American College of Domiciliary Midwives
Dr. Thomas Joas, MD
Midwifery Comittee, MBC
3626 Ruffin Rd
June 28th, 1994
RE: Supervisory Agreements & Malpractice Implications
Dear Dr. Joas,
Before turning my attention to the official topic of this letter, i'd like to personally thank you for your willingness to take on this hard and somewhat thankless job and for giving it so much of your time and attention. I was something of a "Doubting Thomasina" to begin with as it seemed to me that appointing an anesthesiologist with no domiciliary birth experience to oversee the implementation of a midwifery statutes licensing homebirth practitioners was less than optimal. But i feel that your doing your best to bring about a workable solution and doing so with good will and good humor (which is refreshing) and i, for one, appreciate it greatly.
At the June 6th meeting of the midwifery committee Judge Cologne, speaking on behalf of malpractice insurance carriers, voiced a fear that without documentation of the professional relationship between the midwife and physician, physicians could find themselves being held culpable in regard to supervisorial arrangements of which they were unaware. According to him, it is this fear which is at the bottom of the repeated insistence by malpractice carriers that the medical board promulgate regulations requiring a written agreement. As you are already aware, a state-mandated written agreement is unacceptable to midwives as it creates an insurmountable barrier to practice. It is a non-solution that has already failed in regard to nurse-midwives. Physicians have been afraid, and with good cause, that malpractice carriers would cancel their coverage or greatly increase their premiums based on public availability of this information. Due to these realities, written agreements were NOT mandated by the statute itself and those originally included in CNM regulations were repealed in 1986 by the BRN.
According to a Novemeber 1993 letter from Senator Killea to Medical Board president Jackie Trestrail, it was not her intention, as author of SB350, that the Medical Board promulgate ANY regulations except those relating to educational standards in 1998. Senator Killea restated this position in person at the June 6th midwifery committee meeting.
Attorney Steve Keller's insistence that the MBC lacks legislative authority to promulgate regulations in regard to supervision is born out by a letter recently received from a lawyer representing the Center for Public Interest Law. Ms. D'Angelo, a professor of Law at USD, emphatically concurs with Mr. Keller. It is her opinion, after a review of SB350 and letters of legislative intent from Senator Killea, that the DOL does not have the authority to promulgate any regulations in regard to supervision. As you can see from the enclosed copy of her letter, the Board has a regulatory obligation in only 6 identified areas. It is my request that we bring conversations about written agreements to a close at the July 8th midwifery committee meeting so that we can get on to those items within the purvey of the Board.
In an effort to assist us to get through the "written agreement" impasse, i have a suggestion that i believe would be acceptable to midwives generally. During the late afternoon of the June meeting, a compromise was suggested that relied on the documentation of the professional midwife/physician relationship in the client's chart. A form containing the date, name of the client, midwife and physician would be incorporated in the chart and a copy of this "statement of fact" forwarded to the physician. It is my suggestion that this formalized documentation be incorporated in guidelines (NOT regulations), as a solution to the concerns of physicians that midwives will name them "after the fact", with liability consequences not dissimilar to being named in a paternity suit.
The preservation of confidentiality of the physician is important due to harassment by the medical community who ostracize and impose punitive measures against doctors who support midwives and home-based birth services. Documentation of the physician/ midwife/ client relationship is already built into the system via the requirement to "brief regularly" an identified physician; the resulting telephone conversations would be noted in the client's chart and of course, the physician would obviously know, via these phone conservations, that he or she was able recommendation, to the organizations he represents. In order for this suggestion to be acceptable to midwives, it MUST be accompanied by a statement from the malpractice carriers assuring physicians that their coverage not be will cancelled NOR their premiums increased even if midwives are providing domiciliary birth services.
Malpractice insurance companies that impose a surcharge, increased rate or cancel coverage are doing so in violation of state insurance laws, unless they are able to demonstrate that they have differentiated between actuarial data reporting direct and vicarious liability in setting their rates. Surcharges or cancellations without adequate actuarial support is vulnerable to challenge as excessive and discriminatory. As you can see from the enclosed copy of the NorCal policies regarding home birth, cancelation of malpractice coverage has been their official policy since 1978.
NorCal was contacted by phone in March of this year and their lawyers stated that company policy had not changed since the publication of this issue of he Mutual News. Again at the April 8th meeting, Mr. Mark Richey, representative for NorCal, reiterated publicly that NorCal cancels the malpractice insurance of physicians who are in any way associated with home-based birth services, whether it is the physician himself, a certified nurse-midwife or a non-nurse midwife. For these reasons, midwives must insist on the pro-active correction of this misinformation in writing to allay the realistic fears of physicians.
In addition to the many barriers to practice that result from the general misunderstanding of midwifery so common among physicians, the purposeful disseminated of erroneous and derogatory information by medical groups in the recent past must also be corrected. In order to do this, the regulatory process needs to be used pro-actively to assist the implementation, rather than manipulated by medical lobbyists to erect barriers to practice. To address this misunderstanding and misinformation, the following report on the statutory scope of professional midwifery, under nurse-midwifery and licensed midwifery laws is submitted. In particular, it explores the issue of supervision and malpractice liability as it relates to the implementation of the Licensed Midwifery Practice Act of 1993.
Myself and other midwives do not expect domiciliary birth services to EVER be the dominate careprovider system. And yet i and many others believe that we DESPERATELY need the balancing effect that home-based care represents to healthcare in general and maternity care systems in particular. Home-based maternity care has the same quality of contribution to society in regard to childbearing that hospice care has in regard to death with dignity. Without the mediating influence, both birth and death become technologically-dominated, and malpractice-centered. These negative forces result in a devolving experience for both patients and physicians.
In 1962, when i first began working as a new graduate in the Labor and Delivery Room, obstetrics was a "happy" calling and obstetricians were happy with their calling. Physicians were still permitted to exercise the art as well as the science of medicine. Until the beginning of the malpractice crisis in 1975, professional medical conduct was a synthesis of religious, ethical and professional standards. Since 1976, it has been a rapid down hill slide as the vehicle of medical progress has been abducted by a headless driver. In the 33 years that i have been an inside observer, i have seen the user-friendly OBs forced out by astronomical malpractice premiums and other similar factors and they are NO longer happy about their calling.
People generally assume that after 30+ years of devoting oneself to one's profession, that the last decade or so of one's career will be a pinnacle of fulfillment and that one's younger colleagues will respect and honor the hard work and years experience that represents. Well, not so today. Rather than exercising more authority, older physicians often find themselves being treated like no-account medical students. It seems that all of life has been cheapened by the tyranny of the malpractice model of medical practice.
Historically, one of the most elemental definitions of medical practice was the authority of the physicians to make exceptions to "business as usual" - whether in treatment modalities or other areas of hospital life. It is this ability to synthesis from one's long years of experience that the "art" of medicine arises. Now days, hospital insurance companies, malpractice policies, department protocols, the rumor mill, oversight committees and a host of state, federal, county, city, and other unofficial regulators have almost succeeded in eliminating the authority (author-ship) of medical careproviders. Without that authority/authorship, the creative function of the medical careprovider is extinguished and satisfaction in his calling plummets.
As beleaguered as midwives are, i believe that obstetricians face a worse plight. They do not even have the hope that it will get better. Passing a licensure bill will not change things for them. While it is midwives who get prosecuted for "practicing medicine without a license", in truth it is the law that practices medicine these days. This should not be. I would suggest the midwives and physicians explore the possibility of a new "shared goal" -- that of joining forces and working together to return the "art" to the "art and science" of modern healthcare.
While road blocks may appear from time to time along the path of progress, midwives are looking forward to the cessation of the hostilities between themselves and obstetrical medicine. We are ever hopeful that complementary practices between our respective groups will support the practical well-being of mothers and babies and with that, advance the stability of modern society to the mutual benefit of all. Traditional or non-nurse midwifery is not intrinsically in conflict with the true purpose and the glory of obstetrical care -- the compassionate correction of dysfunctional states and the treatment of pathological ones. As non-interventive, non-medical caregivers, we seek to augment, supplement and compliment the contemporary medical model.
The basic premise of traditional midwifery as it relates to standard medical care is perhaps best described in a little-known story told about Eleanor Roosevelt. When asked what she put first in her life, her husband (then-president of the United States), or their children, she replied that "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 and babies first. To do so puts the wellbeing of society first.
I hope the information in the following communication will prove helpful. I apologize that it is so lengthy but the original documents are themselves more that 60 pages. I have done my best to distill the pertinent portions and include copies of crucial material so that you may read them for yourself.
I look forward to seeing you on July 8th.
faith gibson, community midwife
Certified Professional Midwife#96050001
North American Registry of Midwives
ENCL: Report on Enabling Legislation; Addendum #2; correspondence - Killea 11/3/93 & Center for Public Interest Law, 6/24/94; Excerpt from NorCal Mutual News; Excerpts from JNM article "The Myth of Vicarious Libility" by Susan Jenkins, JD
cc: Division of Licensing, MBC, members
Senator Lucy Killea, Author of SB 350 (LMPA of 1993)
Maggie Bennett, CAM