Friday, September 18, 2009

Can't Say you weren't warned: Malpractice Ins for Midwives

This RANT was first written sometime in 2000 and tweaked in 2003...revised a bit recently
© Carla Hartley 2009

I can think of few ideas that pose more potential harm to authentic midwifery and the average family's access to authentic midwifery care than malpractice insurance for midwives.  (I will be writing about some of the other "ideas" soon!)

The implication of midwives needing MAL practice insurance is incompatible with what a midwife does, in my opinion.

When the topic came up, as it did once in a while when I was in practice, I explained it this way:  "I won't be doing anything to be sued for. I won't manage your birth or do anything you don't approve of, instruct me to do, or sign off on.  You own your birth.  You are responsible for everything that is done by me or anyone else at your birth and you should not have anyone at your birth who you feel any reservation about."
Then I gave them my early version of my "server not saver" speech.  I ended by saying  that I would not be comfortable with them as a client if they were even thinking I might "mess something up" with their birth.  Anytime I sensed even the slightest hesitation from any potential client, I would ask them to call me back after they had interviewed two other midwives and asked them the same questions.  If people are asking about malpractice insurance it is a bad sign that they don't have a clear picture of who does what and who owns what in a home birth.

Malpractice Insurance for docs is PROVEN to be bad for mothers and babies. It eliminates choices. The reason that women in many places cannot get a VBAC in the hospital is because the malpractice insurance providers decided that any doc who does VBACs will have their insurance coverage revoked...nice way to decide what choices people have. In my opinion, Malpractice Insurance for midwives is even worse!

Once you have malpractice insurance you have created four monsters....

#1 The insurance company owns you! now the malpractice insurance company determines parameters of practice....not the midwife and for sure not the mothers....Insurance companies are in business for one thing and one thing only....AMASSING WEALTH....  not just money....WEALTH. They are NOT in the business of caring about anyone...They are not in the business of doing what is right.  They are in the business of amassing wealth and they are quite good at it.  They make lots and lots of money and they do not like paying out and if they do pay out they make it up by raising premiums AND eliminating coverage for any practice that has initiated a judgment. As soon as they have a few midwives sued for any one thing....that one thing will no longer be covered and the midwife will no longer be covered unless she pays a fortune....and only then...'til the next suit and then she has to find another insurance company.  So how authentic can midwifery care be if it is determined by insurance companies?
So, what are women going to do who want a vbac but the midwife they have hired is suddenly in jeopardy of losing her malpractice insurance if she assists in the vbac?  Or the mom of 5 who wants a midwife attended homebirth but the malpractice insurance cut off is 3 previous births?  Or the mom with a breech baby and a midwife who is well known for assisting breeches but  now that she has malpractice insurance she can't take breeches anymore.  Do you want to look her in the eye and tell her you made a choice that excluded her from your practice........  To tell her you would like to use your well earned skills to help her have her baby at home safely rather than face the sure verdict of a surgical birth but now you can't?

And the second monster:

Malpractice insurance
invites litigation.  We are a very litigious society and most people just don't understand who they are hurting when they sue.  I had a job where I had to interview many patients of a doc who was conducting a survey on a bladder repair surgical procedure involving a little plastic anchor that he was trying to get approved by the FDA.  I had to interview all the patients who had that procedure including women who had sued him. Only a couple of the former patients who were disgruntled sincerely believed that the procedure was a failure due to any incompetence, yet several had sued. Most of them LOVED Dr. M and  told me that they did not want to sue, but they needed money to pay the hospital bill and it was only the insurance company they were going after....not Dr. M.  I was not at liberty to tell them otherwise, but boy I wanted to correct that misconception. Some sued him because they felt like he did not care enough about them personally, so it was their revenge. (This will happen to midwives, too, believe me!) 

Some were just disappointed in the results, but knowing Dr. M, I am SURE he told them it was an experimental surgery in addition to all the paper work he had them sign stating that as well.  But regardless of what you outline as your limitations and regardless of what you have people sign, they still  sue.  Most people see no harm in suing someone who has insurance.  Read that again.  They do not think they are hurting YOU...and think that is why you have insurance anyway....wouldn't want you to pay those premiums for nothing, eh?

Eventually this doctor's malpractice insurance was so outrageous he had to leave the country and go practice in Europe where his malpractice was not so high.  He was not a perfect doc but he thought women should see midwives...FIRST.... and only transfer to hospital CNMs if there was a problem...(he thought most women did not need OBs)  He was head of obstetrics at a huge Houston hospital , but his mother was a midwife in Italy and he loved midwives.

I attended several dinner parties at his house. Cooking was his way of unwinding.  Many times there were other OBs there as well.  He often told me that he actually invited them because he thought they could learn a thing or two from me. They did not share his enthusiasm for midwifery but since they wanted to stay in good graces with Dr M because they wanted to be invited back for dinner, there really did not criticize midwives or home birth in my presence.  However, they all felt they had some advice I could use.  What they got fired up about was the admonition that midwives should never ever ever get malpractice insurance or they would find themselves out of a job.  They talked for hours about how malpractice limited their options to really serve patients as individuals and that the spiraling costs meant that they had to work longer hours and make less money and they resented that.  What they resented more than anything was that insurance companies were, in effect, creating medical protocol. More than one of those docs eventually quit medicine.and they have all told me that one thing was to blame.....malpractice insurance.

Which leads to the
3rd monster....not only do you need more money to survive in your business BUT you exclude more people who need you.....since malpractice insurance is pricey, can a midwife hold her fees down to something the average family can afford?  All families don't have insurance....or want insurance....some just want to pay their own way when it comes to home birth....but if the local midwife has to double what she charged last year because this year she has to pay malpractice insurance......where will it end? Midwives are getting in bed with this monster so they can get what?  Usually third party reimbursement....which is a whole 'nother rant. And then there is the common practice of charging insured clients one thing and non-insured another.  This is another rant for another time, too.

There is a
fourth monster which will only be relevant until malpractice insurance is required for ALL midwives.....the inevitable hierarchy that develops and the class war of sorts between those midwives who have it and those who don't....just like credentials....believe it or not, licensed midwives are NOT, on that distinction, BETTER midwives....but, understandably, if they have it, they feature it in their advertising.   Once midwife A carries malpractice insurance and features that in her advertising, the assumption will be made that she is the better midwife, so even more division is likely between the two midwives.  And, the general public will make the assumption that the fact that one carries insurance and another doesn't is a measure of competence, and we all know it is not. 

Let me sum it up this way: Midwifery Malpractice Insurance is just one more way that the wolf wears sheep's clothing.  Midwifery malpractice insurance could deliver a fatal blow to affordable AUTHENTIC midwifery care and that would not be good for midwives, or for the families they serve.
©Carla Hartley 2009