Implication of the Practice of Pelvic Examination by Unqualified Midwife (The Second Report) : The Legal Concept of Midwifery and Its Associated Legal Liability Based on Regulations

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  • 助産師資格のない看護師等の内診が意味すること（第二報） : 助産の法的概念と助産師の法的責任

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Abstract

This paper examined the legal concept of midwifery and its associated legal liability based on regulations, including the Medical Practitioners Law, the Public Health Nurse, Midwife, and Registered Nurse Act, and the Medical Practice Act and civil affairs judicial precedents in which midwives have been involved in the process of delivery. The author reached the following conclusion. 1. Midwifery can legally be an absolutely independent medical practice in which nurse-midwives have clinical discretion. 2. The negligence of nurse-midwives is evaluated on the basis of the predictability of any abnormalities that may arise and the adequacy of their judgments at delivery. 3. Nurse-midwives can be held solely responsible for their judgment as to the progress and potential complications of delivery. 4. With respect to the predictability of complications during delivery, nurse-midwives have an equivalent duty as physicians to provide prudent, competent care and thoughtful judgment that takes into account any problems that may arise. 5. There are circumstances in which corporate responsibility with physicians is held; however, the physicians' responsibility as a supervisor is not typically applied to nurse-midwives. 6. Nurse-midwives are responsible to report to and/or consult physicians. In addition to helping with normal births, nurse-midwives have sufficient professional training to judge on a case-by-case basis the necessity of reporting to doctors, according to Article 38 of the Public Health Nurse, Midwife, and Registered Nurse Act. In situations in which am idwife is observing the delivery process, the physician is not obligated to observe delivery directly. 7. Throughout the delivery, a nurse-midwife should continuously utilize their observational skills and clinical judgment (midwife's diagnosis) to ensure a safe, successful delivery. Therefore, the nature of a midwifery practice is the same as that of a medical practice.

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