Sunset Review of Midwifery Issues: Background Supervision ~ part 1

Excepts from my communications with employee GV Ayers of the B&P Committee of California Legislature:

When it comes to the legal, legislative and political history of obstetrical supervision of midwifery, I am the idiot savant. In preparation with for a meeting in 2007 with then-Attorney General Jerry Brown on this topic, I created a document archive for his office. My copy of that binder weighs over 4 pounds and its historical and contemporary documents paint a disturbing picture of a law that has never been in the public interest.

Perhaps the best proof of that statement was provided by Gov. Jerry Brown’s first administration in a document from the Department of Consumer Affairs dated September 8, 1977. In the 3 years since passage of the nurse-midwifery statute, the mandatory supervision clause had already proven itself to be unworkable and a new licensing law was deemed necessary by his administration (the Midwifery Practice Act of 1978).

The 11-page document by deputy director Michael Krisman specifically identified mandatory supervision as a ‘structural barrier’ to the intent of the nurse-midwifery practice act, which was to make professional midwifery care available to underserved populations, families seeking an ‘alternative’ to highly medicalized obstetrical care and most especially, eligible-Medicaid low-income women living in unserved areas of the state:

“… by limiting the practice of midwifery to only those situations under a doctor’s supervision … the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant.

The fact that [3 years after passage] only 65 are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”.

Mr. Krisman described mandated supervision as generally making the doctor “responsible for the actions of the … midwife”. The legal term is ‘vicarious liability’, and it is the specific situation most responsible for these “structural barriers” and other unintended consequences referred to throughout in this document. As long as the 11-letter word ‘supervision’ is in either one of the midwifery licensing laws, the med-mal carriers can continue to cite the artificially-created ‘vicarious’ liability as permitting them to legally discriminate against the practice of midwifery.

Imagine how different it would be if medical doctors, who are trained in medicine but not midwifery, were only responsible for their practice of medicine, and midwives, who are trained in midwifery but not medicine, were only responsible for their practice of midwifery? Imagine if our two professions could freely collaborate with each based on the simple and straightforward needs of client families? Imagine how much money this would save taxpayers under the MediCal program!

Oddly enough, this is exactly where the traditional or ‘legacy’ practice of midwifery in California was during the 105 year period from California’s statehood in 1876 to 1981, which is when the last midwife licensed by the MBC under the original provision retired. Another document in the AG’s office 2007 archive is a July 8th, 1949 Legislative Memo from Gov. Earle Warren. It confirms that the legacy practice of California midwifery was never under the control the medical profession, nor was any pre-determined physician relationship or obstetrical supervision required for practicing midwives.

“Some comment should be made … with regard to midwives and nurses, for the duties and powers of the two classes are quite different. Section 2725 of the B&P Code outlines the duties which may be performed by nurses. All these duties are to be performed under the supervision of a physician.

Such is not the case with regard to midwives, for according to Section 2140 of the same Code this type of practitioner operates independently and not under the supervision of a physician.”

With the exception of a one physician assistant who is also a licensed midwife (PA & LM) and provides hospital-based services under physician supervision, no California LM who attends births has been able to secure the mandated ‘direct and accountable’ physician supervision in the 20 years since passage of the LMPA in 1993.

According to a personal conversation in the summer of 1993 with Sen. Killea (author of the LMPA), the CMA promised that if she would permit them to insert the same mandatory supervision clause in the LMPA as in the 1974 nurse midwifery law (despite the fact that it had already been proven to not work), the CMA would “see that physicians provided supervision” to LMs.

We all know that was a promise they couldn’t and didn’t keep. While the CMA claimed the supervisory requirement was a necessary stepping-stone to timely medical care, its entire 39-year history has been that of an unnecessary stumbling block with a major negative impact on childbearing families and midwives.

While the federal Emergency Medical Treatment & Active Labor Act (EMTALA) requires hospitals receiving federal funds to provide emergent care to all women in active labor (including the clients of midwives), EMTALA does not apply to routine obstetrical evaluation, or to laboratory, ultrasound and other diagnostics services. There have been a number of bad outcomes directly attributable to refusal of obstetricians and other service providers because the patient in question was receiving care from a LM.

This makes the safe care of over 100,000 mothers and babies by licensed midwives during this long dark period a truly remarkable feat. Even in the face of such overwhelming odds, the outcome statistics from the California’s Licensed Midwives Annual Report (2007-2011) are excellent. The average C-section rate over the past 5 years for LM clients who transferred to the hospital was only 8%, compared to 32.82% for California’s overall rate.

Less than 1% of women served by California LMs had premature births, as contrasted with a 12% prematurity rate nationally. According to my calculation from the LMAR for 2011, a less than 1% rate of prematurity means 325 fewer hospitalized premature babies than would have occurred if those same women had been part of the obstetrically-treated population. Just imagine what that saves the State in MediCal charges for respiratory distress syndrome (RDS) and other costs of neonatal intensive care of premature babies.

However it appears to me that the actual facts don’t really matter, nor do any of the usual reasons for fixing a problem of this magnitude. So far the politics of organized medicine always seem to trump reason, as they lurk behind a smoke screen of plausible deniability.

1999 OAL Pro-midwifery Ruling and Legal Practice by LMs 

Fixing this problem is even more important when one factors in the economic impact to the citizens of California who have to pay a drastically inflated bill for highly interventive obstetrical care in an essentially healthy population of low-income families. Many of these women would otherwise prefer to give birth in the hospital under the care of a midwife, or would have chosen the cost-effective option of midwifery care in birth centers or other non-medical setting.

While organized medicine never talks about this in public, the hidden agenda behind their insistence on supervisory control over midwifery is money. By first insisting that midwives be supervised by obstetricians, and then refusing to provide that supervision, the obstetrical profession and hospital industry has an unopposed monopoly over ALL maternity care reimbursement streams. 

This is particularly important in regard to the Medicaid-MediCal program, as 40% of all maternity care in the state is paid for by taxpayers.

The supervision clause offers the following economic advantages to the obstetrical profession:

• provides health insurance companies with a lawful excuse to not reimburse families for maternity services provided by midwives
• prevents professional midwives from independently qualifying as MediCal providers to low-income families
• prevents healthy MediCal eligible women from choosing the cost-effective options of midwifery care and birth center services (with an average C-section rate well under 10%)
• blocks access to all other options thus forcing low-income families into the most expensive, most interventive obstetrical model of care, with the very highest operative delivery rate (average rate over 32%)

Shocking Numbers for childbirth services under the Medicaid/MediCal program:

Hospitalization during childbirth is the single largest category of services provided in California hospitals. Maternity care is the single most expensive service provided by California hospitals, with Cesarean deliveries approximately twice as expensive as normal vaginal birth. Costs associated with premature babies are the single most expensive line-item for the Medicaid program. This in turn contributes disproportionately to California’s huge budget deficit.

Obviously mandatory supervision is a smashing success for organized medicine, as it guarantees business-as-usual in perpetuity. While this makes the obstetrical profession very happy, the rest of us know that it is a crazy idea — the notion that refusing to provide obstetrical care to childbearing women under care of a midwife will make things safer for mothers and babies in some magical way. These pig-head policies and turf wars have resulted in easily preventable mortalities and unnecessary medical expenses, and they will continue to do so until this problem is fixed .

The legal discrimination created and perpetuated by the supervisory provision is a special kind of hell for licensed midwives and their client families. Its like being functionally deported to a third world country, where the black market is the only market. A particularly offensive (and expensive!) example are the anti-cooperative policies of many of California’s perinatal regional centers. Even though these centers are funded by state and federal tax dollars, they won’t accept a referral from professional midwives who cannot provide proof of a physician-supervision arrangement.

Even though a mother-to-be already has an ultrasound or genetic testing that diagnosed her baby with a serious structural problem, such as a heart defect or gastroschisis (intestines of the fetus have spilled out of its body through a defect in the unborn baby’s umbilical cord), that mother must wait (and she must pay) for an appointment with an obstetrician before she can get a referral to the perinatal center. When something is horribly wrong with your baby, such as the gastroschisis referred to above (a true story), it is an already agonizing experience without being treated like a football in a turf war by the very healthcare professionals who are suppose to be helping you.

A similar instance is the refusal by Stanford’s Lucille Packard Children’s hospital to send their specially equipped and MD-staffed perinatal transport van to a sick neonate who needs hospital transfer after being born at home under the care of a licensed midwife. Based again on their internal policy that that they don’t provide services to a midwife unless she is providing care under the supervision of the obstetrical profession, the parents are instructed to call 911 to transfer by paramedic ‘rig’.

This general purpose ambulance is definitely NOT equipped for neonates and the EMTs who man it also do NOT have any special training for critical care of newborns. For several years I provided the annual in-service education class on ‘obstetrical emergencies’ to all the EMTs for a very large metropolitan area. This three-hour class did not include any clinical training and due to time constraints, included only the briefest mention of the transport needs of a compromised newborn.

My question is how bad does this problem have to get and for how long – a whole century instead of a mere 4 decades – before someone actually does something effective?