Midwifery Implementation Committee Meeting (6 of 7) MBC Sacramento office ~ September 23, 1994

by faithgibson on January 15, 2024

in Historic Publications, Medical Board midwifery-related Politics

Last Midwifery Implementation Committee Meeting (#6 of 7)

Medical Board of California, Sacramento Office
September 23, 1994

MBC members: — Dr. Joas,MD;
Stuart Hsieh, JD

MBC staff: Anita Scuri, JD;
Linda Whitney, Tony Arjil

Legislative Representation: Nancy Chavez, Legislative Aide for Senator LucyKillea

Community Physician: Dr. Leon Schimmel, MD — an obstetrician who works with both nurse and direct-entry midwives in the Davis area

Lobbyists: Joan Hall, CMA;
Judge Cologne., representing three malpractice carriers

Midwives (partial list):
Janet Kalman, CNM, Tonya Brooks, Shannon Leahy, Maria Iorillo,
Tosi Marcelene, Faith Gibson, Diane Holz

Pertinent interactive passages between participants regarding topics of written physician supervison, malpractice, legislative intent of LMPA

Dr. Joas 1DJ 2 *** Faith GibsonFG 2 *** Tosi Marcelene *** Maria Iorillo 1MI 2 *** Diane Holtz *** Judge Cologne 1JC 2JC 3, JC 4 *** Dr. Schimmel *** Tonya Brooks *** Janice Kalman *** Anita Scuri 1AS 2 *** Nancy Chavez ***

Dr. Joas: My intention is that this is the last meeting of the Implementation committee and so I want to thank you for your participation, love letters and for helping educate me, both of us, all of us. I hope its been good both ways. We’ve agreed to differ on some issues, I don’t think its been that burdensome. I don’t want to cut off communication so that if there are things that you really feel strongly please feel free to communicate with Linda or through Linda with me. We have to get on with putting this all down in to some sort of bureaucratize and that’s going to mean that staff and I are going to have to come to grips with issues that are difficult.

I will tell you that I am going to make to recommendations and I think you already know that. I’m going to make a recommendation for some legislative clarification and I’m going to be very specific about what I’d like to see in that legislation and whether Lucy (Killea) will pick that up I don’t know. As most of you know, she’s only got one more term and then I think she’s about ready to pack it up, I think term limits come into play and I think her husband is not well and so I think, between now and 1996 if she’s ready to accept that but as I say again, the recommendation that we put for legislative clarification will be very specific. The other thing that I’m going to recommend is that there be a permanent sub-committee of the division that deals strictly with midwifery. I don’t think that’s burdensome, I think that’s a benefit for everybody. Obviously, I’m not going to bail out so I imagine that I will continue to be in that position.

I would like this morning to go around the table and shave people peak on that particular issue that is most dear to their heart and they feel most strongly about and if somebody has spoken before you and they said the same thing, please don’t repeat it, just say “I second the same thing, I feel very strongly for it” so we’re getting a direction of how people feel about certain things. Having said that does anybody have anything they want to say now.

Woman’s Voice: Question about the implementation of challenge mechanismtape increasingly unintelligible to due extreme speed.


For the next 15-20 minutes, the original cassette was untranscribable due to equipment failure (sounds like it recorded at fast forward). The conversation resumes with the following dialogue.

microcassette #006

Woman’s voice: Practically speaking we are talking about some areas that are very rural and don’t have hospitals and in these areas you can’t get an obstetrician there, it can’t support an obstetrician. 015

Dr. Joas: I hear all that, I’m aware of all that and its all plugged into my little computer system some place in my mind. You have to accept the fact that this is not something that I turn on and off every time I fly up and talk to you. I think about this. So I’m trying to think of a method of pitching it, a method of making it fly that is protective of consumer, acceptable to consumers and acceptable to the medical community and acceptable to you.

So I’m trying to resolve the problems and I’m trying to come to a meaningful resolution and again, I’ll go back to my saying about legislation. Legislation is the art of compromise. So you may get half the loaf but if you get half the loaf, you’ve got your foot in the door and that is a lot further than you were a year ago. And you’ve got to accept it at that point and you’ve got to say “OK, now we have to go back and get additional cleanup legislation”. That’s how I see it and that’s the name of the game. And that goes back to “he who likes legislation and sausage should watch neither being made”, OK? Because that’s the name of the ball game and as long as you can understand that, and you accept that and you say “we worked as hard as we could” I think the values are reasonable (noise) I think these are reasonable people and you’ve gotten half way. You go back and you try to get the other (noise).

Dr. Joas: Faith, we are going right around the table, are you going to pass? 095

Faith Gibson: Well, the supervisory issue is the thing that we recently received in the mail and it seems to me that takes us back to square one. These supervisory agreements didn’t work for nurse midwives, I don’t see how there are going to work for non-nurse midwives, I don’t see how anyone can practice lawfully under the licensure scheme with the written supervisory agreement. mc#112

Woman’s voice: I think the problem is (2-3 words inaudible) with the supervisory agreement.

Dr. Joas: Again, in the back of my mind, I think there is going to have to be some sort of accountability to a physician and how that’s going to function…

Faith G: We would love it…You provide the physician, we’ll be accountable to him. mc#126

Dr. Joas: Oh, I hear you but you have to listen to what I said just a few points before when I said that as obstetricians, as physicians are trained in hospital settings where they come into contact with nurse midwives, remember now, I’m 30 years out of practice, and I couldn’t even spell “midwife” when I started this project, OK? so in the course of that interaction with nurse midwives in a hospital setting, its my feeling that you will find that physicians and obstetricians generally will be much more receptive of the midwife concept no matter what form it takes. mc#162

Faith G: I don’ mean to be argumentative, but I’ve been here in California since 1979 and I can tell you that its going the other way. The legislation for nurse midwives was passed in 1974, we have had 20 years of nurse midwives for these obstetricians to get used to the idea and now we are going toward less involvement (of the doctors), more practice being dominated by malpractice considerations, and unless you have practicing midwives you don’t have the situation that acclimates people to midwives and if there are zero willing supervisors, written supervisory agreements holders, its just gridlock. You can’t go anywhere. mc#192

Dr. Joas: I don’t get that opinion, I think that there is a down trend but I think that it is coming back up. I talked to a guy who was training at Stanford and he (untranscrible word) in the community and the first thing he did was seek out the local nurse midwife and he made contact with a couple of lay midwives because he was attempting to start up an obstetrical practice, that’s who he sought out, he was willing to back them up. So I see that as a positive. Do you not see that as a positive?

212 (cross talk) woman’s voice “That’s the exception”. 217

Faith G: The real issue here, again we come back to the homebirth issue. I have been in the bay area now since 1980 — I don’t know a single physician, obstetrician, family practice physician, who would be willing to sign a written agreement in regard to my practice as a domiciliary midwife.

Dr. Joas: I’ll give you the name of one.

Faith G: I’d be happy to have that but Don Creevy is not it! 232

Woman’s voice: I have the same concerns as Faith does.

Tosi Marcelene: I can get backup for my clients from every doctor that I would refer to or go to personally. I live in Davis where there are two hospitals that do births and there are probably more midwives, CNMs doing births in those hospital than there are physician births. And yet, the insurance —–?——is a big one, in terms of those written agreements, the idea that they are now accountable to their insurance company and whether or not their insurance company would agree to that. 261

Dr. Joas: That isn’t just a problem for you, that’s a problem that we all have because the insurance companies are writing the rules and regulations and its because the people who are most knowledgeable about those topics haven’t jumped into the breech and said “This is the way it should to be”. The insurance companies have come back and said “this is the way it will be, take it or leave it”. And that’s been a deficiency on the part of organized medicine, organized nursing and if you want to extend it to the lay pubic as well for not coming in an saying we feel it should be “A,B, and C and not X”. And that’s how I read that, that’s just a part of the evolutionary process of the insurance industry, healthcare reform and so forth, so you have to take hard luck on things. That’s something that if I could control it I’d control it. 298

Tosi M: I just (inaudible word) that the absence of written agreements might facilitate the process that we use already which is that the clients had an individual relationship with the doctor.

Dr. Joas: That’s still on the top item on my list. That’s the way I resolved it in my own mind and I’ll go back and restate that and that was that you continue to do what you do, advise your client of the fact that there is going to be a physician backing you up, this is his name or her name or their group’s name, its identified, its in your file. I don’t care about the insurance companies, that’s something your going to have to deal with OK? and that’s something the legislation doesn’t necessarily give OK? and that’s something that may have to be clean up legislation at a different level. OK?, that’s how I see that playing out and that’s where my tendency to lean is right now.

335 (untranscribable comments by one of the midwives about the creation of a midwifery sub-committee being to our benefit)342

Maria I: Are you going be available for input to us, are you going to be available by phone, can we call you up and give you our input, is there going to be a hearing, is something actually going to be written, are we going to be notified in writing, is there going to be a public hearing on it, umm

Dr. Joas: Your last opportunity on it is when we make the oral presentation to the Division of Licensing to say this is what we have available and we present this to you for your acceptance or rejection.

Untranscribled question: 356

Dr. Joas: Ah, hopefully. That committee is going to be an ongoing committee that’s going to exist for the continuing implementation of the midwifery program, the overseeing the fact that they do get entry in an appropriate fashion and to advise them and so forth and to be available and as I said, luckily or not, I guess its going to be me because if anybody has learn about it, I’ve learned about it.

Untanscribable cross talk

Faith G: We appreciate it.

Dr. Joas: I know that…. 375

Maria I: When you say the need clarification are you, when you present this (background noise) to whatever, are you just in general saying that legislative clean up needs to happen or are you giving details?

Dr. J: Hopefully, we will be far enough along in the process so that will be able to say that we feel that this legislation is deficient in the following areas which should be thought about.

Maria I: Because opening the… little suggestion we have about …………… I certainly wouldn’t want to see any cleanup happening that ………….so I think that everybody……….

Dr. J: I think we have to go through the legislation, look at it and say I want all of that to stay, I’d trade this off from that or if I was going to do it I’d add this and subtract that OR I’d leave it all alone and add the following.

Maria I: So you’d make the recommendation ………….may or may not …….may not need anything

Another Woman’ Voice: That seems much more practical to me rather than going through this ———– and saying what we think it should say or go that when you propose clarification then you ———and we can comment on them. Wouldn’t that be more expedient?

Maria I: What I have really appreciated in working with this committee is the checks and balances that are deciding what we think should be in regulation and we send it out and it comes back and we have a committee meeting and if there’s any changes, even simple wording changes, we send it out and them it goes back so I think that it feels a little panic-y all of a sudden to hear you say that you are going to write up all this cleanup stuff and we aren’t going to hear about it. 439

Dr. J: When I say cleanup stuff, the stuff that I’m thinking about is the issues that are the most contentious and we have to ask for cleanup If understand it correctly, is that we go back and say this is where we’ve gotten to in the implementation of this bill. We’re uncomfortable with the following areas and need some help in determining how this could be better followed up on and here are some of our ideas. (untranslatable 1-2 words) OK? So that when we have gone through the supervision, and I’ll use that as the issue. We’ve gone through somebody looking over your shoulder to somebody being written down on a piece of paper to a contractual relationship and so forth. And again, you have to accept of faith that what we’re going to present is going to be reasonably acceptable to you. Now it may not be and again that’s what the sausage view is all about. 476

Joan Hall: I just want to ask for a clarification (conversation about whether or not Dr. Joas was intending to recommend cleanup legislation to determine what underwriting guidelines will be for malpractice to which Dr. Joas says (at 507 “no, we don’t have any authority to do that”.) 509

Joan Hall: Well I think they might object a little. As you well know, the conditions for granting malpractice coverage, you know they have you sign away everything, I mean they tell you exactly what your relationship is and certainly anyone who is with a certified nurse midwives has probably looked at some of the agreements they have to sign with physicians in order to be able to practice in relationship, they have to get coverage, including what the hospital requires and all that.

Dr. Joas: The point I was making earlier is that I think physicians have dropped the ball and allowed insurance companies and dictate what will and won’t be covered. For example, you can’t do lipo-suction in your office even if your trained to do that, I’m a member of this (professional) society, I took it in my residency, etc., etc., I’ve done this many cases, well you can’t do it. This is an arbitrary sort of thing that they’ve written into their underwriting regulations because they have had a couple of bad experiences with a couple of people that they allowed to do that that weren’t following their rules.

Joan Hall: Its not that you can’t do it, its just that they’re not covered.

Dr. Joas: That’s right, excuse me, your right. But that were is see the ball being dropped by the medical profession. The medical profession should write the rules, go to the insurance company and say “This is what we’ll accept, take it or leave it. If you want to write us fine, if you don’t want to write us, get out of the state.”

Joan Hall: Or you will find somebody that will.

Dr. Joas. Yes, or we will create our own company, like we did, as we did or like our group did, self-insure.

Maria I: My concern is what is going to happen to the midwives who can’t get the written supervision. Many, many physicians don’t want written supervision. The midwives can document it, that documentation of it should be enough. It seems like its taking away the possibility of your clients getting their own backup, which is what my practice does, each client gets her own backup. But if a physician can’t back up the client, if they’re backing up the midwife… it could it be more open…

Dr. Joas: How would you make it more open?

Maria I: I think the work “written” is the problem.

Dr. Joas: Written? Explain what you mean?

Maria I: I’m not quite sure but what is going to happen to the midwife who is not able to get a written agreement?

Dr. Joas: But I was under the impression that you had some kind of agreement with a client, do you not?

Maria I: Yes, but I’m not sure that every midwife does or that its available in every community.

585 crosstalk 589

Dr. Joas: My personal feeling is that is something that is, in fact, accomplished, OK?.

Woman’s Voice: But I think what she’s trying to say is that she thinks she should not have to have a piece of paper with the midwife’s signature and the doctor’s signature,

Dr. Joas: (talkover) I didn’t say that, I didn’t say that.

Woman’s Voice continues: that she could have an understanding with the client who goes to the doctor and says I’m planning a homebirth will you back me up and the client comes and says my doctor has agreed to do this.

Dr. Joas: I’m saying that I agree with that, but the name of that doctor has to be on that piece of paper. I don’t care if he signs it or not but he has to be identified for documentation.

Women’s Voice: Was she saying that this is a physician that the client would choose, that would be acceptable?


Dr. Joas: I don’t care who it is as long as he willing to accept the responsibility and I have come a long way on that particular point.

Woman’ Voice: That written agreement could be between the doctor and the patient, “I’m going to back you up, give this to your midwife” or does it have to be signed ……..?…

Dr. Joas: (long lead in) Lets go back and repeat what I said. When you make an agreement with a client that you will provide services for a delivery and so forth and so on, she signs that agreement if I understand what midwives do, is that correct? (Affirmative group response). On that particular form, it will be ascribed “and doctor so & so will be available in case of an emergency, doctor so&so and or his/her group. OK, that’s my compromise. And that is my recommendation. Whether that flies or not, I have no idea. It identifies an other responsible party who will be available in case of an emergency and or a group who will be available. 637

Diane Holtz: Would it be good enough to have, say a midwife is in a community where there isn’t any backup, to have something written in the chart that says (noise — hospital) backup because if you don’t have physician backup, if you have a problem your going to the hospital and if its an emergency they’re going to care for that women.

Affirmative sounds from Dr. Joas

Joan Hall: One of the other issues with respect to a client going in and arranging with a physician for the physician to be the backup, the relationship, the supervisory relationship, is between the physician and the midwife, not the physician and the client so that doesn’t work. It has to be some interaction, contact, you know and you determine what level of contact is necessary in order to meet the provisions of the bill but the relationship is between the physician and the midwife.

Women’s Voice: This is something that we have discussed before

Dr. Joas: Lets stop it right here and save it for this afternoon…

Untranscribed portion about accreditation of midwifery programs


Side two — from original cassette


Joan Hall: Actually, we think that the Seattle Midwifery Program is an Excellent program. We’ve reviewed it and actually think that its kind of the gold standard in midwifery programs. We reserve the right to comment on the schools of naturopathy, we haven’t reviewed their curriculums yet.

(aside conversation by Dr. Joas — I wouldn’t bother, we are going to throw them out)

Joan’s comments on National versus state by state accreditation and opinion of the CMA that national standards are better because of uniformity.


1/2+ through second side, conversation between Dr.Leon Schimmel, MD of Davis (Tosi Marcelene’s backup) and Judge Cologne regarding the interplay of the statutorily mandated supervision, written supervisory agreements and the concerns of the malpractice carriers.

mc# 000, recored half way thru original cassette

Judge Cologne (after discussing the change he is asking for in the proposed supervisory agreement): I hesitate to bring this up because I know everybody is going to scream and cry about this because they have before. The second point is that our companies … (untranscribed )090

Judge Cologne: There must be something the doctor signs that says I know I’m supervising this person. We not talking about the back up doctor, I’m only talking about the one who is taking on the role of supervisor. That’s a very significant legal issue here, because if your a supervisor, you have vicarious liability and your going to want insurance. If your a backup doctor and just taking the case that’s presented to you as an emergency, that’s not a supervisorial role. You may have some liability but every obstetrician has that. What were concerned about is the vicarious liability that a doctor assumes when the doctor takes on this special relationship as supervisor. The two point, we like everything about that if you’d just change these, make those two points clear. One, is when the agreement has to take place and two, the agreement should be signed by the doctor, I’m not talking about a contract and talking about their agreement, what they each undertake to do.

Dr. Schimmel: And if that were in place, insurance companies would cover physicians who enter into those agreements?

Much group laughter 134

Judge Cologne: Let me tell you I have that word but there are a lots of “ifs” in there. First of all, can the midwife and the doctor afford the premium, we don’t know what the premium is right now, we don’t know what the board of directors is going to do but were trying to spell out something right now that will be acceptable to the insurance industry. Whether NOR-CAL does it, or SKIPPY does it or MIUC or the Doctors Company does it will depend on what their board of directors decides but were trying to get these people a basis that we think the insurance industry will accept.

Interrupted by a question and Dr. Joas who says “Just a second, let him respond”:

Dr. Schimel: Obviously, the simplest is something we can’t do because we have a legal restraint of requiring the word “supervisorial” so we can’t turn the clock back at this time in relation to implementation of this bill which would be simpler if we didn’t have that and it would eliminate the vicarious liability. There is a nice summery article that I think was distributed to some people by Susan Jenkins who helps separate that out. But we’re at a place were we need to deal with this. And I think that if the insurance companies will, I think its one thing to say “Well if you have this language, that’s a move, that’s a good step”. That’s different than saying we’re still going to tack on a $50,000 per years surcharge for the vicarious liability which prices it out of anybody’s functioning under it.

Judge Cologne: I can’t

Dr. Schimel: I understand you can’t guarantee it but I think as representatives of the industry, we need to have some reassurance as we’re trying to implement this bill that there’s some good faith, I mean we need that as well as we need good faith from everybody else in this room about how we’re going to work. 200

Judge Cologne: At the last meeting we brought the people from NORCAL here who indicated that they wanted to make something work. The two ladies that were here were in charge of underwriting and they were in charge of the legal affairs of NOCAL industry and they want to make this work And they are studying it and I think that message came across to everyone at the last meeting, I’m not sure, but nobody can guarantee anything at this point but we trying to make it work.

Dr. S: Well, I understand that, I understand that you have to go in a step-wise fashion but at the same time I think it would be only a natural process as I understand it — this is my fist meeting — you have to have reasonably good faith to move in that direction. And if its not OK to agree to changing the… language of “B” if at the end there are 2 or 3 other major blocks in the system after we all leave the room.

J. C: Let me tell you about one major block and this is something I think everybody here can understand. If you have 3 people come in and ask for insurance, the premium will be so high. If you have 200 people come in and ask for insurance, the premium will be a lot less because these people who request insurance have to spread the loss between all the poeple who are asking for insurance. So the number of applicants is going to be a guiding factor. Now I don’t know how many people are going to have a license to practice midwifery in California. But I can tell you the presence of the people from the insurance industry here today and I can tell you I have good faith, now I don’t know what’s going on in the board of directors meetings. Now I know the attorney that represents NORCAL and the underwriting chief were here last time and expressed their willingness to make this thing work if it can. But there are a lot of obstacles which nobody can address at this point.

Dr. S: I mean I understand that, I would just say that if the vicarious liability charge, what ever that is determined to be, is based upon volume as opposed to any level of actuarial experience, I would say that historically, as they have done in the District of Columbia, and Susan Jenkins was a big part of that case, all the exposure is already calculated in the obstetrical premium, having nothing to do with additional expense to an insurance company for working with a midwife, certified or now, becoming licensed in this system that I would say, from what I understand about this system, that there wouldn’t be any need for a surcharge.

J.C: Well there is a surcharge for a nurse midwife.

Dr. S: I understand that and I have just explained why the District of Columbia insurance commissioner stated there was no actuarial basis for it, you see what I mean. That hasn’t been accomplished in this state.

J.C: (talkover) That may occur in this state.

Dr. S (continues): ……actuarially, there is no data to support a surcharge, I don’t want to argue that except it has come up in this regards. I wouldn’t have trouble with how you change the language. There may be other people in this room who would but your not alluding to the other part which is that we have practice guide lines in our practice, with midwives or without midwives. We have 3 doctors and 3 nurse-practitioners and no midwives and no midwives and we work in the hospital with an OB service we have policies and procedures.

J.C: So you sign any of those things?

Dr. S: Absolutely,

J.C: and you have no trouble with signing an agreement?

Dr. S: No, and I’m saying that I think you have to an agreement, I think you have to all agree. 317


Dr. S: I will not agree to be a co-supervisor-backup doc because I have to tell you frankly, I’m more comfortable in communicating the model and the care that I’m going to supervise as backup for a midwife than involving doctors I don’t know.

Dr Joas makes a commnet that we can’t make insurance reform out of this leglation.377

Tonya Brooks: I don’t mind if they are uncomfortable because if they don’t come up with some insurance reform or relief the midwives will not be able to get doctor backup agreements and midwifery and homebirth will dive underground and if that’s what you guys want, you want to make it so hard that no doctor will back me up because he’s going to have to pay a 50,000 dollar a year surcharge or whatever, and I can’t get one (supervisor) so I take my practice underground and so does everyone else. Is that what your after, do you think that serves that the vested interests?

Dr. Joas: Wait a minute, I thought we went around and said if it come to that, it comes to that, OK? that’s the way that I see it happening. I go back to my opening statement of this morning — if you like sausage, OK, then perhaps the legislative route is not the appropriate route for …?… reform. 408

Tonya B: If you want me to practice within the law and the state now requires me to have a license, then give me regulations that allow me practice with that license. If you write a regulation that I can’t live with or get doctor backup, then I can’t do it. And not only that, your not willing to go out and do home births, neither is Anita, neither is Linda, so unless you guys want to go out and deliver all those babies at home, them give us something that we can live with. I’m saying that your choice of writing the regulation, the medical board —–?——, but we’ve got to live with them. This really comes down to the fact that Maria and I and —–?—– and others are out there in the field putting our lives and families on the line to deliver babies.

Dr. Joas: Tonya, Tonya, your arguing emotionally…

Tonya B: No I’m not, I’m arguing logically, because I’m out in the field.

Dr. Joas: All right fine, then your going to have to tell me specifically within the language of the law what exactly you want to do, within the language of the law — wait, wait a minute — within the language of the law that we are going to take to the Medical Board and cram it down their throat and say you take it this way because its the way that Tonya wants it.

Tony B. Well your saying that’s the way AMA wants it or the CMA wants it…….

excited cross talk

Dr. Joas: I’m not collapsing to anybody, I’m working and trying to make some sense out of everything and you know that…

Tonya B: And I think that you, this time your fighting with me is really not necessary because the point it this really comes down to is that all that all of us want is a regulation that we can actually follow. In other words, we don’t want you to re-write the regulations in such a way that no one will back us up, so that we cannot comply with the law. That’s all we asking for, no more no less. I don’t mean to me mean to you. I want doctors to be able to get malpractice, I don’t want them to be denying malpractice because they are not —?—- home births practice and they want to back me up. I don’t want them to be charged a $50,000 a year surcharge that they can’t afford so I can’t get back up because that puts me in violation of the law and what it really boils down to is that it puts our patients at risk and we’re here because of our patients, I mean we not here because we love this. 467

general laughter

Anita S: What we tried to do Tonya is come up with a regulation that does the least possible destruction to the relationship. Taking in to consideration some of those things that the insurance company said and Maria suggestions, I wonder if we could —–?—- a couple of problems by making two changes. At the beginning of the introductory paragraph, (long detailed recounting of possible new wording)

600– Judge Cologne: (discussing malpractice insurance) We’ve not doing this to impede anybody, what were doing this for is to protect the doctor, so that he know whether he’s got a supervisorial relationship or not. If he knows that he’s got it, we don’t care how its acknowledged but we want him to be aware. What we don’t want is for the doctor to be caught off guard and thinking he’s just a backup doctor and he’s going to treat the patient in the hospital if its needed when the nurse (mis-statement) midwife thinks that he’s a supervisor. All we want is a clear understanding. Oral may be a clear understanding but you can’t prove them. Written agreement is easy to prove. We’re not talking about a contract, what were talking about is an understanding between the two parties as to what they intend to do.

Shannon Leahy: Would you explain to me the difference between a contract and a signed, written agreement? I don’t understand the difference between them.

Dr. Joas: Now wait a minute, let me jump in here and what he talked about when he talked about protocols, to me, that’s not a contract.

Shannon L: OK, but that not what we’re talking about.

J.C: Oh no, no. A contract says “I agree to do this for a certain price and I will take care of this” but an agreement says that you will follow these guidelines it doesn’t have any penalty at all. It says “And I will supervise your work”. Its just an understanding between the two parties, there may not be any penalty at all.

Shannon: She’s shaking her head..

Woman’s Voice: I think that a contract. If there’s a ———- enforce that says “I agree to be your supervisor and in return you follow ” ………..lots of cross talk

Judge Cologne: All we’re asking is what ever the agreement is between them, I mean we don’t care what you spell out in the agreement, whatever your agreement is, put it in writing. We’re not spelling out any terms. 646

Dr. Joas: Lets get back to the issue of the guideline and lets talk about drawing up good medical care, OK?, so all were doing is we’re reaching an agreement by two parties that says “This is what we are going to do and this is how its going to work and if I get into trouble I can call on you”. OK? That’s, to me, an opener. I’m not going to look at it as a contract. Now maybe a good attorney can say that’s a contract, it looks like a contract, walks like a contract, talks like a contract, its got to be a contract. I don’t care. I’m willing then, under those circumstances and I’d hope that some physicians anyhow, are not constantly looking over there shoulders, to see which attorney is going to tap them on the shoulder and say “OK, your my next victim”, because that’s not the way I practice, I don’t practice in defensive fashion, I do what I think is best for the patient under all circumstances.

Comments from several different voices in group: Its very rare. Its rare… its very rare….

Dr. Joas: Well that the way I practice for 30 years and will continue to practice until I die.

More comments: That’s very rare….673 Crosstalk

Dr. Joas: OK, but I put in a pool with 149 other guys who I really don’t know, on faith, on faith and put it in a pool on the faith that my colleges were smart enough and as wise as I was to look and say these guys are good guys and they will follow these guidelines and if not, their hands will be slapped. And believe me we have slapped hands and thrown people out who don’t follow all the rule and regulations. So we have tight quality control.

Woman’s Voice: That can’t happen in obstetrics

Dr. Joas: Why can’t it happen?

Same Woman’ Voice: Then why do we have doctors with 50% cesarean section rate for low risk clients? Their hands should be slapped and they should be thrown out or retrained or something but not everybody practices to your standards, I wish that they did.

Dr. Joas: Now wait a minute, that’s something that his organization (referring to Dr. Schimmel) , that something that you look at from the outside, and that something that his organization has to do. That something that he, if I hear him and look at him correctly, and unless he has really seduced me and I don’t think he has, I think he has convinced me that there are some good statistics and that at many meeting he gets up and he argues and he gets booed constantly at those meeting but I bet he still gets up and argues those numbers at the the meeting and he maybe makes one convert at every meeting OK? and in that process, and again, that’s the flip side of the sausage making process, is persuasion, if you make the case enough times and enough times and enough times, you will win a few converts, it doesn’t happen over night. And that’s where we are and that’s what everybody wants to happen. We’ve got the legislation…..714….end of tape two, side b

Tape 3-side A, 4 units forward (about 60%)

Anita Scuri: This may seem like a dumb question but if insurance policies can require doctors to comply with certain things why couldn’t they require that if they enter into a relationship with somebody like a midwife, that somehow it be in writing, why couldn’t it be a part of the policy?

Nancy Chavez: That was the whole argument, that was the whole argument in the legislature, that’s why written agreements were rejected, because they could do it on their own.

on-going crosstalk

Judge Cologne: (…missed dialogue due to crosstalk) using this example Anita the doctor doesn’t know, the doctor doesn’t know, the doctor believes he is not the supervisor, but the lay midwife believes he’s the supervisor

Anita S: well then that becomes an issue of fact and an issue of …?………

J.C.: And we have to defend that doctor in court and if it turns out that he was not a supervisor, that he honestly believed it, we’re dependent on the decision the jury makes. The jury say “yes, doctor, you were a supervisor” and what do you think the jury is going to do when they see a lay midwife on one side of the table and a doctor on the other side of the table? That’s what we’re faced with, is that cost of defense of that doctor. If the doctor is really doing it wrong, if he’s really a supervisor, we will defend him to the extent he has vicarious liability {coverage}. If he is not …(crosstalk) we have to pay defend him anyway. All we want is to where the doctor stands at the beginning. and we don’t know that unless we hear from them (midwives). If they’ll tell us that the doctor is their supervisor when they first start out and get the doctor to agree to it we have no problem.

Janice Kalman: My question is where does the feasibility lie in implementing this legislation? I mean, at a certain point, the legislature has made the decision that homebirth providers are going to be regulated in this state to protect the interest of consumers. And that’s the job of this committee regardless of liability risk…(coughing)..people want to have their babies at home. Is the state going to provide competent people who have committed to some standard, who have the ability to work with doctors, and doctors who have the ability to work with midwives, in the interest of consumer safety or not. And at a certain point when were hammering out what this language has to look like, if its not going to be possible for me and all my colleagues to go home and enter into an agreement that going to work for physicians in our community, and for me to work in our community, we’re not going to be able to give consumer of home birth access to midwifery care. And so however it goes, that’s the bottom line.

Dr. Joas: Again, I’m going to go back to what I said early this morning, the legislative route may not have been the most appropriate route to take for you to get what you thought you were going to get because of all of the hurtles you have go over to get there from here. And that’s how I see it. I mean, I share your concern, I’ve done as much as I possible can. I don’t agree with every thing that you say and everything you do, I’ve really pushed my personal scientific bias a long way to come to a meeting of your minds. I’ve got to take this and sell it my colleagues who are traditional physicians who have a built in scientific bias and say its got to be it black or its white. And that’s a difficult sales pitch for me, as a person.

Nancy Chavez: Anita, in her last comment just sort of reminded me of really major argument that was made against written agreements in the legislature, mainly because the request was coming from the insurance industry for a written agreement and the response by some of the members on the committee was “you can do that without a law saying you have to have written agreements, any insurance policy could require that and nobody could stop them from doing that so why come to the legislature and ask them to put it in the law”. And so, you know, maybe that follows here, maybe you should consider that argument here, you know, why put it in the regulation when they can do it anyway.

Anita S: Was it ever in the bill?

Nancy S: No

Anita S: It never made it that far?..

Nancy C: No, it was voted on and defeated three times — that amendment.

Anita S. OK, That’s gives some indication of legislative intent.

Woman’s Voice: It was suggested and then defeated, but never made it into the bill?

Nancy C: Right. The second thing I was going to say, since we keep talking about the problem in the bill with supervision, since that seems to be the problem, that nobody can control here, ummm, if it were a consultative relationship in the law, would none of this discussion have to take place?

Anita S: That’s correct

Nancy C: If there weren’t a supervisorial relationship, there wouldn’t be any need for written agreements?

Others: That’s right

Anita S: Correct


Dr. Schimmel: But would the law been passed that way?

Nancy C: No

Dr. Schimmel: So its a circle

Nancy C: But you know, before the discussions happen, you need these laws for people to come out of the woodwork and talk about it. And so I think that no matter what happens out of this, I mean I tend to be sort of optimistic most of the time, but I’m not out there practicing in the field, but it seems to me that its all really productive, you come together and talk about these things and identify what the problems are and maybe move on solving them.

Dr. Joas: That why I have continued to push forward and forward and forward and get stuff written down and written down, and show progress so that eventually, perhaps, maybe not the first time around, maybe not the second time around, but eventually the practice situation in the community is going to change and people are going to be more liberal in there response and maybe somebody will come up with the right argument and so the board will change. Those are all part, again as I see it, part of the political and legislative process and that the name of the ballgame. And I’m not a politician….

Tony Arjil: (Questions about the two items that are being proposed for a change

Linda Whitney: (Brief comment to Anita about 15 day time period to send official notices of hearing)

Anita S: …the question is the addition of those two words and I think Dr. Joas, from the ?? point of view of the regulation itself, if somebody comes in and stands up and says this was tried to be put in 3 times and not accepted as an amendment and your not being consistent with the intent of the law and someone else comes in and stands up and says this is suppose to be, as we have heard many times from CMA representatives, parallel to nurse midwife program and they do not have a written agreement and so you would have a very hard time justifying the necessity of adding those two words under those circumstances. It might be a decision you want to let the physician make rather than make yourself.

Dr. Joas: I guess what I’m trying to do is I’m trying to get something to present to the Division that I think is going to fly and that’s where I’m coming from.

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