Physician Supervision Clause: the current impasse — 19 years and counting ~ part 3 (of 5)

link to part 2

Amendments and other changes to the LMPA since 1993

In the 19 years since the LMPA was passed, the original black-letter law has been legislatively modified by three amendments authored by Senator Liz Figueroa — SB 1479 ~ 2000, SB 1950 ~ 2003 and SB 1638 ~ 2006, and legally modified by a ruling in 1999 by the Office of Administrative Law (OAL).

The 1999 case brought by the MBC grew out of the inability or unwillingness of obstetricians to provide supervision to licensed midwives. A direct-enty midwife (Alison Obsorn, LM) was charged with unprofessional conduct based, in part, on her ‘failure’ to have secured the supervision of an obstetrically-trained physician, and disciplinary action was taken by the Medical Board to revoke her license.

After a week-long administrative hearing, a ruling by OAL Judge Roman provided a legal framework for practicing midwifery when all the obstetricians in a geographical area are either unwilling or unable to provide the legally essential service of supervision.

Equal-opportunity exploitation — StatutoryUncompensated Statutory Role and Burden of Supervising Obstetricians as Negotiated by :

Under the statutory provision for obstetrical supervision as described in the LMPA, physicians who volunteer to supervise LMs have no statutory duty to provide any kind of prior medical oversight to the clients of midwives. An obstetrician supervisor is not required to personally examine or otherwise pre-approve childbearing women before they can be accepted for care by the LM. Nor do supervising physicians co-manage or otherwise direct the care of midwifery clients during prenatal care, active labor, the birth or mother’s 6-week course of postpartum care. Supervising obstetricians also do not have a role in providing care or advice about the neonate at birth or during the first 6 weeks of life while it is under the care of the midwife.

The professional or ‘supervisory’ skills of the MD only come into play if or when the childbearing woman needs some form of medical service – evaluation or treatment –that falls outside of the licensed midwifery scope of practice or beyond the individual midwife’s level of skill. In these cases, the midwife or client seeks medical assistance from the physician because the pregnant or newly-delivered mother needs to be medically evaluated or treated.

At an operational level (i.e., functionally-speaking) these circumstances are, in point of fact, a consultative and collaborative relationship between the midwife, mother and medical doctor. Under these circumstances, the licensed midwife, who is trained in midwifery but not in allopathic medicine, is responsible for her practice of midwifery, while the MD, who is trained in allopathic medicine but not midwifery, is only responsible for services provided in his area of training and expertise – the practice of obstetrical medicine.

However, official documents from med-mal carriers, CAPLI and ACOG (from 1974 to the present), attest to the fact that physician supervision of licensed midwives as currently interpreted by organized medicine is a relationship of agency — one legally known as “captain-of-the-ship/borrowed servant”. The same California med-mal carriers who promoted the idea that physician supervision is an agent-agency relationship, turned around and prohibited insured MDs from participating due to the vicarious liability that ‘agency’ inevitably creates.

The following comment is quoted directly from a letter written May 18, 1999 by the NORCAL Mutual Insurance Company to Dr. Connie Basch, MD, director of a medical clinic in McKinleyville, Ca:

Re: Risk management recommendation on the supervision of midwives.

a. physicians cannot supervise, consult with, or back-up any midwife for a *homebirth

If an unlicensed or a home birth midwife calls for advice of any kind, explain that *you cannot give advice (otherwise you are engaging in supervision, which is not covered under your policy, as discussed above). {*emphasis in original}

If an unlicensed or a homebirth midwife calls to report an emergency situation, tell him/her to call 911 in order to have the patient transported to the hospital. Do not give any other advice. Document the conversation.

Legislative History & Background of the Current Impasse

According to published records of the legislative hearing in August of 1993 (Assembly Health Committee), lobbyists for CMA described physician supervision as a relationship that was specifically in the interest of the public by increasing ‘patient safety’. The CMA promoted physician supervision of midwives as a ‘safety measure’, which they described as a stepping-stone to comprehensive obstetrical services in case a midwife’s client developed a complication during pregnancy or in relation to childbirth.

From the perspectives of midwives, it doesn’t matter what the relationship is called. However, midwives do care deeply (and so should everyone else) that the arrangement between MDs and LMs lives up to the patient safety goals identified by the CMA officials who subsequently insisted that ‘supervision’ be added to SB 350 [press release Senator Killea’s office, June 7, 1993].

If the process worked as the CMA described, LMs could easily consult and collaborate with obstetricians, and individual physicians with obstetrical privileges would be able to provide the midwife’s PHB clients with direct access to required medical care and hospital-based services.

During negotiations between  the CMA and the bill’s author (Sen. Killea), she only agreed to the last-minute addition of the supervision clause after the CMA personally promised her that they would “see that physicians provided the necessary supervision”. This was a promise they could not (and did not) keep. Equally important, the supervision-vicarious liability status is as onerous and detrimental to obstetricians and childbearing women, as it is to professional midwives.

Health care professionals are far more interested in seeing that physicians are able and willing to cooperate with midwives and childbearing women who choose their services than arguing about the legal wording of this arrangement. Nonetheless, it should be noted that the word “supervision” has an economic meaning that is troubling. Any health care profession whose license mandates physician supervision falls into a legal category known to as “mid-level practitioners”.

Current law prohibits mid-level practitioners from being directly reimburses by the federal Medicaid (MediCal) program. WHen it come to maternity care,  40% of all births in California are reimbursed by the federal government’s “Medicaid” program and matching funds from the state. Using the word “supervision” means MediCal eligable women can’t choose to give birth with professional midwives who provide OOH care and the State (i.e., its taxpayers) can’t take advantage of the substantial savings associated with non-institutional care.

 ~ The LMPA does not define ‘supervision’ but ACOG does.  It is ACOG’s preferred definition that makes supervision unworkable. 

Continued ~ link to Part 4