California Citizens for Health Freedom
Frank Cuny, Executive Director
8048 Mamie Ave
Oroville, CA 95966
530/534-9758

August 5, 1999

Medical Board of California
1426 Howe Street
Sacramento, CA 95814

Amicus Brief:

Alison Osborn, LM
No 1M-98-83794
OAH No. N-1999040052

This Amicus brief explores what California Citizens for Health Freedom believes to be multiple barriers to practice for professionally-licensed midwives and denial of services to consumers inconsistent with the intent of the Licensed Midwifery Practice Act of 1993 (LMPA). They are:

1) Physician Supervision as an insurmountable Barrier to Practice for professional midwives and a Restraint of Trade initiated by organized medicine to the determent of the public good

2) Denial of Consumer Right to make crucial decisions about the quality and quantity of childbirth-related services, midwifery care and home birth

California Citizens for Health Freedom represents the interests of California consumers in regard to their right to make fundamental decisions regarding health care, including lawful access to non-conventional medicine and to alternative health care practitioners. For that reason we have been closely following the accusations against Ms. Osborn.

Obviously, we have no direct information on the care provided by her or the specific circumstances surrounding the stillbirth which triggered the action being taken against Ms Osborn. However, we are aware that accusation filed claims that midwives are not permitted to provide midwifery care if they are unable to secure a "physician supervisor" (in spite of the refusal of the medical community to provide supervision) or if the baby is in a breech position, irrespective of the wishes and informed consent decisions of the parents. Both of those "barriers" to professional midwifery practice concern California Citizens for Health Freedom. If they were to be institutionalized, it is our opinion that they would run counter to the purpose and legislative intent of the Licensed Midwifery Practice Act of 1993, and would ultimately deny essential maternity services not available elsewhere to the citizens of California, which is the stated legislative intent of the LMPA.

In the case of Ms. Osborn we especially take exception to the failure of the medical board to consult with the licensed midwife expert reviewers identified by the MBC. We also believe that the medical reviewers selected in her case have a personal bias and motivation in rendering negative opinions of her actions. We contend that women and their families have the right to select home birth over the medical model of birth even in the presence of possible complications. Normal childbirth in any setting can result in complications. However, the rate of medical interventions and subsequent maternal or infant complications is statistically higher when low and moderate risk mothers are medicalized. According to recently published research for the state of California which examined the outcomes of more than one millions births sorted on the basis of risk category and assigned to either routine obstetrical care in the hospital or non-interventionist care out of hospital, the risk of perinatal mortality or morbidity is slight less for mothers opting to give birth at home under non-interventionist midwifery care. Clearly the duty of the Medical Board of Calfifornia to protect the consumer should not disallow options that lower risks such as non-interventive midwifery care. [1 - Safety of Alternative Approaches to Childbirth; P. Schlenzka, Ph.D.]

 (1) Physician Supervision as an insurmountable Barrier to Practice for professional midwives and a Restraint of Trade by organized medicine to the determent of public good

California Citizens for Health Freedom, in addition to many other organizations that support the midwifery model of care, believe that midwifery should be an independent profession in California. [2 UCSF Center for Health Profession / Pew report on the "Future of Midwifery"] Historically, state certified midwives under the 1917 amendment were independent professionals until the original section 2505 was repealed by passage of the LMPA in 1993 [3 - legislative memorandum to former Governor Earl Warren, July 8, 1949]. The current structure in California statutes reflect a bias against women and against natural or non-medical forms of care. This is particularly revealed in the current physician supervision requirement originally proposed by the California Medical Association and the American College of Obstetrician and Gynecologists.

In an article published in the Ob.Gyn.News for Sept 15, 1993 [4 - excerpt of article] Dr. Dickerson of American College of Obstetricians and Gynecologists is quoted as saying that physicians held out for a "guarantee" of supervision rather than a more "collegial sort of relationship which was, we felt, an invitation to home births". The article continues on to note the long standing opposition by ACOG for home birth midwifery services. This clearly identifies the official position of organized medicine to "disallow" legally attended home birth by purposefully created barrier to the practice of licensed midwives. Licensed midwives have gone to great length to secure physician supervision but to no avail. Many have contacted all obstetricians in their geographical area with 100% refusal. [5 two sets of letters from LMs to doctors -- 2 additional letters from MDs refusing to provide supervision] The MBC published an appeal for obstetrical supervisors in the Action Report, which is mailed to over 100,000 California physicians, without receiving a single positive reply [6- excerpt from MBC Action Report July 1997]. California Citizens for Health consider this to be a restraint of trade issue and turf war which negatively impacts on the rights and well-being of childbearing families.

After conducting a survey of California licensed midwives and families that choose their care California Citizens for Health Freedom has determined that in spite of the organized non-cooperation of obstetric providers as official "physician supervisors", the basic safety needs for interface between the pregnant women and the medical community are being satisfactorily arranged. [7 Home birth consent Stanford and letters from other hospitals] The following are the various types of backup/referral/transfer of care and other working arrangements reported by midwives and childbearing families:

Mother-initiated / HMO -- The most mutually satisfactory arrangements seem to occur between families who belong to HMOs, especially Kaiser, as they simply see their HMO caregiver in early pregnancy for lab work and to create a hospital record of the pregnancy. These mothers subsequently receive the bulk of their antepartum, intrapartum and postpartum/postnatal care from the midwife. If there is any need for additional lab work or diagnostic tests they return to Kaiser. If a transfer of care during labor is necessary, the midwife accompanies them to the Kaiser facility and provides a report (and chart records) to the admitting physicians or nurse midwife.

Mother-initiated / Tandem or Concurrent Care-- Families with good healthy insurance coverage may arrange for concurrent care -- seeing an obstetrician through out the pregnancy, independently of the midwifery care. Sometimes the doctor informally knows that the mother will be delivering at home with a midwife but officially does not acknowledge this.

Mother-initiated / Family Doctor -- A small number of client families have prior relationship with a family physician or obstetrician who is willing to see them occasionally during the pregnancy and has agreed to provide care for them in the hospital should they change their mind about laboring at home or should they need medical services. These doctors inform the client that they are NOT backing the midwife’s practice but rather they are providing backup to the client herself. Otherwise, this arrangement would be dis-allowed by their malpractice carrier or other physicians in a group practice.

Midwife-initiated Informal Arrangements with Specific Physicians - In some communities there are specific obstetricians willing to take referrals, occasionally consult by phone and will accept a transfer of care during labor. Most of these doctors do not want to see the patient ahead of time as that creates vicarious liability. They will only make themselves available in event of a transfer of care in which they had no prior contact with the expectant mother before she is admitted to the hospital.

Hospitals as Proxy -- In some communities there are such a small number of options or such a high level of organized resistance to home-based midwifery that no "midwife friendly" physicians are left. In those communities families must agree to be transported to a specific hospital and cared for the resident staff or on-call physician in the event of an emergent circumstances for either mother or baby. Also, this is the usual arrangement for families that ask for care under the religious exemptions clause (Sec. 2063). In these cases, physician supervision is not required. Many families asking for care under Section 2063 are only willing to accept medical services in event of an evident obstetrical or pediatric problem or an emergent condition and thus midwives use teaching or community hospitals as the identified source of medical services.

Emergent Conditions -- In event of a life or limb threatening situation, emergency transport is initiated through the EMT/paramedic system and the mother or baby is transported via ambulance to the closest appropriate hospital, accompanied by the midwife. This means that regardless of any prior supervisor / consultant or collaborative arrangements, in an emergency a mother or baby is likely to be to cared for by a physician she has not met before and that has no prior relationship with the midwife.

California Citizens for Health Freedom believes that it should be the right of all women to select home birth even when they are aware of a possible complication like a breech presentation. For the last 30 years a consistent 1% of mothers in California have chosen to give birth out of hospital. The reasons for this are religious beliefs, ethnic or cultural background, personal preference and a belief by many families born out by statistical data that hospitals are not the safest place to give birth for low and moderate risk women. About 10% of those mothers are eligible for care under the religious exemptions clause and so the barrier of "physician supervision" does not apply (midwives providing care under the religious exemptions clause are not required to have physician supervision). But for the other 90% of families that do not qualify for care under Sec 2063, California Citizens for Health Freedom feels strongly that they also deserve to be attended by a skilled caregiver during pregnancy and to have a skilled experienced midwife present at the birth. For the unborn / newborn babies of these mothers, the safety-net of a professionally attended birth is a human rights issue, reducing the perinatal mortality in one study (Bennett, et al) from 30 per 1,000 (unattended) to 3 per 1,000 (midwife-attended). Current perinatal mortality rate for the US is about 7.2 per 1,000.

If MBC disciplinary actions prohibit formally-trained, licensed and regulated midwives from practicing then these mothers will use the services of untrained, unlicensed and unregulated midwives or "childbirth helpers" [8 book review for "Unassisted Home birth" by Lynn Griesemer]. California law does not prohibit lay persons from assisting a woman during normal childbirth.

(2) Denial of consumer right to make crucial decisions about the quality and quantity of childbirth-related services, midwifery care and home birth

Restriction on access to midwifery care and home birth -- babies in breech positions:

It is the position of California Citizens for Health Freedom that midwives who provide home birth services are functioning as non-medical healthcare practitioners and are employed by consumers to assist the childbearing woman during a natural biological process. In choosing a home birth attended by a midwife these families have specifically chosen non-medical care, which is a lawful choice. Selecting a midwife identifies the desire of the family to opt out of standardized medical care and represents a very different caregiver contract than that between medical careproviders and their patients. These mothers-to-be have opted not to become "patients" but rather to retain personal responsibility.

It is the expectation of these families that a state credentialed midwife will meet a basic standard of professional education, experience and skill, be honest in all her dealings, provide all the information needed for "informed consent", honor any "informed decline" of standard procedures after full information has been appropriately rendered, and that any care, advise or procedures the midwife might perform would be done correctly and safely. Families seeking out midwifery care view the midwife’s role of one of helping them to do what is a natural and non-medical event, that of being pregnant, laboring spontaneously and giving birth naturally. It would violate these principles for the midwife to refuse care in these circumstances, thereby forcing the family into unwanted, unwarranted medical/surgical intervention or being attended at birth by an uncredentialed or inexperienced lay persons.

Most medical schools no longer teach normal breech delivery skills [9 -Ob.Gyn.News April 15, 1999]. At this point in time the majority of physicians routinely do cesarean sections for breech. In spite of studies published in professional journals identifying the safety of vaginal breech delivery in up to 70% of cases and the increased mortality and morbidity associated with CS, the rate of cesarean for breech is identified by medical researchers as "excessively high" [10 - articles Ob.Gyn.News April 15, 1999]. Even doctors who are experienced are very often prohibited by either hospital policy or malpractice carrier contracts from providing vaginal breech birth. This forces many women to have unwanted cesarean deliveries or give birth at home without a skilled attendant. Cesarean surgery is 2 to 10 times more dangerous for the mother in mortality and morbidity [11- Ob.Gyn.News May 15, 1999]. It can result in operative or post-operative hemorrhage necessitating blood transfusion, life-threatening infection, pulmonary embolism (blood clots in the lungs) and even the need to perform an emergency hysterectomy which leaves the mother unable to have any more children [12 - nine abstracts studies comparing maternal-infant for vaginal breech versus elective cesarean surgery], [13 - Internet communication from Obstetrics & Gynecology for Medical Professionals about preventable maternal & neonatal mortality death] [14 - ObGyn Internet discussion group for profession -- communication from California physician describing life threatening complications subsequent to CS].

Cesarean delivery still results in a "breech" birth as the baby must be forcefully extracted in a breech position by the surgeon (usually with the help of obstetrical forceps for the after-coming head) through an incision of approximately 4 inches which results in an opening the same size as the birth canal during a vaginal birth [15 - procedural photos obstetrical textbook demonstrating technique of Cesarean surgery for breech]. The statistical outcomes of elective cesarean for full term breech babies are the same as for vaginal birth except for added risk to the mother during the surgery and in subsequent pregnancies, such as increase in abnormal placental implantation and separation (accreta and abruption) in subsequent pregnancies, putting the mother and baby at risk in the future.

For this and other reasons, some families decline to have a pregnancy with a breech baby terminated by scheduled operation, deciding instead to have a normal labor and birth at home. This is a completely lawful choice. However if professional midwives are prohibited from providing care to these families even after the parents have been provided with complete "informed consent" identifying the added risks and recommending standard hospital care and in spite of this full disclosure, the family declines medical care, it will add unnecessarily risks to mothers and babies. If the mother is unable to find an experienced attendant she may be forced into having very serious and potentially life-threatening surgery. If she does find lay person, there is no way to know if this person is adequately skilled in breech delivery and appropriately equipped with emergency supplies.

For these reasons we believe that it would be an error to categorically define the attendance of a licensed midwife at a "normal" breech birth as an illegal act or "unprofessional conduct" under the LMPA. The LMPA was intended to expand the options available to childbearing families beyond either unattended or lay attended labor and births. Any attendance by state-credentialed midwives must include full disclosure of the current medical standard and all possible complications and untoward outcomes. Once the family as been so informed and made an "informed decline" of medicalized care, licensed midwives who are adequately skilled in breech delivery should be permitted to provide care unless a bona fide emergency occurs necessitating immediate medical intervention and transfer of care for that reason.

 In consideration of the above factors California Citizens for Health Freedom believes that justice and consumer safety would best be served by dismissing all accusations against Alison Osborn arising out of the physician supervision clause or the concept that babies in a deliverable breech position cannot have a "normal" birth attended by a midwife.

 Frank Cuny
CEO, President,
California Citizens for Health Freedom

Attachments:

1 Safety of Alternative Approaches to Childbirth; P. Schlenzka, Ph.D.

2 UCSF Center for Health Profession / Pew report on the "Future of Midwifery"

3 Legislative memorandum to former Governor Earl Warren, July 8, 1949

4 Excerpt - Ob.Gyn.News for Sept 15, 1993

5 two sets of letters from LM to doctors -- two additional letters refusing to provide supervision

6. Excerpt from July 1997 MBC Action Report

7 Letters / Home birth consent Stanford and other hospitals

8 Book review for "Unassisted Home birth" by Lynn Griesemer

9 Ob.Gyn.News April 15, 1999

10 Articles Ob.Gyn.News April 15, 1999

11 Ob.Gyn.News May 15, 1999

12 Nine abstracts studies comparing maternal-infant for vaginal breech versus elective cesarean surgery that establish no improvement for baby in breech delivery, increased maternal morbidity

13 Internet communication from Obstetrics & Gynecology for Medical Professionals about preventable maternal & neonatal mortality death

14 ObGyn Internet discussion group for profession -- communication from California physician describing life threatening complications subsequent to CS

15 Procedural photos from an obstetrical textbook demonstrating technique for Cesarean surgery for breech.