Myth of the Ordinary Midwife Part 1

In deposition for a professional negligence lawsuit against a Certified Nurse-Midwife (CNM), the examining attorney’s opening question to the midwifery expert witness was this:

             Attorney:  Do you know what the learning and skill is expected of an ordinary midwife, yes or no?

Expert:     Sir, I don’t know what an ordinary midwife is.

  Several seconds passed while I decided whether to qualify my answer.  This was a legal question and I didn’t know whether to answer as a lawyer or a midwife. As a lawyer, the answer was, yes.  As a midwife, the answer was, no.  Counsel was proceeding like a normal defense lawyer, asking for my opinion on the legal standard of care for midwives in his State.  I was supposed to answer like a normal certified nurse-midwife expert, but I was being asked a question on legal standard of care, which I considered out-of-bounds as an expert witness. I decided to stay with my initial answer, believing that midwife and ordinary do not belong in the same sentence.

Despite an objection that my answer was unresponsive, we eventually moved on to discuss midwifery standards of practice and the ACNM practice documents. It became acutely clear, as the deposition proceeded, that the deposing attorney was unaware of significant differences among practicing midwives.

Which one of you is the ordinary midwife?

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Yet again, I found myself participating in a legal case involving CNM/CM care where the litigating attorneys lacked specific knowledge of nurse-midwifery practice, elements of the working environment, or the applicable practice standards that pertained to the care provided in the case. Equally disappointing, the attorneys were relying on perceptions of midwifery which were outdated, and not pertinent to the claims made in the lawsuit. 

The absence of accurate knowledge regarding Certified Nurse-Midwifery/Certified Midwifery practice is a familiar burden borne by most practicing CNM’s/CM’s.  The need to repeatedly explain and defend the legitimate practice of nurse-midwifery can be discouraging. And maddening.

While the opening deposition question was crafted to elicit an expert opinion on legal standard of care, it also emphasized a common assumption that all midwifery care can be described under one “ordinary” standard.  This experience, among others, convinced me that many medical negligence attorneys consider practicing midwives to be indistinguishable in all aspects of practice. After a long day, the earth-shattering conclusion, for the record, was: “midwives are not doctors, are they?”

Certified Nurse-Midwife CNM, MS, DNP

Certified Professional Midwife CPM

Lay/Traditional Midwife

I have encountered a variety of conclusions about midwives and have attempted to correct mistaken impressions, when someone will listen.  Unfortunately, it has been an unproductive, uphill battle.  It is past time for consumers, litigators, media and associated medical professionals, to appreciate that midwifery practice is variable, unique, and specific to the educational background, clinical experience, and practice standards of the midwife.

There are notable differences among practicing midwives in regard to qualifications, education, certification, scope of practice, and practice settings.  This information is necessary for competent medical and legal inquiries, but also for educating the general public and consumers of maternity care. 

Informed opinions and choices regarding midwifery care should be based on accurate and authentically presented facts.  This is true for attorneys litigating midwifery negligence claims and for those seeking and reporting on birthing options.  Expectant parents need access to realistic information for the health and safety of their families.  Lawyers need to know that standards of practice differ among practicing midwives.

Relevance For Practice

Situation:

Attorneys for plaintiffs and defendants may believe that they understand midwives and midwifery but in regard to CNM/CM practice, they may only have superficial or inaccurate understanding of the profession.   For consumers, legal professionals, and even obstetricians, midwives are a misunderstood entity. 

Expectation/Duty:

There is widespread societal misunderstanding and confusion regarding CNM/CM roles, standards and responsibilities in health care. Effective and fair legal representation depends on a solid comprehension of the nature of CNM/CM practice and the applicable standards of practice that apply to care. Continuity of care and best practices rely on understanding individual scopes of practice among nurses, midwives, and physicians.

The ACNM/AMCB care standards apply to every CNM/CM in every locale and practice setting in the United States. Unfortunately, attorneys may attempt to misrepresent or distort these standards of care at trial, manipulating them to align with their own theories of a legal case. When this occurs, evidence of negligence may be misrepresented and crucial details of the care actually provided are never brought to light. A panel of jurors may be misled and unfair verdicts rendered. Likewise, CNM/CM defendants and expert witnesses may have to testify under intense pressure, which may also affect how a jury will determine the truth. 

Internalize this reality: ACNM standards of care, and the associated documents, apply to every situation of nurse-midwifery care and are not meant to be manipulated or misrepresented depending on unique circumstances, characteristics of practice setting, or demographic location.

Vulnerability:

  A solid understanding and diligent utilization of the standards that guide your practice are essential to avoid inadvertent mistakes and care disasters that may negatively or permanently impact your life and practice, including the families in your care.

There are, practically, no circumstances of care that would allow you to deviate from the ACNM practice standards and documents. Whether you provide care alone in the woods, under a tree, or in a specialist-intense University Medical Center, the standards taught in your graduate education will apply equally. While contingency planning for unique circumstances, distinctive demographics or facility capabilities may vary, the practice standards remain the same.

Considerations for Safe Practice

In each care setting, whether full-scope reproductive practice or primary care (yes, CNMs are educated to provide primary care), proof of adherence to practice standards of care will establish that you have met your professional and legal duties to your patients and performed according to the expectations of your certifying body.

When CNM/CM standards for practice are accurately and truthfully presented at trial, and not distorted for the benefit of one side, juries are provided with the tools to make informed and just decisions regarding assignment of fault. Unfortunately, this does not always occur in the real world of litigation.  What a panel of jurors is convinced to believe from witness testimony will significantly influence the verdict for or against you as a defendant. Unfortunately, sometimes, what a jury may ultimately determine is the truth might be based on persuasion, manipulation, or even deception. 

The legal system is far from perfect and is not always fair.  For your benefit as a practicing CNM/CM, and for those you care for, aligning your care with the ACNM standards and care documents should protect you from legal harm. Refer to them often and consider incorporating them in your documentation, decision-making and plans for care.