Statutory Constraints and Certified Nurse-Midwifery Scope of Practice

Liability and Full Practice Authority

Nurse-Midwifery Scope of Practice

Scope of practice refers to the legally permissible boundaries of Certified Nurse-Midwife/Certified Midwife practice which are defined by State statute and regulation and, to a lesser degree, 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/CMs, the State regulates the amount of physician involvement in practice and may arbitrarily set specific limitations or restrictions. If you practice in a collaborative State*, be aware of the specific regulatory requirements for each medical discipline prior to entering into any mandatory collaborative agreement related to your scope of practice.

“Collaborative States”: Obstacles to Full Practice Authority

Liability risk is an important consideration when CNMs/CMs and physicians (MD/DO) are required to enter into a collaborative practice arrangement. CNMs/CMs are familiar with the two-edged sword aspect of practice in “collaborative” States. In order to fully practice within their scope of education, training, and certification, CNMs mandated to enter into physician collaborative agreements may find more obstacles to full practice than they expected. First, State legislation may require physician involvement in practice and, second, finding willing physicians is hampered by fear of litigation.

The legal doctrine of vicarious liability** can intrude on negotiations between a physician (the supervisory party) and CNM/CM (the subordinate agent). Whether vicarious liability applies, in a given situation, depends heavily on whether a professional relationship exists in which the physician is in control of the CNM/CM’s actions and he/she is working on the physician’s behalf. A mutual collaboration between a physician and CNM does not necessarily suggest risk of liability. In a mutually agreed-upon and functional collaborative relationship, midwives and physicians agree they will function within their individual scopes of practice. The relationship elements are usually pre-determined and, if necessary, Courts will decide vicarious liability on the facts of each case.

Agency and Mandatory Practice Agreements

The required language within each collaborative practice agreement should clarify that the CNM/CM in the relationship is not an agent of the physician and each party is to be considered an individual health care provider acting independently within their own particular scopes of practice. The transition of responsibilities between the two parties should be specifically documented to emphasize the independence of each provider.

Consultants, Court Cases and Vicarious Liability

In the event of litigation, case law (previously decided court cases) will usually influence the Court, and is selected from the jurisdiction where the litigation is filed. An example is the appellate case of Gilbert v Miodovnik, where an obstetrician provided advice on a patient’s care during a routine chart review with a Certified Nurse-Midwife.

Briefly, the case involved a patient’s determination to attempt a vaginal delivery after two previous cesarean sections. Discussions between the midwife and physician included the necessity of informing the patient of the potential dangers of labor contractions and vaginal delivery after previous cesarean sections, and obtaining formal written consent of the patient regarding the potential for uterine rupture and other delivery complications. Ultimately, formal written consent was not obtained for an attempted VBAC (vaginal birth after cesarean), even though there was testimony that the issue of uterine rupture may have been discussed with the patient on several occasions.

At term, the patient presented to the hospital labor and delivery unit in false labor and was sent home. She returned to the hospital sometime later in active labor. When requested by the CNMs, a consulting hospital obstetrician for the nurse-midwifery practice met with the patient, advising her of the potential for uterine rupture after two previous cesarean sections and that the best choice for her delivery would be a third cesarean delivery.

At this point, the patient agreed. While preparations were being made to proceed to cesarean section, there was a concerning alteration in fetal heart tones (tachycardia), expediting efforts to surgically deliver the baby. At the time of the surgical incision, it was evident that the uterus had ruptured and the baby was delivered from the abdominal cavity. Unfortunately, the infant suffered permanent brain damage from lack of oxygen.

Determining Duty of Care

Although Dr. Miodovnik was not the hospital consultant for the midwives, he was named in a negligence claim which specified vicarious liability. Following an appeal, he was not held to be vicariously liable for damages to the infant. In addition to evidence that this physician lacked a duty of care to the patient, the Court explained that its legal conclusions were supported by public policy considerations to encourage consultation between CNMs and physicians, stating: “DC has seen fit under its regulations to allow (emphasis added) 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 consultations.”4

Time to Eliminate State Mandated Consultation and Collaboration

Many midwives and physicians would probably prefer to eliminate State-mandated consultation and collaboration. This does not suggest that midwifery and obstetrics should not communicate regarding patients and plans for care, only that the mandate be removed. In this case, the District of Columbia had no mandate for collaborative agreements between physicians and nurse-midwives, but the Court could not resist an opportunity to promote these relationships, in the interest of public safety.

Consultation agreements, freely arranged between midwives and physicians, can be optimal for both providers who have mutually decided their backgrounds and philosophies of care align. The chart review midwife in this case was free to determine whether or not she would act on the advice of the physician. The claims against the midwifery practice focused on whether VBAC consent was sufficiently discussed or provided by any of the nurse-midwives. Unfortunately, a relatively remote physician, with no apparent relationship or duty to the patient, was named as a co-defendant.

The unfortunate outcome, imputed to the nurse-midwives in this instance, should not extend to the chart-review physician who provided advice on VBAC consent. The ruling on appeal was fair, and it is probably safer for the public if midwives are encouraged to consult with obstetrics professionals, when a need arises. Responsible CNMs and CM’s are acutely aware of their scope of practice. They are educated to know when, why and where it is necessary to consult for obstetrical involvement.*** This is no different than when a Family Medicine physician, without cesarean section capabilities, would seek an obstetrics consult. Yet, as MDs/DOs, they are not legally mandated to enter into statutory agreements with obstetricians.

Time to Understand and Disseminate CNM/CM Scope of Practice

An issue remains one of historical mistrust and diminished respect for CNM scope of practice. Clinicians that practice outside of a medical model of care are often considered to be professionally deficient and potentially dangerous. CNMs/CMs know their boundaries, the same as non-OB physicians whose scopes of practice lie outside obstetrics and/or maternal-fetal medicine. MD’s who lack knowledge of nurse-midwifery scope of practice continue to be an impediment to CNM full practice authority, perpetuating baseless suspicion and distrust that midwives will go rogue and act outside their scope of practice. No entity has tried harder than the ACNM to elevate the professional status of certified nurse-midwifery. Unfortunately, deeply ingrained prejudices in medicine still stand in the way.

Language provided by the ACNM and The American College of Obstetricians and Gynecologists offers a mechanism for consultation, collaboration, and referral when nurse-midwifery patients experience complications requiring physician involvement. When CNM/CM standards of practice require consultation and collaboration between midwife and physician, it has been a source of frustration for CNMs that State legislatures, lobbied heavily by physicians, have felt it necessary to draft specific laws constraining the practice of nurse-midwifery, when the midwife/physician relationship is, already, provided for in CNM/CM standards of practice.

1. ACNM Definition of Midwifery Scope of Practice of Certified Nurse-Midwives and Certified Midwives. https://ww.midwife.org/acnm/files/acnmlibrarydata/uploadfilename/000000000266/Definition%20Midwifery%20Scope%20of%20Practice_2021.pdf ACNM Core Competencies, Standards of Practice, and Ethical Standards. https://www.midwife.org/ACNM/files/ACNMLibraryData/UPLOADFILENAME/000000000050/Core_Competencies_6_07.pdf https://www.midwife.org/acnm/files/acnmlibrarydata/iploadfilename/000000000051/standards_for_practice_of_midwifery_sept_2011.pdf https://www.midwife.org/acnm/files/ACNMLibraryData/UPLOADFILENAME/000000000293/Code-of-Ethics-w-Explanatory-Statements-June-2015.pdf

2. Collaboration in Maternity Care. From 2011 ACOG Congressional Leadership Conference, 2011 ACOG Clinical Meeting, and the 2011 ACNM Annual Meeting. Obstet Gyecol 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.

*ACNM Full Practice Authority; Practice Environments for AMCB-certified Midwives – April 2022. ACNM Scope of Practice by State. https://www.midwife.org/full-practice-authority-stad

** Vicarious Liability - The liability held by a person or entity that is in charge (the principle) of another person (the agent).

*** ACNM/ACOG Joint Statement. https://www.midwife.org/ACNM-and-ACOG-announce-new-joint-statement

http://www.midwivesontrial.com

Statutory Constraints and Certified Nurse-Midwifery Scope of Practice

Mid-level Mortification Part 2

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