-threatening medical emergencies and the use of prescription drugs and surgery is actually the most appropriate way to provide safe and cost-effective for every headache, earache, sniffles, sore throat, tummy ache, backache, athletes’ foot, trouble sleeping, normal pregnancy, healthy child check-up and all the other non-urgent and self-limiting conditions that fill up a physician’s waiting room every day?

Can this possibly be rewarding way for a highly-trained medical doctor to spend his (or her) time?

Time vs. Money:

These health-related concerns are not medically complicated, but can be time-consuming and certainly take more than the 6 to 10 minutes allotted for the typical non-urgent medical or OB appointment.

What people seeking non-urgent health care want and need is a relationship with an unhurried primary-care practitioner who is able and willing to be empathetically present, to listen, talk, ask questions, sympathize, make suggestions, and spend whatever time it takes to educate the patient (or parents) about how best to manage their health.

Let me emphasis the above list of verbs in relation to their most common, most vital element — unhurried TIME to be present:

…. to listen, to talk, to ask questions, to sympathize, to reassure, make suggestions and spend whatever time it takes to educate the patient (or parents) about how best to manage their health …

Not enough of both to go around:

By 2025 the growing US population, which includes children and increased proportion of elderly people, is expected to raise the number of ambulatory care visits by 42%. That means the 900 million visits to clinics and doctor’s offices in 2009 will rise to 13.5 million.

The number of patients with chronic diseases – a category who benefit most from the coordination and continuity of care of NPP — is also increasing. [Am Coll Physicians – White Pager 2008].

By reducing rate of obesity, diabetes, osteoporosis and many other chronic and expensive diseases thru high-quality primary care, it eliminates the great volume of expensive and invasive procedures currently driving up the cost of health-related services, most especially in regard to Medicare and Medicaid populations.

Institutionalized Mismatch:

According to Dr. Atul Grover, chief lobbyist for the Association of American Medical Colleges (an arm of the AMA), the answer is a 30% increase in medical school enrollments, in order to produce 5,000 additional new doctors each year in perpetuity.

However, this still misses the point, which is the extreme mismatch between what patients need and want from primary care providers, what society needs from medical doctors and what physicians themselves need and want from the practice of medicine.

From a patient’s perspective, it must be nearly impossible to get cost-effective services for routine low-tech care from a physician who is trying to pay off an average of $140,000 in med school loans AND simultaneously meet staff payroll, office overhead and malpractice insurance premiums. There is already one MD for every 373 people in the US. The number of doctors who report quitting their primary practice because they couldn’t make enough money to stay in business is eye-opening and distressing – the economics of primary practice by MDs does NOT work.

Un-choked, unhurried primary care:

Time and relationship-intensive non-urgent care is most satisfactorily provided by non-physician primary care practitioners – physician assistants, nurse practitioners, professional midwives, naturopaths, etc. This is where preventative medicine actually starts. It is also how the routine overuse of Rx drugs and medical and surgical procedures is stopped.

A consensus of the scientific literature identifies primary health care by independently practicing non-physician practitioners to be comparatively safe, more cost-effective than MD care and to have a high patient-satisfaction rating. Currently there are about 140,000 non-physician practitioners practicing in the US (not counting non-nurse midwives). In event of a serious or urgent medical situation or request by the patient, non-physician primary care practitioners arrange for referral, consultation or a transfer of care to an MD or emergency facility.

Concurrent Reform in Medical Education:

Incorporating non-physician practitioners into a health care must includes change in the way all we educate MDs and non-physician primary care practitioners. We need a broad-based multi-disciplinary approach, instead of the current system that teaches students of each health care discipline in total isolation from every other healthcare discipline. In the current system, students of medicine, nursing, midwifery, physician associates, naturopathy, etc never even met each other during their training.

At the most basic level, the body of scientific knowledge for bio-medicine includes the same course work for all primary care providers – anatomy, physiology, microbiology, taking and interpreting patient history, the logical steps of systems review and physical examination and fundamental treatment of minor problems and self-limiting conditions.

If all medical students and all non-physician practitioners (students of nursing, midwifery, physician assistants, etc) sat in chairs next to each other in same room, studied the same curriculum, learned from the same teacher at the same time, it would have two every important contributions to the health care system.

First, it would teach every physician-to-be how to function as a primary care provider before exposing them to the more complex world of specialty medicine. For instance, med students would learn how to mange normal childbirth using the principles of physiological management before learning the standard obstetrical intervention of medically managed childbirth.

Secondly it would forge collegial bonds between these different disciplines of health care providers that will last a lifetime. The result would be a cooperative and complimentary professional relationship between those students who continue on to become MDs and those that have chosen to become non-physician practitioners.

Without this change in how we think about primary care and how we train physician and non-physician practitioners who provide primary care, we will stay stuck in the same 19th century thinking that has distorted the entire health care system for a century and continues to systematically (structurally) block the self-correction of these problems.

Continue to part II: Non-physician primary care providers a threat to Organized Medicine (OM): 

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 “Connecting up the Dots”

The Conundrum of Obstetrical Supervision
of California-licensed Midwives ~

A legal impossibility created and vigorously maintained by organized medicine

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 replaced it with mandatory supervision by a licensed physician and surgeon. The supervising physician must have obstetrical privileges at a hospital in the same geographical area as the supervised midwife 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.

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 complication developed during the pregnancy, childbirth or postpartum of a woman receiving primary care from a licensed midwife. 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. Obviously this is not what is legally described as “close supervision”.

Physician/Midwife Relationship: 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. Based solely on the statute, this would be a misdemeanor crime and she risks discipline for unprofessional conduct and loss of her license.

However a 1999 ruling by OAL judge created explicit criteria that if met by individual LMs would stay any legal action against their license. Nonetheless, the legally created dependent relationship between midwives and obstetricians created by the supervisory provision has many other negative consequences for both midwives and childbearing families under their care. For example, an unsupervised midwife is often unable consult with an obstetrician, work collaboratively with a physician, order lab work or refer a client for an ultrasound.

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 the full and fair 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, as well as triggering the need for gynecological or other types of medical care later in the woman or her child’s life. 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. That means independently reimbursing both the obstetrician and the hospital for  240,000 deliveries each and every year.

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 the small town of Chico sequentially refused to evaluate a midwifery client’s pregnancy over a 3 day period of time. Each one cited prohibitions 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 mandated obstetrical supervision. 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 care in non-medical settings such as birth centers and planned home birth.

It was the fatally-flawed supervision clause in the nurse-midwifery practice act that gave rise to the lay midwifery movement. Many California women who were nurses or would otherwise would have become CNMs, realized that as nurse-midwife the option of a physiologically-managed normal labor and birth would continue to be legally unavailable to our clients, since the only way to practice at all was as a hospital midwife providing care from under obstetrical supervision and from within the obstetrical standard of care.  The obviously impossible nature of the existing nurse midwifery law fueled no less than 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, they 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. But so far midwives have been unable to find a lawyer who would take an “unfair business practices” case. According to lawyers, 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.

Legislative Remedies & Overwhelming Opposition by Organized Medicine

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. Senator Figueroa was our ‘hero’ in this fight, as she carried 3 bills that did amend the LMPA in some useful ways. However, when CAPLI threatened to sue the Medical Board based on their attempt to craft a supervision regulation, 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 1,000 razor cuts!). I can’t decide 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.

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.

Consistent with ACOG’s policy statement, the organization has repeatedly, publicly and officially denounced planned home birth as a dangerously substandard form of care and obstetricians are formally urged to 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 providing care for a biologically normal process.

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, knowledge 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. As obstetrically trained physician-surgeons, doctors ‘perform’ the surgical procedure of ‘delivery’ — the last few minutes of 2nd stage labor, during which the baby is born, while being assisted by hospital nursing staff and perhaps an anesthesiologist. In contrast, midwives provide physiologiclly-based support while the mother the gives birth as a normal, spontaneous and non-medicalized  biological activity.

In general, obstetricians don’t practice midwifery and certainly don’t provide non-medical birth services in non-medical settings such as the family’s own home. In regard to physicician-patient relationships, an obstetrician’s mandated role only comes into play after the midwife (or the mother) has detected the presence of a complication and the obstetrician is contacted. The doctor’s professional medical role is diagnosing the problem and treating the patient after a transfer of care has taken place. At this point, the supervising obstetrician’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 med-mal carriers admitted that they have no actuarial information on this topic and that their decisions are not based on actuarial data.

According to them, none is needed, since in the words of CAPLI  lobbyist Judge Cologne on June 6, 1994: “It is just common sense” that childbirth outside of a hospital and without the presence of a doctor is overwhelmingly dangerous.

According to Judge Cologne, 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  “no doubt” drop the doctor’s coverage in response to the physician’s “obviously bad judgment”. This opinion by organized medicine and med-mal carriers 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  assisting in any way in an emergency. 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 been interpreted as granting the supervision physician “ultimate authority, responsibility and liability”. After having voluntarily defined their supervisory role in this manner, the med-mal carrier then use the idea of  “ultimate liability” as the rationale for prohibiting the participation of physicians in providing supervision, consultation, collaboration 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 (i.e., 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 by addressing the inability of midwives to fulfill the spirit and letter of the law. In particular, the reject the idea of  eliminating this artificially constructed  vicarious liability through a “hold blameless for care not rendered” clause.

You can be assured that midwives desperately want to be in compliance with their licensing law, as noted by Judge Roman!

However, 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 — no requests to superior court judges for ‘cease and desist’ orders against the practice of unsupervised LMs, no moving papers demanding the MBC institute disciplinary action against unsupervised LMs.

If they believed that consumer safety was really being compromised or even that they had a legally tight case for forcing midwives out of ‘the birth 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! Me thinks the lady doth protect too much!

There are three people that are should be talked to before anyone talks to me again – they represent the best source of relatively unbiased legal and political information.

They are:

(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

I look forward to working with your office to resolve this long-standing ‘structural barrier’ to the full and fair implementation of the 1993 Licensed Midwifery Practice Act.

Faith Gibson, Ca LM #41
Chair, MBC’s Midwifery Advisory Council

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MEDICAL BOARD OF CALIFORNIA

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