Letter to Dr. Friedman MBC meeting May 9th 1997

by faithgibson on January 22, 2024

in Historic Publications, Medical Board midwifery-related Politics

American College of Community Midwives
3889 Middlefield Road, Palo Alto, CA ** 94303

May 9th, 1997

Member, Medical Board of California-DOL

Dear Dr. Friedman,

I have just returned home from the DOL meeting in Sacramento on the proposal to reconsider the written supervisory agreement. Since it is a 125 mile drive (one way), I had a lot of time to think about what occurred at this meeting.

I appreciated the opportunity to explain the position of midwives who provide planned OOH childbirth services, and the reasons for our opposition to this regulation in current form.

However, I am frustrated by how much vital information on the background of midwifery politics and the “bigger picture” that are missing from the considerations by Board members. I hope not to unduly impose on your good nature, but I just must supply some of this missing information.

First, let me say that the most intense frustration that I and the other midwives feel arises out of what I would describe as our “shared goal” — the safe-keeping of childbearing women and their unborn or newborn babies. We are trying so hard to achieve exactly the same goals — to maximize safety for the mother-baby diad AND protect physicians from unnatural and unnecessary liability.

As you may or may not know, it is midwives who have been seeking midwifery regulation for the past two decades (AB 1896 was introduced in 1977, followed by 6 additional bills). 

For 16 years, those efforts were fought tooth and nail by the CMA and ACOG. This was not based on any inherent inadequacy in the midwifery model of care or added risk associated with home-based maternity services for healthy mothers. In fact, statistical analysis shows quite the opposite.

Nonetheless, the efforts by midwives to establish training programs, licensure and regulation consistently met with vitriolic opposition from organized medicine. I have enclosed a brief sampler of documentation, including letters from the California Medical Association (1992), California College of Obstetricians & Gynecologists (1980) and the chief of obstetrics at Stanford in 1977 so you can see this for yourself.

The reason midwives have invested so much time and money on these legislative activities (it is a 250-mile round trip to Sacramento for me and I pay my own expenses) is simple enough — home-based midwifery for healthy mothers experiencing normal pregnancies is basically safe, as amply supported by published evidence.

It is the very safest when it is well-articulated with hospital-based obstetrical care, which can be easily accessed in the event of a complication or desire on the part of the mother for a medicated birth. The very best way to achieve that is to give midwifery a formally recognized legal standing so that such arrangements become as “natural” as those between any other interdisciplinary diad.

Numerous times today the board members cited a concern for “consumer safety” and protecting the “least” capable (i.e. most vulnerable) as the argument against the reconsideration of the written agreement regulation. This was said as if midwives were not concerned about the well-being of mothers and babies.

Most of the currently licensed midwives have been in practice without “incident” for somewhere between 10 and 20 years. For 100 midwives to deliver between 15-30 babies a year, year after year for decades, without coming to the attention of the authorities means one of two things — either childbirth is so predictably safe that the presence of the midwife doesn’t matter one way or the other OR the presence of these skilled midwives, combined with the good health of the mothers and the availability of obstetrical care for complications, resulted in a remarkable degree of safe and successful homebirths

One must take into account that the small number of complications or bad outcomes that do come to the attention of physicians represents only a tiny fraction of the births attended by licensed midwives. The many babies born at home without incident are the norm and by virtue of their normalcy, never come to the attention of neonatalogists or investigators of the Medical Board.

Speaking from 15 years of experience as an L&D nurse, a community midwife of 17 years, and providing care with other many other midwives, natural as birth does not just “do itself”. It is the skill of these now licensed midwives that explains the consistent good outcomes. And a big part of that ability to provide safe care are the “working arrangements” we have been able to forge with private physicians and/or teaching institutions so that the parents’ decision to labor at home will not jeopardize the mother-baby diad, the midwife, or the reputation of midwifery!

The real issue here is that these working arrangements provide backup and consultative services for the client families without creating vicarious liability for the physician.

This is brought about by having each client independently arrange with a physician to be available to treat her if she needs or wants hospital care. By having this be an arrangement between the client and her doctor and not the midwife and the doctor, the physician is not called upon to expose him or herself to any “extra” liability, over and above the normal liability of routine hospital practice.

It also clearly distinguishes between the two distinct disciplines — midwifery and the practice of medicine. Domiciliary midwifery cannot function unless it protects physicians from culpability and it does that by dividing caregiver functions along the lines of non-medical versus medical. Home birth is a non-medical event based upon a non-obstetric tradition.

Whether an obstetrician provides home-based birth services himself or indirectly through control/supervision of a domiciliary midwife (principle-agency relationship), current malpractice law imposes a medical standard on a non-medical event (home birth) and in addition, makes the supervising physician (the principle) legally culpable for the midwife’s actions (agent). Obstetricians and by extrapolation, the midwives practicing under their “control/supervision”, are thus held to obstetrical medicine standards as determined by medical schools and reflected in contemporary case law & malpractice protocols.

These standards of professional conduct are a medical standard — the use of medicinal preparations and the penetrating or severing of human tissue and the diagnosing between pathological states as defined by the medical practice act.

For a physician to fail to use this medical or “expert” standard, is defined by malpractice law becomes, legally speaking, the substandard practice of medicine. This is a completely unworkable situation for anyone who functions in domiciliary settings. As you are aware, both the nurse and the non-nurse (direct-entry) midwifery statute clearly state that midwives are not authorized to practice medicine or surgery and therefore, the statutory definition of midwifery is that it is not the practice of medicine.

In contrast, midwives provide domiciliary midwifery care as long as the mother is healthy, the pregnancy normal, the onset of labor at term progresses spontaneously through the stages and phases of labor with a reactive fetus as determined by auscultating fetal heart tones (yes, midwives monitor the baby) and the mother delivers in a timely manner while both she and her baby are adequately hydrated.

If any of those characteristics are absent or change substantially, our role as non-medical midwives compels us to seek out someone authorized to practice medicine, and transfer care to a high-tech hospital setting. Domiciliary midwifery is a clearly, cleanly delineated system that nicely augments, compliments and supplements the practice of medicine to the benefit of all parties (mothers, babies, midwives and physicians). Domiciliary midwives don’t want to be doctors, we don’t want to practice medicine, that’s why we studied the discipline of midwifery.

Because I’m a Mennonite midwife practicing under the authority of the religious exemptions clause (section 2063) , my non-medical practice is lawful and physician backup has generally been available. During these 16 years, I have never had a serious complication or bad outcome that was in any way associated with either my skill as a midwife or the choice of a domiciliary location for the labor.

Ten years ago I had easy access to the consultative services and backup from several excellent obstetricians. As time passed and medical care became more and more of a “commodity” (and less and less of a humanitarian pursuit), the hospitals in our area became more aggressive in the harassment of doctors who made themselves available to homebirth clients.

Five years ago the biggest hospital in our area threatened our long-time consultative physician with loss of his hospital privileges if he didn’t disassociate himself from all domiciliary midwives (including CNMs). After a middle of the night emergency room visit for chest pain, this kind and wonderful obstetrician concluded that the stress caused by this political situation was too much for him.

To keep peace with the hospital (and his wife), he stopped consulting with midwives. Since that time we have mainly made arrangements with the resident staff of teaching institutions or San Francisco General, which has a midwifery program. None the less, every client family either has some personal connection with a physician or has agreed to become a teaching case at a specific institution.

One of the major reasons I continue to practice under the religious exemptions clause (which imposes multiple restrictions) is to facilitate this appropriate access to medical care for our clients. The quality of acknowledged legality (as contrasted with the legal controversy of ‘lay” midwifery) means that I can be forthright in seeking out obstetrical or pediatric services whenever a mother or baby would be better served by medicalizing the pregnancy or birth process. I am bold, even a little obnoxious about it, demanding that a recalcitrant nurse call in a doctor from home after hours and making sure my client (or her baby) are cared for in a timely fashion (read: “pushy”) and do not get lost in the bureaucratic scuffle.

Whatever trepidations you may have about domiciliary midwifery or about me personally, I suspect that you would be quite happy to have someone as persistently and consistently tenacious as myself represent your interests should you be unlucky enough to need urgent medical care and we unable to act on your own behalf. This is a quality of midwifery and a characteristic of midwives in general. It may even help explain why we meet with so much resistance. Midwives are constantly calling on someone (usually the mother-to-be, sometimes hospital staff or doctors) to do hard work (i.e. “labor”) that they don’t want to do.

A great number of healthcare professionals — nurse practitioners, nurse midwives, acupuncturists, chiropractors, physical therapist, dietitians, social workers, even mothers and childcare providers render “primary” care of various sorts and bear the prime responsibility for recognizing a health-related need that is beyond their capacity or scope of practice and subsequently recommending or arranging medical care. Its not a big deal when this happens and in fact, doctors are usually pleased and appreciate the “business”. Insurance companies certainly don’t tell orthopedic surgeons that they will lose their malpractice coverage if they take a transfer of care from a chiropractor. Pediatricians are not told by insurance carriers that they will have to pay a $12,000 surcharge per mother who calls and requests their pediatric services. In every other arena of this sort, such hierarchical arrangements are routine.

They only reason that it is not “routine” between community midwives and hospital-based obstetricians in California is that political power had been brought to bear to prevent such common sense “working” arrangements. For instance, an article in ObGyn September 1993 quotes Dr. Vivian Dickerson, president CCOG as say “We held out for supervision, as opposed to a more collegial relationship so as not to issue an invitation to homebirth. Licensed, direct-entry midwives ONLY provide care in a home setting. The major player and primary power behind these unfair business practices and a restraint of trade has been and remains the economic interests of the hospital industry.

The safety and economy of the midwifery model of care is not an insignificant aspect of the healthcare picture in our state as more than 1 million hospital admission annually in California are for maternity care. According to figures from the California DUSG, the next highest category of hospitalization is for medical care with 295,000 patient admissions; followed by 116,000 psychiatric admissions, 75,000 general surgeries and 49,000 Gyn surgeries. A source on the Internet quotes a profit margin for maternity care at 38 cents on the dollar (the highest rate) while the lowest return is 5 cents on the dollar for cardiac surgery. Every year, maternity care is the most single most frequent diagnosis in both the federal and state Medicare/MediCal systems as well as all private and proprietary hospitals. It is the economic interests of hospitals that fuels the fire to keeps doctors in locked-step (thru the imposition of artificial, unnecessary and vicarious liablity) as opponents of home-based maternity care.

What happens when you eliminate the practical possibility of domiciliary care by licensed midwives, which represents about 90% of the most experienced midwives in the state, is that the unlicensed and the unqualified simply slide in to their place. Nature abhors a vacuum. For the last decade, the planned home birth rate has held at a steady 1%. Many of these families are very fundamentalist Christian families, Mormons, conservative Republicans who home school their children and the like. It may surprise you to know that home-based care is not associated with any kind of modern day hippies or other drops-outs from society. The other end of the homebirth spectrum are families who own their own homes (therefore don’t qualify for MediCal) but do not have the money to pay for hospital-based obstetrical care, which is typically around $10,000 for a normal vaginal birth. They typically have 4-6 children and very trouble-free deliveries. These families will continue to plan home-based birth care and will simply “settle” for a less experienced midwife or, failing that, a birth attended only by friends or church members.

For instance, a significant number of “midwife-wannabees” are offering labor support or “doula” services for home labors preceding planned hospital births. They do this under the technically valid but ethically questionable concept that if they don’t listen to heart tones during labor or do vag exams, carry deLee mucus trap or oxygen, they are safe from any accusation of the illegal practice of medicine or a charge of practicing midwifery without a license. One of these “birth assistants recently attended a mother who had meconium — a well-known sign of potential fetal distress– throughout labor but because the mother felt the baby moving and the birth assistant who was clearly providing midwfery care did not know better, they assumed the baby was OK. This birth assistant also did not do FHTs or carry a delee mucus trap to suction the fetal stool in the amniotic fluid from the baby’s mouth at birth before it breathed.

This obviously preventable death was triggered by the misguided attempt to follow the “letter” of the law (technical definitions of the unauthorized practice of medicine) and resulted in a violation of the spirit of the law (consumer protection). It may seem that this problem could be legally remedied by legislation defining the provision of care to a woman during active labor as the practice of midwifery but historically, the practice of midwifery has never been granted “exclusive” title for a very fundamental reason. To do so would require physicians and labor room nurses to be trained and licensed in midwifery. This is not likely to occur in our life!

What midwives want is to be able to have the same “easy’ relationship with our backup docs that we have as mothers with our pediatricians — whenever there is a problem or an uncertainly, we want to be able to call and talk about it, or to take the mother in to be “checked out” , just like we do when our babies are running a fever and acting sickly. Healthy mothers don’t benefit from obstetrical care any more than healthy babies would from pediatric care but we want to maintain access so that when or if the mother or neonate either need or want medical care, we can arrange it. Written supervisory agreements (in fact, legislatively-mandated physician supervision itself) prevents this while consumer protection demands that we do something that promotes successful “working arrangements’ that make medical care easily available when desired or required.

I realize that your ability to address these issues is limited but I do have a specific request. Birth certificates have noted the “planned” place of birth since 1989. I strongly suggest that you contact Mr. Palmeri at the Office of Vital Statistics and get stats for planned, midwife attended domiciliary births for the last 8 years. Also ask him how many infant deaths have been attributed to (or associated with) home-based birth services as provided by a skilled midwife in the last 2 decades. If he tells you that they don’t track midwife-attended home births (as they told us), ask him why not.

I apologize for sending you such a long and complex letter but as you can tell, this is a matter of utmost concern to me personally and the practical wellbeing of mothers and babies.

Warm regards,

faith gibson, L.M., community midwife
NARM Certified Professional Midwife #96050001
Executive Director

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