Grow Midwives Webinar Follow-Up: Understanding Vicarious Liability With Joseph Booth

April 5, 2018

Joe Booth on Vicarious Liability dispelling the sword and shield myth


On March 29, 2018, Joseph Booth lead a webinar that explored the complex topic of vicarious liability in regard to collaborative practice. If you would like to consult Joe or any of the other Grow Midwives team, reach out on our contact us page.

Ginger: [00:00:01] I'm really excited about this topic tonight for several reasons. One, because, as Lesley and I've been working more and more with physicians around the country, Vicarious Liability comes up as a topic that they're often fearful of, not clearly up to date on, and confused by, which can be a major barrier to growing midwives in our country. It also allows us to feature my husband, who wrote the most recent article for The Journal of Midwifery back in 2010. Was it 2010, 2011, on vicarious liability and we are encouraging him to update that for all of us to be able to use when we talk to different stakeholder groups. And, also, Lesley and I will be the first midwives to exhibit at an ACOG annual meeting coming up in Austin and it will be an opportunity for us to, again, engage in those topics and barriers to team-based care in whatever setting you might be in that simply helping people or guiding people through conversations they don't understand or know is just a step to keeping that conversation going. Whether you're the end communicator or not, you definitely, hopefully, after tonight will have more skills in being able to keep the conversation going. So I want to introduce my husband Joseph Booth. He is an expert in health care law. Having worked at a health care stabilization fund in Kansas for many years. He's also an incredible advocate of midwifery, has done a lot of reviews of contracts, employment contracts and other sticky situations that midwives are seeking just some general advice on and I'll let him decide if he wants you to be on it or mute or not. We really appreciate you, Joe.

Joe: [00:02:11] Hey there. We have a real small group tonight and I think it would be most helpful if people did chime in whenever they wanted to. I intend on spending about, oh, 30-to-45 minutes working through this process and talking about the idea of these kinds of liabilities and how it's used both as a sword and a shield sometimes in these conversations about midwifery coming into a particular market and the interplay between different professions. Ginger mentioned that my article was somewhere around 2010. I'm not sure that that's exactly correct. But what's more important is that it had been a rewrite or an update of an earlier article and that earlier article talked a lot about the same issues. So this is old news in midwifery and in other allied health care. It's not something that is a new topic and frustratingly the same message has to be repeated over and over again. I think I want to start with the idea of talking about what vicarious liability is and then back up and talk about erudite things like a stick. Or better yet toy timeout. Vicarious liability represents the economic connection between someone who wants to do something, someone who does it for them, and what that is done to somebody else. So if you can trace backwards an economic benefit or an economic relationship or a professional responsibility-type relationship through this chain of people, you effectively have what would be called a little vicarious liability chain or as some people call it respondiant superior. We try not to use Latin, because, well, I'm a Kansas lawyer and we don't know how to spell Latin, so let's go to Toy Time Out, now when our kids were young and somebody hit somebody with a toy or a toy flew across the room, they had toy timeout, because they threw the toy we blame the toy and the toy was bad. And on top of the refrigerator was the residence for Toy Time Out. Vicarious liability as Toy Time Out. It is where you blame the person who actually acted on behalf of someone else and you try to sue them and then as you look for deeper pockets, as you look for the reliability that happens, as you look for the fact that you may not be able to sue this other person later if you don't include them. You work your way up the economic chain, so that you include all the participants. But if you didn't wind up being the person, if you were the other toy in the toy box, you didn't have any responsibility for that. And that is a good example of what I would call the the vicarious liability chain or the responsibility. What happened in midwifery, more than any of the other allied health, is this idea of a collaborative practice agreement and a collaborative practice agreement as all participants here now and know all too well is an agreement between antonymous health care provider, a midwife, and antonymous health care provider, some physician. And they're often required. Some people view that as a supervisory authority. It's not. It is a transactional kind of process in which you have a CRE organized structure that I like to think of as in three parts. The first part is where the midwife is acting autonomously aware that there's this collaborative practice agreement out there if they should need it, but often has no need for it whatsoever. Normal delivery happens as it does every day in the millions of people that are born and nothing new happens. And so there's really no problem there. There's no responsibility there's no relationship between the physician who signed the collaborative practice agreement and the midwife who functioned within that role and didn't need to call anybody. Something happens, a concern that arises, and that concern may come along and it involves some level of wanting to collaborate and consult with a physician. The physician who may be doing the consulting is going to offer their advice. They're going to flag when the transition should occur from one person to the next, from one role to the next midwifery to physician and they may direct certain treatments in that process. Now, still they're operating alongside one another. They're not each economically interdependent upon one another. So at that juncture the midwife is responsible for what they've done in their midwifery. The physician is responsible for what they've told the midwife to do. But that's not vicarious liability necessarily. There's no economic responsibility that's a direct liability. They've said well I think this person needs this sort of treatment, but they're treating the patient. They're just asking someone else to do some of the work for them. So they're responsible for the treatment they do for this patient in this middle level process but they're not responsible for the autonomous care that the midwife is still offering during this process. And then you have this next step and it may involve the midwife working more under the direction of the physician or absolutely out of the loop and the physician who has taken over. And you know that interplay may be described as the time in which a midwife is coming in to the hospital entering in the OR and assisting the physician in doing a c-section. They're no longer practicing the direct act of midwifery. They're doing more of a nursing role. And the and the physician is of course responsible for what they're doing in that kind of direct care. But you see you have this trade-off as you move through in these distinct roles and the only time it ever gets blurry is where it's blurred intentionally between the collaboration between the two parties and they're working in concert in one form or another. And ,yeah, you might have both of them be responsible for doing the things they're doing at the same time, but it's not vicarious liability. Now, let's go back. Vicarious liability has to do with that economic relationship. It has to do with the idea that the toy's in time out because the child has done something to place the toy in time. And that's the kind of idea that we have here. I hope all that is kind of clear.

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Joe: Next, let's talk about how it's often used in the marketplace. Vicarious liability can be used as an excuse not to collaborate or practice in concert with other allied professionals including nurse midwives. Physicians will say I don't want to have anything to do with it, because I might be economically responsible. The problem is that this is a conversation between the midwife and the physician over a legal topic. And the only way to find out whether you actually have a conflict or concern is to get legal support to understand how those interplay. And so in order to do that you have to have a more involved conversation and that involved conversation is your first, shall we say, "tell" as the poker players call it, that gives you the idea of whether or not this person is just using this as an excuse. Because this idea, this flying this banner of vicarious liability, is often simply just an excuse for physicians to say I don't want to be responsible for people in other professions. Well. You aren't. You're not responsible for the driver for the Uber driver who took you to work. You're not responsible for a variety of things that happened in life. So there are different professions and they each deserve their own autonomy and respect. The other is to use it as more of a sword and that is that physicians will often raise the vicarious liability issues to assert inordinate control over the midwifery practice. They're going to say if, I'm going to work with you and collaborate with you as a midwife, I'm going to assert certain requirements over your autonomous practice that fit my desires. And that too is inappropriate. It may be appropriate for them to want to do that for their own reasons and whatever the purpose it is, but collaborative practice doesn't demand that and vicarious liability has no place in that discussion to use collaborative practice as a sword is to basically try to create an up-,down kind of relationship between two coequal care providers one being a midwife and one be the physician who is in charge of whatever the physicians in charge of this process. So it can be used inappropriately in the conversation and often when you're negotiating as a midwife with other allied health professionals including physicians. You have to understand that some of these things are being raised not in sincerity, as opposed to insincere, not being sincere, but instead being raised as a negotiation ploy. Simply being raised as a way in which different people are trying to say I have more irons in the fire than you do. I have a higher level of control and therefore I deserve a higher percentage somehow in this marketplace. If you look at the proper representation of what midwifery practice is is an autonomous role of healthcare being provided by people who are legally allowed to do so. I've not gone through a 50 state review of all permutations of how different these different interrelationships are, but I've not found a direct situation in which midwives are practicing under the constant supervision of a physician. And I would wager that none of the physicians would want to have that kind of responsibility, because if you take it and turn it back over into the situation that we had as we began this conversation, that means they're increasing their liability for things that are happening out of their field of view. And why would they do that? They didn't have to do it, have never had to do it. If somebody creates a structure that does that.

[00:14:52] You would think they would be the first to object and the only reason why they would ever try to propagate some kind of statute along that line is to ease out what they believe is a worthy competitor and that would be a midwifery practice easing into their practice in the delivery of babies. So this idea of vicarious liability is an old argument that's been worked over for a long time and it rests strictly on an idea of if you intend to get benefit from what someone is doing down this line of causation. And that benefit especially is economic but not necessarily if you're intending to get a benefit from it. You would also enter some kind of responsibility for what happens back up the stream if it goes wrong. So you know unless the toy deserves to be in time out it just doesn't get there in the blog which I suggest you read because among other things it has probably more erudite comparisons than Toy Time Out. We refer to a few articles and a few other resources. But one of the things we used as a metaphor they're talking about if you were building a house and you're the one in charge of building the house and you have a plumber and you have a carpenter you're not going to blame the plumber for having a door out of true and you're not going to blame the carpenter for a toilet that won't flush. They're autonomous separate roles that aren't answering to one another in the overall goal of building a house. And so, you know, if you think of it along those lines, these separate collaborative agreements and the work in consort create no liability between one another. So what do they do? Probably the most important thing is, like we've learned every other sphere including building the house, is that they enrichen the the benefit to the consumer. There are different people autonomously working on different agendas with different skill levels that are providing services to the individual. And if you look at it that way, as we conclude in our blog, you have this general idea that this is going to enrichen the benefit for those people and probably reduce the risk for the participants in this process. So if you have an autonomous midwife, an autonomous physician, and maybe some other healthcare providers involved, including various institutions, etc. The thought would be, and it's pretty hard to argue about the cold logic of this, is that if they're each operating in a certain check and balance, a collaboration, and they're working towards the mutual goal of the benefit of the patient or the patient is better off working with these people in collaboration than they are with any one of them individually and that each one of the individual care providers has greater insulation against a risk of having their mistake work its way through to causing some kind of damage. And so this is a good point in which we want to talk about what a negligence suit is. We're going to ignore the idea of purposeful acts to hurt people why you are responsible for it, because I don't think that applies here. Nobody's trying to hurt anybody. A negligence lawsuit has to do with a duty and then a breach of that duty. And then when that breach occurs it causes such damage as to which compensation's appropriate. And so we've all made mistakes, caught the mistake and made a remedial act or the mistake wasn't big enough to cause a problem.But if you have a duty to care for someone you breached that duty. And it really hurts them you're responsible for correcting your error. Unfortunately in law, we have a very bad habit of correcting errors by handing out money. About the only thing we can do in most of these tragedies that occur in human life is to try to monetize it. And so you wind up with this ugly conversation about how much people owe as opposed to what is responsible to fix the wrong. You can't repair a life, you can't restore a painful experience. You can't undo bells that have been rung. And, so, the closest thing we can do is monetize it. But if you go back and look at that in this same kind of conversation that we've been at all along, the idea that someone would be responsible for having a duty is the same conversation as vicarious liability. Do you have a duty to this patient under these circumstances and let's place that back in the collaborative practice agreement. If the midwife is working along taking care of natural normal births that occur within the scope of their midwifery license and they see no cause to contact the physician, the physician has no duty at all. If the midwife contacts the physician because they have a concern, they have a duty for the concern that's been brought to them and for the services they render. Which is what they're in business for. And then if you go further and you have the midwife leaving the patient in transition to care by the physician, the physician is picking up the duty and leaving the midwifery role further and further behind. So the vicarious liability in relationship to duty is a good way to look at, did you assemble some kind of personal responsibility, professional responsibility for what is going on as it's being implemented. You know, are you going to wind up with your toys in time or not and that that is a as good a way to look at it as any other.

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Joe: As important and as fair to ask in a conversation with physicians is, no you're not responsible vicariously for the acts that you commit or that I commit autonomously as a ,as a care provider and I assure you that if someone comes to me after the care has been handed over to you that I'm not going to be willing to take vicarious liability for the acts that you commit as a physician. Understand how that happens. In that conversation you've take it away from this mystical idea that vicarious liability is top-down and that the top down in-fact exists between pre-established roles and that there is such a thing as a top-down between a physicians role and a midwife's role. There isn't. They're different roles. One may have a broader scope. One may have something different, but I'm reminded of what a scholar I read and enjoyed a lot when I was younger and that is the concept of power in a relationship and the scholar reminds us that power in a relationship is a myth. It's wrong. It's a bad metaphor. Power in a relationship, power is a engineering concept or a physics concept. It's work over time. There's no such thing in a relationship as one person having power over another. Because really all we're talking about is quotients of work over time and relationships don't work quite that way. We all know that someone who may have lesser abilities and lesser consciousness may not be able to move the ball forward very fast, but keeps whole group down. Power doesn't work well as a metaphor in relationships and neither does some kind of aristocracy in the medical market. The idea that physicians might be vicariously liable for midwives is the same question as are midwives who collaborate with physicians vicariously liable for them. And so by flipping that dialogue, you began to be able to realize that that conversation becomes more and more amorphous and not well played in this situation. Now are physicians who involve themselves with midwifery care and vice,-versa responsible for one another. Yes in so far as they are working together for a common economic purpose. So if you have a group of midwives who are working as employees for a physician. Well, they're the physician's employees and the physician is enjoying the economic benefit of whatever the midwives are doing and they're going to be responsible for that. And the same might be held true if a midwifery group employs a physician as part of their practice. Yeah, they could be, you know, if they're billing for this physician's activities, they would be responsible with the physician does. It's the economic relationship that lawyers and courts are looking at, not the aristocracy of old school thought of where the placement is between one profession or another. I've spent about 25 minutes on this and I would like to see if there are any comments. You can un-mute and any questions

Lesley: [00:25:55] I have two. So more clarifications than questions. So in the instance that a midwife practice that's independently owned by the midwife or a group of midwives is paying their collaborating physician two thousand dollars a month just for collaborating, we're not talking about really doing anything other than being available. How does that increase liability on both their parts if there is an adverse outcome? That's the first one and the second one is, from a regulatory or legislative, I think what you're saying is using supervision in those regulatory language is not good for the physician side. More so than even the nurse practitioner or the nurse midwife?

Joe: [00:27:06] First question, if there's compensation for being involved in the collaboration, it is a service being rendered and availability that doesn't necessarily economically connect the patient to the various providers as you go along this dialogue that's happening here and the law looks at this idea as the concept of privity in contract that we have a handshake between different people and sometimes people joke I'm three handshakes away from something this person. The idea that you're giving some kind of economic benefit to somebody for entering into a collaborative practice agreement doesn't economically tie each individual patient to the physician or each individual physician payment patient to the midwife as they go through their process. It's a separate topic and the compensation is not based upon the provision of care for an individual patient. It's based on a service for a different continuum for a different purpose. So this collaborative practice agreement as you described it one would get say 2000 dollars a month for being the collaborative practice physician. They're not getting more or less and they're not changing anything depending upon how often they're called. They're simply being compensated for the fact that there is a benefit that they're willing to bring to this group that is in the sphere of economic logic of greater benefit than the midwives are bringing to the physician. And so here at this point in the negotiations somebody decided that to reach equilibrium between the two in order to come up with this agreement, you've got to match up with an extra 2000 dollars before we're matched up and we're fine. And so that is just to establish the collaborative practice agreement then you look collaborative practice. Yeah. And that would be the concept. Going to the second point this idea of supervision within legislative language. To my wife's consternation, being married to a lawyer. Words are very important to lawyers. Far more than they are to anybody else except poets maybe. And so the idea of some kind of supervision. I want to know what that means. What are they supervising to do and supervising about in order to create this situation. And what do these raids mean. But for the most part as soon as you start using words like "supervision" you have the other side of the coin and that is that people think that you're supposed to be in the general, natural meaning of the word supervising this process and you'd have to get into the fact of what are they supervising and why to try to figure out whether they're generating the liability. But I would certainly avoid, my feeling and I do some statutory drafting, avoid words like supervision of two different autonomous professions for all sorts of reasons including the fact that when we go back to this whole idea of negligence this duty has another element in it that I didn't speak to. And the duty is not to breach the standard of care. The standard of care is what would a like health care provider in the same community be called upon to do as a normal standard of care. So a midwife in one area of the country may have a very different standard of care from a midwife in another area of the country. And the best example I could think of is very, very urban areas where lots of resources are available and in collaboration or consultation with others is immediate easy and simple and probably inexpensive, but not necessarily versus very rural care and the standard of care for someone operating in a very rural environment, say western Kansas versus the Kansas City metropolitan area, is very different. And so, if you're going to start using words like supervising, you have to be very articulate within that scheme to understand what the supervision will be and what the limits of it are. Because I don't know how, if I would put myself in the shoes of a physician. Oh I could supervise somebody who has an autonomous professional role who can tell me just to go pound sand at any point because they're operating within their scope of care and standard of care. How do you supervise that? You can't. So, you know, to me it would be a poor word choice.

Ginger: [00:32:39] But there are states that have, Joe. You can't change that.

Joe: [00:32:40] I know and I'm saying. I'm aware of that. But when you look at those statutes, you really have to look at what does supervision mean and many of those may simply endure back to the idea of what a collaborative practice agreement means. Or that the supervision is to meet certain standards. It is not supervising the process of having a birth and being responsible for the moment by moment hands-on care of a patient.

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Ginger: [00:33:17] So there are key elements of a collaborative practice agreement that can help clarify the physician's role. Some of those articles that are cited talk about that.

Joe: [00:33:39] Yes

Ginger: [00:33:39] When your collaborative practice agreement to protect both parties.

Joe: [00:33:45] Well, it is probably sculpted from one Collaborative Practice Agreement to the next even though of course they use boilerplate, but you're articulating that comfort zone of where there is a midwifery responsibility to call upon the physician. And if the midwife fails to call upon the physician, the physician's not responsible for that failure. So a physician may want to move that collaboration closer to the incidental events that that lead up to to any birth and want to know more. Because they may be tempted to do that but if they do and the midwife takes advantage of that role within the contract they are increasing their individual responsibility for what they're doing within that collaborative role. If they roll it back to other levels as they move through as you articulate this agreement and allow more autonomy to the midwives then you're looking to the very nature of the collaborative practice agreement and it fits within the constraints of other voters in this process including accreditation. You wind up with this process in which the midwife is operating autonomously is not blamed for for not contacting physician because it doesn't fit within requirements of the collaborative practice agreement. And then and then the transition point just moves further over and the physician has less responsibilities so the more control it takes over the situation the greater their responsibility but they volunteered for that. We've located for that collaborative practice. Does that answer your question?

Ginger: [00:35:46] I think so. Keep it as broad as possible and non-prescriptive.

Joe: [00:35:54] Yeah. You know, if you truly appreciate the roles that each autonomous professional has and have the better the understanding you have of what each individual role player has in each step the better off you are of having a more vibrant and fulsome collaborative practice agreement.

Ginger: [00:36:26] That's often what the challenges are with physicians is they don't understand the scope and role.

Joe: [00:36:32] And, you know, trying to make sure that each side understands that often involves third party interpreters. It involves people like Grow Midwifes who come from the side and say no these are these various roles. Midwife you're wrong about that point. Physician you're wrong about that point. It involves seeking legal counsel in order to understand terms and how they are read. You commonly see physicians who take the word supervisory role and just put the Captain's Hat on and pretend they're the captain of the ship throughout the entire process when they're assuming more responsibility than they need to. They're assuming more liability than they need to and they're abandoning a number of opportunities that would otherwise be very fruitful for them. The patient loses because they don't have that kind of tapestry of care or a kaleidoscope of care from thoughtful individuals who are coming in genuinely from their each perspective to to render the best possible patient care.

Ginger: [00:37:52] I think a good resource is the ACOG tool kit on collaborative practice that talks about what Joe just said. There is not an individual Captain of this ship, but in a team based model the leadership of that patient care may change at any point in time whether it's a gestational diabetic who needs more advanced services and they co-manage a patient or whether a midwife completely refers the patient out and the physician assumes the responsibility for care. But that book in particular is very helpful although it's a short paragraph on vicarious liability helps describe what Joe is saying about the captain of the ship and who's responsible at what point in time related to liability.

Joe: [00:38:49] And just to sort of put a cap, put up a perimeter around that, the idea of Captain of the ship is a legal concept. If you were working with a group of people that you don't have any economic interplay with you could still be responsible for what is going on because you're acting in an authoritarian role and telling these various people to do things for you. And while it looks a little bit like vicarious liability in the sense of the Toy Time Out theory. But it's different in that you don't necessarily have to have any in economic interrelationship between these two people. If you're telling people to do something for you then you're the captain of that particular ship at that particular moment. And both professionals could find themselves in that very role. Ginger wanted to know if there are any further questions. We're it almost 40 minutes and that is a good time to have a dialogue about questions.

Sharron: [00:39:57] This Sharron. I have one regarding hospital privileging or credentialing and they still at least in the Wichita hospitals are required. They call it a sponsoring slash collaborating physician to sign like your privilege request. But then the verbiage throughout it is supervision is mentioned several times and it's like supervising physician and then under the supervision of a member of the medical staff and then that a nurse midwife is an assistant to the physician and is not an agent for the physician. What the heck does that mean?

Joe: [00:40:54] It's probably a fertile ground for attorneys to try to figure out how to draw liability among a number of medical malpractice policies. As attorneys look further for fruit on the vine they're are very curious in who's responsible for what. They're very concerned that they sue the right combinations of people, so that if they prevail or don't prevail they haven't ruined any opportunity they had someplace else. But when the the contract, which is what you have there, is a civil contract between the physicians, the hospital, and the midwife, have turned around a blurred those concepts and then talked about supervision and maybe didn't necessarily go into any kind of helpful definition of what they are supervising. You wind up with not necessarily a vicarious liability but a liability for failure to supervise that is somehow brought about by this contractual obligation between this person who is willing to sign on and the midwife and it's a different topic than vicarious liability in the sense that it isn't dependent upon the economic relationship. You're not getting more money for this delivery as you did if it never happened. Or you know those sorts of things but you're agreeing somehow to add more benefit to the process by the process of supervision. Ginger mentioned that it sounds like they're trying to keep it out. That goes back to our sword and shield kind of concept. And that is that by creating these kind of well you're gonna be responsible for it and you're going to supervise it. They're creating and generating the liability that never really should exist. That would be my personal opinion on how that works. But it all goes to the idea where they're defining these terms of supervising and what supervising about that relationship.

Ginger: [00:43:23] Is it leaning towards a restraint of trade.

Joe: [00:43:27] It's a big question that's outside the scope. Ginger asked if it's leaning toward restraint of trade. Yeah, you might be. But I certainly don't want to come up with an opinion on that on the fly. But yeah, that's a concern. There are a lot of overlay of of legislation and tort law relating to the fair play between these various professions. And and getting with it with social interest being, is adequate care being provided for the community and is one group to use a broad definition, physicians, which isn't fair to them, inordinately trundling down the the role of midwives in a way that reduces accessibility of care for the community. If you're going to license them both to have a scope of practice, you've got to give them both a chance do it.

Ginger: [00:44:34] That's a tough one Sharron.

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Joe: [00:44:35] Yeah. I really think they need, and they may in other aspects of the agreement, or in other documents that sit outside of that, further define this, but that the gross view, the broad view of that kind of language. I'm not sure of any reason why they would be required to have that language. It sounds like somebody came up with the right idea. It is unfortunate that often hospital policies are drafted by people who do other things for a profession and don't necessarily bring in people who are trained to do this almost quasi legislation kind of process. And really don't know how far they stepped into it until something happens in a different way. In other words sometimes medical providers are happy to provide legal services when they don't necessarily have any experience whatsoever to do that. Just like lawyers prescribe medicine.

Sharron: [00:46:01] Well, a couple of years ago I attended a seminar on vicarious liability put on by a physician lawyer and it was a little different when they were talking about what at least in Kansas there is you know rules and regs about what that means supervision or when they sign a collaborative agreement. And that was a little more, you know, like the physician like if you sign this and this person messes up you may be liable. And you know that was from their side of things even in their rules and regs so.

Joe: [00:46:41] Well, Kansas is an odd place, because the Kansas Healthcare Stabilization Fund and now the midwives are considered the Kansas health care stabilization fund was created to help manage the professional liability risks within the state and the inaccessibility at the time for professional liability insurance for health care providers. And so they created their own definition of a health care provider and unless you are in that inside club, you were not a health care provider, so they had their own definition and midwives were not part of that until just recently. Now that they're part of that. What Kansas has done is completely eliminate vicarious liability between these various health care providers. Under the theory that's been referred to as the quid pro quo, excuse me, I do that every time I speak live. And the idea that each one has their own liability policy in that state with their own overarching health care stabilization fund isn't going to be responsible for two of them when one of them's already been responsible economically. And so by requiring the liability insurance on one hand, they remove the liability from the second person vicariously and so. So what you got there, Sharon, is old news. It changed when certified nurse midwives became health care providers under the Act. And that brings up probably something that's worthwhile to discuss in the last few minutes of this conversation and that is who do you get help from as you move through this process? When you're talking about global issues like the scope of this conversation that we've had tonight. It's appropriate to deal with people who are learned professionals. As you move closer to it being more and more important, you probably need somebody law trained to talk about the law issues.

[00:49:03] But as you move to specific roles in specific environments you need people who are experienced and have usually health law attorneys in a particular environment. Usually the whole state because most of this is moderated by state law and different structures of how you can organize and who can be parts of and who can have economic relationships between different forms of corporation, et-cetera, so that you may need, fairly quickly, to be in dialogue with somebody who is your state's attorney, meaning licensed and practices within that state. And experienced with health care for that environment in order to answer many of these questions and you cannot necessarily take on an assumption that someone who practices elsewhere can give you clear advice on the particulars of a relationship and its responsibilities until they've gone through all those accoutrements of healthcare including understanding accreditation, the state regulations, the federal regulations, and all of those bits and pieces as you work together to try to work in particulars for for an individual context. So global services like the ones that Grow Midwives offer sometimes do their best work by helping to connect with people who have specific skills for the specific problem in that geographic area. Any questions?

Unidentified: [00:50:58] I have a question. It's peculiar to our practice setting in Nevada. In 2013 we were able to get rid of the clause that required collaborative agreement. At the same time that we got rid of that clause, most of the hospital boards in the state voted that they would not allow an autonomous practitioner to apply for hospital privileges unless they were in the employ of a physician already credentialed. Is there any way around that kind of maneuvering? We also are seeing it with the insurance companies. So many of the insurance companies are not contracting with autonomous practitioners who are not sponsored by a physician. Do we need to get new laws?

Joe: [00:51:53] Well, they are different topics in a way. By eliminating the collaborative practice agreements. I don't know why those were eliminated, but that problem...

Unidentified: [00:52:09] They were eliminated because the Board of Medicine put into their regulations a definition for the collaborating physician. We were required to have a written collaborative agreement and the last line in the end of about 12 lines of regulation read that the collaborating position is responsible for all medical acts committed by the advanced practitioner of nursing.

Joe: [00:52:32] Aha. So they erased. So one act of legislation made collaborative practice a dirty word, so another act legislation simply erased the dirty word.

Unidentified: [00:52:48] Well, basically what it was was it was the board of medicine put it into regulations. The legislature never put in how the board should define the role of a collaborative physician, but they took it upon themselves to do it.

Joe: [00:53:00] Right. You know, had everybody been involved at the same time they could have just fixed the regulation and not created the problem. Hospitals were faced with a problem and this is an important aspect of how you go about problem solving. The hospital wanted to solve the problem by creating this sort of odd definition of what a collaborative practice agreement did. And then they turnaround and tripped over the same wire themselves. Whether or not it's the same group of people who decided that they had lost round one, they won round one, last round two and decided to win round three. Or however this dialogue began to happen. The problem is that when you have these private exclusionary-type contracts, there might be some fruit there to begin a conversation about a restrictive trade or similar kind of conversation saying that your excising us out from operating as an autonomous professional and is that your right to do in the medical environment?

Unidentified: [00:54:17] Because in our particular city and location, there is a single OB group practicing at the hospital. They refuse to work with nurse midwives on a you can work with us and be in our practice kind of basis.

Joe: [00:54:33] And that heightens the concern and the problem is something that may well be actionable. It's difficult to gauge. One of the things about health care law is that there is this overarching social policy consideration that an awful lot of health care law treats differently from other contracts and the best example I can think of is a collaborative is an agreement not to compete, a not compete at the end of a term of employment and the ones that involve physicians. The law's pretty clear I think pretty well across the United States and that the court has the ability to go in and restructure this contract which is a very unusual thing for courts to have the ability to do and limit it for duration or geographic scope or range of practice in order to serve this counter interest that the community has of having healthcare. So that a non compete can't eliminate for the community needed health care services. That same logic seems to apply in your Nevada problem. It's very, very different from collaborative or from vicarious liability, but it is very similar to the concept of what I was talking about about using it as a sword so to speak to keep what might be considered competitive practices away which, by the way, for the record, I'm not sure I'm willing to admit that a collaborative professionals and having midwives in the environment offering services in any way reduces the market place for the other providers of healthcare. I think you wind up with sort of a situation where economically by offering a greater range of services you spread the liability that comes along with the market place of having to take care of all these people who need to have their babies and they're going to have come hell or high water and midwifery services. Answer a call and it can be remarkably profitable without taking a dollar away from the other services in the Health Care Act environment.

Unidentified: [00:57:34] Thanks.

Joe: [00:57:34] You bet.

Unidentified: [00:57:35] I need to talk to you more later probably.

Unidentified: [00:57:39] Oh, we're around. Any other questions? We have about five minutes left.

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Sharron: [00:57:51] I'll ask one more. So you know the trend for medicine is to in states that don't have autonomous or independent practice. The American Medical Association you know is pushing that well if you want to be independent you need under the board of medicine or the Board of Healing Arts. I don't know that that changes vicarious liability any, I guess it depends what they require. Then when you come under them as far as you know physician supervision which they really don't you know they've kind of done that to us in Kansas. But I mean that's probably more I think well Ginger's I know raises the whole restraint of trade idea, but does that have anything to do with liability issues, who license or regulates you?

Joe: [00:58:52] No. Who license and regulate you often represents political fiefdoms. Areas in which I think it was a remarkable gift to nursing to wind up with their own boards of nursing and it created autonomy away from the physicians as they each vie for their roles as healthcare providers in each context and that kind of differentiation is not too dissimilar from the idea of having a judiciary branch, legislative branch, and executive branch. Having these different boards that are willing to kind of go toe to toe against each other creates a really helpful, Ginger says we need a board of midwifery. Creates a really helpful dialogue that can be fruitful for the community and be very helpful, but because you enjoy the same licensure doesn't create an interplay of liability. Otherwise if Doctor Y does you wrong why can't you sue Doctor X who just happens to have better insurance policies or more property and the state? You just go shoot at people at random, because they all are of the same licensure breed. Now it would be if they were all forced into the same representative umbrella of a board that represented health care within a state. What you would see would be probably fractions of subgroups each vying for the same thing but it wouldn't matter. If I were a nurse I would not want the physicians assuming complete control over my board for the concern that I lost my autonomy and there is a power differential there that needs to be respected. And I do mean that in the sense of work over time. But at the same time the mere fact that the licensure boards are similar or the same doesn't create a liability connection. One more question we have a minute left. Well, I'll end with this important note. My granddaughter set up all by yourself about three days ago and my son and daughter in laws disseminated a wonderful picture and if you'd like to see that go to Facebook if you'd otherwise have comments about what we talked about today professionally. Go to Facebook for Grow midwives give us your thoughts positively or negatively and we would love to talk to you some more and see how we can help both for all of you who participated this evening I really appreciate you taking your evening now and for those of you who may be viewing this later on tape. Please come to us and talk to us and let's see how we can make this a mutually fruitful and fulsome relationship. Thank you very much.

Unidentified: [01:02:37] Thanks.

Unidentified: [01:02:40] Thank you.

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