Public Health Law Map - Beta 5 - Medical and Public Health Law Site

their opposition to the medicalization of pregnancy. Others believe that lay
midwifery compromises the health and safety of pregnant women. They point to the
lack of lay cardiologists and urologists as evidence that lay practice on women is
tolerated only because of the low status of women in the legal system.
Physicians must be wary about practicing with lay midwives. If they are inadequately
trained, they are much more likely to delay physician referrals until the patient is in
grave danger. The most dangerous situation is lay midwives who practice under the
umbrella of an antimedical religious group. Some states specifically exempt religious
healers from state laws forbidding the practice of medicine without a license. Even
states that forbid or regulate independent midwifery may allow religious practitioners
to practice without supervision.
States that regulate the practice of midwifery are often lax in enforcing these
regulations. A physician who knows that an individual is practicing midwifery in
violation of the law must report such practice to the proper authorities—the board of
medical examiners, the board of nursing examiners, or the police—and not practice
with such an individual under any circumstances. However, the physician should
assist a patient who is in danger, even if that means taking over the patient from the
illegal midwife. Reporting the illegal practice establishes that the physician was not
condoning or participating in the practice.
2. Referrals and Consultations
Consulting and referrals with midwives are complicated because the tort law
generally assumes that physicians are in charge whenever they work with
nonphysician personnel in medical settings. A physician who consults on a case for a
midwife is in a very different legal position than if the consultation were for another
physician. If the consulting physician determines that physician procedures or
prescription medications are necessary, carrying out these recommendations is the
responsibility of the attending physician. With no attending physician, the
responsibility remains with the consultant because the midwife cannot deliver the
necessary care. The physician must ensure that the patient appreciates the limitations
of the midwife’s authority and understands the necessity for the recommended care
and that it can be delivered only by a physician. Since a consultation, even for
limited tasks such as ordering screening blood tests, creates a physician–patient
relationship, the physician may have a duty to render the needed treatment if
requested by the patient.
Referrals from midwives are less problematic than consultations because the
physician will assume responsibility for the patient’s ongoing care. There must be a
good working relationship that ensures that referrals are made before the patient’s
medical condition deteriorates. In the ideal medical arrangement, the midwife and the
physician discuss each new patient to evaluate future medical needs. The midwife
then confers with the physician whenever something unusual develops in the
patient’s condition. Legally, such close cooperation would result in the physician’s
being found liable for negligent medical care. If the physician is confident of the
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