Dear Dr. Bishop ^O^
On behalf of California mothers and midwives, I want to welcome you to the Medical Board. We all look forward to your moral leadership.
The March 29th ‘interested parties’ meeting for proposed mfry regulations #1 & 2 was attended by approximately 140 people – consumers, LMs and CNMs and lobbyists for organized medicine. Attendance was so great that the MBC staff had to hold the meeting in the facility’s courtroom and still an overflow room with speakers was required. Oddly, lobbyists from CAPLI, the big three med-mal carriers, and the Trial Lawyers Association did not attend.
The March 29th event was audio taped by the Board and a CD of it is available as upon request. The meeting was also video taped by a member of the public, so the presentations by the staff and testimony of each participants is posted on the California Licensed Midwives YouTube channel and Facebook page. However, if you scroll to the bottom of this post, you can watch a segment of the testimony as provided by two obstetricians, Dr Ruth Haskins (former member of the Mfry Advisory Council) and Dr. Stuart Fischbein, who works with licensed midwives in the LA area.
I have included easy access to the Feb 3rd Quarterly Board meeting webcast relative to the physician discussion on proposed mfry regulations. Due to length limitations on YouTube, the first half of the Feb 3rd discussion is posted at the bottom of part 2 of this ‘welcome letter” and last half of the Board’s webcast is included at the bottom of the final part (3) of this communication.
Regulatory issues relative to California licensed midwives:
You strike me as a rational, ‘no-nonsense’ person. With ample access to background materials and the specific facts of this situation, I believe you will see that the best interest of the Medical Board as a respected state agency, the professional interests of obstetricians in our state, the safety and practical interests of childbearing women and their families, and the legal interests of California LMs all lie in supporting the two proposed regulations discussed at the February 3rd Board meeting.
The reason is simple — it eliminates the stumbling block of unnecessary and artificially-injected vicarious liability.
Your account of the “total disaster with a midwife” at the February 3rd Board meeting aptly illustrated the total failure of the supervisory clause and the critical need to approve the proposed regulation #1. Unfortunately, the present situation sets up an “agent-agency” relationship that results in MD liability.
However, if vicarious liability were eliminated via a ‘collaborative’ relationship (instead of one whose major feature is physician liability), it would also eliminate the need for midwives who provide care in a large city to drive a laboring women 60 miles way to a smaller town in order to have access to the one and only obstetrician in a 120 mile radius who is either willing or able to provide medical care when it becomes necessary.
This regulatory change is the only effective way to provide childbearing women access to necessary obstetrical services without having to transport to a hospital 60 miles away. Cooperative relationships between LMs and MDs are better for babies, the childbearing family AND all the professionals and hospital staff that otherwise may quite unfairly find themselves in the middle of a malpractice nightmare.
Even though the care of LMs is a non-medical discipline, traditional midwifery is still very much a part of the mainstream healthcare system. As a profession regulated by the MBC for the last 19 years, licensed midwives will continue to function in a manner that is respectful of both the letter and spirit of the law.
You may or may not be familiar with a 1999 ruling by the Office of Administrative Law that provides a legal frame work for LMs to practice lawfully in spite of the insurmountable barriers of physician supervision as currently interpreted.
Supervision ~ legally-flawed & unworkable
A full examination of the physician supervision clause will follow in part II of this 5-part communications. But its impossible to discuss the issue at all without first identifying the major reasons that it is so profoundly unsuccessful.
The California Medical Association insisted that the LMPA mandate a supervisory relationship between each licensed midwife and a physician who has obstetrical privileges at a local hospital. However, this same provision of the law does not stipulate that California licensed physicians provide the required supervision. This mis-matched arrangement requiring midwives to be supervised by obstetricians while not requiring obstetrician to supervise midwives, is obviously a constitutional issue. In addition, there are many practical problems.
One significant issue is the insistence by the obstetrical profession and med-mal carriers that physician supervision specifically be interpreted as a relationship of agency, in which the LM legally becomes the ‘agent’ of the MD. This places the physician-midwife relationship under a legal theory known as “captain-of-the-ship/borrowed-servant“.
As the ‘captain of the ship’, the obstetrician becomes responsible for the torts of any supervised midwife and the LM legally becomes the MD’s agent or ‘borrowed servant’. It is this definition — one specifically chosen and promoted by ACOG and CAPLI — and not the ‘plain-letter’ language of the LMPA that creates the insurmountable burden of vicarious liability on any physician who volunteers to takes on this unpaid role.
Another issue is the volunteer nature of this position on the part of the physician. The supervising MD is being asked to provide his or her most valuable professional asset — expertise in the field of obstetrics — for free, while simultaneously taking on the burden of vicarious liability and any addition premium his or her med-mal carrier may impose.
Legal & Legislative Work-around
Fortunately, the 1999 by ruling OAL Judge Roman and a legislative amendment to the LMPA passed in 2000 (SB 1479~Figueroa) provided relief to this otherwise impossible situation. When California licensed midwives follow the specific criteria identified by Judge Roman’s ruling and subsequently enacted in SB 1479, the current practice of LMs, with or without supervision, is lawful.
This means each woman who is anticipating a PHB (planned home birth) under the care of an LMs has formally identified specific arrangements for timely medical evaluation and/or treatment during the ante-, intra-, and post-partum/neonatal period, including both elective and emergent hospital transfer.
In some cases this results in a de facto collaborative relationship between the physician and the licensed midwife. In others, the mother-to-be identifies Kaiser or another HMO as the provider of choice, or she has an informal arrangement with a midwife/PHB-friendly OB in the community. The next most frequently identified medical interface chosen by childbearing women is concurrent care with an obstetricians. This situation is best described as ‘don’t ask-don’t tell’, as med-mal policies don’t permit obstetricians to knowingly provide concurrent care to women who are also seeing a midwife or planning a home birth.
When none of the above options are available, the midwife and mother together identify a hospital in their geographical area that has an obstetrical residency program and/or is a regional tertiary care facility. Irrespective of the particulars, no mfry client ever goes without a predetermined medical interface plan. As required by law, this is formally documented, signed by both LM and client, and becomes part of the patient’s chart.
A Record to be Proud of: 19 years of MBC-regulated midwifery
In the 19 years since the LMPA was passed, and in spite of policies of non-cooperation by many in the obstetrical community, California midwives have been able to provide safe, effective, and compassionate care to approximately 100,000 mothers and babies.
While the national average for non-operative delivery is only 54%, the spontaneous vaginal birth rate for women attended by California licensed midwives is 91.7% (i.e., no C-section, forceps or vacuum extraction). These favorable statistics include all intra-partum transfers of women who subsequent delivered in hospital. The neonatal mortality rate for LMs is 0.89 per 1,000 (again including all transfers of care), while the national average for a demographically non-ethnic caucasian population who deliver at term is 0.79 per 1,000.
Examples of the effectiveness of non-medical midwifery care for healthy women can also be seen in the very low prematurity rate for California licensed midwives. While the annual prematurity rate in the US is a very costly 13%, premature labors in women seeking maternity care from LMs is under 1%. This low prematurity rate associated with LM care has a substantial economic advantage, with only 84 cases of pre-term labor as documented by the Licensed Midwifery Annual Report (LMAR) over the last 4 years, instead of the statistically-predicted 833 for that same timeframe.
The California Medicaid program saved hundreds of thousands of dollars by having 749 fewer babies spend weeks or months in the NICU. A healthy childhood for the 749 babies who went to term instead of going to the NICU as a premie also reduced long-term developmental problems and learning disabilities frequently seen in premature babies, and so saved even more money for society and heartache for families.
According to the latest data on Cesarean delivery, the safest maternal-infant outcomes are associated with an incidence of C-sections between 5% and 10%. Our current national average is a 32.8% Cesarean rate. However, outcome statistics as documented in the LMAR for the last 4 years is a Cesarean rate for California LMs between 7.7% and 8.3% — the middle range of this optimal zone.
The dramatically reduced Cesarean surgery rates among LM clients also prevents substantial operative morbidity, days of hospitalization, and delayed and downstream complications — all of which results in a dramatic reduction in the healthcare costs.
An in-depth examination of supervision; the historical relationship btw MDs and non-physician practitioners
Webcast of two obstetricians (Dr. Ruth Haskins & Stuart Fischbein) at March 29th Interested Parties meeting.[youtube]http://www.youtube.com/watch?v=9yzpnSCuzXo&feature=plcp[/youtube]
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