Welcome Letter (part 2 of 3) to Dr Bishop, new Medical Board members

Webcast of the MBC’s Feb 3rd Quarterly Board Meeting – first half of the physician discussion on the two proposed mfry regulations is posted at the bottom of this section.

Part 2 – Continued information relative to the Reg. #1, recommending a collaborative relationship between physicians and licensed midwives and Reg.#2, recommending the LMs be permitted to obtain the drugs and medical supplies stipulated in the LMPA to be used during the practice of midwifery and incorporated into the educational curriculum of midwifery training in California.

Historical Relationship btw MDs & non-physician practitioners

As I reviewed the web-cast of comments at the Feb 3rd meeting, I realized that members of the Board may not be aware of the historical relationship between MDs and non-MD primary practitioners that has been part of California ‘healing arts’ legislation since 1876. In addition to creating the category of ‘physician and surgeon’, early versions of the Medical Practice Act established the independent categories of drugless practitioners (later to divide into osteopaths, chiropractors, Chinese medicine practitioners, acupuncturists and naturopaths), as well as podiatrists and traditional (non-medical, non-nurse) midwives. For many decades medical doctors and all of these categories of non-MD practitioners worked together cooperatively and independently.

Under California’s Healing Arts legislation, practitioners of each discipline had direct access to their own patient base. These laws also authorized many categories of non-MD practitioners to administer specified prescription drugs, use ionizing radiation (chiropractors), sever or penetrate human tissue beyond cutting of the umbilical cord (podiatrists), provide a diagnosis (osteopaths, chiropractors, naturopaths), and other patient-care activities that coincidently overlap a medical doctor’s scope of practice. Under the authorization of licensing laws, including B&P section 2063 (the emergency clause), these activities were not, and in contemporary times, still are not considered to be an illegal practice of medicine in California.

While this may be a controversial issue in some quarters, I personally look forward to the time when physicians and non-physician practitioners develop a mutually-beneficial arrangement that also meets the need for future generations to reduce the overall cost of healthcare. HC costs are rising all over the world at an unsustainable rate, causing their public health official to re-think long-term policies that saw an expanding pool of MDs as the primary answer to all their healthcare problems. Many countries are changing to a healthcare model that depends on non-physician primary-care practitioners to triage and provide routine care, while funneling patients with more serious medical conditions to the care of physician specialists.

The hallmark of these sustainable systems include: professional practice acts that require licentiates to demonstrate that they have the requisite training and competence to provide the specified HC service. Having established the licentiate’s competency, practice acts must also authorize these professionals to practice at the fullest extent of their training, technical skills and scope of practice. This model recognizes that scopes of practice among professions frequently over-lap and sees that as appropriate and beneficial. Further more, sustainable systems require that collaboration between healthcare providers be the professional norm.

As demonstrated by the five years of published data from the Licensed Midwife Annual Reports (LMAR 2007-2011), licensed midwifery fits right into this 21st century model for sustainable healthcare. Under the LMPA, students of mfry have for the last 19 years received the ‘requisite training’ and developed the entry-level ‘competence to provide a HC service’. As judged by the safe outcomes documented in LMAR, midwife licentiates in California are practicing in a manner that is consistent with our training and skills.

The status of licensed midwives and the safety of childbearing families would be further improved by a complimentary relationship between LMs and a voluntarily cooperative obstetrical profession. Anything that moves us in that direction should be enthusiastically embraced by all participatents.

The History of Midwifery in California ~ 1876 to the present

From 1876 to 1917 traditional (non-medical) midwifery as a lay practice was lawful but unregulated. Legislation creating the very first state-regulated practice of traditional midwifery was passed in 1917, stating that state-certified midwives were authorized to attend cases of normal childbirth. ‘Normal’ childbirth was inversely defined in California law using a phrase from the first mfry licensing law the United States — a 1896 law from the City of Rochester, NY that prohibited midwives from using “any artificial, forcible or mechanical means”.

Under the 1917 Cal. statue, midwifery was an independent profession with a scope of practice restricted to essentially healthy women and normally progressive labors. This included a requirement to transfer care to a qualified physician anytime a mother or baby developed a complication. However, the original non-medical midwifery provision (1917 to 1993) did NOT require any form of physician supervision.

This is documented by a July 8, 1949 Legislative Memorandum from Governor Earl Warren’s office on the issue of physician supervision relative to nurses (required) and midwives. Gov. Warren’s memo pointed out that:

Such is not the case in regard to midwives, for according to Section 2140 of the B & P code, this type of practitioner practices independently and not under the supervision of a physician. Accordingly the present practitioners will be protected.”

State-regulated midwifery circa 1917 required that applicants graduate from a Board-approved training program that included a specified period of clinical training. Mfry training programs were required to provide the same 165 hours of didactic education in obstetrics as stipulated by the California Medical Practice Act for MDs. Of the 217 midwives credentialed under this provision, over half were first or second generation Japanese residents who qualified for a California license after having graduated from one of the 27 midwifery schools in Japan that had been approved by our State medical board.

During the Second World War, FDR’s Executive Order 9066 relocated the Japanese population of California to internment camps, most of which were in Arizona, Wyoming and Canada. As a result, California birth registrations filed by midwives fell to under 2%. After the WWII, and perhaps reflecting a lingering bias as a result of the role Japan played in WWII, the Board of Medical Examiners ask the Legislature to repeal the statute that enabled graduate midwives to apply for a state license (SB 950). Midwives who held an active license were not affected by the new law and continued to practice non-medical midwifery in California until the last (and obviously very elderly) midwife declined to renew her license in 1981.

The Practice of Midwifery is Not a Practice of Medicine

In 1993 the Licensed Midwifery Practice Act (LMPA) repealed and replaced the original 1917 law. Like the 1917 mfry provision, the LMPA also identifies midwifery as distinct from the practice of medicine.  This legal designation categorizes midwifery as a ‘distinct calling’ in its own right (i.e., not a subset of medical practice such as a ‘physician assistant’).

Specially the 1917 provision and the 1993 LMPA both state that: “the holder of a licensed to practice midwifery is not authorized to practice medicine or surgery”. In other words, as described, defined, and authorized under the plain text reading of all relevant California law, the practice of midwifery is not, per se, a practice of medicine.

After the LMPA was signed by the Republican Governor Wilson in October 1993, the MBC created a Midwifery Implementation Committee to meet with agency staff and attorneys, as well as ‘interested parties’. This included the public, lay midwives, CNMs, lobbyists for CMA, ACOG and CAPLI (med-mal carriers). Dr. Thomas Joas, an anesthesiologist practicing in the San Diego area and a seated member of the Board from 1994 to 2002, was appointed Chair of this committee. Over an 18 month period (March 1, 1994-Sept 1995) seven 6-hour meetings were held at the State Medical Board building in Sacramento. (Transcripts of several meetings are on the internet)

For the first few meetings, Dr. Joas was very skeptical that non-nurse midwifery was actually a credible healthcare profession founded on scientifically-sound principles and providing its practitioners with an effective educational preparation. As a “Doubting Thomas” he wanted proof that an unschooled person calling herself a midwife could not ace our State Midwifery Boards and walk away with a state-issued license to legally practice midwifery.

To see for himself whether licensed midwifery was being regulated at a level that adequately protected public safety, he asked to take the California mfry licensing exam himself. While his request nearly required an Act of God, arrangements were somehow made and Dr. Joas was finally allowed to sit the exam under the same conditions and time constraints as all mfry applicants.

Dr Joas flunked his midwifery boards. Subsequent to that experience, he was genuinely invested in successfully implementing our modern-day midwifery act.


Continue to part 3 – Proposed Reg #2 and Access to necessary medical supplies, prophylactic & emergent drugs — continued in the final post (part 3) June 24th, 2012


Webcast of the MBC’s Feb 3rd Quarterly Board Meeting – first half of the physician discussion of proposed mfry regulations 1 & 2