California midwives under attack

The increasingly popular practice of giving birth outside of hospitals is under fire from state regulators, according to several midwives and nurses who are facing disciplinary charges.

This includes Ruth Cummings, a certified nurse-midwife who runs the only free-standing birth center in the Sacramento area—one she may have to close if the state gets its way.

While most big hospitals in the area offer birthing centers with medical support in home-like environments, Cummings’ center, named The Birth Center, is special: It’s not linked to any hospital or medical group.

Back in May 2013, the California State Board of Registered Nursing, which oversees licensing issues, formally accused Cummings of gross negligence, incompetence and unprofessional conduct, alleging she was unable to tell that a client was in labor and misdiagnosing a urinary tract infection over the phone. According to the accusation, the client delivered a stillborn several days after last speaking to Cummings. The client later filed a complaint to the BRN.

The number of out-of-hospital births has been ticking up across the country, from about 0.87 percent to 1.36 percent over roughly a decade ending in 2012, according to the Centers for Disease Control. California sits right around the national numbers. That’s a small portion of births overall, but California midwives struggle to meet the demand.

Cummings is just one of several certified nurse-midwives in the state who are in the midst of what many in the community suggest is a systematic and coordinated attack on those who deliver babies in nonhospital settings. At least six of the 30 to 40 certified nurse-midwives conducting home births in the state are currently in legal battles with the BRN over issues of licensing and standardized practices.

“The BRN is crazy right now,” says Cummings, who, along with others, claims the board has failed to provide clear standards of care for out-of-hospital births.

Cummings has operated her practice out of a home environment tucked away in a Foothill Farms cul-de-sac for more than 14 years now.

According to the accusation against her, the client in question called Cummings on two sequential days in late summer of 2010, complaining of intensified irregular contractions, painful urination and an urge to urinate. Although the client was full-term, Cummings says she didn’t “hear” any contractions—any pauses in breathing or strained speech—during the phone conversations.

Cummings, who diagnosed a probable urinary tract infection and called in a prescription for an antibiotic, says she was “trying to be more cautious” by assessing the client over the phone instead of examining her in the office, then waiting the weekend for labs—and an official diagnosis—to come back.

But while the standard in a traditional hospital setting may be to perform fetal and contraction monitoring and a cervical exam, that’s not necessarily part of the “midwifery” model of care, which aims to keep women out of clinical settings.

“Midwifery is good at keeping [women] at home until they’re in active labor,” Cummings says.

One of those women is Susan Wilhelm, a Ph.D. from UC Berkeley’s School of Public Health. Wilhelm has written letters to the board and testified on Cummings’ behalf to the “euphoric” and “seamless” birth experience she enjoyed. She calls the alleged attack on out-of-hospital births “an act of violence against women.”

“Birth is important. Birth is sacred, and I had incredible care,” Wilhelm adds. “It seems criminal the BRN is trying to do away with that.”

The accusation against Cummings asserts that, three days after the client’s last conversation with Cummings, the woman presented herself at the ER, where the baby was found to have died. The accusation never indicates that the client asked for or was denied an exam, and Cummings says the client never asked to come in.

Although tragic, stillbirths are more common in the United States than one might think. To put it into perspective, about one in 160 babies in the country is stillborn, according to the Centers for Disease Control.

In this case, Cummings says she was told the cause of death was an umbilical cord accident, which is difficult to detect and generally causes no pain to the mother. If a cord problem is caught before it’s too late, it’s often because the mother reports a baby that isn’t moving.

An August 2014 hearing led to three years of probation for Cummings, which was later stayed by the Sacramento Superior Court in May of this year. She will be appealing the ruling sometime next year, and expects her legal fees to exceed $150,000, she says.

If she is found guilty, her birth center will close its doors and Sacramento-area women will have lost the only local birthing option of its type.

Even if she wins, her practice will be affected. Cummings has already sought therapy to deal with trauma from the death and says she has taken to practicing more defensively.

“Nobody will do what I’ve done,” she says. “Nobody has thought about what it’s like on the provider’s side to have that happen.”

Nora McNeill also knows what it’s like to do battle with the BRN.

A licensed midwife from Redding, McNeill has delivered more than 1,500 babies during her four decades of midwifery. Licensed midwives undergo different training than certified nurse-midwives, and are under the jurisdiction of the Medical Board—not the Board of Registered Nursing. But because McNeill is also a registered nurse, the BRN has taken an interest in her practice.

“The BRN hates me because they don’t know what to do with me,” she contends.

So far, the BRN has filed roughly 20 accusations against McNeill—each one spurred by complaints from hospital staff, never clients, she says. Many of these happened when McNeill transferred clients attempting a vaginal birth after previously undergoing a cesarean section birth, or what’s termed a VBAC. Many hospitals won’t allow VBACs, and instead require repeat cesarean sections.

But because her clients refuse to share medical records, many investigations eventually puttered out.

The type of accusation filed against Cummings and the other out-of-hospital nurse-midwives are rare but effective. Accused RNs and certified nurse-midwives become financially crippled, paying thousands in legal fees whether they retain their licenses or lose and are forced to pay for the BRN’s legal and investigative fees as well. Meanwhile, the BRN has access to a substantial well of taxpayer funds.

About 70 percent of the BRN’s annual budget—$37 million for the last fiscal year—is spent on licensing enforcement. More than 7,000 complaints are investigated annually.

Overall, the number of accusations filed against nurses is very small, and mostly deal with substance abuse, according to Russ Heimerich from the Department of Consumer Affairs, which oversees the BRN. The BRN filed 1,448 accusations for fiscal year 2013-14, though about 400,000 registered nurses are licensed in the state.

That’s less than 1 percent of nurses facing charges, vs. 15 to 20 percent of certified nurse-midwives working outside of a hospital setting.

Heimerich insists there has been no focus on midwives practicing out of hospital, and that most times, the BRN doesn’t know how or where a particular RN practices until a complaint has been filed and an investigation has begun.

“I can pretty much deny on behalf of the BRN that they’re out to get any particular type of nurse,” he says.

But if the BRN doesn’t have it out for these midwives, it also hasn’t fostered a professional relationship with them.

According to a March governmental efficiency and effectiveness review hearing, the board has not allowed the Nurse-Midwifery Advisory Committee to convene since at least 2011, even though nurse-midwives have been asking for guidance on issues affecting their practices. The review also found that there aren’t enough reps on the board or on its Nursing Practice Committee who are actively engaged in or familiar with the practice of midwifery.

“Absolutely, 100 percent, they are anti-home birth,” says Yelena Kolodji, a Los Gatos midwife. “It’s really scandalous what the BRN has done to Ruth [Cummings] and me.”

Kolodji is still fighting BRN accusations that she did not have proper physician supervision for perineal repair during a 2008 home birth. The yearslong fight has cost Kolodji more than $160,000 in legal defense fees, she says.

The physician-supervision requirement is a hot-button issue in the midwifery community. Historically, the BRN has sought to suspend licenses of certified nurse-midwives practicing home birth without physician supervision, even though the board itself “is not aware of any research or evidence that supervision improves patient safety,” according to a 2014 state report. Even the American College of Obstetricians and Gynecologists asserts that certified nurse-midwives are experts in their fields.

Kolodji and other midwives maintain that such supervision is nearly impossible to get: It’s prohibited by doctors’ malpractice insurance.

But a bill currently navigating the Legislature with significant support could relieve nurse-midwives of that requirement. Assembly Bill 1306 would echo the relief that licensed midwives received two years ago under A.B. 1308. A.B. 1308 formally eliminated the supervision requirement for licensed midwives in 2013, a requirement that the Medical Board hadn’t aggressively enforced for years prior to that, according to the California Nurse-Midwives Association.