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An Introduction to Midwifery and Out-of-Hospital Birth for Lawyers

By Angela Macey-Cushman

A planned, uncomplicated out-of-hospital birth—either at home or in a free-standing birth center—can be a beautiful experience. Midwives and their clients appreciate the calm environment, the relatively low cost, and the freedom from restrictions imposed by the hospital environment. Out of the hospital, moms can choose to labor and deliver in a birth tub. Parents can have their other children and extended family present, without violating hospital rules. And, perhaps most importantly, the care team (the midwife, an assistant, and often a doula) will usually be present and consistent throughout the labor, instead of the rotating cast of on-call physicians and nurses changing shift that are common in hospital births.

However, out-of-hospital births can turn to tragedy when midwives fail to timely transfer moms and babies to a higher level of care, or fail to perform interventions safely and effectively. The time necessary to transfer a laboring mom, the absence of on-site specialists (such as surgeons and neonatologists), and the limitations on what midwives can do in emergency situations (based on practice restrictions, the practicalities of home delivery, and each midwife’s own competency) make civil claims concerning out-of-hospital birth unique. While many of the same principles apply regardless of where the birth takes place, out-of-hospital birth cases require a specialized knowledge of relevant regulations, midwife culture, and the red flags that should prompt midwives to consult, transfer, or take emergency action.

1. Midwifery in Washington

There are two main branches of midwifery care: nurse midwifery, which comes from the tradition of nursing, and direct-entry midwifery, which developed from the tradition of lay members of the community (usually women) providing birth assistance in the home.

In Washington, both branches of midwifery are recognized and regulated by the Department of Health. However, there are significant differences between the two in terms of paths to licensure, scope of practice, and the settings where patients are most likely to encounter the different types of midwives.

a. Certified Nurse Midwives

Certified Nurse Midwives (CNMs)1 are licensed by the Washington Department of Health’s Nursing Care Quality Assurance Commission as advanced practice nurses with a special designation for midwifery.2 A CNM typically earns a four-year Bachelors of Science in Nursing degree, as well as a Masters degree (or doctorate) in the specialty of nurse midwifery from an accredited School of Nursing, which requires two or more years of post-graduate education and includes clinical experience requirements. Following graduation, CNMs must pass the American Midwifery Examina­tion board exam.3

Certified Nurse Midwives usually practice in a hospital setting, or in a birth center affiliated with (and often attached to) a hospital. Less than 3% of births attended by CNMs occur in a home setting. Thus, a case involving a birth at home or in a free-standing birth center is not likely to involve a Certified Nurse Midwife. However, keep in mind that they are licensed and regulated differently than direct-entry (licensed) midwives; a CNM is explicitly exempt from the Washington laws governing direct-entry licensed midwives in Washington.4

b. Licensed Midwives (aka Direct Entry Midwives)

Licensed Midwives (LMs)5 are regulated separately from the laws governing nursing practice.6 Although nationwide most midwives are CNMs,7 patients in Washington are much more likely to encounter LMs when seeking out-of-hospital birth services.

Relative to CNMs, LMs take many different routes to becoming midwives. All applicants in Washington must have a high school degree or its equivalent and be 21 years of age or older.8 The educational requirements are not as straight-forward. Applicants may either receive a diploma from a midwifery program pre-approved by the Washington Secretary of Health (such as the Bastyr University midwifery program, formerly Seattle Midwifery School) or by a foreign institution “of equal requirements conferring the full right to practice midwifery in the country in which it was issued.”9 Another way to meet the state’s requirement is to first complete an outside midwifery program or apprenticeship that meets the requirements of the North American Registry of Midwives (NARM), and complete NARM’s requirements to become a Certified Professional Midwife (CPM) prior to applying for Washington licensure.10 Otherwise, an applicant may meet Washington’s educational requirement as a participant in a Midwife-In-Training (MIP) program.11 This program permits prospective midwives to submit a custom educational and training plan to the Department for approval, including necessary coursework and experience-based training through apprenticeship.12 All applicants must ultimately pass the NARM accreditation examination. Once licensed, LMs are permitted to “render medical aid for a fee or compensation to a woman during prenatal, intrapartum, and postpartum stages or to her newborn up to two weeks of age.”13

As a result of Washington’s many options for satisfying the LM education requirements, the experience and background of every LM is different. Some train in Washington, and others train out of state or overseas. Some attend in-person classes, while others fulfill requirements through online and correspondence courses. One LM may hold a degree in a health profession, while another holds a degree in English Literature. Many LMs have no 4-year college degree at all. It is critical to understand the background of each LM involved in a birth injury case. Order and carefully review the complete credentialing file (and any investigations) from the Department of Health. Each credentialing file should contain information about how the midwife met the education requirements for licensing.

c. Student Midwives

The Washington licensed midwifery regulations recognize a gap between the time when a midwifery student is ready to begin assisting in hands-on care and when the midwife is at least minimally qualified to perform deliveries without supervision. Midwifery students, having met requirements for experience, education, and examination, may apply for a Student Midwife license, allowing the student to “practice and observe fifty women in the intrapartum period under the supervision of a licensed midwife, licensed physicians or CRN (nurse midwife).”14 In so doing, the student may meet the final experiential requirement for full licensure.

2. Understanding the Standard of Care Outside of the Hospital

In cases concerning midwifery care, there may be a tendency to compare the midwife’s role to that of a nurse in a hospital delivery. A typical in-hospital birth injury claim will often include issues surrounding a nurse’s duty to alert the attending obstetrician of progress in labor. In contrast, because midwives may legally provide care and deliver babies without supervision, they do not need to report to physicians. In a normal, low-risk pregnancy and delivery, it is entirely normal for the midwife to act independently without consultation or supervision. Thus, in many ways, it is more useful to consider that the midwife steps into the shoes of the physician when providing out-of-hospital birth services. However, to extend the metaphor, the LM’s “shoes” are smaller than those of a physician and fit only uncomplicated cases; once a mother or baby’s condition falls outside of a normal situation, the LM is no longer autonomous and the duty to consider consultation or transfer is triggered. This, in turn, triggers issues surrounding the midwife’s established consultation and transfer practices.

As such, regulations for LMs providing out-of-hospital birth services often refer to and attempt to define the duty to consult or refer to a physician. The language describing circumstances requiring consultation or transfer varies, but is typically based on the idea that midwives are within their scope so long as long as the pregnancy, labor, and delivery are normal and low-risk. According to RCW 18.50.010, “It shall be the duty of a midwife to consult with a physician whenever there are significant deviations from normal in either the mother or the newborn.” ‘Standards of Practice’ promulgated by the Midwives’ Alliance of Washington (MAWS) explicitly standardize “Engag[ing] in an ongoing process of risk assessment that begins during the initial consultation and continues through the completion of care,” and “seek[ing] physician consultation for conditions that present a significant deviation from normal.”15 Elsewhere, MAWS spells out specific indications for professional discussion, physician consultation, and transfer to physician care, focusing on identifying abnormal situations and conditions.16

It is no surprise, then, that a common issue in midwifery cases is the definition and scope of “normal.” Most midwives agree that conditions like placenta previa at term and pre-eclampsia are abnormal and require transfer of care to a physician, but a significant gray area exists in the evaluation of less-emergent conditions. Some licensed midwives argue that conditions such as breech fetal presentation, VBAC (vaginal birth after cesarean section), and prolonged labor have been unfairly labeled by the establishment as abnormal or high-risk; other midwives feel the best way to keep midwifery safe and legal is to follow a conservative model, referring patients on to physician care if they come in with or develop signs that the birth may be or become complicated. Even the Core Competencies for Basic Midwifery Practice concede that, “The parameters of ‘normal’ vary widely, and each pregnancy, birth and baby is unique.”17 Since only 1% of births nationwide are performed out of the hospital, trying to sort out what constitutes a deviation from “normal” can be difficult for jurors who are not likely to have personal experience with an out-of-hospital birth.

In addition to statutes, regulations, and professional organization standards, the expert testimony of a midwife experienced in out-of-hospital births is important, particularly when the case concerns failure to transfer. Keep in mind that a physician might be asked to testify concerning when he or she would expect an LM to transfer patient care to a physician. He or she could also conceivably offer testimony concerning skills performed by the defendant midwives before, during, or after birth, so long as the physician “has sufficient expertise in the relevant specialty,”18 if one of the “specialties” in question is defined specifically, e.g., maneuvers in the management of shoulder dystocia during delivery.19 After all, there should be no significant difference in the standard of care provided by physicians and midwives where their scope directly overlaps, even though they may come to their work from different perspectives. However, the most compelling (and least vulnerable) testimony for the standard of care in midwifery, especially on issues of indications to transfer care, is likely to come from another midwife who performs out-of-hospital delivery.

2. Professional Liability Insurance Issues

Midwives and birth centers in Washing­ton are eligible for professional liability insurance through JUA.20 According to JUA’s website, coverage for midwives starts at about $7000 for twelve births per year, with per-birth increases of approximately $130-$200 per birth.21 Birth centers can purchase coverage for under $2000 per year, which covers births attended by JUA-insured midwives.22 But be aware: not all midwives carry professional liability insurance.

Conclusion

Cases involving negligent care in out-of-hospital births are unique and require attention to the scope of practice and training of the individual midwife who provided services. Clients are more likely to encounter Certified Nurse Midwives in a hospital setting, and Licensed Midwives offering birth services at home or in free-standing birth centers. The standard of care for out of hospital births requires midwives to make critical judgments about when a patient’s condition has deviated from “normal” and what to do in response, both in terms of emergency interventions and decisions to consult or transfer to physician care. These issues often require expert testimony from a provider with experience in out-of-hospital deliveries. Although many midwives carry professional liability insurance, it is not required by state law and attorneys are advised to verify coverage early in litigation.

1 Certified Nurse Midwives are also referred to at times as “CRNs” (e.g., WAC 246-834-160)

2 WAC 246-840-010(3)(b).

3 246-840-302(3)(b).

4 RCW 18.50.032.

5 Direct Entry midwives go by many names, including licensed midwives, lay midwives, and Certified Professional Midwives. This article uses the term “Licensed Midwives” to include all midwives licensed by the State of Washington under RCW Chapter 18.

6 RCW 18 and WAC 246-834.

7 American College of Nurse Midwives, Essential Facts about Midwives. February 2016.

8 RCW 18.50.040.

9 RCW 18.50.040.

10 WAC 246-830-066.

11 WAC 246-834-220 to 246-834-240.

12 Id. Note: Registered nurses may apply for LM licensure instead of CNM licensure. In such a case, the educational requirements may be tailored to account for prior health care training.

13 RCW 18.50.010.

14 WAC 246-834-160.

15 Midwives’ Association of Washing­ton, Standards of Practice. December 6, 2002. Midwives’ Association of Washing­ton is the largest professional organization for LMs in Washington

16 Midwives’ Association of Washing­ton, Indications for Discussion, Consulta­tion, and Transfer of Care in a Home or Birth Center Midwifery Practice. Last revised and adopted May 2, 2014.

17 Midwives Alliance of North America, Core Competencies for Basic Midwifery Practice. Adopted October 3, 1994.

18 Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 229, 770 P.2d 182 (1989).

19 See Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001).

20 JUA website, Premium Guidelines. (http://www.washingtonjua.com/rates.htm.)

21 Id.

22 Id.

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