Midwives, Are You Covered? 5 Questions to Ask About Professional Liability Insurance
Ginger Breedlove, PhD, CNM, FACNM, FAAN, Founder and Principal Consultant of Grow Midwives LLC and Member, TDC Group APC Advisory Board
For many midwives, the question of malpractice insurance likely comes up twice: first when considering a job offer, and second when a concerning case arises. In that second instance, midwives may question whether there’s a significant risk that needs to be reported, followed by wondering what the steps are to report. At this moment, some midwives may realize with a sinking feeling that they don’t understand the details of their insurance coverage.
Midwives face distinct, significant, and long-lasting liability risks, and providing excellent care is not enough to mitigate them.
Lawsuits can and do arise in the absence of medical error, and most healthcare practitioners will be targeted at least once in their career. Yet many midwives do not know what professional liability insurance they already have, as they are so immersed in providing care, while others may be under financial pressure from student loans to take the first job that’s offered. I encourage all midwives to get business smart and empower themselves with knowledge regarding the types of professional liability insurance relevant to their practice.
Like all healthcare professionals, midwives are working at the intersection of social, professional, economic, and institutional factors that are beyond our control—but we can control how we choose to protect ourselves.
I’m approaching the half-century mark in my midwifery practice, and my career has encompassed tertiary care settings, community birth settings, academic teaching, and midwifery practice consulting. These experiences have confirmed that careful consideration of liability coverage options is essential for midwives to protect our licenses, our reputations, our professional and geographic mobility, and our long-term financial health.
The following are answers to questions I commonly hear from midwives.
Employment contracts for midwives vary widely in what they specify regarding liability coverage. Sometimes they do not specify: During contract reviews at Grow Midwives, my practice consulting firm, we have seen many contracts stating vaguely that the employer will provide some coverage—but not what kind or how much.
Often, we see contracts that provide coverage with insufficient monetary limits. In our judicial environment of social inflation, very large jury awards are becoming more common, and some employers’ coverage offers have drifted out of line with current risks. Coverage of $100K/$300K, meaning $100,000 per claim, and $300,000 aggregate per year, may sound like a lot, but sadly, these scant limits do not address the risks of potential suits involving alleged birth injuries.
When an employer provides adequate coverage for claims made during the midwife’s employment, midwives must still look out for gaps in coverage before and after employment. An unexpected gap in coverage could preclude hospital employment or bar the midwife from other opportunities, even in the absence of a lawsuit.
Understanding liability coverage starts with thinking about time. One type of coverage considers the care provided during a particular period, whereas another considers any claims of medical malpractice brought during that time.
Occurrence coverage: Occurrence coverage pays claims for medical acts that occurred while insured. Say you deliver a baby at Wintertime Hospital in 2024. In 2025, you accept a new job at Springtime Birthing Center, and you change insurance carriers along with the shift in positions. A decade later, in 2035, you are sued for injuries alleged to be related to the 2024 delivery at Wintertime Hospital. You’re still covered by the occurrence policy from Wintertime.
Claims-made coverage: Claims-made coverage covers claims brought during the term of the policy.
Let’s take a closer look at what happens when a practitioner changes jobs and changes their coverage, also. This brings us to tail coverage and nose coverage.
Tail coverage: In some states, following a delivery, a claim can be brought against a midwife anywhere during the infant’s young life through young adulthood: For midwives, as for ob/gyns, the liability shadow of our care extends for years.
Tail coverage is supplementary coverage attached to a claims-made policy. It provides coverage for claims brought in response to an incident that occurred while the policy was in effect.
Nose coverage: Nose coverage is simply the opposite of tail coverage. It covers some time period, let’s say five years, in advance of the start of a claims-made policy. This period is called the retroactive period or the prior acts period.
Negotiating cost sharing: Most employment contracts for midwives state a delegation of responsibility for securing and paying for tail coverage, whether to the employer or the midwife. Some midwives negotiate for employer-paid tail coverage when negotiating their employment contract. Not every employer will accede to this request, but you should know that it’s something you can ask for.
Considering the split of responsibility with the employer is something you want to do before it’s necessary. Midwives who have to leave a position and move out of state unexpectedly—say, for a family illness or other crisis—could find themselves needing to raise tens of thousands of dollars in tail coverage premium on a month’s notice.
Contracts are notoriously difficult for nonattorneys to interpret, especially for those unfamiliar with the specialized vocabulary of liability insurance for healthcare professionals. Some contracts are written so that employment matters and liability matters are muddled together, creating a layer cake of confusion. Therefore, in addition to familiarizing themselves with the basic terms defined here, midwives may consider seeking a professional contract review.
Points to investigate include:
Individual vs. shared limits of liability: Do the contract’s stated monetary limits apply to you alone, or to you and an ob/gyn, or to you and the employer? Shared limits increase your risks.
Admitted vs. nonadmitted coverage: The terms “admitted” and “nonadmitted” coverage have to do with the relationship between a type of insurance and a state’s Department of Insurance. Ask: Is there a state guarantee association that will protect clinicians if an insurer becomes insolvent? If so, would your employer-provided coverage be of a type (admitted coverage) that would tap you into that protection? Or is the employer offering coverage (nonadmitted) whereby you would not qualify for that protection?
Consent-to-settle provision: Does the insurer require your authorization to give up on defending your care in court and instead settle a claim?
No. Vicarious liability is an important but frequently misunderstood concept. Through the legal doctrine of vicarious liability, one person may be responsible for harm caused by another—for instance, an employer may be liable for harm caused by an employee.
A collaborative practice agreement is not the same as an employment contract. The terms “team-based care” and “collaborative care” can be used to mean different things—and it’s always wise to create a written agreement setting forth clear definitions of scope of practice, with clearly delineated roles and responsibilities for each party. However, defining roles for a clinical team involves a separate set of questions from vicarious liability, which exists most often in the presence of an employer-employee relationship.
Midwives should not allow misplaced fears regarding vicarious liability to hamper their purchase of sufficient liability coverage to protect themselves and their practice.
Advancing Our Profession
Many midwives are uncomfortable discussing liability, but we need to have certain uncomfortable conversations to advance the profession of midwifery. Otherwise, midwives can find themselves stranded in a position or a location they would like to leave because they cannot afford the tail coverage that would allow them to move on to new opportunities.
We can enjoy immersing ourselves in our work and focusing on our patients when we know we are covered, come what may. Consider requesting a quote for professional liability insurance tailored for you.
Protect Your Reputation and Livelihood
Get affordable, top-tier malpractice insurance coverage specifically made for midwives.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
10/24