Obstetrics Consultations and Midwifery Liability
Consultations/Collaborations and Legal Risks:
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Early Efforts to Eradicate Midwifery
Campaigns against midwifery, starting at the beginning of the 19th century, set the table for strained relationships between physicians and midwives, which persist to the present time. Anti-midwifery sentiments, enhanced by the attitudes of J. Whitridge Williams and Joseph Bolivar DeLee*, ushered in the age of obstetrics and scientific medicine which were considered the only modern and realistic choices for safe and healthy childbirth in America.[1]
The Rise of Obstetrics for Normal Childbirth
Maternal death swept through hospital maternity wards as newly trained “obstetricians” stretched the limits of their knowledge and capabilities. Mortality statistics in American hospitals were significantly higher than those collected in Europe, which incorporated midwifery care in hospital settings. (See: What Happened to Midwifery in America 1&2) Despite a White House study in 1925, which revealed evidence of harm to women in hospital childbirth, the Johns Hopkins Hospital’s fledgling specialty of Obstetrics prevailed. In this historical time frame, allowing midwifery professional status, in any form, was never going to happen. A safer alternative existed but women practitioners of midwifery were never going to have a chance.
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This scientific era of maternity care was the beginning of the end for midwifery in America. Public Health campaigns against midwives were relentless and brutal. Efforts to obliterate American midwifery practice were successful, and the remaining practitioners were forced underground.
Return of Modern Midwifery
Early in the re-birth of professional midwifery in hospitals, it was clear that physicians’ attitudes toward midwifery had not changed very much from the 1920’s. There were some well-meaning physicians who were supportive, but they were few. If a Certified Nurse-Midwife was able to find a willing collaborator in order to practice in a given hospital, she was lucky. Generally, male physicians who were confident, and took the time to understand CNM scope of practice, made effective back-up consultants. Of course, many more were against midwifery presence in hospitals and were reluctant to have anything to do with midwives.
Obstetrical Distrust and Liability Insurance
Physicians in private practice were particularly concerned that working with midwives would raise their malpractice insurance, and it did. However, the anxiety that a nurse-midwife was going to draw innocent doctors into a vortex of career-ending malpractice claims just never played out. Despite this, it was very difficult to convince insurance companies and individual physicians that midwives were not going to destroy them professionally. And yes, obstetricians continued to face more lawsuits than their non-OB colleagues, but the medical misdeeds which initiated the suits, only rarely, could be attributed to individual malpractice of a midwife. However, midwives continued to be considered malpractice liabilities.
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Unhealthy Cultures of Care
As more women entered the profession of Obstetrics, professional relationships between physicians and midwives became even more difficult. On the labor deck, it was rare to have women OBs willing to even speak to, much less work with, a midwife. Their demeanor toward CNMs could be characterized as aggressive, condescending, or just rude. Women obstetricians, in contrast with men, were tired and frustrated, impatient and disdainful, straight out of residency. There were no efforts, from any of the doctors, to understand CNM scope of practice, or standards of care. They had developed their own opinions.**
Medical School Training and Nothing Else
In general, most of the women OBs were absolutely unwilling to accept that there was even the tiniest overlap in MD/CNM scope of practice related to normal obstetrics. Nothing short of a medical school education conferred the right to care for women experiencing normal pregnancies. The concept of teamwork did not exist. Working relationships, even now, can be problematic and might be entirely non-existent in some settings. Consulting doctors are angry if you call them, and angry if you don’t. It has been a confounding dynamic for decades.***
When You Need to Leave a Hospital Environment
If these statements appear as meritless characterizations, the intent is for CNMs to understand that this particular dynamic of woman-to-woman communication (or serious lack of) can invite inadvertent medical mistakes. Working and associating with some women physicians (or nurses) who do not believe in the concept of midwifery, know nothing about midwifery scope of practice nor care to, or just think nurse-midwives are unworthy of regard, pose a significant legal threat. Animosity of this tenor can produce extreme stress, miscommunication, and risk of malpractice for CNMs/CMs .
Sooner or later, there is a risk of being drawn into this dysfunctional dynamic , whether or not there was any legal duty in a specific care situation. Once named in litigation, it is not easy to be let out. If attempts have been made to get along, no one has listened, and the situation reflects a terminally ill culture of care, there are only a few options. Negative communications need to be reported to administration, along with personal documentation of events. If nothing is resolved, it is safer to leave this workplace. Making this difficult decision is, ultimately, for the benefit of your career, professional sanity, and patient welfare.
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References/Footnotes:
1. Judith P. Rooks, CNM,MPH,MS,FACNM. Professional Issues in Midwifery; Chpt. 1, p. 23. Relationships Between CNMs and CMs and Other Midwives, Nurses, and Physicians. Jones and Bartlett Publishers.
*Attributable to DeLee: “the evils natural to labor” and . . .” If the profession (obstetrics) would realize that parturition (childbirth) viewed with modern eyes is no longer a normal function, but has imposing pathological dignity, the midwife would be impossible even of mention”). In re Williams: Williams was a lead professor at Johns Hopkins (and first author of Williams Obstetrics). It was his opinion, based on The Flexner Report on Medical Education, and his own survey in 1911, that most women were safer with midwives than general physicians. To improve the training of obstetricians, Dr. Williams advocated for hospitalization for all deliveries and “gradual abolition” of midwives, who should be replaced by obstetrical charities which would serve as “training sites” for budding obstetricians.
** It is a common joke among midwives that there must be a class in medical school for women students entering obstetrics, warning them of the evil and incompetence of midwives that they may encounter in practice. I’m sure there’s a syllabus out there, somewhere. But, if it weren’t for a few wonderful, supporting, and brilliant women OB’s I have known and considered friends, I would have left midwifery sooner than planned. I consider myself fortunate to have concluded my career with an obstetrical hospitalist group that I will never forget. The doctors, midwives, nurses, and amazing young residents were some of the best people I’ve known in practice. I was fortunate to conclude a long career, overwhelmed with gratitude that I was fortunate enough to work with them.
***Attempting to understand unfortunate relationships between midwives and OBs, particularly the doctors who are the most critical of midwifery, it is surprising that many of these individuals have never even met, much less worked with, a midwife. I also would like to think that OB attitudes against midwifery may, somehow, be connected with the intense pressures of OB practice, feeling burdened with responsibility for a co-worker midwife, or just the stress of motherhood and family. This does not explain, however, the vitriol of some women in OB.
I am encouraged to hear of the growing number of private practices where midwives, and women OBs, are working together. One practice I am aware of seems to have created the best of all worlds for the women that they care for. If this represents a growing trend in OB and Midwifery care, I sincerely hope that it prospers and becomes accepted practice in women’s healthcare.
Relevance For Practice:
Situation
There are published, and unpublished, legal cases involving physicians who have failed to respond when a midwife has asked for consultation or referral. These failures appeared deliberate and the result of refusing collaboration with an unfamiliar midwife. Failures, such as these, occur most often when the midwife’s established consultant is not available or has signed out to hospital laborists or hospitalists. Some details cannot be disclosed due to confidential settlement agreements, but failures by contractual consultants have resulted in bad outcomes for mothers and/or babies. It appears that the majority of the failed/delayed responses involved non-reassuring fetal monitor tracings, placental abruption, fetal cord prolapse, or mal-presentations. In these cases, both midwives and physicians were named in the lawsuits.
Vulnerability
Unfortunately, cases exist where the midwife has appropriately consulted, and a consultant physician has either delayed or refused to respond. In one case, the midwife’s back-up physician could not be reached and the laborist on deck declined to get involved. The midwife acted appropriately and the laborist was responsible for an unacceptable delay in responding to the obstetrical emergency. Both the midwife and consultant were named in the personal injury lawsuit. Infants involved in these types of cases were injured as a result of delay in treatment, deprived of oxygen which resulted in hypoxic-ischemic encephalopathy, leading to cerebral palsy and a need for life-long supportive care.
Expectation/Duty
Some form of contingency planning, prior to any emergency in OB, is essential. This is especially true in situations involving rural hospitals or birth centers where a consultant may not be in house. In these instances, consultation/collaborative agreements must include contingency planning for alternative assistance in unexpected emergencies. Communications between the midwife and consultant must be undertaken according to pre-approved, written plans where both individuals understand their roles in emergency situations.
Naturally, in the midst of an emergency, you cannot be at the computer. Take whatever notes you can (on scrubs, glove packages, random pieces of paper, etc.) so you can more accurately transcribe events, later. Being able to provide real-time information will be helpful in the event that a claim is filed against you. Time passes and memories fade. Documentation of conversations and events, as close in time as you can manage, will be helpful in case of unexpected problems.
Remedies/Protection
Discuss the issue of back-up availability with your consultant and reach an understanding regarding other options for times when he/she may not be available. Work these details out in advance and have it in writing. If the hospital where you deliver has laborists, determine whether any of them may have problems with stepping in to assist a midwife. From a legal standpoint, hospitalists and laborists do have a duty to respond to requests for medical assistance, whether from an MD or CNM.
https://www.midwivesontrial.com