Injuries and accidents resulting from drunk driving are a serious problem in this county, and many states extend liability for drunk driving injuries and fatalities to the persons or bars who provide the alcohol used in the hours preceding a crash. This 3rd party liability is known as social host liability laws (when the supplier is a host) or dramshop liability laws (when the supplier is a bar). These laws recognize that the person or business that facilitated the drunk driving bears responsibility for the outcome.
I hereby offer my proposal for using 3rd party liability laws to hold homebirth midwives responsible for homebirth deaths under the theory that the person or business who facilitates a homebirth against medical advice bears responsibility for the outcome.
Mothers Against Drunk Driving explains the rationale behind social liability laws. According to MADD, dramshop laws:
- Reduce alcohol-related crashes
- Increase publicity of the impacts of over-serving
- Decrease excessive and illegal consumption
- Do not decrease personal responsibility
Note that these laws do not imply that the bar caused the drunk driving accident, merely that by selling alcohol to someone obviously drunk facilitated the accident. They do not discount the role of the person who chose to drive drunk; they merely recognize that when people are drunk, their ability to make informed and rational decisions is impaired.In other words, they recognize that 3rd parties who facilitate drunk driving have a responsibility to prevent reasonably foreseeable consequences.
Obviously, the analogy between drunk driving and homebirth is far from perfect, but the similarities are striking nonetheless:
- Homebirth midwives (like social hosts and bars) generally do not cause deaths directly.
- Homebirth midwives (like social hosts and bars) don’t intend that deaths occur.
- It is entirely possible that the injuries or deaths might have occurred anyway even if the homebirth midwives (like social hosts and bars) were not involved.
- Homebirth midwives (like social hosts and bars in drunk driving) facilitate the behavior that leads to the injuries or deaths. It is generally their behavior (agreeing to attend homebirths, encouraging homebirth in high risk situations, deliberately supplying inaccurate medical advice, and failing to transfer patients in a timely fashion) that encourages women to ignore real, accurate medical advice.
The theory that undergirds 3rd party liability alcohol laws is straightforward. By holding bars and hosts responsible for the results of providing alcohol, it gives them a stake in the outcome. Before serving a drink to an intoxicated person, the bar or host must weigh the possibility of paying money or going to jail if serving alcohol leads to injuries or deaths.
Similarly, the theory that undergirds 3rd party liability laws for homebirth midwives is also straightforward. By holding homebirth midwives responsible for the results of encouraging homebirth against medical advice, it gives them a stake in the outcome. Before encouraging a woman to have a homebirth, or agreeing to attend a homebirth, or claiming that conventional medical advice is wrong, the midwife must weigh the possibility of paying money or going to jail if the homebirth leads to injuries or deaths.
The anticipated advantages?
- Reduce homebirth deaths
- Increase publicity of the impacts of homebirth against medical advice
- Decrease homebirths against medical advice
- Would not decrease personal responsibility of women choosing homebirth
Currently homebirth midwives bear no responsibility for homebirth deaths, because they are “judgment proof.” It is nearly impossible to recover the cost of a lawsuit from a homebirth midwife because they have no insurance. 3rd party liability laws would mean that midwives could be fined or sent to jail without the need for filing an expensive malpractice lawsuit.
Currently, because they bear no responsibility, there is no downside for homebirth midwives to encourage high risk mothers to give birth at home. By insisting that homebirth midwives have a stake in the outcome of homebirth, I suspect we could dramatically reduce the number of homebirth midwives dispensing false medical “advice” or providing encouragement of high risk homebirth. Most importantly, we could dramatically reduce the number of preventable homebirth deaths.
