Physician Supervision: Judge Roman’s 1999 ruling ~ part 5 (of 5)

link to part 4

Legislative barriers to implementing the nurse-midwifery and licensed midwifery practice acts of 1974 and 1993

In his 1999 ruling Judge Roman pointed out that ACOG-based policies and protocols referred to above would of themselves prohibit the provision of planned home birth by qualified midwifery practitioners, making it impossible for a childbearing woman to have a professionally-attended OOH birth in the state of California and essentially negating the very practice authorized by the LMPA in 1993.

Based on a considerable body of evidence, Judge Roman established a legal foundation for the practice of midwifery under the LMPA.  In essence, his ruling stated that the Legislature, in passing the Licensed Midwifery Practice Act, acknowledged the right of childbearing women in California to choose maternity care that is ‘alternative’ to the medical model of obstetrics and furthermore that the Legislature determined that access to physiologically-based (i.e., traditional, non-medical) midwifery care by professionally-trained and state-regulated midwives was both appropriate and necessary to substantively and realistically support the constitutional choices of healthy childbearing women in a manner that was also consistent with the principles of public safety.

Under this legal theory, such fundamental patient rights and associated issues of public safety cannot be abridged or functionally nullified by company policies of med-mal carriers, competing professional organizations (such as ACOG and CAPLI) or what were described in Judge Roman’s own words as the evident “hostility” of the obstetrical profession – all situations that ultimately deny LMs access to obstetrical supervision as mandated by the same organizations which insisted that such a requirement be added to SB 350 in June of 1993

Under Judge Roman’s decision, licensed midwives are responsible for making a “good faith effort” to find a supervising physician – an MD with obstetrical privileges who practices in their geographical area who is able (according to his med-mal carrier) to provide supervision and is willing to voluntarily take on the legal burdens of vicarious liability and any substantially increased insurance premiums that is med-mal carrier may impose.

However, when no physician-obstetrician in the LM’s geographical area is willing and able to provide the mandated supervision (the case for the vast majority of LMs), then the LM, in conjunction with each of her clients, are authorized to develop an alternative plan that provides appropriate and timely access to both elective and emergent medical services. This document is then signed by both client and LM and included in the patient’s chart.

The 1999 ruling by the OAL judge was followed in the year 2000 by an amendment to the LMPA (SB 1479 ~ Figueroa). This new provision removed some requirements of the original supervisory clause and replaced them with a requirement that closely approximated Judge Roman’s decision. SB 1479 required the MBC to create a document to be used by LMs to create a specific plan in conjunction with each of their clients for medical interface (elective and emergent) during ante, intra, and postpartum-neonatal periods. This written document must be signed by both client and LM and included on the mother’s chart. SB 1479 also expanded the requirements for informed patient consent relative to OOH midwifery care, disclosure and documentation of whether or not the midwife carries professional liability insurance, and consumer info on how to file a complaint with the Medical Board about a licensed midwife who care was somehow unsatisfactory.

In 2003, the LMPA was amended again. SB 1950 (~ Sen. Figueroa) directed the MBC to adopt into regulation a midwifery standard of care and a second regulation defining the ‘appropriate level of supervision’ between LMs and MDs. A regulation defining supervision was proposed by the Medical Board in 2003, but eventually dropped because organized medicine declined to support the wording recommended by the MBC’s Midwifery Committee. However, a formal midwifery standard of care for planned home birth as mandated by SB 1950 was approved by the OAL in March of 2006.

At the February 3rd 2012 Board meeting, the two proposed regulations presented to the Board were authorized under the legislative mandate of SB 1950. The goal of these regulations is to provide a workable solution that that is in the interest of pubic safety, consistent with the intent of the LMPA and with Judge Roman’s ruling in 1999.

To accomplish this requires two specific changes.  ACOG’s definition that obstetricians have “final authority, responsibility and liability” has been accepted as a pro-forma or de facto regulation by all California med-mal carriers since the passage of the LMPA in 1993. ACOG’s unofficial or de facto definition as adopted by CAPLI must be rejected as the basis for organizational policy because it unnecessarily creates vicarious liability. Supervision-vicarious liability resulted in a ‘categorical’ discrimination against licensed midwives and their clients because it prevents obstetricians from collaborating with licensed midwives and also prevents them from providing non-emergent obstetrical services to midwifery clients. It also prevents midwives from accessing necessary lab and ultrasound services on behalf of pregnant women they are caring for.

The other needed change in regulatory language is defining the “appropriate level of supervision” so it can actually and practically ‘promote the public safety’. The only realistic option is a consultative and collaborative relationship between the obstetrical profession and midwives relative the medical needs of the midwife’s clients. Because this collaboration regulation eliminates vicarious liability, it simultaneously provides midwives and their clients with reliable and timely access to comprehensive obstetrical services. Access to medical care is undeniably in the interest of public safety. 

As responsible citizens, we are ever mindful that ideologies about safety in relation to women’s health — whether called ‘public’ safety or ‘patient’ safety — must be supported by more than rhetoric and claims of possible benefit. To validate these claims, they must be accompanied by actions that realistically and effectively reduce harm, while protecting, preserving and promoting states of health. In the 19 years since supervision was inserted in the LMPA as ‘stepping stone to obstetrical services’, the concept of physician supervision has, in actual fact, created an insurmountable barrier to the very quality of care it was suppose to facilitate.

In addition, the imposition of this particularly flawed ‘safety’ measures as a prerequisite for access to the lawful practice of midwifery, also fails to acknowledge and account for the constitutional autonomy of healthy, mentally-competent adult women relative to their reproductive healthcare needs.

Midwifery clients are by legal definition healthy women who choosing midwives as their providers for maternity care. Since the inception of maternity care in the early 1900s, its goal and purpose has been to preserve and protect the health of already healthy childbearing women without introducing any unnecessary harm or unproductive expense. Healthy women choose midwives to meet their maternity care needs because they sincerely believe that the current standard obstetrical care in the US involuntarily exposes them to unnecessary, unwanted risks they wish to avoid. The routine use of medical interventions included increased number of inductions, invasive procedures, rate of premature births, a 32.8% Cesarean section rate.

Cesarean surgery-specific complications and post-Cesarean reproductive risks include a 6% secondary infertility rate and increased maternal mortality associated with complications in subsequent pregnancies. This includes increased risk of post-Cesarean embryo implantation in the uterine incision requiring a hysterectomy. For viable post-Cesarean pregnancies, serious complications are abnormal placenta placement or invasive growth into the uterine wall, torrential hemorrhage at the time of surgery requiring blood transfusions and emergency hysterectomy, a pulmonary embolism, drug or anesthetic reactions, admission to the ICU, and a host of more mundane post-op complications and problems such as MERSA infections and surgical adhesions.

Under an amendment of the LMPA (SB 1479, Figueroa, 2000) childbearing women in California have the right to choose ‘alternative’ forms of care for a normal birth, including PHB. Even if supervision did not create a risk to their physical well-being, it would, if implemented as ACOG defines its, deny women access to that very ‘alternative’ form of care by making them into involuntary de facto obstetrical patients. This force them back into the ACOG-defined standard obstetrical model of care, which restricts care to hospital-only birth services.

As judged by these criteria, the insurmountable barriers for both midwives and childbearing women that result from the present, untenable situation are inconsistent with the legal function of supervision as a protective measure in the interest of public safety and accounting for the right of healthy women to choose the manner and circumstance of their normal childbirth.