California College of Midwives / State Chapter, ACDM
3889 Middlefield Road, Palo Alto, CA 94303
650 / 328-8491
May 1, 2002
JLSRC ~ Testimony on MBC Discipline
Mr. Jay DeFuria
Consultant B&P ~ Joint Legislative Sunset Review Committee
State Capital, Room 2139
Sacramento, CA ** 95814
Example of the Failures of the Current System
The following are examples of what many of us find so disturbing about the current combination of excessive and/or ineffective methodologies that represent the MBC culture of selective enforcement. This is the outgrowth, in part, of the Presley I & II legislation that criminalized the entire topography of medical board discipline. This was a backlash against the preceding century of favoritism, cronyism as evidenced by the Board’s failure to carry out their legislative mandate to discipline licentiates and instead routinely protected doctors who were clearly negligent, incompetent and even in some cases, convicted of murder and serving a life sentence.
Medical Crimes Make for Medical Criminals
Once the general premise of “medical crimes” is accepted by society, it calls into play a whole plethora of criminal law enforcement techniques -- covert operations, undercover agents wired for sound, “daring” raids (complete with bullet-proof vests and media coverage) and the jailing (and strip-searching) of basically honest citizens. The intimidation value of this is incalculable and reaches far beyond the personal life of the defendant, as news of these situations is recounted to other caregivers. It results in a form of psychological terrorism.
The shame of these law enforcement proceedings is so great and physicians are so sensitive to unprepared for it (and afraid of further reprisals) that most are not unwilling to even go on record about the abuses to which they have been subjected. In fact, the use of force by DCA investigators assigned to the medical and nursing boards is not at all uncommon.
As a labor and delivery room nurse and now as a midwife, the malfeasance I see most frequently is not a major mistake of the sort associated with revoking a doctor’s license. Rather it is a series of small, frequent abuses of power that are the equivalent of a temper tantrum, repeated almost daily, by doctors bent on getting their way or making “somebody” sorry for some real or imagined offense to the doctor.
This included tactics of revenge against mothers who chose ‘natural birth’ or the nurses and midwives who supported their choice. As a midwife, I see revenge and retribution routinely used against the midwife and/or the parents for having chosen a midwife or making other decisions of which the doctor disapproved. It seems that the absolute authority granted physicians by society and reiterated by the MBC not infrequently leads to an absolute abuse of power. I have spoken at Medical Board meetings requesting specific changes and written to several different members of the staff and Board but, with rare (and well-appreciated) exception, thus far no responses has lead me to believe that my concerns were ever going to be actively addressed.
Outrageous Behavior goes Unnoticed and Uncorrected
I have personally, in the last year or two, experienced truly unethical and harmful behavior by licensed physicians acting within the confines of the approved “orthodox” system in a manner that amounted to physical battery and emotional abuse.
(1) At the planned hospital birth of my Goddaughter's 3 baby, I was shocked when the obstetrician cut a medically unnecessary episiotomy without the consent or even the knowledge of the mother. The doctor came into the room just as the baby’s head was crowning (the nurse was holding back the head to give him time to glove up). Instead of simply catching the baby that was already slowly emerging, he reached for scissors to cut a medically unnecessary episiotomy without a word to the mother. Then he charted on the delivery notes that the mother had a serious tear (a falsification of documents) while the nurse's notes recorded that he performed an episiotomy & repair.
(2) A year latter, at this same hospital (but different doctor), the same thing happened again – just as the baby was about to be born the doctor reached surreptitiously up for the scissors and holding them low and out of sight of the mother, cut another medically unnecessary episiotomy. This happen again without the knowledge or permission of the mother. He then told her that he always tries to prevent tears but “sometimes they happen anyway” and she was going to need a “few stitches”. . (statement of mother on file)
In both of these cases I would have disbelieved my own eyes if my observation had not been shared by my God daughter’s sister and L&D nurse in the first instance and the patient’s mother in the second. We all talked about these occurrences both times when these doctors left the room. I was ashamed to be part of the healthcare profession or to admit that I was licensed by the same Medical board as these doctors. After the second occurrence of this outrageous form of physician battery, I called another partner in the OB group and reported this to him. His comment was that reprehensible as it was, there was nothing he could (or would) do – we simply had to wait for the offending doctor (age 55) to retire.
“Medical Crimes and the Use of Excessive Force
-- agency intimidation and publicity
(3) In another instance, a very well-respected community physician and member of the governing board of a local church was “turned in” by an insurance company for “over-prescribing” vitamin pills! A small cadre of special investigators from the MBC came to his office in bullet-proof vests. This combined with what appeared to him to be the agency’s overwhelming force to “get him” ultimately intimidated him also into a “stipulated decision” which was unwarranted. A few years later, a series similar to the OCR’s articles, appeared in the San Jose Mercury, naming him and listing his “crime”. (Newspaper accounts on file) These abuses of common sense and common decency are a natural outgrowth of the current system of casually criminalizing the entire topic of healthcare, aside from behavior that are already acknowledged as crimes, such as insurance or MediCal fraud, in which doctors could be prosecuted by any California court system
(4) In once instance, a single mother with three children was held hostage in her living room with her three young (and now hysterical) children for 3 hours while 8 MBC “peace offices” wearing bullet-proof vests ransacked her house and removed 38 boxes of books, baby pictures and other “evidence” of midwifery practice. (Newspaper accounts on file)
(5) In Southern California, the 13 years old daughter of a midwife (who was home alone) was forced to lay face down on the floor while MBC peace offices held her at gun-point in the course of serving a search warrant. (Newspaper accounts on file)
(6) In a midwifery case undertaken by the BRN, a certified nurse midwife was arrested at her home, leaving her blind husband who could not drive alone with the couple’s 3 children. She was handcuffed to a wall with her arms pinned behind her back for 4 hours awaiting transfer to the local jail. At the time she was just recovering from surgery on her neck and upper back and was in extreme pain this whole time. After the case was dropped by the county the BRN convinced another jurisdiction to re-arrest these same nurse midwives. Eventually the case was dropped by the agency without any action. The nurse-midwife and her handicapped husband moved out of state for fear of future incidents of this sort. (Newspaper accounts on file) While the MBC is obviously a separate agency from the BRN, the culture of “crime fighting” by the special investigators employed by DCA in the same.
The following situations do not involve any “alternative practices” or quality of care issues per se but rather the unchecked abuse of power by physicians over other physicians, who ultimately used the medical board as the 500 pound gorilla to go after a doctor with whom they had a disagreement as to philosophy of practice.
(7) An MD providing home-based midwifery care was the object of a complaint by another physician subsequent to a homebirth transfer of a newborn. The circumstances that resulted in the problem were rare (unexpected premature baby born at home) and were responded to appropriately by the MD (transfer of the baby to the hospital). The baby was treated and released from the hospital at 4 weeks and remains healthy and of normal development. The parents did not file a complaint against anyone.
However, the admitting pediatrician at the hospital triggered a cascade of events against the MD-midwife that eventually lead to revocation of her license (stayed, 5 years probation with terms and conditions). The investigatory process itself was clearly unfair and isa glaring example of how a principle in the science called “sensitive dependence of initial conditions”. The power for harm and lack of accountability that are vested in the special investigator role as currently configured is almost absolute. In far too many instances they are simply interested in numbers. Getting a ‘conviction’ overrides common sense and unwisely leads them to do outrageous and unfair things, including manipulation of facts and even falsification of documents to achieve that end. This is invisible to others in the agency hierarchy and virtually impossible to for the practitioner defend him or herself against.
In this particular case, the expert reviewers hired by the Board were hospital-based obstetricians (the MD-midwife was a GP). The consultants had no personal or professional experience with home-based birth services and one of them was notorious in her community for a cascade of complaints against homebirth midwives. It was obviously not an “impartial” review nor was it one that provided parity of specialty or ‘sub-specialty’, which is what a GP providing normal maternity care would be considered. Even more disturbing was the realization that the emotional harm purposefully inflected by the doctor who provided hospital care was found to be acceptable by the agency -- to this day no action has ever been taken against him.
The baby in question was transferred to the hospital and its care taken over in the ER by pediatrician who was vitriolic in his opposed to home birth. After the baby was stabilized (it had a respiratory arrest on the way to the hospital) the pediatrician admitted the baby to the nursery and sent the mother home. The baby’s father stayed at the hospital to accompany the baby to a level three neonatal unit at another hospital. Within a few minutes of returning home the pediatrician called the mother on the phone and told her that the baby was brain dead and she should come back immediately to the hospital to be present while he disconnected life support. The shocked, grief-stricken and sobbing mother gave instructions to her family to remove all the baby furniture and baby clothes from the house while she was gone.
At the hospital, she was greeted by a pediatric resident from Stanford’s NICU who told her that the baby had pneumonia and would need hospital treatment but was expected to recovery fully. Faced with what seemed to her as “unbelievable news” she asked how this could be and told the Stanford pediatrician of the phone call from the admitting ped and his insistence that her baby was brain dead and was to be removed from life support. The Stanford resident continued to insist that while her baby was seriously ill, it was not terminally so and in fact had a very good prognosis. He repeated his opinion that the baby could be expected to recover fully. In fact, the baby did had an uneventful course of care. One of the administrators of the NICU at Stanford hospital eventually wrote a letter of reprimand to the admitting pediatrician chastising him for this vindictive behavior. However, no other action was taken against this physician.
In spite of this despicable behavior, the pediatrician apparently did not feel like he gotten his pound of flesh as yet. After the baby was transferred to Stanford by ambulance (with the father accompanying) the new mother returned home again (all this of a mother only a few hours postpartum who should have been in bed herself).
Within a few minutes of her arrival home for the second time there was a knock at the door and uniformed police officers demanded entrance to the house. They said they were investigating a report of child abuse and attempted manslaughter after having been notified by a pediatrician from the local hospital. The doctor called the police after the baby was transferred and told them that the parents had given birth at home to a 6 month premature baby (not accurate) and then tried to drown it in the bathtub because the parents ethnic beliefs demanded the killing of any imperfect child (the father was Chinese-American) . None of these things were true and after talking to the mother and the MD-Midwife, the police concluded that the report was without merit and left.
The next outrageous action by the attending pediatrician to file a complaint with the medical board insisting that the MD-midwife purposefully attended a planned home birth of a 32 week premature baby (not true -- the mother had been mistaken about the date of conception, and the baby was expected to be a few weeks early but not premature). Of course it was the complaining doctor who provided the vast majority of evidence against the MD-midwife. In the pediatrician’s official MBC disposition he admitted to the above story -- telling the mother the baby was brain dead, that he was going to take it off life support and let it die, etc. and that he also make a specious complaint to the police, etc. He then explained away his actions with the comment that he considered home birth to be very dangerous and that he was “verbally spanking” the parents to teach them a lesson. (Statement of the attending pediatrician to the MBC in disciplinary actions against an MD-midwife on file)
Even though this information was available to the MBC there was NO action taken against the complaining doctor for his vengeful inflecting of extreme emotional distress on the parents by telling the mother the baby was brain dead and reporting them to the police for attempted murder.
In the investigation that followed, the testimony was collected by MBC investigatory staff from hospital-based physicians who were obviously opposed to home-based birth services and had no personal or professional experience with domiciliary midwifery. They seem to merely look for little discrepancies that they could site as ‘proof’ that she had deviated from the “community standards for California physicians”. The two expert witnesses did not actually talk to the parents or the physician herself-- all they had to base their conclusions upon were written records as provided by the medical board investigators.
These records reiterated the underlying prejudice and contained a large measure of inaccurate and inflammatory information. It was the “chart” and not the patient or the actual facts that resulted in a judgment of negligence by these “experts”. My physician friend, a 54 year old women doctor who had never had been the object of a single consumer complaint or malpractice suit in almost 30 years of practice (or even a speeding ticket!), was forced to accept a stipulated decision revoking her license for 5 years (stayed with terms and conditions) because none of the other doctors in our area would testify on her behalf for fear of reprisals.
Malfeasance cover-up and retaliation against the patient
(8) The next situation also involves the midwifery client of a home-birth physician (but not a home birth). Unfortunately, it did not turn out so well as for the baby as the previous case. A second-time mother, who had had a bad experience during a hospital birth with her first child, was planning to labor and give birth at home attended by a MD. The mother was so upset and frightened by her first birth experience that when her water broke she failed notify her doctor as instructed, for fear she would be instruct to go to the hospital, as it was obvious that something was wrong from the abnormal color of the liquid. Not until 30 hours after this spontaneous rupture of membranes did the mother finally notify the doctor, who in fact did instructed her to be immediately hospitalized.
This physician followed the parents to their Kaiser Hospital and stayed with them for several hours afterwards, explaining to the staff that the mother’s water had broken more than a 24 hours ago, that the patient had not initially reported this to her and that the amniotic fluid was very abnormal in character, indicating severe fetal compromise. The Kaiser obstetrician in charge of the case appeared to be unimpressed by these facts and after ordering the mother’s labor to be inducted with IV Pitocin he left the unit.
Six hours later the baby suddenly suffered acute fetal distress and the mother was rushed into surgery for an emergency CS which was performed by this same doctor. The baby could not be resuscitated. In the middle of the operation, before even suturing the surgical wound, the doctor left the OR to inform the father of the baby death and that claim that it died because the parents had chosen a home birth and therefore the parents were directly to blame for this tragedy. He told the father that had his wife been cared for by an obstetrician in the hospital “this wouldn’t have happened”.
Of course, the obvious observation is that the mother was being cared for in a hospital by an obstetrician. In fact, she had been there for many hours and they had done nothing to intervene. The doctor left the floor during this period of time. Failure of the mother to accurately report the rupture of membranes was a factor but not the “fault” of her home birth doctor. In fact, it was due to great fear on the mother’s part due to a poor managed by a previous doctor and hospital. The parents (with some very small justification) felt so guilty that they never made any formal complaint of this shocking scene to either the hospital administrator or the Medical Board.
Retaliation Against OOH Midwifery Patients and Practitioners
The Board recently began to reopen closed cases in investigations that held licensed midwives as blameless in order to pursue prosecutions against the LMs for failing to have physician supervision. MBC official testified at the JLSRC hearing on December 4th that it was their duty to “protect babies from unsupervised midwives”, despite the well-documented reality that obstetricians cannot or will not provide the mandated supervision.
While the MBC turns its limited resources on spurious midwife investigations, it continues the pattern of utterly failing to take action against egregious acts of hostile obstetricians who risk the lives well-being of childbearing women and babies under the care of a licensed midwife. 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. In some many instances, these doctors are actively hostile and take retaliatory actions against both mother and midwives.
The following bad outcomes were not considered worthy of the Board’s time to even investigate, much less sanction the physicians involved or attempt to rectify this dysfunctional system. In response to consumer complaints the Board took no effective action of any kind resulted. In one instance of a cesarean section having been performed as a retaliation against the mother for having “attempted” a home birth, the Board told the family that it does not investigate “ethical complaints”. %$#*&@!
(9) There is at least one documented stillbirth directly attributable to the artificially-created roadblock of physician supervision/vicariously liability which keeps both midwives and mothers from timely access to medical services. While the MBC is officially busy “protecting babies against unsupervised midwives”, no one is protecting babies against the malfeasance of the organized medicine-malpractice carrier alliance.
In April of 2000 several doctors and the local hospital refused to perform a “non-stress test” for a mother who was 41 ½ weeks pregnant (NST) -- electronic fetal monitoring to determine fetal well-being -- because the she was seeing a midwife and planning a home birth. Over the 5 days (which included Good Friday and Easter Sunday) that the family was trying to make arrangements in another near-by town, the baby died in utero of placental failure – the very condition the NST was designed to detect and prevent and the reason the midwife advised the mother to have the testing done. Nothing came of the complaint filed with the MBC by the obstetrician who ultimately provided care to the grieving mother and delivered her stillborn in the hospital. This was a “preventable” death, the result of discrimination against mothers who choose midwifery care.
(10) There are two occasions of medically unnecessary Cesarean sections done by physicians as retaliation against midwives and families choosing domiciliary midwifery. In these two separate incidences, the licensed midwives 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%. Exposing childbearing women to this risk because obstetricians have a “philosophical” objection to licensed midwifery is a very bad practice of medicine.
Another family member who was a California physician reported one of these unnecessary CS incidents to the Medical Board and was told that the Board does not investigate “ethical complaints”. 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.
Nurses and midwives and family members see this ugly underside of the beast all the time and it account for our frustration with the current system that is not working properly. These failures also fuels the general anger towards the MBC that is popularized in articles in the newspaper focused on the scandalous behavior of local doctors and the incompetancy of the Board to adequately address it.