The lack of licensed homebirth attendants leaves physicians with several ethical and liability burdens. A family physician providing care for a family who chooses homebirth is not going to be able to assist that family at home due to limitations of malpractice insurance and lack of training and experience in out-of-hospital birth settings.
Family physicians typically refer patients to a qulaified member of the healthcare team when a patient is in need of a service outside the scope of practice of that family physician. However, they also have an obligation to direct their patient to properly trained and credentialed caregivers. In the case of homebirth attendants there are no options for referral in South Dakota. Without the guidance of physician referral, the family has little protection from coming into the care of persons lacking adequate training, experience, and accountability. Physicians may be aware of an experienced homebirth attendant in the area, but the liability associated with referral to an unlicensed practitioner is great, and the physician may be held accountable for the actions of the unlicensed midwife. When physicians are able to refer a patient to a properly licensed practitioner, liability is limited and the physician is not liable for the actions of that practitioner.
When patients become involved with unlicensed practitioners, the continuity of care important to high-quality family practice care is lost. HIPPAA/privacy laws would prevent a physician communicating with an unlicensed practitioner, whereas collegial exchange is possible when dealing with licensed providers who have “need to know” interest in a patient. Problems that may have been small when addressed early through full and timely consultation can become enormous when there is pressure from the family and practitioner to maintain secrecy or risk prosecution. The hindrance of communication between midwife and family physician puts the patient at increased risk for complications. Again, the physician is liable should they happen to consult with an unlicensed practitioner whereas in consultation among properly licensed providers liability is not shifted to the physician other than for the care directly provided.
Approximately one in ten planned homebirths will need to enter into hospital care at some point. Family physicians have a similar rate of need to transfer care at the end of pregnancy to obstetricians or general surgeons. Transfers of care at the end of pregnancy are rarely critical emergency transfers, though some are. In any transfer of care, whether from home to hospital or among providers within a hospital setting, the relay of information regarding the patient is essential to quality care.
In the case of a family physician referring to an obstetrician, the prenatal and perinatal course is presented both as copies of written records as well as verbally. Availability of obstetrics consultants is established according to the protocols of each hospital in which family physicians practice. In the case of a home birth attendant who is unlicensed and risking prosecution, the relay of complete written and verbal information regarding the patient is not likely to happen. Hospitals and physicians are not free to set up protocols to allow for timely consultation and transfer when dealing with unlicensed providers, lest they be known as aiding and abetting illegal practice. Without opportunity for timely consultation and referral, patients are at increased risk for every type of complication. While the safety of planned homebirth is well researched and established in settings where there is a good process of communication and consultation among providers, there is clearly increased risk in settings where there are barriers to consultation and referral.
Physicians in South Dakota are now increasingly faced with families who are choosing homebirth, have no access to licensed providers, and are instead choosing to give birth unassisted. Failing to refer a patient for a needed service is a risky path both ethically and legally, as the patient may then come to harm foreseeable by the physician and preventable by the physician’s obligation to not abandon the patient and provide referral when care is outside the physician’s scope of practice. The availability of licensed providers of homebirth services to which physicians could refer patients who have chosen homebirth would alleviate this burden.
Licensing of homebirth attendants would reduce risks for patients who have chosen homebirth and relieve their physicians of significant ethical and liability burden by improving communication and consultation between midwives and physicians and by providing recognizable, accountable, practitioners for patients choosing homebirth.