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State Regulations Fall Behind As Popularity of Midwives and Homebirths Rises

New and evolving models for health care delivery have increased the opportunity for physicians, midwives and other healthcare providers to all be involved in the treatment of the same patient. While physicians have dealt with malpractice for years, the unique and seeming surge in the popularity of midwives in the healthcare industry prompts renewed consideration of midwife liability and standards.

In 2012, an Oregon couple sued the state and their midwife, among other people, for complications that occurred during the birth of their son.

The basis of the couple’s suit was that no monitoring equipment was used to check the fetal heart rate. As a result, when born, the infant did not respond to stimulation and did not breathe on his own. He was taken to hospital and 10 days later was discharged with signs of brain damage caused by oxygen starvation. The baby suffered, among other things, significant brain damage and cerebral palsy.

The parents of the child sued for $28 million in non-economic damages as well as $22.5 million in economic damages in the form of ongoing medical and therapeutic care, lost wages, and emotional distress.

In addition to the midwife, the couple sued the state. Alleging that, though the state has a list of “absolute risk factors” for birthing centers whereby when a risk factor is present, a pregnant mother should be transferred to a higher level of care, like a hospital, that such regulations are frivolous. One such risk factors is hypertension. The state of Oregon listed the threshold at a blood pressure of 150/100. According to the lawsuit, that threshold was “inappropriate and not evidence based.”

A similar case was filed in Michigan.

Both these cases have been used as examples of why some believe states should amp up their regulation of the growing midwife industry. Although they account for less than 1 percent of all births nationwide, the number of planned non-hospital births with midwives rose nearly 30 percent between 1990 and 2009, according to the Centers for Disease Control and Prevention.

All across the country, there are lax standards for homebirth midwives. Some major concerns in many states are:

–Since licenses are not required, they can’t be charged for practicing without a license.
–Because licenses are not required, there are no standards of practice they are bound to follow and there are no penalties for violating reasonable standards of practice.
–There are no standards for the use of the term “midwife”, so they can’t be charged for falsely representing their skills.
–There are no educational standards –There is no insurance required.

Years ago, though homebirth dramatically increased the risk of perinatal death, lawsuits rarely followed in the wake of those deaths. However, now that midwives are no longer neighborhood caretakers and have transitioned into business professionals or healthcare providers, the litigation rate has increased.

While many more suits are being filed, that does not mean that they are all won. Most people would agree that an angry parent can sue anybody but that doesn’t mean that they have a case, and that doesn’t preclude a midwife from winning and filing a countersuit for a malicious lawsuit.

Generally, in medical malpractice cases a plaintiff needs an expert to show that the care provided was below the industry standard, that the sub-par care cause them some harm, and that there are some damages. The problem with proving such a medical malpractice case against a midwife is that often, in many states, there are no industry standards for comparison purposes.

While there are organizations aimed at increases the validity and safety of the midwife profession, such as the Midwives Alliance of North America (MANA), it is likely safe to say that many problematic and deadly birthing incidents could be avoided with a revamping of state regulations.