June 30th, 1994
Report prepared by Faith Gibson for members of the
Midwifery Committee, Medical Board of California
Autonomous Scope of Practice for Nurses,
and Direct-Entry Licensed Midwives
Vicarious Liability Issues in
To See Addendum
Progenitor Nursing Legislation for Nurse Midwifery
Progenitor Nursing Legislation for Nurse Midwifery
The legal distinction between the practice of midwifery and that of medicine, when fully acknowledged, protects the physician from liability for midwifery care, whether such care was provided by the midwife in a domiciliary setting or a nurse-midwife with hospital privileges. The concept of "distinct calling" delineates culpability along the lines of the enabling legislation's statutory definition of a healthcare professional's scope of practice. For instance, the concept of "distinct calling" protects a hospital from being held liable for the actions of non-employee physicians as the "distinct calling" of the institution is to provide a physical location and appropriately-trained hospital personnel -- it is not to directly or indirectly practice medicine. The doctrines of "borrowed servant" and "caption of the ship" are not applicable to independently licensed healthcare professionals and the doctrine of "vicarious" liability applies ONLY to those situations where that midwife is a bona fide employee or agent of the physician.
Enabling Legislation and Autonomous Scope
of Practice for
Nurses, Nurse-midwives and licensed Midwives
The nature and scope of practice for midwives licensed under Senate Bill 350 (Licensed Midwifery Practice Act of 1993) would logically mirror those of nurse-midwives as stipulated in Chapter6, section 2746.5 of the B&P Code, as Senator Killea, the author of the LMPA, states in a November 1993 letter to Dr. Trestrail (president of the MBC) that "SB350 provides an identical scope of practice and physician backup arrangements required by law for certified nurse- midwives"..."SB350 contains both laws and regulations already governing certified nurse-midwives".
The nurse-midwifery statute (Section 2746.5) authorizes CNMs "to attend cases of normal childbirth and provide prenatal, intrapartum and postpartum care". BRN regulation CCR 1463 specifies that "nurse-midwives may provide supervision, care and advise to women during interconceptual periods, conduct deliveries on his/her own responsibility ... including preventive measures and the detection of abnormal conditions in the mother and child, obtaining physician assistance and consultation when indicated or providing emergency care until physician assistance can be obtained".
These practice prerogatives are delineated for nurse-midwives under sections 2746.5 and the original enabling nursing statutes (sec. 2725) which established the extent and means by which professional nurses and nurse-practitioners may generally engage in the business of providing healthcare services, independent from any occupational association with medical doctors. The preamble to these sections states that "The following amendment is to recognize nursing as a dynamic field that is evolving". This body of enabling statues authorizes nurses and nurse-midwives to perform functions that are, in some instances, identical to those performed by a physicians. However, these functions as authorized by enabling nurse and midwifery legislation are not the practice of medicine.
It is widely recognized that midwives practicing midwifery and physicians practicing medicine are potentially in economic competition with one another. None-the-less, recognition of economic competition does not alter the funadmantal fact that the practice of midwifery is NOT the practice of medicine but rather a "distinct calling" in and of itself. This fundamental distinction can be seen in many other occupations. For instance, chiropractic doctors perform physical exams, diagnosis and treat patients (all activities also performed by medical doctors) without being considered to be engaged in the unauthorized practice of allopathic medicine. The principle of "distinct calling" appertains.
The Wisdom of the Legislature
The "wisdom of the Legislature" authorizes nurses & CNMs to practice as independent contractors statutorily empowered in their respective fields. The basic scope of practice and independent functions authorized by statue require no additional authorizing relationship to a physician, thus does NOT create an artificial vicarious liability for physicians. Vicarious liability is legally defined as that resulting from a relationship, rather than from conduct. The principle of a legislatively-established scope of practice applies to the practice of direct-entry midwifery as well as nurse-midwifery. The Licensed Midwifery Practice Act is itself enabling legislation and was purposefully crafted to have an identical scope of practice to that of nurse-midwifery.
From the physician's point of view, the role of all non-physician healthcare providers has been historically defined as subservient to that of physicians. Sociologically, this would be described as a parent-child interaction, in which the "adult/physician" made all the decisions and the "child/nurse, midwife" (etc.) carried them out. In regard to malpractice litigation, these concepts were known as "captain of the ship" and "borrowed servant". The doctrines of "captain of the ship" (the physician) and "borrowed servant" (the nurse or other healthcare provider) are a legal fiction used to shift liability resulting from the acts or omissions of hospital employees to physicians. This obsolete legal theory survives today mainly in the minds of physicians and malpractice carriers and not in fact -- as both the legislature and the courts have in the main rejected the premise. This is fortunate as these parent-child transactions are offensive to adults, particularly professional women.
A letter written to the California Medical Association on behalf of nurse practitioners and nurse-midwives by attorney Phillip Recht makes the point quite elegantly that nurses and nurse-midwives are independently authorized to practice their profession by the enabling legislation known as the Nursing Practice Act. Speaking to the issue of legal autonomy for nursing and nurse-midwifery practice he states that "...the Legislature defined the scope of nursing practice not as any bundle of physician-delegated or -supervised functions, but rather as a dynamic, independent authorization of rights and responsibilities which recognizes the ever-increasing education and practice skills of nurses [including nurse practitioners and nurse-midwives] and the modern-day role of nurses as "collaborators" (as opposed to "assistants") in the delivery of sophisticated healthcare services." [10/1/92; p.6]
Rejection of the outmoded "borrowed servant" theory, which in the past resulted in vicarious liability for physicians, is predicated on a number of societal changes. First is enabling legislation which defines non-physician healthcare providers as having a scope of professional practice in their own right, legally know as a "distinct calling". It is the obverse of the "borrowed servant" concept. Under the theories of a "distinct calling", each caregiver is independently liable for his or her own "torts". Physicians, whose "distinct calling" is the practice of medicine would not be liable for midwives nor would midwives, whose "distinct calling" is midwifery (by statute defined as NOT the practice of medicine) be liable for the malpractice of physicians.
Second, the nature of healthcare provision has changed dramatically. The original purpose of the "captain of the ship" doctrine was to provide a legal remedy to patients of charitable institutions who were injured in the course of treatment. In past decades most hospitals were charitable institutions and thus protected by state laws from malpractice litigation. The courts developed these doctrines as a means to shift liability from the hospital to the physician. The core premise was that physicians used institutional facilities to their own benefit, "borrowing" the hospital staff to enable the physician to provide financially-profitable professional services to private patients. Since institutions were untouchable, the doctor came to be the designated "deep pocket" from which a patient who was injured due to the negligence of a scrub nurse or nurse-anesthetists (employees of the hospital) could recover monetary damages. Healthcare institutions now carry their own liability insurance and thus the "captain of the ship/borrowed servant" theory has been largely discarded by the courts.
For instance in the case of Truhitte v. French Hospital;, 128 Cal.App.3r 322, 348 (1982) the court stated that "We question whether the 'captain of the ship' has any remaining independent existence; the vicarious liability of a surgeon for the independent negligence of nurses and other assistants is determined in the cases under the general rule of agency" ('agency' is a legal term indicating that an individual is acting on behalf of another as "agent" for the first, known legally as the 'principal' ). Such courts indicate that in the modern healthcare marketplace, , a physician will be liable on a DIRECT negligence theory ONLY where a physician, in fact, controls that actions of a health professional or otherwise breaches a specific duty imposed on the physician.
Control vs. Independence
The only situation in which a physician is likely to be found liable for the negligence of a professional midwife is when she is a bona fide employee of the physician. An employer is almost always held liable for the negligence of its employee when those acts or omissions occurred within the scope of the employment. This doctrine is called respondeat superior (Latin for "let the superior or master respond" for the wrong that was done). Courts usually define the term "employee" in the same manner as the Internal Revenue Service and the courts in workers compensation cases. The salient question is: Does the employer control (or have the right to control) not only the work done but also the manner in which the employee does the work? The courts also take into consideration which individual supplies the instrumentalities, tools, place of work, and the method of payment. Clearly, a midwife independently attending to the needs of her own clients in a domiciliary setting is NOT the employee of the physician who has agreed to provide medical consultation and, if appropriate, medical supervision.
The other category that exposes a supervising physician to vicarious liability is the doctrine of "agency" -- whether or not the midwife is acting as an agent for the physician or, in contrast, are each independent contractors providing the benefits of their "distinct calling" to the same client, depending on the needs and the situation. Again, the factors that courts consider when deliberating on liability is whether one party has the right to control the actions of the other, the nature and extent of that control and whether the contractor is engaged in a distinct calling which traditionally is not closely supervised.
"Close" Supervision legally defined
The principle here hinges on the expert or "distinct" nature of the skill in question, as close "supervision" can only be exercised when the "supervising" authority has a greater mastery of the skill than the "agent" or employee. By statute, midwifery is NOT the practice of medicine (section 2507e). Midwifery is distinct in origin, in philosophy, in training and in practice both from nursing and from the practice of medicine. Physicians, while trained, skilled and licensed to practice medicine, are NOT themselves midwives and are neither trained or experienced in midwifery, most especially as it has been traditionally practiced in a domiciliary setting.
To avoid incurring unnecessary liability, a physician would not contract to "supervise" (or purport to exercise control) over the practice of midwifery but would instead defer to the "distinct calling" of the midwife in regard to the conduct of normal midwifery services. Home-based maternity care is fundamentally non-medical (although neither unscientific nor anti-medical and including limited emergency medical response) and may best be described as a bio-social specialty that is historically distinct from the bio-medical discipline of obstetrics. Under section 2746.5 the "supervisorial" relationship as defined for nurse-midwifery practice exists only in the realm of medical interdependence and dependent. Supervision would be those areas of medical interdependency or dependency outside the scope of independent practice (i.e. not specified in the professional midwifery statute). By so doing, physician liability would appertain only to direct actions or omission of the physician in regard to the quality of his medical care -- not the quality of the midwife's care.
By this criteria, professional midwives are obviously independent contractors statutorily authorized to provide normal ante, intra, postpartal and postnatal midwifery care without "close" supervision. When a midwife enters into a contractual arrangement with a physician, this dynamic interface with modern medicine is to the advantage of client families, reducing risk to both mother and baby by creating continuity of care between the two professions, as well as medical consultation, and access to back-up care and emergency services. This is a free agent contractual arrangement in which the physician agrees to provide MEDICAL supervision as the practice of medicine (not midwifery) is the areas of his/or her "greater mastery". It is only the physician's "greater mastery" in the practice of medicine that qualifies him or to to exercise "close supervision" and then only in the arena of medical (and not midwifery) care.
This arrangement not only increases the quality of care to clients but results in the equally important advantage of reducing liability concerns for the physician, who is, in fact, functioning in the familiar and formally-educated realm of institutionally-based, technologically-enriched obstetrical medicine. These "supervisory" physicians are neither attending home births themselves nor taking on vicarious liability for the midwife's domiciliary practice or otherwise placing themselves in unnecessary legal jeopardy by practicing outside of community medical standards. Physician care rendered to the midwife's client will take place in an institutional setting following transfer of care from the midwife/home to the doctor/hospital.
Summary of these Principles
In regard to professional relationships between physicians and professional midwives, historical precedent of 3000+ years as reflected in Common Law has been formally institutionalized through enabling legislation. This body of Common Law and legislative statutes combines to create the "distinct calling" of midwifery in contemporary society. As long as the midwife practices midwifery and the physician practices medicine and they do not enter into contractual agreements to control the actions of one another, neither one is responsible for the conduct of the other.
The "supervision" mandated by the nurse-midwifery statute is applied by Board of Registered Nursing regulations to only those areas OUTSIDE the independent scope of professional midwifery practice. Even in the realm of inter-dependent functions, governed by standardized procedures
resulting from collaboration between the physician and midwife, the physician would still only be culpable if the agreed upon standard procedures stipulated control by the physician (A decision that physician voluntarily makes or declines when formulating the standardized procedures in collaboration with the midwife) OR, if the doctor's advice from defective, the care rendered was inadequate or the doctor was otherwise directly negligent, hw or she can and no doubt will be held culpable. In the latter instnace, the physician is being held liable for his own actions or omissions but not for the midwife's.
Four to One Supervisory Ratio
The next area to address is the statute stipulating a 1:4 ratio which limits each physician to a supervisory relationship of no more than four midwives at one time. First, it must be acknowledged that this statue's basic purpose is to prevent a single physician from supervising every midwife practicing in the entire state of California. As other sections of the medical practice act eliminated diploma mills and MediCal mills, good midwifery-managed maternity care requires the elimination of "supervisory mills". The purpose of a finite ratio is to create relationships of manageable size and thus improve the quality of care. It is a sound concept.
However, in a rapidly changing healthcare system in which the careprovider decisions of patients are often specifically limited by third-party payers, it is totally unworkable for the midwife to enter into a solitary relationship with a single physician. First, such an arrangement could easily be misconstrued as one of employment OR of agency, both of which create vicarious liability and therefore are to be avoided. And secondly, it does not take into account those families with (1) no insurance or other ability to pay the physician, (2) MediCal recipients, (3) HMO/PMO's (4) those geographically distant, (5) those ideologically or religiously opposed to the practices of a specific physician (for example ones who perform abortions) or to specific type of medical care (such as Christian Scientists).
The crucial element here is that a client/midwife/physician relationship provide the childbearing woman with a source of medical consultation, medical supervision in regard to the interdependent and medically-dependent functioning of the midwife and, most important of all, the ability to maintain continuity of care should medical transfer be desired or required by either mother or baby. Guidelines, not regulations (as no authority for additional regulations exists under SB350), are needed to assist midwives and physicians to confidently conduct their respective professions in the area of supervision. The "statement of fact" proposed in the last midwifery committee would do this by memorializing on paper the name of the client, midwife, and physician. The time frame that this supervisory relationship would be in effect would span from the date of the original intake interview until discharge of the mother and baby by the midwife at the end of the postpartal, postnatal period (6-8 weeks). During that period of time, the "supervisory relationship" would count as one of the four supervisory relationships permitted to the physician. Once delivered and discharged from midwifery care, the client no longer needs medical interface nor does the physician need to be "briefed" in regard to her condition. Therefore, the client and midwife would be removed from the quota.
At any one time home-based midwives are interacting with several different doctors or MediCal clinics, often more than four. The statute doesn't restrict the number of physicians that a midwife utilizes. Each mother makes specific arrangements based on the method of payment, and it is not uncommon for midwives in the SF Bay area to have a couple of clients with Kaiser coverage, one receiving tandem care from a private obstetrician (an attempt on the part of the doctor to circumvent the delimitors of his malpractice contract by maintaining the legal fiction that the client is planning hospital delivery), a MediCal recipient being followed by the midwifery clinic at SF General, another client who has seen a private doctor at 36 weeks to arrange for continuity of care should hospitalization be required and last but not least, a fundamentalist Christian or Islamic client who, under the religious exemptions clause, has refused medical consultation. Guidelines must reflect these realities. Arrangements with Kaiser and other HMOs provide availability and continuity of medical care and must be a recognized option.
Non-Medical Nature of the Domicile - homes are not hospitals
The non-medical nature of domiciliary care must eventually be officially acknowledged to prevent home-based care from being inappropriately substituted for hospital care. For the safety of childbearing families, the innate non-medical nature of home-based birth services must be recognize, regardless of the credentials of the caregiver -- be it medical doctors, nurse-midwives or licensed midwives. Secondly, understanding of this principle reduces unnecessary anxiety on the part of the medical community that licensure of midwives is going to, somehow, dramatically and drastically change the fundamental nature of obstetrical care in the US. It will not.
Midwifery As A Bio-Social Specialty Domain
A core concept for home-based birth care is a respect for the normal biological, psychological and social needs of a normal healthy mother during labor. Within this model, the identified function of the caregiver is to meet that broad spectrum of bio-social imperatives while remaining articulated with bio-medical science. It is predicate on a body of knowledge which is primarily non-pathological (educational experiences developed, acquired and focused primarily in the normalcy of childbearing). Therefore, it is of compelling concern is that the fundamental non-medical nature of the domicile be acknowledged and respected. Homes are not hospitals and visa versa.
The home is and will remain a non-medical location. The safety of mother and baby in a domiciliary setting depends on it remaining non-medical and that non- medicalization be a fundamental principle of domiciliary care. It is not safe to conduct medicalized childbirth at home -- not even if one is a physician or acting under the supervision of a medical doctor. No routine use of IVs, oxytocin inductions or augmentations, pain medications, anesthesia, epidurals, blood transfusions, or operative deliveries such as forceps and vacuum extractions. This is an immutable core concept and must be widely taught both in domiciliary midwifery programs and in medical schools.
The Non-Competitive Nature of Domiciliary Care
Unwarranted fears on the part of physicians have come about, in part, from the erroneous assumption that midwifery licensure will fundamentally change the way large numbers of childbearing women will chose to labor & give birth. Based on the collective aggregate of many years of home & hospital birth experience, midwives can confidently assure the medical community that this is not so. Ten years from now we may see a higher ratio of home to hospital births but nowhere in the modern world (not even Holland!) are mothers abandoning medicalized childbirth and jumping into the arms of domiciliary midwives. The non-medical approach is not "in" and hasn't been for most of the 20th century. Its unlikely to change in our lifetime. Non-medical, non-surgical home-based maternity care has always been lawful in California (Article 24 & Section 2063) yet, for the most part, it has been rejected by the majority of childbearing women -- most usually due to the painful nature of labor.
Domiciliary midwives do not give pain medications nor do we administer anesthetic agents. It is not safe. All midwives (including nurse-midwives & home-birth physicians) who function in a domiciliary setting must abstain from the use of these potent medications and anesthetic agents due to their intrinsic risk to both mother and child. As long as midwives remain faithful to the midwifery tradition (no pain medications, anesthetics or operative obstetrics in a domiciliary setting) only a small fraction of childbearing families will choose home birth. Being unable to offer narcotics or anesthetics, midwives do not compete with the obstetrical model of medicated labor & birth. Understanding these points, especially the recognition of the (no doubt) permanent minority nature of home-based maternity care, should bring cheer to obstetricians and hospital administrators all across California!
Interpersonal Aspects of a Supervisory Relationships
Successful, long-term, collaborative relationships between physicians and midwives are little different than those between any other two people -- it takes desire, trust, shared goals, effective communication and commitment to work out the "bugs" that otherwise sabotage relationships. What is unique to the midwife/physician diad is that historically-speaking obstetricians "divorced" midwives back at the turn of the century. To obstetricians, midwives are "ex-wives". Our unreconciled and antagonistic groups are being commanded by a disinterested third-party (the Legislature/CMA/MBC) to enter into relationships that can be as dynamic and complex as a marriage, and to do so against the will of the unreconciled partner (obstetricians) and without the mediating influence of a "marriage" counselor.
Metaphorically speaking, obstetricians don't want to go into partnerships or other business arrangements with their ex-wives, they see few if any personal advantages and many potential dangers. For the most part, associations with midwives are assumed to be to their professional detriment - merely increasing liability risks and reducing revenue. To turn back the clock and change the attitude of physicians requires a remedial educational process that addresses a century-long campaign of mis-information. Secondly, it takes a shared goal.
A Successful Example of "Distinct Calling"
Speaking of my own first-hand experience in this realm, I have learned many valuable lessons during the eleven years I was privileged to "co-manage" clients with a "user-friendly" obstetrician. Most germane to this relationship is that I have always felt as midwife-of-record, that I had a twin duty -- one to the well-being of the mother/ baby diad and the other to the physician who had been so good as to make himself available should the family desire or require medical care. As a home-based, non-interventive caregiver, it is my job to serve the practical needs of the childbearing family as well as to protect the physician from "unnatural" liability and to transfer clients to medical care BEFORE urgent situations arise. One of the main strategies that protected my obstetrician and friend was the autonomous, collaborative and voluntary nature of our relationship. My good relationship with physicians is only possible because they are not tied to my actions by the threat of vicarious liability. I can therefore protect the doctor by not bringing him or her into the childbirth event at a time or in a manner that would render them legally culpable either for my actions/inactions OR his/her perceived "failure" to act (as defined by contemporary medical protocols).
These principles have served doctors and midwives well for many years.
Official medical board guidelines must preserve the ability of midwives to shield physicians from unnatural liability.
See Addendum #1 --
Progenitor Nursing Legislation for Nurse Midwifery