College of Midwives
3889 Middlefield Road Palo Alto Ca 94303
November 19, 2001
Ron Joseph, Executive Director
Medical Board of California
1426 Howe Avenue
Sacramento, CA 95825
RE: MBC Prosecution Policy ~ “practicing midwifery without a physician supervisor ”
Short cut to Supportive Documentation
Dear Mr. Joseph,
I would like to bring to your attention to a situation that concerns me greatly. Yesterday a California licensed midwife sent me copies of two MBC letters signed by the supervising investigator of the Pleasant Hill district office. (exhibit 1 ~ 3 letters, Discussion Paper, Phys Superv Regs - MBC) The letter dated 10-31-01 informed her that a closed case had been reopened and forwarded to the State Attorney General with a request they consider disciplinary action against her license for practicing midwifery without a physician supervisor. The original letter, dated 7-16-01, informed her that a “quality of care” complaint had been resolved in favor of the midwives after an investigation which included a meeting and chart review by a neonatalogist engaged by the Board. The original letter stated: “the conclusion of our expert reviewer was that your actions were within the standard of care and we are closing our file on the matter…”. If rumor is correct, identical disciplinary action by the Board is in the process of being implemented against 6 other California LMs. As there are only 75 California LMs currently practicing in the state, this figure represents 10% of the total pool of professional midwives providing community-based birth services.
As we are all painfully aware, California physicians are unable and/or unwilling to provide supervision for LMs, with one tiny exception – those LMs who are actually in the employ of a physician and function only in that capacity, (i.e. do not attend births). Licensed midwives all over California have, en masse, sent certified letters to every obstetrician listed in their area in an attempt to secure supervision. Doctors either did not respond or returned their letters marked “Not interested” or “No, my malpractice carrier will not permit me to supervise home-birth midwives”. The California College of Midwives has more than a 100 of these refusal letters on file. (exhibit 2 ~ sample letters from physicians, unable/refuse to supervise, transcript MBC meeting - Judge Colonge, Norcal, Doctors Co lobbyist The Alison Osborn Decision acknowledged the legal impossibility of compliance with this provision in August 1999. In the fall of 2000 the Senate Office of Research conducted a statewide “LM practice survey” at the request of Senator Figueroa, with more than 50% of California LMs responding. (exhibit 3 ~ 16 page report from S.O.R.) This S.O.R. study again documented that physician supervision is not available or workable for California LMs who provide community-based birth services.
The unavailability of professional liability insurance for community midwives was often identified by CMA spokespersons as the real “reason” that doctors dare not have any professional association with midwives but in fact, the American College of Domiciliary Midwives secured a group malpractice insurance policy in July 1998 without any improvement in the “locked-out” status of insured midwives. I too “practice midwifery without a supervisor” despite my twenty years of experience as a L&D nurse, an excellent reputation as a community midwife, 3 years of professional liability insurance and my best efforts to be in compliance with every dot and juttel of the LMPA.
As an example of how much worse this situation has become I have included a copy of a letter from an obstetrician sent to a client of mine. (exhibit 5 ~ client letters documenting refusal of medical care) Their OB group had been providing “concurrent” care to a mother who was only 7 months pregnant. This insured and medically compliant pregnant woman was summarily discharged from their care when the nurse midwife accidentally learned that the mother was hoping to give birth at home if her pregnancy remained healthy and her labor at term was normal. The letter explained that their malpractice insurance contract prevented them from even providing prenatal care to any pregnant woman known to be seeing a midwife, for fear the physician might be sued for care rendered by the midwife.
These same malpractice carriers do not prevent obstetricians from consulting, collaborating or providing concurrent care to pregnant women who are seeing other practitioners -- physicians, chiropractors, acupuncturists or nutritionists or other kinds of healthcare providers. Malpractice carriers do not prevent obstetricians from accepting referrals of the very highest-risk mothers who may be drug addicted, non-compliant teens, HIV-positive, carrying triplets, in premature labor or suffering from complex medical problems such as cancer, kidney or heart disease. In theory doctors “could” be sued in any and all of these complicated circumstances but only the small theoretical risk attributed to licensed midwifery (one not substantiated by any statistical analysis) spurs this drastic and near-total lock out of medical interface. The answer to this seeming conundrum is that doctors, chiropractors and other healthcare providers are not subsumed under the supervision of physicians. As independent practitioners they (and not the obstetrician!) are responsible for their own torts and as a result, the obstetrician is not prevented from being available to consult with them or to provide medical services to their patients.
As someone personally involved in the original passage of the LMPA, it was obvious that the American College of Obstetricians and Gynecologists’ insisted on a mandatory “physician supervision clause” precisely because it would not work for doctors or midwives, thus guarantying that domiciliary midwifery would remain technically illegal in spite of the passage of a licensing law. (exhibit 4 ~ ACOG, CAOG policy statements) This anti-midwife, anti-homebirth agenda by ACOG was documented in public statements made by District IX AGOC representative Dr. Vivian Dickerson in the trade paper OBGyn.News (Sept 1993).
In public ACOG portrays physician supervision as stepping stone to guarantee access to medical services and therefore crucial to consumer safety. In actuality mandated physician supervision is the “poison pill” purposefully chosen to be a stumbling block. Dr. Dickerson revealed this not so subtle agenda in ObGynNews, saying: “….physicians held out for a guarantee of supervision rather than a more ‘collegial’ sort of relationship, which was, we felt, an invitation to home births. ….” “What this means in practical terms, is that instead of the midwife being in charge and telephoning the physician to consult or for referrals, the physician is ultimately responsible for the patients…” In the letter from Norcal (malpractice carrier) dated 5-18-99, this is reiterated as “The M.D. has the ultimate responsibility, liability and authority.”
During MBC Midwifery Implementation committee meetings in 1994, Judge Colonge, lobbyist for Doctors and Norcal insurance companies, referred to the language of the original bill (which identified the physician-midwife relationship as ‘consulting’ before being amended at the request of the organized medicine lobby to read ‘supervision’), saying: “we [malpractice carriers] weren’t opposed to it because it was consulting and the doctor was given immunity except for bad advise. Now its totally different [since its] been amended and made him a supervisor. He is liable whether he gives bad advise or not”. Judge Colonge goes on to say: “I’m …talking about the one who is taking on the role of supervisor. That’s a very significant legal issue here, because if you’re a supervisor, you have vicarious liability. …What we’re concerned about is the vicarious liability that a doctor assumes when the doctor takes on the special relation as a supervisor”. In short ACOG purposely put its obstetricians uninvited into the position of having unnecessary and unnatural liability and then points to that vicarious liability to establish why doctors can’t possibly provide the very supervision their own professional organizations insisted upon.
There has already been one documented stillbirth directly attributable to this artificially created road block which keeps both midwives and mothers from timely access to medical services. Two physicians (one OB and another a perinatalogist) and the director of nursing for the only Chico hospital all refused the request over a 3 day period of time of licensed midwife Diane Lawrence to provide a non-stress test (NST) to a mother who was 41 ½ weeks pregnant. The baby died in utero of placental insufficiency (the very condition a fetal NST is designed to reveal so interventions can be implemented to prevent a bad outcome) before the parents could make arrangements in a near-by town. This and similar events represents an extreme escalation of an already pernicious situation, as the majority of obstetricians are now denying both essential and preventive services to childbearing women who are receiving care from a licensed midwife and in some many instances, are actively hostile and even take retaliatory actions against both mother and midwives.
Retaliation Against OOH Midwifery
I know of two occasions of medically unnecessary Cesarean sections done by physicians as retaliation against midwives and families choosing domiciliary midwifery. In these two separate incidences, licensed midwives Tosi Marcelene and Veronia Falcao each called the respective hospitals to notify them of an elective (non-urgent) transfer of care for mothers needing labor stimulation for a slow but otherwise normal labor and were told by the on-call doctors that they “only did CS on home birth transfers”. These doctors gave orders by phone to the nursing staff to prepare the laboring women for Cesarean surgery and immediately performed major abdominal operations on each woman without prior hands-on evaluation of their status or attempt to first stimulate labor for a normal vaginal birth.
This is nothing less than a temper tantrum by these physicians that not only exposed these mothers and babies to the well-documented dangers of major surgery (anesthetic and surgical accidents, drug reactions, medication errors, hemorrhage, emergency hysterectomy, blood transfusion reactions and wound infections) but also expose mothers to the on-going dangers of post-Cesarean pregnancies which includes a ten-fold increase in abnormal placentation (placenta previa, accreta and percreta). These are life-threatening emergencies for both mother and baby often accompanied by the need to perform an emergency hysterectomy to control hemorrhage. In spite of the very best care in a tertiary hospital and 20 units of blood on hand, the maternal mortality rate from placental percreta is 10% (exhibit 6 ~ five articles on placental & other complications of CS from ObGynNews). To expose childbearing women to this risk because obstetricians have a “philosophical” objection to licensed midwifery is a very bad practice of medicine.
A family member who was herself a California physician reported one of these unnecessary CS incidents to the Medical Board. The Board told the family that they do not investigate “ethical complaints”. A complaint against the Chico perinatalogist was filed by the obstetrician who ultimately delivered the stillborn at another hospital and yet there was no disciplinary action taken against the perinatalogist that refused preventative care to its mother. This seems to reflect a pattern of “spare no expense” response by the MBC to the slightest complaint against a licensed midwife, including technical violations involving only theoretical issues, while there is little or no effective follow-up in cases of actual harm to mothers whose trust in medical care was violated by these doctors.
To add insult to injury, these same non-compliant or retaliatory physicians happily and repeatedly file complaints with the medical board whenever midwives appropriately transport a laboring woman to the hospital. All of this has occurred simultaneously with the passage of the LMPA amendment (SB 1479 as authored by Senator Figueroa), which identifies normal childbirth as a normal biological process and not a medical condition and that childbearing women anticipating a normal birth have the right to choose maternity care from the safe options in their community, including midwifery and home based birth services. However, if “practicing midwifery without a physician supervisor” is categorized by the MBC as a crime, there will be no “state-regulated” options for community-based birth services available in California.
“A Collaborative Relationship with Physicians …. Satisfies the Ambit of the Law”
I believe the following quotes from the Alison Osborn decision by Judge Roman are both informative and instructive. Judge Roman noted, “No California physician supervises licensed midwives who undertake home births for reasons related primarily to liability exposure (i.e., malpractice insurance does not extend to cover physicians who undertake such supervision). It is also established that a small minority of California physicians object to licensed midwives and will not undertake their supervision on philosophical grounds*.”
His finding of fact goes on to identify that the “the medical community of obstetricians is hostile to licensed midwives”. “The evidence presented this tribunal further establishes that, with the exception of one licensed midwife who is also a licensed physician assistant, no California licensed midwife, despite efforts for supervision, possesses a supervising physician except as referenced in Finding 14. … “… avidly seeks, along with other midwives, to be part and parcel of the healthcare team that serves the residents of California.” …
“Unlike physicians, physician assistants, physician assistant midwives, registered nurses, or certified nurse midwives who practice within the context of a medical model, licensed midwives practice within the context of a midwifery model.” …."[m]idwifery presumes that childbirth is a healthy and normal event. … Midwifery involves "socially-oriented preventive care, which incorporates prenatal care and a concern for the social and emotional aspects of pregnancy and birth in order to meet the individual needs of each woman.” “Decision making is collaborative.”
“Were this tribunal to employ the medical model on licensed midwifery, as Complainant urges, no home births could be competently assisted. Mindful that licensed midwives, with only one exception presented before this tribunal, possess no hospital privileges, the legislation would function to permit …. persons to possess a license that would not be functional anywhere within the State of California. This tribunal declines Complainant's offer.”
“In an effort to promote the efficacy of the Act, this tribunal concludes, at this time, that a licensed midwife who possesses a relationship with a California physician and surgeon as referenced herein has feasibly and reasonably satisfied the ambit of the Act. Accordingly, cause does not exist to revoke or suspend the license of Respondent pursuant to Business and professions Code section 2519(e), in conjunction with sections 2507(a) and 2507(b), for unprofessional conduct arising from lack of supervision as set forth in Findings 13-14 and 17-23. *underline emphasis added
When I met with Dr Kohatsu last April he stated that he did not consider the Osborn decision to have any precedent-setting function. He subsequently sent a letter to me (exhibit 1) reiterating that the Osborn decision was not “precedential” and the official policy of the Board was that LMs are obligated to be in full compliance with all provision of the LMPA including physician supervision, irrespective of its legally established impossibility. (exhitit 7 – letter from NorCal Malpractice carrier doctors “cannot supervise, consult with or back-up any midwife for home birth). I was surprised and concerned about this last spring. In light of the events of September 11th, I am more than a little perturbed about a policy that seems to me to violate the public trust and sacrifice public safety.
It appears to most Americans that we desperately need to improve and expand public health and medical services, given our obvious vulnerability to weapons of mass destruction and injury from biological, chemical and nuclear warfare. This contemporary situation provides us with a long over due opportunity to set aside the medical community’s irrational bias against midwifery and instead integrate community-based midwifery and LMs into an improved and dynamic health care system.
As community/domiciliary practitioners, we have a particular type of healthcare education and practical skills (ones that function even if the electric power goes out!) that would be generally useful if or when high tech hospitals and medical services were overloaded by terrorists attacks or natural disasters. Under these circumstances it would be unthinkable to expose healthy mothers and babies to the biohazards of a hospital environment contaminated by large numbers of patients gravely ill with smallpox or other contagious diseases. Because licensed midwives are so intimately involved in community and family life, we are in an excellent position to be first responders / first alert via our opportunity to detect early signs of infectious or unusual diseases and report them to public health official. Midwives would be ideal practitioners to deal with the many “worried well” that are scared but probably not ill. Experts report that for every one person actually affected by a real disease, between 10 and 20 people will seek emergency room services, triggered by anxiety and fear, further swamping emergency medical services.
Were hospitals called upon to provide emergency care to a large number of ill or injured citizens, who would be better able to triage and provide safe maternity care to healthy women than community midwives? In such extreme situations we do not want the limited number of hospitals and other scarce lifesaving medical resources to be misdirected to healthy women when many critically ill patients will die without immediate medical attention. National civil defense manuals published after World War II identified that normal childbirth is not a medical condition and in times of national emergency, laboring women should not be hospitalized for all the above reasons. Obviously it would be an unnecessary tragedy if my grandchildren or your family members could not get life-saving medical care because 20% of hospital beds were unnecessarily devoted to normal maternity care, on the mistaken assumption that there are no other options for safely managing normal childbirth. Given the same cohort of healthy women with normal pregnancies, midwives have a surgical delivery rate of 2 to 10% in comparison to obstetrical rates of 22% to 40%. In a national emergency it would be vital to have access to this traditional knowledge base for avoiding unnecessary cesarean surgeries.
It appears that public safety requires us to put aside the historical prejudice, turf wars and institutionalized non-cooperation between medicine and midwifery. Instead physicians and midwives must learn from one another and develop a functional trust and appreciation of one’s another’s professional abilities so that we can work together in the public interest in times of crisis. This is a golden opportunity for the Medical Board to take on a leadership role in this need for an improved and highly functional emergency medical care system in the state of California.
A Midwife’s Plea for Gentleman’s Agreement
It appears that Judge Roman’s finding in the Osborn case provided the Board with ample information and instructions to resolve this impasse. These legal theories were subsequently reiterated and expanded upon in the Figueroa amendment to the LMPA (SB 1479) and it’s finding that normal childbirth is not a medical condition and identifying midwifery as protective and preventive health care. (exhibit 8) Judge Roman identified that midwifery is distinctly different from medicine as it is based in a social relationship between mother and midwife that is quite different from the remedial medical therapies offered by physicians, physician assistants and nurse midwives. Legal issues should therefore be judged by midwifery and not medical criteria. (see accompanying report to 1994 MBC Midwifery Implementaion Committee)
The practice of medicine is the science of forcing something to happen that otherwise would not, could not happen on its own. In general this is achieved through the prescribing of powerful drugs or use of surgery designed to trick Mother Nature or to overcome what are deemed to be her mistakes. The practice of medicine is an active use of forceful interventions. For example, I have never known an appendix or gallbladder to take itself out before the surgeon arrived. However, as a nurse and midwife have seen a many, many laboring mothers with babies who ‘took’ themselves out before their doctors or midwives arrived.
In medicine, the physician is the ‘essential’ ingredient. In midwifery, it is the mother who is essential. In the latter equation, the skilled midwife is engaged in the art of working with the natural characteristics of healthy biology. In many areas of modern life we engage the services of healthcare professional depending on what we hope to achieve. We expect their knowledge base and skills as a practitioner to be perfectly tailored to the demands of their specific professional discipline. For example, we would not go to a orthopedic surgeon for back pain if what we wanted was a chiropractic adjustment or acupuncture treatments. Hospital-based ob-gyn surgeons excel in interventive medical and surgical interventions but have little or no first-hand experience or skills in physiological management of unmediated labor and spontaneous birth. Their 20-plus % CS rate is evidence that the expertise of obstetricians lays elsewhere. Logically a healthy childbearing woman who has chosen to employ the subtle systems of normal biology and who is seeking physiological (instead of medical) management of her pregnancy and parturition, would need to have unfettered access to a licensed community midwife in order to achieve her goals.
In regard to the issue of physician supervision, Judge Roman identified that “it satisfies the ambit of the law” when midwives have made a good faith attempt to secure a supervisory relationship and failing that, to have a method identified for physician collaboration. Since the passage of the amended LMPA, this would extend to the documentation of medical interface arrangements as mandated in 2508. According the Senate Office of Research, 83% of respondent midwives (84.7% of LMs practicing in the state) LMs have some combination of collaborative and/or consultative medical relationship (i.e. “working arrangements”) either with individual physicians or with teaching/tertiary care hospitals. (exhibit 8 ~ SB 1479 LMPA amendment / Intent section, Informed Consent UCSF Home Birth transfer + 9 sample letters to midwives from physicians or institution)
Last but not least, there is the urgent need, in light of the events of September 11th, to integrate licensed midwifery into our public health care system. There is a growing concern about the MBC’s use of its limited resources of monies and staff to engage in the selective prosecution of competent midwives for failure to have a legally impossible relationship with obstetricians who, frankly, do not want (nor are they legally mandated) to supervise midwives. This prosecutory policy simultaneously wastes the professional education and capacities of midwives to contribute to the public safety and welfare while it also turns a blind eye to retaliation by obstetricians.
Asking medical doctors to create an unnecessary and unnatural vicarious liability for themselves by volunteering to supervise practitioners of an entirely different and non-medical discipline is a very curious thing to do and in the final frame, a fatally flawed strategy that is not consistent with its goal of consumer safety. Physicians are neither educated or licensed in the non-medical discipline of midwifery, they are not professionally familiar with community-based birth services, have never attended or even been present during a domiciliary labor or birth and have no interest in ever providing home-based services themselves. In addition to this natural tension is also the undeniable reality that physicians and midwives are economic competitors and this fact of life prejudices obstetricians against cooperating with midwives. For the last hundred years the balance of power has been extremely weighted toward organized medicine and away from midwifery, to the determent of the public safety.
My request is two-fold. First we are asking for specific information on the current number and status of disciplinary actions against LMs. In particular, we need to know how many midwives are currently being investigated or prosecuted for practicing midwifery with a physician supervisor? And the second request is that, in the name of consumer safety and the legislatively acknowledged right of childbearing women in California to choose the “safe option” of a licensed midwife and home-based maternity care, the Osborn Decision be accepted as the operative foundation for medical board policy. I look forward to your response. I already mailed a position paper on this topic to the Sunset Review Committee and look forward to seeing you at the hearing on December 4th.
Faith Gibson, LM, CPM
California College of Midwives
CC: Senator Liz Figueroa, California Legislature
Bill Gage, Joint Legislative Sunset Review Committee
Frank Cuny, California Citizens for Health Freedom
Carrie Sparavohn, LM, California Association of Midwives
John Kennedy, Attorney
Snyopsis of 1994 Report for MBC Mfry Implementation Committee (origin -- CNM legal source)
/ How to protect physicians from vicarious liability
1. Sample Documentation on Physician Supervision Controversy ~
(a) Legislative Memorandum, Office of Governor Earl Warren, 1949 repeal of mfry application for state certification -- notes that midwives, unlike nurses "operates independently and not under the supervision of a physician";
(b) 1977 Letter from Chief of OB-GYN, Stanford University Hospital, vitriolic opposition to midwifery licensing bill;
(c) Three Letters from MBC to à Faith Gibson,
to Dana Fox Letter July 01, Dana Fox Letter Oct 31,
(d) Discussion Paper, MBC Phy Supervision from 1994 Mfry Implementation Committee Meetings,
(e) Transcript Judge Colonge, Lobbyist for 3 doctor-owed California malpractice carriers, former lobbyist for CMA
(f) 1997 MBC "Action Report" quarterly newsletter to all 100,000+ California doctors, requesting all those interested in providing physician supervision to contact MBC (there were no responces);
2. Sample letters from physicians, why they are unable to have supervisory relationship under provisions LMPA
(a) Letter from Marsden Wagner, MD, MSPH
(b) letter from obstetrician Don Creevy Re: AB1418, supporting midwives and collaborative relationship between LMs and obstetricians;
(c) Midwives writing to obstetricians asking for their participation as supervisors and several their negative responses from those physicians: 1. Sue Tinseth; 2. North County Coastal Midwives letter and replies 3. Certified Letter receipts from Midwives writing to obstetricians asking for their participation as supervisors
3. Senate Office of Research 13-page report on the Survey of California LMs
4. ObGynNews 9/15/93 article, ACOG policy statements on Home birth and Abortion, CAOG letter 1980, CAOG letter & List of accomplishments, Mar 2000 & CAOG letter & Doctor's Opinion on LMs, May 2000
MBC Status Report on Health Policy 1993 "allied health care professional has not done really done anything to benefit patients ...due to the way they are used....they. really only serve to increase income of physicians",
5. Client letters documenting refusal of prenatal care because they were seeing a midwife and/or planning a home birth
6. Letter from Norcal Insurance Company May 1999 stating that doctors “cannot supervise, consult with or back-up any midwife for home birth”
7. World-wide CS and Infant mortality rates compared -- US one of highest CS rate without lowing infant mortality; Synoptic articles from ObGynNews on the short and long-term complications of Cesarean surgery, including abnormal placentation such as previa, accreta and percreta ~ ElectiveC-Section Revisited - Aug 1, 2001; Placenta Previa, Hx C-Section up Risks Accreta Risk, Sept 15, 2001; Cesarean Rate Portends Rise in Placenta Accreta, Mar 1, 2001; Cesarean Birth Associated with Adult Asthma, Jun 15, 2001
8. SB 1479 Intent Section, UCSF Home Birth Consent Concurrent care and/or hosp. transfer; Synopsis of 1999 Osborn Decision on Phys Supervision; Specific Arrangement for Access to Medical Care for Clients of California LMs; + letters to midwives from physicians or institution documenting successful methods for appropriate interface between clients of midwives and medical careproviders 1. North County Clinic; 2. Loma Linda Univ Hosp 3. From Karen Baker, LM; 4. San Francisco Gen Hosp; 5. Working arrangement between OB group and Six San Deigo LMs & CNMs