California College of Midwives
3889 Middlefield Road, Palo Alto, CA 94303

 January 31, 2002

Member s ~ Medical Board of California
1426 Howe Avenue
Sacramento, CA 95825

RE: Midwifery-related policies changes and a request for a resolution by the Medical Board supporting the Senate Office of Research’s recommendation

Introduction: I have been attending MBC meeting since 1993, but I don’t know the majority of the newly appointed members. I would like to introduce myself and offer a short history of midwifery legislation and its contemporary practice before dealing with the major topics of this letter. Further on I will be requesting changes in midwifery-related policies and a resolution by the Medical Board supporting the Senate Office of Research’s recommendation. In the fall of 2000 the Senate Office of Research (SOR) conducted a statewide “California LM Practice Survey” at the request of Senator Figueroa’s office which documented that physician supervision is not available or workable for either doctors or for California LMs who provide community-based birth services. According to its conclusion, the Survey’s finding indicate:

“…. that licensed midwives generally make appropriate arrangements for medical consultation, referral, transfer of care, and hospitalization of clients.  … the Legislature may wish to consider implementing a pilot project to test the idea of requiring physician consultation rather than supervision. The pilot would examine birth outcomes and changes in relationships between midwives and physicians associated with the revision of the supervision requirement.” 

Personal Background: I am a former L&D and emergency room nurse (17 years). I cross-trained into community-based (non-nurse) midwifery in the early 1980s. As a Mennonite midwife, I practiced lawfully under the religious exemptions clause from 1981 until non-nurse midwifery licensing program was implemented in 1997.

Currently I am the executive director of the California College of Midwives, which is a state chapter of the American College of Domiciliary Midwives. For three years I was the administrator of a master policy by the ACDM for professional liability insurance for community midwives in 3 states. In that capacity I compiled the California College’s 200 page “Characteristics of Clinical Competency”, containing the standards of practice, guidelines and technical bulletins for community-based midwives. This document may be reviewed on the Internet at: https://collegeofmidwives.org/college_of_midiwves01/CharClinicalComp%2001.htm).

I regularly attend quarterly medical board meeting and have participated on MBC committees for the implementation and regulations of the Licensed Midwifery Practice Act. I also worked with Assemblywoman Strom-Martin in the development of additional midwifery legislation (AB 1418) and Senator Figueroa’s office (SB 1479). I have been an expert witness in several court cases involving midwifery management of birth.

As an individual, I voluntarily gave up the protected status of the Religious Exemptions Clause and choose to function primarily under state licensing so as to influence other practicing midwives in California to become licensed. I continue to believe that law and orderliness, as well as safety and the role of midwifery in the 21st century, are all benefited by formally training, licensing and state-regulated midwifery.

Historical Background of Midwifery Legislation: State certified non-nurse midwifery already has a long and honorable tradition, going back to 1917, when the first midwifery certification law was passed. I’d like it to be noted that in 1917 women did not yet have the right to vote and that the original midwifery amendment was written by physicians without knowledge or input from the public or from practicing midwives of the era.

Under Article 24 102 practicing midwives who had filed birth certificates documenting the requisite number of births and were able to provide letters of “good character” from a physician and a minister could qualify for licensure. However, the midwifery provision required all new applicants to be graduates from a formal midwifery training school that was approved by the California Board of Medical Examiners. Unfortunately the Board of Examiners never approved a single California training school over the next 3 decades, except for the mandatory 160-hour obstetrical course taught in all medical schools. Since medical schools did not accept midwifery students there was never more than a small trickle of applicants for licensure by reciprocity. The majority were graduates from foreign schools of midwifery, primarily Japan and Europe. The single largest category of California midwives were all trained in one of the 27 formal Japanese schools of midwifery.

World war II, in combination with Executive Order 9066 authoring the Japanese Internment, virtually ended the demand for licensing by reciprocity. The entire Japanese population was removed from the state of California, including all their certified midwives. In 1949 the Midwifery program was dismantled at the request of the Board, citing lack of qualified applicants as the reason. However, the last licentiate under Article 24 was licensed until 1989. Midwifery under the original Article 24 was recognized as a profession independent from and separate from the practice of medicine and its licentiates were acknowledged as independent practitioners who enjoyed a collaborative relationship with physicians, consulting and transferring care when indicated. There was no physician supervision requirement for California-certified midwives. 

In the history of the State of California non-medical (i.e. traditional) midwifery has never been illegal nor is it illegal in contemporary times for any layperson to assist a woman during normal birth. This means that the choice by the parents of a professional midwife-attended birth is an additional level of safety for mother, baby and society as compared to an unattended or unskilled, inexperienced lay attendant. For the last 30 years, approximately 1% of healthy childbearing women have consistently chosen midwives for maternity care and if their pregnancies were normal, to labor and give birth at home.

Neither mothers nor midwives supported the 1949 repeal of the midwifery application process. Removing this legislative lynch-pin without the consented of the affected parties eliminated access to state-regulated community midwives. During the last two decades non-nurse midwives and supporters of community midwifery attempted no less than 7 times to get a licensing law introduced in the legislature. All our efforts were uniformly blocked by American College of Obstetricians and Gynecologists and the California Medical Association. The current version of the 1993 Licensed Midwifery Practice Act “hostile amendments” by the CMA replacing the midwifery sponsored version. It was opposed by the midwives and most consumer groups. 

SB 350, the original midwifery licensing bill as authored by the midwives, provided for collaboration between midwives and obstetricians and included a “hold blameless for care not rendered” clause for collaborating doctors. This wisely acknowledges the dramatic difference in training, temperament and practice between hospital-based, high tech obstetrics as provided by medical doctors and high-touch but low-tech midwifery. Midwifery by statute is not a practice of medicine. The only commonality that non medical midwives share with the tradition of medicine is the mutual obligation of ‘primum non nocere’ or “In the first place, do no harm”.

Community-based birth services are specifically non-medical -- by law we are prohibited from the use of artificial, forcible or mechanical means or use of drugs during labor -- and our care is provided in non-medical locations (family’s home or free-standing birth centers). For more than a century, scientifically-valid sources including studies, vital statistic records, have documented the safety of midwifery care for healthy women with normal pregnancies in conjunction with access to appropriate medical services for complications.

Regardless of the historic success of midwifery and logic of the original version of SB 3350, the medical association deleted the original language of the bill. It was replaced with a fatally flawed bill that contained a “poison pill” that amounts to a complete stumbling block to the lawful practice of community-based midwifery. This insurmountable barrier to practice was accomplished by repealing the original, 1917 midwifery certification provision (Article 24) that identified the powers and duties of state licensed midwives as independent practitioners in their own right (and therefore responsible for their own torts).

The CMA version of SB 350 also removed the “hold blameless for care not rendered” clause. The provision replacing physician collaboration with mandated physician supervision was included at the request of ACOG. These unilateral actions by ACOG and the CMA artificially created unnatural and unnecessary vicarious liability for obstetricians. For many childbearing women this version of SB 350 written by medical politicians also resultes in an unwelcome, unwanted intrusion of physician involvement in their normal pregnancies.

Despite its “fatally flawed” nature, I continue to support licensing and urge midwives to work together to make licensing function in the manner it was intended ~ that is, to elevate the practice of midwifery and promote safe practices that best serve mothers and babies receiving community-based maternity care.

Current Practice of LMs in California: Called the Licensed Midwifery Practice Act of 1993, the LMPA outlined scope of practice for direct-entry midwives, and set rigorous academic and clinical requirements for licensing. The requirements as outlined are based upon the successful programs of ten states in this nation, are equivalent to standards set forth by the International Confederation of Midwives and the World Health Organization, and are on par with the midwifery component currently used to establish licensing for non-nurse midwives in many other jurisdictions around the world.

At present, MBC licensed community midwives are equipped at a level similar to the nursing capacity of L&D units in community hospitals. Licensed midwives have one or more trained assistants at each birth, carry intravenous solutions and equipment, anti-hemorrhagic drugs, oxygen, have neonatal resuscitation skills and equipment, sources of external warmth for a stressed newborn and identified plan for urgent or emergency medical care for either mother or baby. The recent miniaturization of computerized electronic equipment also means that many California midwives now have access to lap-top sized, fully functional electronic fetal monitors and pulse oximetery in the client’s home. This permits the same quality of surveillance, when indicated, of mother and baby as is typical in level one and level two hospitals.

As you know, only level 3 or tertiary care institutions have 24-7 coverage for all essential medical and surgical services. Home-based birth care usually provides the same 30-minute window of “decision to incision” as is typical of level one and two hospitals. This is achieved by contacting the identified receiving hospital immediately upon recognition by the midwife of a surgical problem. The hospital staff then triggers the chain of events that brings the obstetrician, anesthesiologist and on-call OR scrub team in from home to meet the patient at the hospital and be able to immediately intervene surgically if indicated.

For healthy childbearing women this time factor is little different than hospitalization in small and mid-level institutions. Typically L&D nurses are the only attendants on site during 3-11 shifts, nights and weekends and are busy providing care to many laboring women simultaneously. If an emergency occurs, the nurse must first recognize the problem, determine the appropriate course of action and then call doctors and the OR scrub team in from home. Under ideal circumstances this usually takes about 30 minutes, longer when the nurse was busy elsewhere and the problem was unrecognized for some time. According to a book by physician-lawyer David Rubsamen, MD, LL.B entitled “The Obstetrician’s Professional Liability”, approximately 2/3 of lawsuits resulting from neurologically damaged babies had as a central element in the chain of events leading to the tragedy, the miscommunication between the nurse at the bedside and the obstetrician at home or in his office. Because no practitioner was on site, critical time was lost. 

Statistics on Safety: Continuity of care, the one-on-one ratio of midwife management and the absence of medical and surgical interventions, in combination with a population of healthy mothers

      

with normal labors, all favor domiciliary care. Outcomes for physiologically-managed OOH labor and birth (client home and free-standing birth centers) of low and moderate risk mothers attended by professional midwives are equal to hospital-based obstetrical care for the baby while documenting a significantly reduction in maternal interventions and complications such as labor induction, narcotic use, epidural anesthesia, episiotomy, forceps, Cesarean section, PP hemorrhage, infection and admission to neonatal intensive care for the baby. Midwifery care is also associated with a lower rate post-cesarean surgical complications in future pregnancies such as uterine rupture, placenta previa and the often fatal placenta percreta as well as a reduction in childhood autistic disorders and maternal postpartum depression. For easy reference, studies documenting the safety and efficacy of midwifery care are available at www.CollegeofMidwives.org/safety_issues.

The Most Important Contribution of Midwifery: While I am very proud of the safety record of domiciliary midwifery, what is most gratifying to me personally as a provider of maternity services is the quality of social support and parent education that I and other midwives provide before, during and after the birth. Midwives have the luxury of spending up to an hour with each mother for each appointment. This permits us to become familiar with the family and at times to develop an expanded role as stand-in for absent grandparents. Midwives offer emotional support as well the traditional wisdom that in earlier times came from an older, more experienced generation giving guidance to the new parents. What I am describing is the transmission not only of family values but valuing families. Professionally speaking, it is the most important thing I do. 

Many midwives continue to see the mother and baby for up to 9 months after birth, offering ample opportunity to provide breastfeeding instruction, advise on newborn care, child development and discipline, to address issues of family stress, sexuality, nutrition, avoidance of childhood obesity and type II diabetes for the parents. This quality of expanded care also helps to catch early signs of postpartum depression so that treatment can be started before it progresses to PP psychosis that risks the life of the mother or her children.

Natural Limitations on Home-based Midwifery: Lest this list of positive attributes make physicians nervous that midwives are going to take over the world, let me assure you that midwifery care is too labor intensive and personally demanding on the midwife to ever become a numerically dominate system. The work is all encompassing, time-consuming, physically and emotionally exhausting, the hours are lousy, the pay is worse and the number of women willing to sacrifice so much of their own life to this “calling” is tiny. There are only 130 licensed midwives while there are approximately 4,000 obstetricians, 2,000 family-practice docs providing obstetrical services and about a 1,000 nurse midwives, for a ratio of 130 to 7,000. Likewise, the number of healthy childbearing women with normal pregnancies who are also willing to even contemplate labor and birth without the use of drugs or anesthesia makes the choice of home-base care a very tiny minority – about 3,000 births annually in California out of more than a half of million. Even in the very unlikely event of an increase by ten times, community midwifery would still only represent 5% of the total of babies delivered each year.

The Insoluble Issues of Physician Supervision

As we are all painfully aware, California physicians are unable and/or unwilling to provide supervision for LMs, with two tiny exceptions – those LMs who are actually in the employ of a physician and function only in that capacity, (i.e. do not attend births) and those who operate free-standing birth centers which have a “medical director”. Restricting the practice of LMs to these statistically aberrant circumstances does nothing to carry out the intent of the licensing law, which is to provide access to safe care for all healthy women choosing community-based maternity services, including home birth.

Licensed midwives all over California have, en masse, sent certified letters to every obstetrician in their area in an attempt to secure supervision and thus be able to comply with their licensing law. Doctors either did not respond or returned their letters marked “Not interested” or “My malpractice carrier will not permit me to supervise home-birth midwives”, etc. The California College of Midwives has hundreds of these refusal letters on file and can be viewed on our web stie. (Exhibit 2 ~ sample letters from physicians, unable/refuse to supervise, transcript MBC meeting - Judge Colonge, Norcal, Doctors Co lobbyist.

During the early years of the LMPA, 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. However, 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 all aspects of the LMPA. The same desire to comply with the LMPA applies to all LMs providing community-based care. In fact, midwives would like to see physicians actually be present at the home births we attend so as to help develop their understanding of domiciliary midwifery practice and provide exposure to physiologically managed labors without the use of drugs or anesthesia. 

In August 1999 AOL Judge Roman, in the Alison Osborn Decision, acknowledged the legal impossibility of compliance by LMs with the physician supervision clause. 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.” 

In his final conclusion he states that LMs remain obliged to make a good faith attempt to secure the required supervisor and failing that,  “a collaborative relationship with physicians …. satisfies the ambit of the law” (see addendum on SB 350 and Phys Supervision for additional quotes and information on the Osborn Decision)

More than 50% of California LMs responded to the Senate Office of Research’s statewide “California LM Practice Survey” in the fall of 2000. (exhibit 3 ~ 16 page report from S.O.R.) The S.O.R. study again documented that physician supervision is not available or workable for either doctors or for California LMs.  In conclusion lead researcher Peter Hansel states:

“The findings indicate that licensed midwives generally make appropriate arrangements for medical consultation, referral, transfer of care, and hospitalization of clients. Additional study of California birth records would help in affirmatively establishing the safety and efficacy of midwife-assisted births in California. SB 1479, with its requirement that licensed midwives register live births, should begin to produce the data needed to do that. In the meantime, the Legislature may wish to consider implementing a pilot project to test the idea of requiring physician consultation rather than supervision. The pilot would examine birth outcomes and changes in relationships between midwives and physicians associated with the revision of the supervision requirement.” 

The truth is that home birth has never yet been a “physician supervised” activity in the entire history of California law,. From 1917 to 1993, state-certified California midwives were legally independent practitioners providing a non-medical services in client homes. Supervision was never any part of midwife-authored legislation and the 1993 physician supervision clause of the LMPA, forced on midwives by organized medicine, has never been able to be implemented.

Natural Blocks to Physician Supervision: In addition to the obvious liability concerns, there are many other legitimate reasons that physician supervision has never and will never work. One is that to date doctors do not teach, learn or utilize physiological management of childbirth as a part of their medical education or philosophy of practice. Being inexperienced and unsympathetic to the midwifery model of care, they have never attended a spontaneous labor and birth at home. ACOG policies prevented doctors from any level of participate in home-based care, including mere observation. This makes obstetrics, which is a competing and unsympathetic profession, an extraordinarily unlikely and inappropriate choice to exercise supervisory control as “gatekeepers” to midwifery practice. The uniform refusal or inability of physicians to cooperate equates to an insurmountable barrier to lawful practice by midwives and a barrier to childbearing families in access to either licensed or lay midwifery services.

The Perspective of Childbearing Women: Many women choose home-based care specifically because they do not want obstetrical “management” to be imposed on their normal pregnancies. Some women choose community midwifery care because they have already had difficult or unsatisfactory experiences (occasionally rising to the level of malpractice or other abuse) relative to “standard” care. Others have a history of sexual or physical abuse or religious beliefs barring male caregivers or that call for non-medical care. A significant number of families come from cultures in which midwifery is normative. To force unwanted, unneeded physician involvement under these circumstances is like decreeing that a Catholic priest “supervise” each and every protestant minister and congregation.

It should be noted again that California law does not require healthy childbearing women to seek out or receive any form of professional maternity care for pregnancy, labor, birth or normal newborn care. If women do not have access to affordable, acceptable care compatible with their beliefs, they have a legal right to labor and give birth with only family members present and engaging the “911” paramedic transport system if medical help become necessary after the baby is born. A trained midwife present during normal childbirth makes it orders of magnitude safer than an unattended or lay attended birth and actually equals, safety-wise, hospital obstetrical care for good outcomes of both mother and baby. Relevant statistics for unattended births are 30 to 60 perinatal deaths per 1000 live births vs. 3 per 1000 for those attended by a skilled midwife. For the unborn and newborn babies, access to professional midwifery care is a human rights issue.

The Post 9/11 World –  Cooperation and Conservation of Resources

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 suffer or die without high-tech medical and surgical attention.

National civil defense manuals published during the Cold War period identified that normal childbirth is not a medical or surgical condition and that in times of national emergency, laboring women should not be hospitalized for all the above reasons. Obviously it would cause unnecessary tragedies if 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 20% to 40%. In a national emergency it would be of vital public interest to have access to this traditional knowledge base for avoiding unnecessary cesarean surgeries.

In light of the events of September 11th, there is the urgent need to integrate licensed midwifery into our public health care system.  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 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. 

Statement of Problems and Requests for MBC Assistance/Policy Changes

First I want to state the obvious – that the medical community, the Medical Board, Licensed Midwives and the childbearing families of California all enjoy far greater areas of agreement than disagreement.  I must stress that we are actually all on the same side – that of law and orderliness in governance as well as safety for childbearing parents, the 3,000 newborns annually delivered at home and the practitioners that serve these mothers and babies. A philosophy of reconciliation is perhaps best described in a little-known story told about Eleanor Roosevelt during the years that she was mother of young children as well as First Lady. When asked what she put first in her life, her husband (then President of the United States) or their children, she replied: "together with my husband, we put the children first." I have always appreciated that story as portraying the ideal relationship between physicians and midwives -- that together we put the practical wellbeing of

                     mothers, babies, fathers and families first.   

Item # 1.  Refusal of California licensed physicians to Provide Essential Services to Clients and Retaliation by physicians Against Community-based Midwifery, including childbearing women

There has already been one documented stillbirth directly attributable to the artificially created road block of physician supervision which keeps both midwives and mothers from timely access to medical services. Two California licensed physicians (one OB and another a perinatalogist) and the director of nursing for the only area hospital all refused the request over a 3 day period of time by a licensed midwife to provide a non-stress test (NST) to a mother who was 41 ½ weeks pregnant. The baby died in utero of placental insufficiency before the parents could make arrangements in a near-by town the following Monday. This is the very condition a fetal NST is designed to reveal so interventions can be implemented in time to prevent this outcome. This and similar events represents the escalation of an already pernicious situation. Pressure from malpractice carriers on obstetricians has resulted in a situation in which the majority of doctors are now denying both essential and preventive services to childbearing women they know to be receiving care from a licensed midwife (see May 18, 1999 letter from Norcal). In some instances, obstetricians are also actively hostile and even take retaliatory actions against both mother and midwives.

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 each called the respective hospital to notify them of an elective (non-urgent) transfer of care for mothers needing labor stimulation for a slow but otherwise normal labor. They were told by the doctor on-call that day for “walk-in” obstetrical patients at each of these hospital that they “only did Cesareans 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 exposed them to the long-term 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 occurring in subsequent pregnancies and 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 and/or home-based birth services is a very bad practice of medicine.

A family member who was herself a California physician filed a complaint with the Medical Board about one of these unnecessary surgeries. The family was told that the MBC does not investigate “ethical complaints”.  A complaint against the Chico perinatalogist was also filed by the obstetrician who ultimately delivered the stillborn at another hospital and yet there was no disciplinary action taken against this doctor for refusing to provide simple 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 while sanctioning 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 report midwives to the medical board for not having a physician supervisor whenever we 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 disease and that childbearing women anticipating a normal birth have the right to choose maternity care from any of the safe options in their community, including midwifery and home-based birth services. 

The members of the California College of Midwives’ request an open and on-going dialogue with the Board members and agency staff about these problems, which extend to a reliable mechanism for licensed community midwives secure the need emergency drugs, supplies and equipment, lab work, ultrasound and non-stress testing. Further more we ask the Board to strongly consider the following requests as they provide various remedies for these serious problems. 

Item # 2 ~ Legislative support by the MBC for Midwifery Representation on current Board or for forming a separate in-house midwifery committee: At present licensed midwives are in the dubious category of “regulation without representation”. An advisory committee is necessary to provide advise to the MBC when dealing with the licensing program and matters pertaining to disciplinary action. This would include the creation of panel of 5 midwives to determine “quality of care” issues as midwifery education is not standardized in the manner of medical schools. While we are currently working to bring about a greater degree of agreement on “usual and customary practices, some technicalities such as the style of charting employed by each midwife, will remain highly eclectic for a long time to come.

In addition, community-based midwifery practice is non-medical with distinctly different standards of care than those commonly used in allopathic medicine. Another source of difference and potential controversy is that community midwives provide care to families that have chosen to exempt themselves from a preordained form of standardized care. Midwives must obtain consent for all the care they render unless it is under emergency conditions. The principles of informed consent and informed refusal play a much larger part in midwifery care (absent an emergency or a clear and present danger) than in hospital-based obstetrical management. All these facts must be known and taken into account in determining quality of care issues.

Item # 3  Parity of educational preparation of AOL judges and MBC agency staff: Currently AOL judges are required by the MBC to view 6 hours of video tapes specially prepared to familiarize them with the vocabulary, biophysical principles of health and pathology and scope of practice of allopathic medicine. Midwifery is clearly not a practice of medicine and thus the dramatic distinctions between the two disciplines must be defined and taken into account. As an extension of Item Two above, the California College requests that AOL judges hearing midwifery cases be provided the same type of preparation in the philosophy, principles and practices of community-based midwifery as they receive now in preparation to hear physician discipline cases. Appropriate in-service education of Board members, agency staff including peace officers functioning as ‘special investigators’ and the Enforcement Division of the AG’s office is like-wise essential.  Material for in-service education of judges and agency staff are currently being prepared members of the ACDM/College of Midwives.

Item #4 Expert reviewer status must match practice status of midwife being investigated: If a quality of care issues arises in regard to a complaint against a home-based midwife, this case should only be reviewed by another home-based midwife. At present it is the policy of the MBC to restrict LM expert reviewers to those LMs who can document physician supervision. This excludes more than 90% California LMs as only LM who are employed in the medical offices of an obstetrician or who operate a freestanding birth centers (see note below) which has a medical director can satisfy this restrictive criteria. This means that home-birth midwifery cases are being reviewed by midwives who are not themselves providing home-based birth services.  This policy should be discontinued.

Note:  Were a licensed midwife to rent a 2  or 3 bedroom house which she designed as a free-standing birth center she could, at least in theory, obtain a physician supervisor. For some unexplained reason, the malpractice carriers do not consider free-standing (non-medical) birth centers to be in the same “dangerous category” as home birth and thus do not prevent covered physicians from providing “supervision” to midwives. However, this is a trick with mirrors. Midwives have the same skills, same equipment and provide the same quality of midwifery care in all domiciliary setting. It is very curious that the medical community and insurance carriers graciously accept birth center care while continuing to be outraged over home-based birth services. Labor in birth centers and the client’s own home are, statistically speaking, virtually identical in outcome. This incongruity should be examined in the context of scientifically valid data.

Item #6: Expanded use of official Letters of Public Reprimand, including the addition of a preliminary, non-public “Letter of Warning”, which, except for extreme circumstances, should precede the imposition of severe disciplinary measures by the Board. As noted in Items 1, 2 and 3, the community-based practice of midwifery is unusually eclectic when compared to hospital-based medical practice and appertains to quite a different population, one which often declines “usual and customary practices”. In essence, each and every currently licensed midwife came into her profession through a different door as it were – that is, her training and experiences were not standardized. Sometimes this is of great benefit to childbearing women as it introduces a great deal of creative problem solving into the profession. However, its downside is that there can be holes in this educational or experiential preparation that may not show up until there is a problem or a complaint. Midwives must be notified of these deficiencies and given a fair chance to correct the problem. Only if they refuse to implement that corrective advise or continue to offend should more sever actions be taken by the enforcement division.  

Item #7:  Legislative support by the MBC for implementing the recommendations of the Senate Office of Research LM Survey. The SOR recommended legislation authorizing a pilot study of midwife-physician collaboration consultation. The exact text of that was a statement that “…the Legislature may wish to consider implementing a pilot project to test the idea of requiring physician consultation rather than supervision. The pilot would examine birth outcomes and changes in relationships between midwives and physicians associated with the revision of the supervision requirement.”

 

The advantages to midwives and mothers would be to demonstrate the workability of the principle of midwife-physician collaboration and highlight the mutual virtue in eliminating vicarious liability for cooperative medical providers. This would exchange the stumbling block of supervision for the stepping-stone of consultation, referral and transfer of care in appropriate circumstances. It would make essential medical services available to childbearing women and end retaliation against home-birth transfers and the reporting of midwives by angry doctors. This frees the MBC of the obligation to spend time and money investigating nuisance complaints.

 

In 1994 the Board held 7 meetings of a Midwifery Implementation Committee, chaired by MBC member Dr Joas. These meeting were attended by 20 or so practicing midwives, consumers, lobbyists from the CMA and medical liability insurance companies and by the staff of the agency. Written transcripts of the last 4 meeting are on our web site if anyone is interested in the specifics. In general, the bulk of the time was spent in exhaustive and circular discussions by between midwives, lobbyists and agency staff on the impact of the physician supervisory clause. Understandably midwives were unwilling to become licensed if doing so simply exchanged the potential charge of “practicing midwifery without a license” for a charge of “practicing licensed midwifery without a physician supervisor”. 

Dr Joas and former Deputy Director Doug Laue acknowledged that MBC would not pursue disciplinary action against midwives based solely on a complaint of ‘practicing without a physician supervisor’. However, this “unofficial” official policy is clearly a very unsatisfactory one for the Medical Board and midwives, and indirectly for childbearing families. In response to this dilemma, the pilot project recommended in the S.O.R. survey would permit the Medical Board to end the useless investigations spawned by upset doctors in the wake of every midwife-attended homebirth transfer. In particular, it would finally reconcile the spirit of the law as noted by AOL Judge Roman’s decision in the Osborn care in his statement that “A Collaborative Relationship with Physicians … Satisfies the Ambit of the Law” with the letter of the law, to the mutual relief of all. And it would also eliminate the conflict created in regard to midwife expert reviewers and the issues of whether or not they are formally supervised by an obstetrician. 

In addition it would provide access for midwives to obstetrical ultrasound, non-stress testing, lab services anti-hemorrhage drugs, Rhogam, ophthalmic ointment, oxygen, etc. All of these things combined paint a much saner and family-friendly picture to the public of the Medical Board and the agency’s priorities and compassionate actions than the currently situation in which the Board is damned no matter what it does. 

In Conclusion:

As Martin Luther King said so much more eloquently than I, “I have a Dream”. It is a big dream and I have had it for a long time ~ that is to elevate the practice of midwifery and promote safe practices that best serve mothers and babies receiving community-based maternity care. Surely a group of informed and well-intentioned professionals as represented by the Board and the profession of midwifery can disagree without denigrating one another and, rising above these differences of opinion, can develop a complimentary relationship based on mutual cooperation. 

Thank you for your attention to this matter. Much more information and supporting documentation is publicly available on the College of Midwives’ web site, URL below.  I welcome your comments and will happily respond to your letters.

Faith Gibson, LM, CPM

Executive Director, California College of Midwives

www.collegeofmidwives.org