For 20 years following the Bowland Decision we thought restoring the legacy practice of traditional midwifery was IMPOSSIBLE, but in 1993 we finally prevailed.
For the next 20 years we were told that restoring the independent nature of midwifery was totally IMPROBABLE. While sustained efforts by midwives, Senator Figueroa, Dr Fantozzi, Anita Scuri and many others moved the ball down the way down the field, our ultimate goal remained frustratingly elusive.
This time is different. I am throughly convinced that 2013 is our lucky year — our success now is INEVITABLE.
So in moments of doubt, remember these 3 “I” words: Impossible, ….. Improbable, ….. INEVITABLE !
At the Senate Business and Professions Committee’s Sunset Review hearing on March 11th (2013), Senator Rich Gordon (chair of the Committee) referred to the legally required supervision of midwives by physicians as an issue of “changing the relationship issue between midwives and physician”.
The re-framing of this confusing and contentious issue by Senator Gordon was nothing short of brilliant. I’ve been involved in this struggle for 33 years and never figured out that simpler and far better way of talking about this issue. For decades our attempts to inform legislators, journalists, lawyers and the public about this problem has been elusive, but not any more!
But instead of the mind-numbing polysyllabic phrase “ eliminating physician supervision” (eyes glaze over) it’s possible to quickly and deftly describe this issue as a ‘relationship’ problem. So here is the 40 year-old story of the legislatively-defined ‘relationship’ between midwives and physicians in California:
Four decades ago, the medical profession insisted that midwifery in California be re-classified from an independent profession to a physician-dependent medical discipline. [1] Legislative Memorandum- Gov. Earl Warren, July 8, 1949, on the topic of state-licensed midwives “… according to Section 2140, this type of practitioner operates independenty and not under the supervision of a physician”.
As a ‘physician-supervised’ activity, MDs are identified as having “ultimate authority, responsibility and liability” for the practice of midwives.[2] NorCal may 18, 1999 letter
This new ‘relationship’ conferred control over the practice of midwifery to the medical profession. As a medicalized discipline, representatives of organized medicine stated that the only appropriate standard of care for the practice of midwifery was one that conformed to the standards published by the American College of Obstetricians and Gynecologists (ACOG). [3] CAPLI letter August 2003 letter
As a physician-dependent medical discipline, professionally-licensed midwives are only authorized to provide midwifery care if they are able to locate a specific physician in their immediate area who will voluntarily provide the legally-essential services of obstetrical supervision. Physicians are limited supervising no more than four midwives at time. [4] Sec. 2507 & 2508, LMPA
Having authority, responsibility and liability over the actions of another professional inevitably creates ‘vicarious’ liability. As a result of the increased liability risk, med-mal carriers in California prohibit their insured physician from entering into any type of professional relationship with a midwife providing OOH care, irrespective of what word is used to describe the relationship (collaboration, supervision, back-up, etc). [5] NorCal may 18, 1999 letter
If a midwife doesn’t have a supervisory relationship, or her specific physician is unavailable, the vicarious liability associated with a midwifery as a physician-dependent discipline prevents non-supervising doctors from consulting or collaborating with midwives. [5] NorCal may 18, 1999 letter
As a result the relationship between the two professions in California is one in which midwives depend on medical doctors in order to be able to practice. If physicians are unable or unwilling to volunteer for this essential role, midwives are unable to satisfactorily provide care to childbearing women. It’s simple as that.
This small but crucial change in perspective — focusing on the relationship aspect instead of the issue of supervision — helped me to see things from the other end of the telescope. As midwives, we each tend to think about the problem of supervision based on our personal experience:
(a) In my geographical area not a single OB or any other physician with obstetrical hospital privileges will voluntarily enter into a supervisory relationship me or other LMs, often citing policies of their med-mal carriers, which prohibit such arrangements
(b) When I try to order necessary labs and ultrasound exams for my clients or emergency medical supplies for our practice, many companies and service providers refuses to do business with me when I’m unable to either provide a requisition signed by an MD or give them the name of my supervising obstetrician
(c) When I apply to be a Medicaid/MediCal provider, I learn that I can’t qualify because I don’t have documents identifying a specific obstetrician who has agreed to supervise my practice of midwifery
(d) When I bill a client’s health insurance provider for my professional services, my invoice is rejected unless I can provide the name of a supervising obstetrician. Some of these companies only reimburse the obstetrician for services provided by midwives under their supervision
(e) When I refer a pregnant woman with an abnormal finding to state-financed regional perinatal center for evaluation, they refuse to see her because I can’t provide the name of my supervising physician
(f) When I call the regional perinatal center for a perinatologist-staffed special NICU equipped transport van to pick up a sick baby born at home, they refuse to come because I can’t provide the name of my supervising physician
(g) On those rare occasion when I have to transfer a client during labor, the OB on call demands to know who my supervisor is, bawls me out in front of the nurse and my client’s family for being irresponsible and practicing ‘illegally’.
On many occasions, they also threaten to call the Medical Board and report me. I feel humiliated and afraid, even though I am in compliance with the criteria established by Administrative Court Judge Roman in his 1999 ruling and the LMPA as amended by SB 1479 in 2000 (sec. 2508).
What is also immediately clear is that the mechanics of ‘supervision’ is not the actual issue. All three California med-mal carriers see all physician ‘relationships’ with all midwives who provide OOH birth services as potential source of vicarious liability. It’s no surprise that all carriers domiciled in California prohibit ANY and all such relationships between insured physicians and midwives.
Of course, there are two very different ‘cures’ for this manufactured dilemma. The first is to maintain the current legislative scheme for the CNM and LM licensing acts, while adding the following provisions to the Medical Practice Act and laws regulating professional liability insurance in Caliornia:
* Require physicians with obstetrical privileges to provide consult, collaborate and supervise midwives as an obligation of their state license to practice medicine.
** Require med-mal carriers to cover incidental liability associated licensed midwives as a part of the standard coverage of obstetricians covered in our state.
*** Create a legislative scheme to monitor the consequences of physician supervision of midwives to determine if this law is working in accordance with the overall intent of the LMPA and provide a report to the Legislature in 2 years on the following:
(a) to increase access to prenatal care and other maternity care services, and reduce the incidence of unattended childbirth, pregnant women in California, including low-income Medicaid/MediCal eligible families, must have unfettered access to state-regulated midwifery services
(b) that it be determined that neither midwives nor physicians are being systematically exploited by any provision of these laws
Personally, I don’t believe that physicians OR midwives would be very happy with the legislative “remedy” suggested above.
So my next suggestion is:
Return the practice of midwifery to its original classification as a independent profession. This would instantly eliminate the vicarious liability inherent in the current legislative scheme. This is consistent with the traditional historical and worldwide practice of midwifery as collegial and cooperative relationship between midwives and physicians.
In the UK midwives are recognized as professional practitioners in her their right. Code #1 of the Code of Practice formally described the “Midwife/Doctor Relationship” by noting that:
“the responsibilities of the doctor and midwife are so inter-related and complementary that the necessary degree of co-operation can only be ensured by a mutual recognition of their respective professional positions.” [Rules of the Central Midwives Board, Handbook – 1962]
As a properly independent profession the risk of vicarious liability would no longer be a problem. A midwife, who was trained in midwifery (but not medicine) would only be responsible for her practice of midwifery and physicians, who are trained in medicine (but not midwifery) would only responsible for his area of professional training.
Continued to part 2: What to do with or about our midwife-physician “relationship” problem?