cpm being sued

[mysticmomma]

What happens if a cpm is sued in a state where cpm's are illegal? General course of events, etc... How could I get help?

[[e-mail]]

Are you referring to a civil suit where a client is suing for damages due to negligence or malpractice? If that's the case, the midwife's legal status doesn't have any bearing on whether she can be named in a civil suit or not--anyone can be sued. The major difference for a midwife involved in a civil suit in an illegal state is that it's likely to bring greater scrutiny to her legal status and could lead to prosecution in the criminal courts as well.

Katie Prown
Legislative Chair
Wisconsin Guild of Midwives

[Valerie]

Originally Posted by [e-mail]

Are you referring to a civil suit where a client is suing for damages due to negligence or malpractice? If that's the case, the midwife's legal status doesn't have any bearing on whether she can be named in a civil suit or not--anyone can be sued. The major difference for a midwife involved in a civil suit in an illegal state is that it's likely to bring greater scrutiny to her legal status and could lead to prosecution in the criminal courts as well.

Katie Prown
Legislative Chair
Wisconsin Guild of Midwives

True enough, Katie. Another really significant issue, though, is that when someone is sued for being negligent, there has to be some measure against which that "negligence" is measured. In states where CPMs are not licensed, and there are no standards for practice, there is no midwifery "standard." In that case, the actions of the midwife will be likely be measured against whatever is available -- in this case the standards of practice of physicians or CNMs. In other words, if the CPM did something that an MD or CNM would not do, she may be found liable for negligence.

Valerie
Illinois

[[e-mail]]

I hadn't thought of that angle, Valerie, but that's a good point to add. As you know all too well, it's the same problem facing midwives who are criminally prosecuted in states that don't have licensure or regulation. Because there's no legally defined scope of practice/practice guidelines for DEMs, they're measured against the state regulations and community standards that apply to the practice of obstetrics and nurse midwifery.

Do you know what would happen if someone with few assets (which applies to most midwives) and no insurance is found guilty of negligence in a civil suit? Do they take a percentage of future earnings? Force them to sell what assets they do have?

I know some midwives have made various arrangements to protect their assets in the event of being sued, but I have no idea how that works or how effective it is. This post brings up some interesting and little-discussed legal questions.

Katie Prown
Legislative Chair
Wisconsin Guild of Midwives

[mothercat]

One of the arrangements that can be made legally is for no property to be held in the midwife's name. The house, car, all her equipment are owned by someone else, such as a husband or partner.
I know of physicians who do this. If there is a civil suit then the physician has no assets, so there is minimal payout.

The catch is it must be done before there is a suit. Otherwise, it is considered hiding assets and not looked on kindly by the court.
All this may vary by state, but that is what my attorney in Michigan said when I started my practice. Having an LLC is not very much protection at all, especially for a sole proprietor.

[Jane]

How could you help? Usually, you can help her with financial donations! Lawyer's fees to defend even a groundless claim can be tens of thousands of dollars. Organizing email chains, auctions, dinners, etc. can all be helpful if she needs help. But contacting her should be a first step before doing anything.

In general, there is a suit filed, the midwife/others are served (notified of the suit). There is then time for discovery (gathering documents, interviewing, etc.). After that, it might go to court, if it's not settled out-of-court. There are lots of intermediate steps depending on the specifices.

The e-book "Calling to Courtroom" is a good overview of lots of legal issues.

[jengacnm]

In agreement with the PPs. A CPM working in a state where CPMs are not recognized is much more likely to be criminally charged than sued.

A lawyer told me that if a professional doesn't have liability insurance and has no assets, the likelihood of a civil suit being filed is very low. Lawyers don't want to pursue a case that will get them no money.

Interestingly, I heard it said that financial advisors will advise against putting all assets into, for example, the spouse's name, because the likelihood of getting divorced is higher than the likelihood of being sued.

[MidwifeErika]

I wonder how the whole asset thing in one person's name would work in a state that shares property (not sure if I am using the right term here). Here in WI, if my husband and I divorce, everything is split down the middle, so I wonder if it would really protect anything by having everything in my husband's name? Not that it really matters to me at this point in time, we have no assets to worry about! Just thinking outloud.

[mysticmomma]

Purely hypothetical. If I ever stop having babies, I'd like to become a CPM. Just wondering how it goes. I know eventually someone will have a bad outcome, whether it's a sick baby, sick mommy, hospital transfer, etc. I know MANA has mediation, etc. but some people are determined to go to court.

[mothercat]

getting off topic here

Originally Posted by hotwings640

I wonder how the whole asset thing in one person's name would work in a state that shares property (not sure if I am using the right term here). Here in WI, if my husband and I divorce, everything is split down the middle, so I wonder if it would really protect anything by having everything in my husband's name? Not that it really matters to me at this point in time, we have no assets to worry about! Just thinking outloud.

It would be nice if there were a lawyer on MDC who could answer these general sort of questions.

In lieu of that here's my understanding. If you are married ,or in a state that recognizes common law marriage, the property is considered to be something the both of you in some way helped to purchase and maintain. So rather than nitpicking about who bought what and cares about it more, or was it a gift, the more equitable thing to do is designate it as community property. Both parties have equal standing and receive "equal" shares.

However, who actually holds title to those things is viewed differently by the court. The person with title is considered the owner and cannot be forced to liquidate those assets to cover the partner's debts. Some states also have dowager laws (MI being one) which says that a husband is not permitted to sell assets such as land, w/o his wife's permission. She actually has to sign off. The wife however can sell her property w/o his permission.

[Charmie981]

Originally Posted by mothercat

One of the arrangements that can be made legally is for no property to be held in the midwife's name. The house, car, all her equipment are owned by someone else, such as a husband or partner.
I know of physicians who do this. If there is a civil suit then the physician has no assets, so there is minimal payout.

This doesn't do any good in community propery states (like Louisiana) where the husband's assets and wives assets are deemed community property just because they are married. It doesn't matter what is in whose name: if it belongs to a spouse, it belongs to both of us, for better or worse.

But Louisiana is pretty weird about ownership at all and forces inheritance also, so other states might not be so bad about it.

ITA: the chance of getting divorced is much higher than the chance of getting sued. I'm not sure if that's a good thing or a bad thing, though!