California College of Midwives
3889 Middlefield Road
Palo Alto, CA 94303August 9, 1999
Division of Medical Quality
Medical Board of California
Department of Consumer Affairs
State of CaliforniaIn the Matter of the Accusation Against:
Alison Osborn, LM
No 1M-98-83794
OAH No. N-1999040052Amicus Brief - California College of Midwives on behalf of Alison Osborn, Licensed Midwife
The California College of Midwives represents the legal and legislative interests of California licensed midwives. Our membership is concerned by the accusations against licensed midwife Alison Osborn, both in relationship to fairness to Ms Osborn and also the impact these accusations, if validated, would have on the profession of midwifery. Were that to occur, the safety of mothers and babies who elect home-based midwifery care could be severely compromised. This would occur if the childbearing parents’ right to make medically unpopular decisions was indirectly eliminated by virtue of denying to the professional midwife the authority to provide services to families that decline standard medical advise, potentially forcing the parents into unwanted medical care or attempting a professionally unassisted labor and birth. Other concerns are the defining of midwifery practice and the competency of an individual midwife by non-midwives and the use of the physician supervisory clause, which cannot be complied with, to accuse midwives of unprofessional conduct.
The principle author of this document is a former labor and delivery room nurse (17 years), practiced for 15 years as a Mennonite midwife providing home-based maternity care under the Religious Exemptions clause and has been practicing under California licensure since 1997. She was identified as well qualified to be an expert reviewer for the midwifery licensing program by the MBC in a letter dated August 21, 1998. [Copy attached]
1) Midwifery is not the practice of Medicine, therefore it is not appropriate for it’s practices or its practitioners to be judged by medical standards or medical practitioners. In the accusation against Midwife Alison Osborn the defining information has been elicited solely from medical experts. No expert review by the MBC has been solicited from licensed midwives.
No where in the statutory scheme is attendance at a normal birth defined to be a practice (either legal or illegal) of medicine.
2) The physician supervision clause of the midwifery practice act represents an insurmountable barrier to the practice of licensed, community-based, midwives.
(1) A seamless statutory definition of regulated midwifery since the original 1917 midwifery amendment has been that a certificate to practice midwifery does not entitle or authorize the holder to practice medicine or surgery. To appreciate the full impact of that statutorily distinction it will be helpful to examine the differences between the practice of Medicine, the practice of Midwifery and the relationship of each to the recognized rights of childbearing families in seeking out maternity services:
Rights and Responsibilities of Childbearing Parents in regard to health and welfare of themselves and their minor dependents:
No California statute mandates any form of care (medical or midwifery) during pregnancy, the intrapartum (labor and birth), the postpartum or the neonatal period. Were this not the case, the state of California would be financially obligated to pay for such care as is the case with compulsory schooling (verbal communication with Michael Krisman, former deputy director, California Department of Consumer Affairs)
Recognized parental rights and obligations include the determination of whether and when to utilized contraceptive methods, whether or when to seek out medical attention, whether or not to termination a healthy pregnancy, whether to "selectively terminate" some fetuses in a multiple pregnancy, whether to authorize medical procedures during the pregnancy such as genetic screening and inutero surgery, the right to abort or to decline to abort a pregnancy that resulted in a baby with genetic or congenital anomalies, to choose an elective cesareasn without any medical indications and decide whether to withdraw life support for an infant or child who appears to be in a hopeless or vegetative condition.
At first glance this appears to be too much authority invested in lay persons but the scope of responsibilities listed above are consistent with the other parental judgements and decisions necessary on a daily, hourly and even minute by minute basis such as deciding if or when to let a child walk to school, cross the street, ride a bike, to bath or stay home alone or be a caretaker for younger sibling -- all responsibilities with potentially fatal consequences.
Choices by parents in relationship to pregnancy, labor and birth fall into 6 lawful categories:
Unattended -- no law requires a pregnant women to seek out and receive prenatal care by either a professional midwife or physician or to follow the advise of such caregivers. A women may through accident or design give birth entirely alone.
Lay attended -- it is lawful for any lay person -- family member, friend, passing stranger -- to assist a woman during a normal birth (see Bowland v. Municipal Court [Santa Cruz] (1976); quote from Paul Siedel, Santa Clara County DA, San Jose Mercury, May 5, 1993). Nothing in the original midwifery statute (1917), the certified nurse practice act (1974) or the Licensed Midwifery Practice Act (1993) establishes an exclusive scope of midwifery practice or restricts the practice of midwifery to professionally-licensed midwives. Were this not the case, medical schools would have to teach their students the principles and practices of midwifery and offer the equivalent of midwifery certification so that physicians providing maternity care to healthy women with normal pregnancies (the traditional scope of practice of midwifery) would be in compliance with the midwifery law. So far the physician community has not elected to do this. In the mean time, childbearing women are not required to seek any form of antepartal, intrapartal or postpartal or postnatal care. Any lay person or any licensed physician can lawfully assist a women during normal birth. Only uncredentialed midwives not covered by B&P Code, Chapter 5, section 2063 are prohibited by the Bowland Decision from assisting a women during normal birth.
Religious Practitioner -- Under section 2063, midwifery care may be provided to parents asking for such care based on religious belief. Midwives providing care under section 2063 are not regulated by the state. There are no educational requirements and they do not need to function under physician supervision.
Professional Midwife-attended: The historical definition of midwifery is the non-medical care of healthy childbearing women and their babies during the normal events of pregnancy, physiological childbearing and the period of early parenting. It is predicated on the expectation of normalcy, a respect for and trust of physiological process, and a non-interventive style which depends on specific skills and social support for the spontaneous biology of birth.
Medicalized Midwifery in conjunction with a physician’s authorization (either standing orders or direct orders). For instance hospital-based midwives are authorized by standing orders from a physician to induce labor, give antibiotics and narcotics, authorize administration of epidural anesthesia, treat mothers with high blood pressure, etc. A community midwife could be authorized to give a mother with prolonged rupture of membranes IV antibiotics at home if a physician (either the mother’s or one the midwife had a professional relationship with) were to give direct or standing orders authorizing the midwife to do so.
Medical Care offered by a licensed physician which includes the entire spectrum of obstetrical services from simply "standing by" to the use of powerful drugs to stimulate the uterus and or control concurrent medical conditions such as high blood pressure or infection, narcotics for pain, and the use of instruments (forceps & vacuum extraction) and major abdominal surgery to remove the baby via Cesarean. Within the scope of "medical care" a physician may also authorize a professional midwife to act as his agent (principle-agency relationship).
The Practice of Medicine:
The authorized practice of medicine exclusive to licensed practitioners is statutorily defined as diagnosis and treatment of pathology, authorizing the use of drugs and ionizing radiation and the severing or penetration of human tissue beyond cutting the umbilical cord. Patients treated by doctors are generally ill, perhaps critically so, unconscious, anesthetized, may be minors, mentally incompetent or otherwise unable to understand the particulars of their medical condition and thus make reasoned decisions about the course of medical treatment. For this reason medical practitioners routinely take on the role of proxy decision makers, being authorized to use the "power tools" of allopathic medicine -- potent drugs, invasive and potentially dangerous diagnostic and surgical procedures -- on behalf of people who are the victims of an abnormal or pathological process and cannot give direct consent and for whom there are no other options other than premature death or disability. It is the necessity by physicians to take on proxy decision making that not infrequently leads to malpractice litigation when the outcome is unwelcomed by the patient.
The modern practice of medicine relies heavily on potent pharmaceuticals, invasive and potentially dangerous diagnostic procedures and surgery. One physician described drug treatment as giving the patient a different disease with preferable symptoms in an attempt to turn an acute disease process into a chronic one that the patient could more comfortably live with (or at least not die from). The more potent the pill or more dramatic the surgical procedure, the more it is like using power tools -- that is to say the greater potential for harm. [attachment #10 - "Fatal toxic reaction after single dose"] Consider for example that if you are using a hand saw and "slip", you may cut yourself very painfully and even need stitches. If you slip using a power saw, you may amputate a limb and bleed to death awaiting the ambulance. While power tools do the work quicker, they are also quicker to get out of hand and wreck more devastation for the same original "error". This is the "shadow side" of allopathic medicine and the reason that its practitioners must be highly trained, licensed and tightly regulated.
In addition to the authority vested in medical practitioners on behalf of gravely ill and injured persons, medical practice regulation also grants physicians the authority to pronounce the ultimate condition and time of death, to determine when or if to stop resuscitation procedures, to withdraw life support equipment, to make legal determinations of cause of death (natural, accidental or homicide) used in criminal prosecutions. Medical doctors routinely make critical determinations of all manner of insurance and workers compensation cases and to establish paternity and inheritance rights. Physicians are officially in charge of the public health policy and have obligations to the general welfare of society requiring the diagnosis and reporting of contagious diseases, ruling on public risk factors such as the need for quarantine of individuals or the mass immunization or prophylactic treatment (such as injections of gamma globulin) for the general public or designated segments of the population.
Last but not least is the role of medical practitioners in research and development of new medical treatments in academic institutions and the setting of public health policy through their appointment to governmental agencies and bodies.
Midwives do none of these things.
The Practice of Midwifery:
Midwifery in the modern era may be functionally defined as an ‘educated observer with emergency response capacity’. By a 3000 year tradition midwifery is non-medical occupation. Classically midwifery practice preceded the ability to use "artificial, forcible or mechanical means" (drugs, instruments & surgery). After the invention or development of childbirth related drugs, instruments and surgery, medical legislation made their use by midwives illegal. However, the historical scope of "normal" birth included all spontaneously progressing labors and babies in a longitudinal (i.e. ‘deliverable’) lie, either vertex (head down) or breech. From antiquity to approximately the 1970s midwifery training (formal or informal) included the techniques of normal breech delivery as well as emergency extraction in case of a complication. The ability to deliver a breech continues to be a crucial aspect of any birth-related training as a significant number of unplanned/emergency births present as breech. Every caregiver must know how to handle normal breech birth and emergency maneuvers to rescue a breech baby in a complicated presentation (such as nucal or extended arms).
The term 'midwifery' is correctly applied to the activities of all caregivers engaged in providing normal maternity services during the spontaneous events of physiological childbearing, regardless of the educational background or status of the practitioner. For instance, midwifery can be practiced by physicians. However, midwifery is not a practice of medicine but rather represents a separate discipline arising in response to the physical, psychological and social needs of healthy childbearing women and their newborns.
One way to appreciate the difference between the practice of medicine and midwifery is to consider the following: Appendixes, gallbladders and other ailing body parts NEVER take themselves out before the doctor arrives and performs the necessary surgery. However, babies very frequently take themselves out before the doctor or midwife arrives. Obviously the first constitutes the practice of medicine and the second, the practice of midwifery. This definition is to distinguish the maternity care of normal, healthy mothers -- including palliative treatment of minor deviations and the capacity for emergency-response by the practitioner -- from the hospital-based, high-technology practice of obstetrics which is a surgical specialty that addresses the diseases, dysfunction and disabilities of reproduction and fertility.
Spontaneous process -- the object of midwifery care -- is a common function of mammalian biology, one of those aspects of normal physiology that are neither voluntary OR involuntary. Examples are sleeping, sneezing, breathing, emptying the bladder, let-down reflex for breast milk and sexual function -- all things that you can consciously choose to disrupt or at least postpone but cannot command. Birth is in many ways like a slow-motion sneeze. You can’t make it happen on purpose. Likewise, when you get to that just right place, you can’t stop it either. For instance, if you try to stifle a sneeze, it still happens but feels weird and unsatisfying. In extreme cases, normal physiology can become pathological through conscious or unconscious interference.
Midwifery care focuses on the childbearing woman as a whole person with social, mental, and emotional aspects of her personality that need to be taken into account. Childbearing (both labor and birth) is an emotional as well as a physical experience. Predictably childbearing women require (or at least benefit from) actual physical and psychological privacy. Emotional tone and content matters a lot to laboring women. These non-physical aspects of personality bear greatly on how, when, where or even whether or not the mother-to-be will be able to labor spontaneously and give birth physiologically. If she can’t, obstetrical care and medical intervention will be necessary. The cumulative effect of the events of childbearing in combination with other influences extend into the mother-child relationship and can profoundly effect the quality and satisfaction in that central and important fact of day to day parenting. Problems within the mother-child relationship can trigger a cascade of difficulties that not only negatively effect the individuals and their family but also the stability of the community and greater societal goals. Therefore, events that contribute to the fracturing of the mother- father- baby bond are to be avoided and those that protect and promote it are to be pursued and supported by society.
Midwifery as a non-interventionist form of maternity care is more than just the absence of medical intervention. It also describes the art and science of the midwifery model of care which recognizes that the best labor and birth-related outcomes in a healthy population are associated with a very specific set of circumstances (given the voluntary co-operation of the mother and her willingness to forgo or limit narcotics and anesthesia).
These specific circumstances are:
(a) an environment that provides for appropriate emotional and actual privacy to the mother while also permitting non-intrusive surveillance of maternal-fetal vital signs and the continuous presence of a skilled observer;
(b) providing appropriate emotional and social support throughout labor by someone trained and skilled in midwifery principles who is known and trusted by the mother;
(c) maternal mobility during labor, oral hydration and non-Rx comfort measures used or available (such as therapeutic touch, shower, deep water, etc);
(d) upright and mobile posture for second stage without artificially imposed time limits;
(e) recognition of a perineal stage -- last few minutes of 2nd stage during which the baby stretches the perineum and is born spontaneously without surgical intervention -- (no routine episiotomy, forceps or vacuum extraction)
(f) importance of the quality and quantity of mother-baby interaction immediately following birth, establishment of breastfeeding and the process of parental bonding.
Safety Issue for low to moderate risk mothers as contrasted between hospital-based obstetrical treatment and domiciliary midwifery services (non-interventionist care in non-medical locations including family residence and free-standing birth centers):
According to many different historical and contemporary sources of research, scientific evidence and vital statistics, non-interventionist midwifery care is safe for low and moderate risk categories of both mothers and babies, resulting in a slightly (thought not statistically significant) lower rate of perinatal mortality and morbidity and a significant reduction (2 to 10 times) in the rate of obstetrical interventions including induction and augmentation of labor, use of narcotics and epidural anesthesia, episiotomy, forceps vacuum extraction, cesarean section and admission of the neonate to the NICU. [see attached article - Cost effectiveness of Home Birth - Anderson et al] A recently published research by a Stanford Ph.D. candidate (March 1999) examined a statistical pool of one million California births, utilizing both birth certificate data and the computer generated discharge data for mothers and babies developed during the RAND maternal infant study.
Using both indirect standardization and logical regression, this research established that healthy women who elect to give birth in an out-of-hospital setting will experience a slightly lower perinatal mortality than low risk women who opt for a hospital birth under the management of an obstetrician, including the unfavorable result of transfers from home to hospital. The data also suggests that even for the high-risk arm of the study, the non-interventionist approach produces the same perinatal outcomes.
"...Analyses of the California data for 1989 and 1990 do not support the claim by the obstetric profession that for the large majority of low-risk women hospital birth is "safer" with respect to perinatal mortality. Given no differences in perinatal mortality it must be noted that the natural [i.e. non-interventionist] approach show significant advantages with respect to lower maternity care cost as well as reduced mortality and morbidity from unnecessary cesareans and other obstetric interventions, and significant benefits from avoiding negative long-term consequences from unnecessary obstetric interventions and procedures. These advantages of the [non-interventionist] approach are of such a large order of magnitude as to raise serious doubts concerning the appropriateness of conventional "obstetric" treatment for low-risk childbirth" [Stanford Ph.D. thesis "Safety of Alternative Approaches to Childbirth" by Peter Schlenzka, March 1999].
Normal Birth as defined by the California
Licensed Midwifery Practice Act of 1993Normal Birth is not specifically defined by the Licensed Midwives Practice Act of 1993. However, it is defined in the inverse -- abnormal birth is functionally identified as parturition (i.e. intrapartum period) in which there is a need to use "artificial, forcible or mechanical means", which is specifically prohibited to the midwife by the statute. In addition, the use of "artificial, forcible and mechanical means" is defined by other sections of Chapter five of the Business and Profession Code as the unauthorized practice of medicine.
This definition is one of the oldest and most traditional in the history of midwifery regulation, having been chosen by the framers of one of the first midwifery laws ever written in the US -- a statue for the city of Rochester, NY passed in 1896. It was then adopted by the California legislature word for word in the original Section 2505 (1917) midwifery statue in an amendment to the 1913 Medical Practice Act. The 1974 nurse-midwifery statue regulating the practice of nurse midwives reiterated the same text with a few minor changes. Last but not least, this identical language was chosen as the definition of the scope of practice of direct-entry midwives in the Licensed Midwives Practice Act of 1993.
To better understand the intent of our contemporary statute which focuses on abnormal (or medicalized) birth, it is useful to recount the history of obstetrical interventions as used in the late 19th and early 20th century when this wording was first adopted to legally define the difference between the scope of practice for midwives and that of physicians (i.e., the practice of medicine) during that era. Medical methods of the period used to artificially stimulate labor were usually mechanical means or devices including intrauterine injections of hot and cold water, glycerin, milk, ergot, electricity and x-rays. The most popular method at the turn of the century was a series of "bougies" -- inflatable balloons on the end of a long rubber catheter. These devices were forced through the undialated cervix and then filled with increasing amounts of water or air to mechanically pry the cervix open. Debilitating and even fatal infections were a frequent side effect of these invasive maneuvers which was one reason their use was restricted to medically-licensed practitioners.
Physical means employed by doctors to force the delivery of the baby included binding of the mother’s abdomen tightly to jam the baby down into the pelvis, fundal pressure applied during delivery to extend the baby’s head (or deliver the shoulders) and the obstetrical maneuver known as "podalic version and extraction", in which a practitioner inserts a gloved hand high up into the uterus by first pushing the baby’s head up out of the pelvis and then grasping the baby’s feet and working the baby around until the it can be pulled out by the ankles as a footling breech. The use of artificial, forcible and mechanical means such as these frequently resulted in maternal and infant death from birth trauma. It was not until the discovery of safe oxytocic drugs, which is very recent -- 1953 -- that the use of such dangerous and even lethal force was replaced by the relative safety of oxytocic drugs, which are now only given intravenously to hospitalized patients who are being electronically monitored.
In contemporary times, the term 'artificial means' as used in the 1993 statute would prohibits the use of formulary drugs, such as oxytocin (Pitocin), that stimulate uterine activity, ‘forcible means' would prohibit the manual prying open of the undialated cervix , wrapping the mother’s abdomen with tight bands to force the baby down into the pelvis, the routine use of fundal pressure during delivery or the use of podalic version. The prohibition on the use of 'mechanical means' would prevent midwives from performing forceps deliveries or using vacuum extraction devices.
The statutory definition does not focus on defining normalcy by specific characteristics of pregnancy, maternal health, pelvic dimensions, estimated fetal weight or fetal position. One reason for this is that the medical definition of "normal" birth is commonly applied only in retrospect -- that is, after the birth when one is reflecting on whether or not it was necessary to employ "artificial, forcible or mechanical means" and whether the labor and delivery was characterized by serious medical complications for either mother or baby.
Historically, midwives have been trained to attend all spontaneous labors in healthy mothers in which vaginal birth was expected to be successful -- including babies in a vertex position, breeches and twins (reference -- 1917 version of 2505, 1962 edition of the English Midwife’s Code and the 1997 protocols for the College of Midwives, British Columbia). The last 2 decades has seen an experimental medical protocol imposed on breech and twin pregnancies in an attempt to improve perinatal outcomes by performing routine Cesarean surgery in these cases. According to many published studies, Cesarean surgery does not improve outcomes for the baby while it does significantly increase maternal morbidity, including emergency hysterectomy for hemorrhage caused by operative accidents (for example, nicked uterine artery). [Collea JV et al, The Randomized management of term frank breech presentation: a case study of 208 cases, Am J Obstet Gynecol 1980; 137 (2) : 235-244]
Statutory modifiers to the scope of practice as established by the LMPA
Emergency Exemption Clause -- one well-recognized legal modifier to the statutory scope of practice in California is the emergency provision of the MPA (B&P Code, Ch.5, section 2063). Under emergency conditions when the care of a physician is unavailable, any citizen, including a licensed midwife, is authorized to do that which is necessary and within the ability of the individual to save a life, prevent serious injury or permanent damage. This does not generally extend to the performance of major surgery such as Cesarean section or the use of forceps. The emergency clause does not in any way affect the normal scope of practice of midwives as applied to routine or normal care.
Religious Exemptions Clause (B&P Code, Ch. 5, section 2063) -- another recognized modifier of the scope of practice is the religious exemptions clause. This prohibits the Medical Practices Act from being used in any way that interferes with the practice of religion. Families requesting care under the Rel Ex Clause lawfully may decline and caregiver may lawfully accede to their declinations for all routine medical procedures relevant to pregnancy and birth care. The Christian Scientist Church provides its members with official forms for declining all prenatal blood work and other diagnostic and therapeutic interventions.
The linguistic problem inherent in the word "Birth" as used in the LMPA
The word ‘birth’, as used in the Rochester statute and all subsequent California statutes is a generic stand-in for the combined stages of gestation (antepartum) and parturition (1st, 2nd, and 4th stage of labor or the intrapartum), the immediate postpartum and postnatal period as it applies to the newborn baby. This can be confirmed by referring to the original (1917) version of section 2505 which delineates each of these stages (pregnancy, labor & delivery, postpartum and postnatal).
Legal and logical problems inherent in the word "normal" as used in the LMPA
Normal must be defined within a context and it also must be acknowledged that the idea of "normal has more than one valid context. For example, the most familiar context of "normal" is what is normally done by practitioners. However, that which is normally done may not actually be the safest or most desirable or most up to date. For instance, if most practitioners routinely (i.e., normally) failed to wash their hands after each patient encounter or the majority of practitioners still employed a practice that has been proven ineffectual or even harmful or has been supplanted by a better, safer method, it could be said to be "normally" done but would not be normal in the sense of a protected "normal" state. Since the fundamental purpose of the midwifery statutes is to protect the citizens of California from incompetent or negligent practices, we clearly would not want to elevate this familiar definition of "normal" into the equivalent of a standard for practice. There must be other factors to balance familiar interpretation.
Another pitfall to the concept of "normal" as defined by what practitioners normally do is that frequently the circumstances that call for definition are themselves atypical -- they represent a unique combination of factors that do not have a precedent in the experience of most midwives. This often cuts both ways -- it may be a series of things that individually would be considered normal but the aggregate results in a significantly increased risk that is clearly reducible by obstetrical care and hospitalization. Or it may be a series of things that are themselves not normal/typical but together result in a situation which is already at the lowest level of irreducible risk and could not be improved by medicalization.
A similar concern in defining normal is the experience, specialized training and level of expertise by the practitioner. A new graduate who is functioning at the entry-level should routinely define ‘normal’ very narrowly, restricting herself to very low risk mothers (pregnancy and parturition itself being recognized as a risk-factor), for instance, providing care only to multipara (mothers giving birth for a second or subsequent time). On the other hand, midwives who have been practicing for 10-20 years and have been trained in managing intrapartum situations that require advanced skills will reasonably define normal as situations which they "normally" handle and would include situations of moderate risk (i.e. "moderate risk" is the aggregate of the inherent risks of normal birth plus a "minor" medical problem or an identified or potential obstetrical or perinatal risk), assuming (as always) that full disclosure of all identified risks has been employed and adequate informed consent was given by the parents (or the parents requested care under the Rel Exemption Clause).
In light of the problems and inherent limitation in the above definition of normal as "what other practitioner are doing", the following definition of "normal birth" as used by various jurisdictions could properly function as guidelines for the practice of midwives licensed in the state of California. These principles are not inconsistent with the legislative intent and language of the LMPA of 1993 which as noted earlier does not actually mandate any specific definition:
Guidelines defining the term "normal birth" for licensed midwives practicing in domiciliary settings (locations other than a licensed medical facility) would have three characteristics.
First it would utilize the technical definition of "birth" that is consistent with other aspects of the current Midwifery Act and the historical version of section 2505 which is to say extending to all stages of "parturition" -- the intrapartum, postpartum and the immediate postnatal period including lactation.
Secondly, it would define/recognize that normal equates with natural (i.e., not artificially stimulated) spontaneous physiological processes which are characteristic of healthy reproductive biology of childbearing women and can reasonably be expected to lead to normal conclusions -- pregnancy naturally advancing to term with a live, growth-appropriate fetus, spontaneous labor leading to spontaneous live birth of a viable neonate and conservation of the health of the mother.
Third, it would define "normal" in relation to pregnancy, parturition, postpartum/postnatal and lactation as that level of risk which is naturally (‘normally") inherent and irreducible in the physiology (including psychological aspects which affect biological function) of each of these phases, stages and discrete events of normal/natural childbearing.
This functional definition would take into account the informed consent decisions made by the childbearing family. For instance, when the parents have chosen to forego or will not permit the use of medical or surgical interventions or treatments (for example under sec 2063) which might theoretically tip the scales toward medicalized care, then the inherent risks remain irreducible (i.e., would not be substantially changed or eliminated by physician and hospital care as such medical care has been refused by the parents) -- such as declining the use of antibiotics in the presence of prolonged rupture of membranes or when the estimated weight of the baby is above the average. In these circumstances, the care of the midwife would normally preserve the well-being of mother and baby at the highest level achievable and thus would fall within the realm of "normal" as defined through a risk-related standard.
General Guidelines for Licensed Midwife-managed Pregnancy & Parturition
It is also possible to offer general guidelines that historically have prevailed and which are also in accordance with contemporary definitions of "normal" as provided by the College of Midwives of British Columbia, Canada (which specifically addresses the practice of direct-entry midwives providing care in domiciliary settings), the World Health Organization’s Safe Motherhood publication entitled "Care in Normal Birth: A practical Guide" and the Dutch "Koosterman List".
The most simple and most generally accepted definition of "normal birth" (i.e., pregnancy and parturition) by midwives around the world has been applied to a healthy mother who is pregnant with a single fetus in a longitudinal lie (either vertex or breech) with spontaneous onset of labor between 36 1/2 weeks to 42 1/2 weeks, progressing in a timely manner through out the various phases associated with physiological parturition while the mother and baby are able to remain adequately hydrated and free of evident distress.
This definition usually stays away from specifying times or other criteria (fetal position, estimated weight of baby, length of labor, how long she pushes, etc.) for each of these stages and phases of physiological labor and birth. It assumes that midwives will match their experience and skill level to the needs of the childbearing mother and her unborn baby. Further more it assumes that the midwife will seek out more experienced midwives when indicated and/or consult with medical practitioners and transfer to medical care whenever indicated.
Fetal Position and Normal Birth
As anyone familiar with the medical literature knows, routine cesarean surgery for breech does not improve perinatal outcomes in term pregnancies [Croughan-Minihane MS et al. Morbidity among breech infants according to method of delivery. Obstet Gynecol 1990:75(5):821-825]. For babies of average weight, vaginal birth is equal or superior to operative delivery in regard to the baby and several times safer for the mother. Presently most practicing physicians no longer have the experience or skill to deliver breeches vaginally, making it desirable for those who have these valuable skills to utilize them in situations that reduce the risk to the mother from unnecessary surgical delivery while maintaining the same level of irreducible risk to the baby.
Regardless of whether or not physicians maintain vaginal breech delivery skills, it is necessary for all midwives to understand the theory and mechanisms of normal breech birth as well as those of emergency breech extraction skills (in case of dystocia). For those practitioners who have had ample experience working in circumstances where breeches are routinely delivered by midwives (such as other countries or religious communities), low-risk vaginal breeches (a category that excludes premature, postmature, and macrosomic babies and those in a footling or incomplete breech position) it would be "normal" (as defined by the criteria of irreducible risk) to manage the labor of a mother who is between 37 and 41 weeks of pregnancy, may have had a previous successful vaginal birth, has given "special circumstances" informed consent/declination (i.e. specifically declining hospital and physician care) and is carrying an average sized baby in a frank or complete breech well-engaged in the pelvis with briskly progressive labor and no indication of fetal distress.
Conclusion to section #1:
The difference between the technical activities of medical practitioners (use of drugs and surgery, withdrawing life support and pronouncing death, diagnosing communicable diseases, etc ) and those of midwives (assisting mothers during a physiological process) are dramatic in the extreme and recognized by the statutory scheme.
Since midwifery is not a practice of medicine and since obstetricians are unfamiliar with the philosophy, principles, and practices of midwifery it is unnatural and unworkable to identify obstetrical medical practitioners as gate keepers (through a supervisory role that is being used as an insurmountable barrier to practice) or for doctors to give crucial testimony defining the practice of midwifery or the competency of midwives. Obstetricians do not provide any home-based care and 99.9% have never even been present at a home birth as it is formally disallowed by the American College of Obstetrician and Gynecologists [ACOG statement against home birth]. Physicians do not service the same population of childbearing families, especially not ones that decline medicalization. Further more, obstetricians clearly have a vested interest in eliminating the economic competition of midwife-attended home birth. They should recuse themselves from any determinations about midwifery practice except for testimony limited to diagnosis of medical conditions affecting the mother or baby or description of how or what would be done by medical practitioners in hospital-based care given similar circumstances.
Early and often in the investigation and prosecution of midwives by Department of Consumer Affairs expert review from licensed midwives who have active home birth practices should be used to judge midwifery practices and the competency of midwives. Testimony from hospital-based obstetricians should rarely be necessary. This would prevent the expense of prosecutions based on categorical circumstances rather than the specific actions of the midwife in managing the situation.
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(2) The physician supervision clause of the midwifery practice act represents an insurmountable barrier to the practice of community-based licensed midwives
The current supervisory statute is defective and predicated on political circumstances rather than scientific data. It mandates that midwives have physician supervision while it simultaneously fails to mandate that physicians provide the legally required supervision. It creates unnecessary and unnatural vicarious liability and fails to address this situation with any legal remedy. The original version of SB 350 contained a "hold blameless" clause for physicians prior to the time they take over care but was struck from the bill at the insistence of the American Trial Lawyers Association. [attached - transcript of Judge Cologne, Dr. Joas, Dr. Schimel, Nancy Chavez & Anita Scuri, senior counsel, MBC]
As liaison between the Medical Board and the California Association of Midwives (another organization representing midwives) I polled the representatives of the 15 regions at the July 1998 board meeting. None either personally had a supervisor nor knew of any other midwife in her region who did. I myself do not have a physician supervisor or any documented collaborative agreement in spite of have a glowing letter of reference from the physician that I collaborated with for the last 17 years [see attached reference from Dr. Creevy and letter declining supervision].
At the July’98 meeting of the Division of Licensing of Medical Board of California I relayed this information to the members. I also testified at the February 1999 Board meeting that midwives were completely unable to obtain any form of supervision or documented collaborative agreements. On April 7, 1999 the Executive Committee of the Board met to review proposed legislation and I made a presentation on AB1418 -- a bill introduced by Assemblymember Strom-Martin to replace the supervisory requirement with a professional relationship between physicians and midwives defined as collaborative in nature. At that time I also informed the Executive Committee members in the presence of Assistant Attorney General John Lancara that to the best of our knowledge, 93 of the 94 licensed midwives were unable to comply with the law as written. The former president of the Medical Board, Dr. Thomas Joas, has admitted in person and by correspondence that the Board is unable to compel physicians to provide supervision to licensed midwives [attached - letter from Dr. Joas to Mary Earhart, LM].
Since the 1970s, community midwives (including nurse-midwives & religious practitioners) have met their obligation to provide access to consultation, referral and transfer of care by building a relationship with a physician in their geographical area that was sympathetic to the traditions of midwifery and to parents who were choosing home birth. During these 3 decades, physicians were very clear that they were NOT providing backup to the midwife but rather backup to the childbearing woman and her family. By avoiding any formalized relationship with the midwife, it permitted physicians to avoid unnecessary vicarious liability. This resulted in stable "working arrangements" for the midwife while safe-guarding the childbearing woman and her baby through identified access to medical services.
After implementation of the LMPA in1997, licensed midwives approached physicians with whom they already had identified working arrangements and asked them be their midwife supervisor. Midwives were shocked when these midwife-friendly doctors refused, citing the newly-passed licensing law as the reason. These doctors described their concern about the legal implications of the supervisory relationship in the LMPA, as it created an otherwise unnecessary vicarious liability. Doctors were afraid they would be black-listed within the medical community if it became known that they had any formal association with domiciliary midwives. In fact there are documented cases in which pressure was exerted by other obstetricians in conjunction with the hospital boards, forcing physicians to stop providing any open cooperation with community-based midwives [personal communication Don Creevy, MD]. However, in most circumstances, physicians informed the midwife that they were willing to continue the pre-licensure informal (undocumented) arrangements in which they accepted referrals and made themselves available to laboring mothers after transfer to the hospital. I believe that Ms Osborn’s "backup" physician was in this category. In other instances, local hospitals offered this same "informal" access to medical services [attached - letters from San Francisco General Hospital & UCSF- Stanford HealthCare].
Regardless of these many road blocks, licensed midwives all make some specific arrangement for each client family, depending on the political climate between physicians and midwives in their area, the demands of the geographical location (rural versus urban) and the insurance requirements / third-party payor arrangements of the specific client family. About half of these arrangements evolve out of a relationship between the mother and the doctor. Of those between the midwife and the physician, a few doctors want to see the mother during the pregnancy but the majority of them specifically do not want to see her unless she is being transferred to physician care.
It is the stated opinion of Jonathan Lew, Esq, presiding administrative law judge, California Office of Administrative Hearings in a presentation on July 30, 1999 at the UC Berkley School of Public Health seminar entitled "Health Care Models and Approaches to Birth Care in California -- A Critical Forum" that nothing in the current supervisory statute creates vicarious liability on the part of the supervising physician. An article on the "Myth of Vicarious Liability" was published in the Journal of Nurse Midwives in March/April 1994. It attempts to defuse the "myth" of vicarious liability for physicians by exposing the complete absence of actuarial data to support it. Irrespective of these opinions, the statute continues to be interpreted by the three doctor-owned malpractice carriers, individual obstetricians and ACOG as establishing vicarious liability [Attached - Letter from NorCal]. Many midwives have contacted every obstetrician or physician with obstetrical practice privileges in their geographical area to be turned down by 100% of these doctors.
Only California and two other states (Illinois and New York) have legislation making professional midwifery practice dependent on the availability of physician supervision. This means that physicians’ nearly universal refusal to supervisor community midwifery providing home-based care effectively erects an insurmountable barrier to practice in all three states. What these 3 states have in common are large populations of physician members of the AMA (Chicago, Illinois is the national headquarters of the AMA) and a very strong influence in the political realm of each state. The decision was a political one and not founded in any scientifically-supported data. In the other 47 states professionally-licensed midwives practice independently, as is the recommendation of the Joint Task Force on Midwifery by the UCSF Center for the Health Professions and the Pew Charitable Trust [copy of executive summary attached]. During a public hearing on physician supervision of midwives on May 6, 1997, Dr. Friedman, MD gubernatorial appointee to the Medical Board of California, in response to remarks by the CMA lobbyist, said "Oh, I get it -- its a restraint of trade issue" and then Dr. Friedman recused himself from the vote.
Contemporary Background on LMPA
It is hard to put this situation into proper perspective without knowing something of the political history of the LMPA. Briefly put, the California Association of Midwives sponsored 6 earlier midwifery licensing bills without success (1978-93). On each occasion the California Medical Association and other physician groups were successful in killing the bills. The transcript from the MBC Midwifery Implementation committee meetings in 1994 are also illustrative of this point. In the attached excerpt the main speaker is former CMA lobbyist Judge Cologne who says: "When I used to work for the CMA, which was 4 years ago, I was handed the same bill and I was told to kill the bill and I did. The bill died".
The current LMPA was originally sponsored by the midwives association. The first version (April 1993) stipulated criteria for consultation and physician referral. It did not require physician supervision and contained a statement holding that physicians would not be liable for acts of negligence by a licensed midwife "unless the acts were pursuant to the negligent advice of the physician and surgeon". In June 1993 the California Medical Association arranged with the author of SB 350 (Senator Lucy Killea) to replace the language of the bill with CMA’s preferred version. Physician consultation/referral requirements and the protection of physicians from vicarious liability were both removed at the request of the CMA and replaced with a physician supervision clause that specifically created unnecessary and unnatural vicarious liability, also at the direct request of the CMA.
At the time the CMA promised Senator Kill that if she permitted them to put a mandated supervisory clause in the bill, CMA would see that physicians provided the mandated supervision [personal communication, Nancy Chavez, Adm Aide to Senator Killea]. However, nothing of the sort actually occurred, mainly because there is no half-way version of vicarious liability -- one either is or isn’t liable. Physicians are convinced that they would be held liable in the absence of a "hold blameless clause". The only purpose that the supervisory clause currently achieves is to stop any possibility of a cooperative relationship between physicians and community midwives. Since the over-whelming majority of licensed direct-entry midwives provide community-based care, this becomes an insurmountable barrier to practice and a restraint of trade issue.
During the many MBC Midwifery Implementation committee meetings in 1994 and 1995 additional insight on the political football of mandated physician supervision came to light. Judge Cologne, speaking on behalf of the three major medical malpractice companies in the state (all doctor-owned) remarked:
"If you're talking about a consulting capacity and that’s the way the bill was worded originally, we weren't opposed to it because it was consulting and the doctor was given immunity except for bad advice. Now that’s totally different from when it was amended and made him a supervisor. He is liable whether he gives bad advice or not."
"If you went back and said that the supervisorial relationship will constitute no liability except for advise given to the ... midwife which is improper it would solve an awful lot of problems but the trial lawyers wouldn’t let you get it through."
"I’m ... 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 ... 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 we’re concerned about is the vicarious liability that a doctor assumes when the doctor takes on this special relationship as supervisor."
When the bill was taken over by the CMA in 1993 midwives were acutely aware that this was an unworkable law. None-the-less, direct-entry midwives were told by Senator Killea that even if the midwives’ association withdrew sponsorship, she would push forward with the bill as "a bad law was better than no law at all". Midwives were instructed to go back to the legislature after it was implemented which, as we have done with AB1418.
The 1974 nurse midwifery practice act is mirror legislation to the LMPA, containing the same educational requirements, nearly identical scope of practice and the same "fatal flaw" -- that is mandated physician supervision which is unobtainable. This was one of the primary reasons that direct-entry midwives did not pursue nurse midwifery credentialing -- one still could not provide home-based maternity care under licensure as a CNM. At the moment, only religious practitioners can attend home birth mothers and remain in technical compliance with the statutory scheme. Under the religious exemptions clause the midwife is not required to have any pre-ordained or specified relationship with a physician.
Conclusion to Section #2:
It is the opinion of the California College of Midwives that accusations against licensed midwives based on the lack of an identified physician supervisor should be set aside until the current statute is either amended by mandating that obstetricians provide such physician supervision and become trained and experienced in the principles and practices of midwifery OR the defined relationship between physicians and professional midwives is redefined as collaborative in nature. The current wording of the statute represents an insurmountable barrier to practice and, we believe, an illegal restraint of trade. In short, it is a bad law.
Closing remarks:
Since physicians and midwives both appear to provide the same service -- i.e., delivery of babies -- it is easy to inadvertently collapse the distinction between the practice of Medicine and that of Midwifery. People quite naturally assume that doctors and midwives are or should be performing the same technical procedures at each and every birth and therefore it doesn’t matter who defines the other’s practices or makes judgements of competency. However, were the MBC to ask midwives to be expert reviewers for obstetricians providing midwifery care (i.e. maternity services to health mothers having a normal pregnancy, labor and birth), midwives would almost uniformly fault doctors for their "failure" to employ midwifery principles such as providing appropriate privacy, emotional and social support, oral hydration and non-Rx comfort measures, getting mothers out of bed and encouraging them to walk during labor, failure to use an upright and mobile posture for second stage, for artificially imposing time limits on the pushing phase; for routine use of episiotomy or forceps/vacuum extraction, etc.
One can be certain that if professional midwives were employed to judge the profession of obstetrics, physicians would be first in line to point out that midwifery and medicine are two distinct professions. With that recognition, it is sensible to employ a distinct and appropriate standard to midwifery practice that is not predicated on the practice of medicine or defined by medical practitioners. The law in many other areas already recognizes distinctions that might seem inconsequential to the average lay person but are very meaningful to jurisprudence --for instance, the legal difference between being a pedestrian versus being under the regulation of the motor vehicle code and the wandering jurisdiction of both systems of jurisprudence over bicycle riders. A person riding a bike on the sidewalk, dismounting and walking the bike across the street would be regulated as a pedestrian where as one riding on the street in the bike lane would be regulated as a motor vehicle. The same person might in the course of one journey do both, and thus fall under the jurisdiction of both systems depending on the situation.
Midwifery practice shares some features in common with the above analogy -- it is more like riding a bike as compared to driving a motor vehicle, because it expressly does not use "artificial, forcible or mechanical means". It is appropriate to judge it in the context of a non-motorized / non-medical system as parents, by contracting for midwifery care and selecting home-based birth services, are expressing their strong desire to not be medicalized. In the presence of fully informed consent / informed decline of standardized midwifery / medical care, a professional midwife should retain her ability to serve them (as a "Good Samaritan") unless a circumstances of "clear and present danger" arise that requires the midwife to take on proxy decision making responsibilities.
In the absence of such emergent conditions, the rights and responsibilities of the childbearing family should be respected. The latitude of that is fairly well defined even within the practice of medicine. In the second edition of Gabbe’s Obstetrics: Normal and Problem Pregnancies, Section 8 - "Legal and Ethical issues in Perinatalogy"; page 1336 - Forced Cesarean Sections -
"There is nothing in Roe v. Wade {15} or any other appellate decision that give either physicians or judges the right to favor the life or well-being of the fetus over that of the pregnant woman. Nor is there legal precedent for a mother to be ordered to undergo surgery (e.g., kidney or partial liver transplant) to save the life of her dying child. ... Forcing pregnant women to follow medical advice also places unwarranted faith in that advice. Physicians often disagree about the appropriateness of obstetrical interventions and they can be mistaken. {16} In three of the first five cases in which court-ordered cesarean sections were sought, the women ultimately delivered vaginally and uneventfully. {2} In the face of such uncertainty -- uncertainty compounded by decades of changing and conflicting expert opinion on the management of pregnancy and childbirth -- the moral and legal primacy of the competent, informed pregnant woman in decision making is overwhelming." {17} page 1337 "Obstetricians should refrain from performing procedures that are unwanted by the pregnant woman." .... In 1990, the District of Columbia Court of Appeals, in a strongly worded-opinion, essentially adopted the ACOG statement as law, holding that the decision of the pregnant women must be honored in all but "extremely rare and truly exceptional circumstances". {19}
The California College of Midwives concurs with this definition. A breech baby in a deliverable position (frank or complete) without medical problems does not innately rise to the level of imminent danger equal to "extremely rare and truly exceptional". Mothers should not be forced into an unwanted and, at least statistically, unnecessary Cesarean due to the fear of physicians over potential liability [attachment #10 - Misplaced Fear may Spur Many Cesareans"] or their lack of skill in vaginal breech delivery. Neither should the mother be unattended in labor because professional midwives are not permitted to provide care despite the informed consent /informed decline of standardized medical care.
The California College of Midwives and the California Nurse Midwives Association, in conjunction with a coalition of consumers groups, has returned to the Legislature in an effort to have the supervisory clause repealed and replaced by a professional relationship between physicians and midwives defined as collaborative in nature. A two year bill AB1418 (attached) was introduced by Assembly member Strom-Martin February 26, 1999.
In the meantime we ask the Court’s indulgence in regard to this badly written law.
Faith Gibson, LM, CPM
Executive Director, ACDM
California College of Midwives
Amicus Brief
Alison Osborn, LM
Attachments:
1. MBC letter regarding expert review by midwives 2. Cost effectiveness of Home Birth - Anderson et al 3. ACOG statement against home birth, 1979 4. Transcript from MBC Midwifery Implementation Meeting, comments by Judge Cologne, Dr. Joas, Dr. Schimel, Nancy Chavez, Senator Killea’s aide, & Anita Scuri, MBC senior counsel 5. Letter of reference from Dr. Creevy and letter declining to provide supervision 6. Letter from Dr. Joas to Mary Earhart, LM]. 7. Letters from Loma Linda Hospital and San Francisco General Hospital]. 8. Myth of Vicarious Liability, Susan Jenkins, JD, Journal of Nurse Midwives, 1994 9. Letter from NorCal] 10. UCSF Center for the Health Profession / Pew Charitable Trust - executive summary on The Future of Midwifery, 2 additional articles from ObGyn News - Misplaced Fear may Spur Many Cesareans Fatal Reaction linked to single dose of Terconazole 11. Assembly Bill 141