Midwifery Legal/Legislative Updates

I do mean to post these more often...

In Florida, an appeals court confirmed the conviction of Tanya and Linda McGlade for practicing midwifery without a license. The two were charged after the 2004 childbirth death of a family member. Both women have been sentenced to a year in prison, but had been released pending appeal ("Two women lose appeals in midwifery convictions").

North Carolina's effort to pass licensing legislation is reportedly dead ("Midwife Supporters Will Push Again Next Session").

FDA raids Miami birth center; Placentas, medical records confiscated

On Christmas Eve, federal, state, and local authorities executed a search warrant on the Miami Maternity Center following a 10-month joint investigation by the Florida Department of Health, the US Food and Drug Administration, and Miami Dade Police Department’s Medical Crimes Unit. Birth center staff were allegedly dehydrating and encapsulating placentas in a process that resulted in placentas from various birth mothers becoming commingled. Midwife Shari Daniels denies the allegations, according to news reports:

"They charged in here as if I were making crack cocaine," Daniels complained. "They could have sent one person and we should have shown them everything." She suggested that the raid might have been caused by angry obstetricians, who charge several times what she does to deliver a baby. "The local docs are screaming their heads off.''

Jodi Selander, owner of Placenta Benefits, a placenta encapsulation service, writes on her blog:

I am (obviously) a huge proponent of placenta encapsulation. However, I can not in any way condone this type of activity. I created the Training & Certification program specifically to avoid these types of situations.

As an advocate for the movement toward legitimizing the use of placenta for its natural purpose, this story is absolutely outrageous. People who operate with such a total lack of regard for the gravity of the process and who apparently do not realize that the FDA is not on our side, set the movement back and make it harder for the rest of us who are being safe and working toward legitimacy.

Please, people - don’t think that you can find free instructions for drying placentas on the internet and just set up shop. This is serious. You need to comply with government standards and regulations. Get some training. Work with us. Together we can do it. But not when people like this are operating out there.

White Collar Crime News blogger Jef Henninger has a lawyer's take on the situation:

I hate to see good people get caught up in criminal cases when the entire problem could have been easily avoided if a good attorney got in there and essentially performed an audit on the entire business....I don’t know enough about the facts of this case to really figure out what the situation is here, but I see no indication that anyone was harmed. At the most, it seems like they had sloppy business practices while they performed a service that the people wanted; but the FDA does not agree with. This seems like it would be a good case for a lawyer to argue that this is a technical violation of civil law and not a criminal violation as no one was actually harmed.

And, as I have mentioned before, I would love to have an expert's opinion about the HIPAA implications of confiscation of medical records. What happens to a person's right to his or her own medical records when those records become evidence? I assume that HIPAA exempts healthcare providers from liability when complying with a legitimate court order or other legal process, but do the police, prosecutors, and court personnel have the same duty as healthcare providers do to keep protected health information confidential? What if the health of a woman and her baby are compromised because her prenatal records are unavailable? Is there liability? Is anyone but me asking these questions?


Update 1/08/2008: For more information and continuing updates, please visit The Placenta Blog.

Midwifery in the News

In the news this week...

California - Midwife surrenders licenses to regulatory boards.

Florida - Linda McGlade and her daughter-in-law, Tanya McGlade, will get a new trial after being convicted in 2006 of practicing midwifery without a license, a third-degree felony:

Under the law, there are three components to midwifery: supervising labor and childbirth; advising as to the progress of the childbirth; and rendering prenatal and postpartal care. Also, there is no standard instruction for the crime of midwifery, according to the 4-page ruling written by Chief Judge Stevan Northcutt.

Judge Nicholas may have misled jurors to believe they could use only one of the three elements of the charge to determine if the McGlades were guilty, according to the higher court's ruling.

"In the absence of a standard jury instruction, the trial court clearly attempted to craft a proper instruction by employing the statutory language," Northcutt wrote in his opinion. "A defendant is entitled to have the jury correctly and intelligently instructed on the essential and material elements of the crime with which she is charged."

(Link)

The court "rejected the McGlades’ claim that they were entitled to a jury instruction on the defense they were engaged in the free exercise of religion" (Link). The full court opinion is available here (pdf).

Missouri - Midwife legislation still stalled in Senate; Fierce Debate Over Midwifery Licensure; Midwifery bill runs into issues in Senate.

Pennsylvania - Diane Goslin's case in the news. Midwives Alliance of Pennsylvania has more information.

Also check out Midwifery World's Legal Cases in the News.

Is it legal for Florida midwives to do VBACs?

Occasionally one will hear that it is illegal for licensed midwives in Florida to attend VBACs (vaginal birth after Cesarian). Not so, as Sarasota midwife Heidi Dahlborg, LM, explains:

It is legal for a Florida LM to do a primary VBAC, but it does carry a risk score of 3, which requires a consult from a VBAC friendly doctor. Some midwives who can not get consults have mistakenly told people "its illegal to do VBACs at home" when they mean "it is illegal for me to do VBACs at home because I can not get the proper consult to comply with the law".

So you can legally have a VBAC with a homebirth Licensed Midwife, as long as she obtains a consult from a physician with OB privileges. There is a state risk assessment score for LMs that assigns points for various risk factors, and when your points reach 3 for any reason, you must have a consult with a physician that does obstetrics. A prior c-section scores 3 points for "prior uterine surgery". Prior uterine surgery with a subsequent successful vaginal birth (a secondary VBAC) is only 2 points. So if the mother has no other point scoring risk factors, she will only have a 2, and thus can have a VBAC with out consult. If she smokes, is over/underweight, or has other factors, she will need a consult based on her overall points. The risk assessment is in the rules, which can be viewed online at http://www.doh.state.fl.us/mqa/midwifery/mw_statutes.html under Rules: Chapter 64B24, its a large document and you must scroll down to Chapter 64B24-7, Midwifery until you see the Midwifery Practice Act, which includes the risk assessment. You can also get a risk screening tool from any practicing midwife.

If the midwife also has a birth center, that complicates things further. The birth centers are governed by a separate law, and it says the birth centers can only do VBACS in the birth center if they are participating in the National VBAC study, which has been closed for 7 years. So there has been no way to comply with birth center law, so there is no way to legally do a VBAC in the birth center. But midwives who own birth center will often do VBACs at home, even though they can not do them in the center.

I know an attorney that was drawing up a consent to allow midwives and moms to choose to go outside of the law or rules, as part of the alternative medicine law, but I do not know if anyone actually does that yet.

The American Association of Birthing Centers, the birth center association, is going to open the National VBAC study up again soon, thanks to Charlynn Daughtery a Tampa midwife that own Labor of Love Birth Centers. She has really been a strong VBAC advocate in political circles, working hard to keep VBAC options open at home and birth centers. Once that study open, hopefully in Fall, Florida women will be able to have VBACs in birth centers if the consults are obtained. You can contact them, AABC, to urge them to get the VBAC study opened again.

So, as it stands- in Florida you CAN have a VBAC at home, but not in a birth center, as long as the proper consults are obtained. Many women travel 3 hours or so to get the consult, at around 28 weeks, but you can usually get the consult anytime including preconception. It is generally just a review of your surgical record, and a conversation on risks and benefits.

Thanks, Heidi, for the great explanation!

Free At Last

McGlades savor taste of freedom

Florida "Midwives" Released - Take 2

Court taps new judge for midwife case.

(follow-up to: Florida "Midwives" Released, Florida "Midwives" Released Not So Fast)

Florida "Midwives" Released Not So Fast

Now this one is getting interesting:

Midwifery judge defies bail order

If Linda McGlade, 54, and her daughter-in-law, Tanya McGlade, 27, were released from prison, the local court cannot guarantee it could keep them from other "underground births," Circuit Judge Edward Nicholas wrote on his denial to grant the release.

Florida "Midwives" Released

Linda McGlade and Tanya McGlade, the two Florida women convicted of practicing midwifery without a license, were ordered to be released from prison this week pending their appeal.

Midwifery Legal Update - Florida & Indiana

In Florida this week, Linda McGlade and her daughter-in-law Tanya McGlade were sentenced to 2 1/2 years in prison after being found guilty of practicing midwifery without a license. The charges stem from the 2004 childbirth death of another daughter-in-law, Mara McGlade. The Florida case is a bit bizarre, because Florida licenses direct-entry midwives:

The defendants said they never claimed to be midwives, a profession regulated by the state. They said they merely attended an unassisted home birth, which is legal.

But Circuit Judge Edward Nicholas noted that they checked the heart rate of the fetus, delivered oxygen to the mother and examined the placenta.

(link:"Women sentenced for unlicensed midwifery")

In Indiana, Jennifer Williams, CPM, pled guilty on Wednesday to a charge of practicing midwifery without a license ("Ind. midwife pleads guilty in infant death"). As part of the plea deal, the charges of practicing medicine without a license were dropped. No charges were brought in connection with the death of the baby. Ms. Williams' case gained national notoriety after she was featured in a New York Times article ("Prosecution of Midwife Casts Light on Home Births"). In May, she brought suit against the Attorney General of Indiana, requesting that the state clarify the definition of midwifery. Indiana regulates nurse-midwifery, but has no statute regarding the practice of direct-entry midwifery.

From Ms. Williams' press release:

I am a Certified Professional Midwife which means that I am a fully trained and fully educated midwife and credentialed through the North American Registry of Midwives. There are two types of certified midwives in Indiana, and elsewhere in the United States - Certified Nurse Midwives and Certified Professional Midwives. In many other states across the country Certified Professional Midwives practice legally, with the sanction of the state. CPMs in these states are able to accept insurance and Medicaid reimbursement and interact fully with the medical establishment. Indiana chooses to prosecute these same CPMs with felony charges, instead of utilizing CPMs in the maternal child- health care system, which desperately needs support and re-enforcement.

Prosecuting CPMs is a short-sighted waste of money, time and effort. CPMs are not criminals or felons. They are well-trained professionals who practice with the highest of standards, who pass academic and clinical skills board exams, and undergo peer review and continuing education, just as any other health care professional does. Indiana should be incorporating these midwives into the health care system, rather than prosecuting them.

Midwifery supporters in Indiana have been trying for years to pass legislation legalizing and regulating direct-entry midwifery, but have been blocked by Sen. Patricia Miller, a nurse and the chair of the Senate Public Health Committee ("Desperate midwives: Sen. Miller continues to block legislation").

News links:
State questions legality of midwifery
Trying to boost at-home births
Midwives fight to practice in Indiana

Blogs:
Kemplog - Midwives vs. State and Midwife Takes Plea
**Updated 6/17/06 to add: Legal Status of Unlicensed Midwives in Indiana
Belly Tales - Homebirth Prosecution
Chai There - Calling my elected official
5 Dollars - Midwife charged in Edinburgh case

Florida: The Hurricane Magnet

What's it like to ride out a hurricane? The Weather Channel has a reporter (meteorologist?) blogging Jeanne from Daytona. You can access Stephanie Oswald's journal here.

Track Hurricane Jeanne (National Hurricane Center)

TRAVELOGUE: Florida Day 4

In the morning, we head down for a swim, where we discover that all the families with children hit the attractions first thing in the morning, and we have the pool pretty much to ourselves. Around noon, we bid farewell to Kelly and she leaves to catch her plane.

In the evening, we head to Downtown Disney, yet another shopping-restaurant-entertainment area with a theme-parkish feel. Despite our better judgment, we wait nearly an hour (at 9:45 pm on a Thursday) for a table at the Rainforest Cafe. We ask ourselves, it is worth it to pay $10 for a hamburger to eat in a fake rainforest, as elaborate as it may be? Big Champ is terrified of the animatronic gorillas, which our host leads us directly past on the way to our table. The heard of elephants we dine with are o.k. The huge tropical fish tanks are a big hit. And every 20 minutes or so, you get a thunder and lightning storm, complete with rain. Little Champ wants to go up and down the stairs near our table, which is not such a good idea considering the place is crowded.

The zoo it ain't.

TRAVELOGUE: Florida Day 3

Today we head to Old Town, a fun shopping area with rides.  It is technically in Kissimmee, but is closer to Disney, and quite a drive from our hotel.  After some shopping, the Big Champ rides the merry-go-round with Kelley and the Tea Cups with me, and surprises me by not being frightened by the cups going up and down and spinning around.  By the end of the ride, we are both ready for it to be over.  LC enjoys hanging out in his new stroller.   Afterwards, we have some lunch and are ready to call it a day.  We drive through Kissimmee but are not impressed, so don't stop.

We finally make it to the pool in the afternoon.  For dinner we head to Pointe Orlando which is an outdoor mall on International Drive.  International Drive is surreal and has an amusement-park feel to it.  We park near WonderWorks  the facade of which is an upside-down building.  They have speakers with a recording of creaking noises as you walk by.  At Pointe Orlando, we stop by a stand where you can have your picture taken with a parrot, and the lady puts the parrot on BC's arm which delights him.  We don't pay for a photo, though.  We pick the cafe at XS Orlando which has decent food but not so great service.  For the most part, the service at just about every restaurant we visit in Orlando is slow, slow, slow.  Even in the middle of the week.

TRAVELOGUE: Florida Day 2

Start out the day by heading to Walmart to stock up on supplies, where I make the best purchase of the trip - a Cosco umbrella stroller with a canopy, about $13. Unlike our Graco travel system stroller, which I love, an umbrella stroller can be gate checked on an airplane.

From there we drive to the Cornell Fine Arts Museum at Rollins college, which boasts Florida's oldest art collection, and had the added attraction of being free. But it was under renovation and closed. We head instead to the Orlando Museum of Art. I initially balk at the idea of taking two children under the age of 3 to an art museum, but we are surprised and delighted to find From Goodnight Moon to Art Dog: The World of Clement, Edith and Thacher Hurd. And although the Chihuly exhibit had closed in May, we were able to view one piece which had been purchased and loaned to the museum.

Then on to the Peabody Hotel, where we caught the daily march of the ducks from the lobby fountain down a red carpet, up the elevator, where they return to their penthouse. The Duck Master caries a walking stick, which does double duty keeping his ducks in a row and keeping small children off the red carpet.

TRAVELOGUE: Florida Day 1

My husband says: "Orlando is like going to Las Vegas but without any chance of winning any money, only loosing."

We arrive in Orlando and head to the car rental. We have reserved a full size sedan for $119/wk. The service agent offers us a Dodge Durango for $139/wk. They have 50 sitting in the lot and are pushing them. What a deal. When we get the bill, we realize that the $139 was for an upgrade, in addition to the $119. Nevermind. We end up with a Buick LeSabre, more than adequate, lots of trunk space.

We check into the Hawthorn Suites Orlando Airport. My friend Kelley is already waiting for us. She will spend the next 3 days with us, exploring Orlando with me and the kids while my husband is in class. We immediately head down to happy hour. Hawthorn Suites offers complimentary drinks and snacks for two hours every evening. They also have free american (hot) breakfast every morning, and free dinner on Wednesday nights - though in this case, you get what you pay for.

TRAVELOGUE - Introduction

Sorry I haven't been posting much lately. The next several entries will be a travelogue. My husband goes for training in Orlando, so since the company will be springing for part of the trip, and we have adequate frequent flier miles for me and the boys, we are all going with. First to Florida, then to Iowa for a week to visit Grammie and Grampy.

The theme for this first part of the trip is: how little money can we spend in a week in Florida. Can a family of 4 eat well on a $45/day per diem? How many fun things can we find to do in Orlando without shelling out the big bucks for Disney World, Sea World, Universal Studios, or one of the countless other major attractions in the city?

My guide for Orlando: Top 10 Travel Guides: Orlando (DK Publishing, 2002).

Note to the blog purists out there: these blogs were written out by hand and post-dated when published.

PERSONAL NOTE

Next week we will be headed for a much-needed family vacation to Daytona Beach, Florida. So I don't expect I will be able to blog while I'm gone, but I will have a lot to say when I get back. We will be there on the tail end of Biketoberfest. This is not by design. Ironic, three things that my husband dislikes with a passion are: Harley-davidson motorcycles, NASCAR, and golf.

This week I have done several things that I have not done since lawschool: stayed up half the night to work on a brief, refer to the principle of contra proferentem, cite to the Restatment (Second) of Contracts (fondly known as "R2K"), and use my well-worn Bluebook.