California College of Midwives
April 12, 2001
Dr. Neal D. Kohatsu, MD, MPH
Medical Director, MBC
1426 Howe Ave, Suite 54
Sacramento, CA 95825-3236
RE: April 6, 2001 Meeting with Midwives at MBC offices
Dear Doctor Kohatsu,
I want to thank you for your time and kindly attention to the concerns of California Licensed Midwives. I am especially pleased to have forged the first tentative link relative to regularly scheduled communication with key members of the Medical Board staff. I hope that it is a mutually fruitful arrangement.
There remains some confusion among us as to the particulars of the current policy of the MBC relative to physician supervision agreements, the Osborn Decision, amendments to the LMPA as introduced by Senator Figueroa, relative information documented by the Senate Office of Research and on-going investigations and potential disciplinary actions by the MBC which arises out of the inability of midwives to secure physician supervision agreements. I am writing to you for clarification.
If I understood correctly, the MBC’s current policy is to investigate all reports of LMs practicing without a physician supervision agreement, a policy unchanged by Judge Roman decision in the 1999 Osborn case. You explained that a judge’s ruling in a single case does not have any particular legal significance (i.e., is not precedent-setting), as it may well be overturned by another judge in a future case. You also mentioned the possibility of a midwifery case going into the criminal court system with an entirely different or contradictory ruling. However, other participants in the meeting understood you to indicate that you have an opinion from the Attorney General’s office that requires the MBC to investigate & discipline midwives for unprofessional conduct if they do not have physician supervision agreements. If so we would appreciate a copy of this ruling. If not, we need to know the specifics of your policy and its rational.
It is the general understanding in the midwifery community that the Osborn Decision modified the Medical Board’s enforcement responsibilities in regard to the physician supervision clause, as it officially acknowledged that compliance with the supervision clause is a legal impossibility. Inability of LMs to technically comply with the statute was ascribed by the judge to the “hostility of obstetricians” toward community-based midwifery, the fact of economic competition between doctors and midwives and prohibitions placed on physicians by malpractice insurance companies. Were the MBC’s premise in the Osborn case to have prevailed (i.e. revocation of licensure for LMs found to be practicing midwifery without a physician supervision agreement) the consequence, as noted by Judge Roman, would be that no childbearing woman in the state of California who chose to have a home birth could be competently attended by a state-certified midwife. Judge Roman concluded this would render the utility of professional licensing for direct-entry midwives nil, as this classification of practitioner would be unable to provide the very services for which they are trained and otherwise licensed to provide.
Based on these facts Judge Roman acknowledged other criteria for satisfying the ambit of the licensing law, criteria that addresses the rational behind the supervisory clause (i.e. access to appropriate medical services as a necessary consumer safety requirement). In this aspect of his ruling Judge Roman recognized the midwife’s faithfulness to the spirit of the law through physician consultation and other working “arrangements” even when the politics of organized medicine prevent her from being able to fulfill the letter of the law. Under this interpretation the amended midwifery practice act (SB1479) provides a formalized mechanism for informed consent, which also documents how the midwife and mother together are prepared to meet any potential medical needs that may arise during pregnancy and birth. This is done by identifying a physician or group of physicians that the childbearing women would have access to for consultation or transfer of care, a hospital that she could transfer during the intrapartum and emergency arrangements for mothers and babies.
If the impact of the Osborn Decision and the newly expanded “informed consent” mandated by SB 1479 does not affect the Board’s official policies relative to the acknowledged inability of midwives to secure physician supervision agreements, then our organization and its members needs to know the particulars as soon as possible.
I look forward to your clarifying comments and copies of any pertinent documents such as an opinion by the Attorney General.
Faith Gibson, LM, CPM
cc: Senator Liz Figueroa, author SB 1479
Ron Joseph, Executive Director, MBC
Carrie Sparrevohn, LM, CPM, Chair, California Association of Midwives
Frank Cuny, Director, CCfHF