Foundations For CNM/CM Collaboration and Scope of Practice
Foundations of CNM Legal Practice, cont. (b)
Sebastien Knoll
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Scope of practice refers to the legally permissible boundaries of CNM/CM practice which are defined by statute, regulation, educational accomplishment, and certifying organization. 1 The 10th Amendment of the U.S. Constitution delegates professional regulation to the States for the health, safety, and welfare of citizens. Regulations defining CNM/CM scope of practice vary from State to State and among different regulatory entities. 2 Of particular concern to CNMs, the State regulates the amount of physician involvement in their practice and may arbitrarily set specific limitations or restrictions. If you practice in a collaborative State, make certain that you are aware of the specific regulatory requirements for each medical discipline prior to entering into any collaborative agreement related to your scope of practice.
Liabilitiy Risk and Collaborative Practice
Liability risk is an important consideration when CNM/CMs and doctors (MD or DO) are considering a collaborative practice arrangement. The legal doctrine of vicarious liability can intrude on negotiations between and physician (the supervisory party) and a CNM/CM (the subordinate agent). Vicarious liability depends on whether a relationship exists in which the doctor is in control of the CNM/CMs actions and the midwife is working on the physician’s behalf. The collaboration between a doctor and CNM/CM does not necessarily impute liability. In a collaborative relationship, midwives and doctors function within their individual scopes of practice. The relationship elements are key and a court will decide vicarious liability on the facts of each case. The proper language within each collaborative practice agreement must clarify that the CNM/CM in the relationship is a non-agent of the physician and each party is an individual healthcare provider acting within their own particular scope of practice. The transition of responsibilities between the two parties should be worded to emphasize the independence of each provider acting within their own scope of practice. 3
Antonin Marxxer
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In regard to issues of liability resulting from collaboration and consultation between midwives and physicians, case law influenced a District of Columbia court to rule that a physician was not liable where a certified nurse-midwife failed to take advice regarding patient care. In the case of Gilbert v Miodovnik, an obstetrician provided advice when consulted by a nurse-midwife.
The advice was not followed, resulting in a poor patient outcome. The physician was sued but not held liable for injuries which occurred as a result of the nurse-midwife failing to follow advice. The Court explained that its legal conclusions were supported by public policy considerations to encourage consultation between physicians and nurse-midwives, stating “DC has seen fit under its regulations to allow midwives to perform standard primary care for pregnant women . . .encouraging the nurse-midwives to consult with obstetrics professionals is in the public interest. Imposing liability on the physician could discourage consultation. 4 Undoubtedly, adverse rulings against physicians in situations of vicarious liability discourage agreements with CNMs. It may be preferable, however, for laws demanding CNM-physician collaboration to just be eliminated.
1 ACNM Definition of Scope of Practice of Certified Nurse-Midwives and Certified Midwives. ACNM Core Competencies, Standards of Practice, and Ethical Standards can provide guidance when attempting to understand the foundations of CNM/CM practice and the legal and medical standards of care which are derived from them.
2 Collaborative Maternity Care. From presentations at 2011 ACOG Congressional Leadership Conference, 2011 ACOG Clinical Meeting and 2011 ACNM Annual Meeting. Obstet Gynecol Clin N Am 39(2012)435-444.
3 Theories of Liability and Legal Concepts Affecting CNM Practice.
4 DC Court of Appeals. 2010. Gilbert v. Miodovnik. 990 A.2d 983.
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