SYNOPTIC OVERVIEW & Conclusions:
(click here for original document of
11 pages)
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 each healthcare
professional's scope of practice.
These
principles have served many doctors and midwives well for many years.
Official medical board guidelines must preserve the ability of
midwives to shield physicians from unnatural liability.
For example, the
concept of "distinct calling" protects a hospital from being held
liable for the actions of non-employee physicians as it is the
"distinct calling" of the institution is to provide an
appropriately-maintained physical building and trained hospital staffed --
it is not to, either directly or indirectly, “practice medicine” itself
in the legal sense of the term. 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.
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 in workers compensation cases and as the Internal Revenue Service.
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 other legal principle 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, each one is an independent contractor providing the benefits of
their "distinct calling" to the same client, depending on the
needs and the situation. Liability through an agency relationship might
apply to certain group medical practices in which physicians contract with
nurse midwives to perform hospital deliveries as agents of that group
practice. The quality of midwife-as-agent could be created by the physicians
via a contract that limited the form of care able to be provided by the
nurse midwives and/or required the CNMs to function as physician surrogates
through protocols demanding medical (rather than midwifery) interventions.
For example, application of midwifery principles would call for stimulating
a slow labor by getting the mother out of bed to walk or shower whereas medical
management would demand the use of IV oxytocin infusion and being
confined to be with continuous electron fetal monitoring. If the nurse
midwives were prohibited from using midwifery management or required to use
medical management, that would no doubt constitute “agency” and its
vicarious liability for the physician.
“Close supervision”
versus “Distinct Calling”
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. 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 from both
nursing and from the practice of medicine.
Physicians, while trained, skilled and licensed to practice medicine,
are NOT themselves midwives nor are they trained or experienced in
midwifery, most especially as it has been traditionally practiced in a
domiciliary setting – free-standing birth centers and client homes.
To avoid incurring unnecessary liability, a physician would not (or
should 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 and may best be described as a
bio-social and preventative healthcare specialty 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 medically dependent functions by the CNM.
Supervision applies to 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 normally independent
contractors who provide ante, intra, postpartal and postnatal midwifery care
without "close" supervision.
The advantages to client families resulting from a dynamic interface
with modern medicine are only able to be provided when the professional
midwife enters into a contractual agreement with a physician who agrees to
provide MEDICAL (NOT midwifery) supervision. This expands the midwife's
professional authority to encompass the inter-dependent and
medically-dependent care which is only available to clients through a
medically collaborative process.
This
arrangement not only increases the quality of care to client families 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
In regard to modern-day relationships between physicians
and professional midwives, historical precedent reflected in Common Law has
been formally institutionalized through California legislation that
recognizes midwifery and medicine as two different and distinct entities.
The historical precedent of common law and statutory law together create the
"distinct calling" of midwifery.
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 is responsible for the
“torts” of the other.
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
misinformation. Secondly, it takes a shared goal
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 many doctors and midwives well for many years.
Official medical board guidelines must preserve the ability of
midwives to shield physicians from unnatural liability.
