Opinion
No. CV 08 4018329S
April 5, 2011
MEMORANDUM OF DECISION
The plaintiffs, Mary Ellen Albini and Joan Mershon, appeal from a March 18, 2008 final decision of the Connecticut medical examining board (the board) as well as a July 20, 2010 decision of the board on reconsideration. The appeal challenges the board's decisions that sanction the plaintiffs for their activities as independent midwives in Connecticut.
Based on the cease and desist order entered by the board, the plaintiffs are aggrieved.
The department of public health (the department) presented the board with separate charges seeking a cease and desist order against each plaintiff on June 7, 2002, and the charges were subsequently consolidated. Hearings before a panel of the board were held between 2003 and 2005. The panel issued its proposed decision and it was referred to the entire board. The plaintiffs submitted a brief and post-hearing brief to the panel, but chose not to appear before the full board meeting of March 18, 2008. On March 18, the board approved the proposed decision unanimously and it thereby became the final decision of the board.
The final decision made the following findings of fact:
1. Respondents [now plaintiffs] Maryellen Albini, a.k.a. Mary Ellen Albini, of Branford and Joan Mershon of Newtown, Connecticut have at no time referenced in the Charges been issued a license by the State of Connecticut to practice medicine.
2. Respondents provided prenatal care to C.B., an expectant mother. In the course of the care, respondents obtained a medical history, provided periodic physical examinations and advice about nutrition, exercise, and having a home birth.
3. On or about May 3, 2000, C.B., who was approximately 36 weeks pregnant, went to Connecticut Ob-Gyn, Bristol, Connecticut, for prenatal office visit. At that visit C.B.'s physician advised her against a home delivery as her baby was in a transverse lie and had an estimated fetal weight of 8 pounds 11 ounces.
4. On or after May 3, 2000, respondents advised C.B. that she could have a home delivery despite her physician's advice against a home delivery.
5. On or about 11 p.m. on May 25, 2000, C.B. went into labor. Respondents went to C.B.'s home early in the morning of May 26, 2000, to assist with the labor and delivery.
6. On or about 8:30 a.m. on May 26, 2000, respondents made the determination to advise C.B. to go to the hospital because her baby had an elevated fetal heart rate. Respondents, C.B. and C.B.'s husband decided to abandon the home birth and go to the hospital. Respondent Albini telephoned Bristol Hospital to notify the hospital that C.B. was on her way there to deliver the baby.
7. At or about 9:10 a.m. on May 26, 2000, while en route to the hospital, C.B.'s husband drove his car into a parking lot as C.B. was starting to deliver her baby.
8. Respondents followed C.B.'s car into the parking lot. When she learned that C.B. was starting to deliver her baby, respondent Albini asked someone to call 911. The Bristol police and Bristol emergency medical personnel responded.
9. At approximately 9:14 a.m. on May 26, 2000, C.B. delivered a boy, E.B., in the back seat of the car in the parking lot. Respondents helped with the delivery and assigned E.B. Apgar scores. E.B. weighed approximately 9 pounds 11 ounces.
10. When the emergency medical personnel arrived at the scene, respondent Albini informed them that E.B. had been born. The paramedics then requested that they be allowed to check E.B. Respondents refused them access stating that E.B. was fine and did not need to be "tortured," and that the baby had already been suctioned.
11. When the emergency medical personnel stated that they wanted to take C.B. and E.B. to the hospital for medical evaluation, respondents refused the request stating that E.B. was fine.
12. Respondents remained with C.B. for approximately 30 to 40 minutes waiting for the placenta to be delivered. When it did not deliver spontaneously, the emergency medical personnel at the scene transported C.B. to Bristol Hospital. Respondents advised C.B. that it was time to go to the hospital to deliver the placenta.
13. Prior to leaving for the hospital with C.B., the emergency medical personnel again requested permission to transport E.B. to the hospital for evaluation. Respondents advised C.B. and/or C.B.'s husband that E.B. did not require any further medical evaluation and that E.B. was fine. C.B. and her husband relied on respondents' advice that E.B. was healthy when they decided that C.B. would go to the hospital to deliver the placenta but E.B. would not.
14. From the time the ambulance left with C.B. for Bristol Hospital until approximately 11:45 a.m., E.B. remained in a car with his grandmother and respondent Mershon.
15. At or about 11:45 a.m. on May 26, 2000, E.B. was brought to C.B.'s hospital room. At or about 1:50 p.m., while C.B. was nursing E.B., he began to have difficulty breathing and appeared cyanotic.
16. At or after 1:50 p.m. on May 26, 2000, E.B. was taken to the hospital's emergency department where he was admitted in respiratory distress. After the emergency department assessed and treated E.B. for respiratory distress, he was transferred to the NICU at John Dempsey Hospital. The transfer impression of the emergency department regarding E.B. was acute aspiration pneumonia, probably meconial, with respiratory insufficiency, dehydration and hypoglycemia.
17. On or about May 26, 2000, E.B. was admitted to John Dempsey Hospital NICU and was discharged on June 8, 2000, with a diagnosis of pneumonitis upon discharge.
These Findings of Fact were made initially and also in the Supplemental Record of November 20, 2010. (Supplemental Return of Record, pp. I-J.)
Based on these findings of fact, the board found that the plaintiffs violated § 20-9(a) of the statutes. The board issued the following order: "Pursuant to the authority vested in it by section 19a-11 of the Connecticut General Statutes, the Board orders that [the plaintiffs] immediately cease and desist from practicing medicine unless and until [plaintiffs] are properly licensed." (ROR, Volume I, March 18, 2008, p. 14.)
Section 20-9(a) provides: "No person shall, for compensation, gain or reward, receive or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person . . . until he has obtained such a license [to practice medicine] as provided in section 20-10, and then only in the kind or branch of practice stated in such license." (Emphasis added.) Section 20-9(b) provides in part: "The provisions of this chapter shall not apply to: (7) Any nurse-midwife practicing nurse midwifery in accordance with the provisions of chapter 377." As discussed below, until 1983, in addition to nurse-midwives, there was in Connecticut a licensed practice known as "midwifery." See § 20-75 (Repealed, P.A. 83-441).
The plaintiffs timely appealed on May 2, 2008. On May 2, they moved for a stay of the final decision. The court, after hearing, denied the plaintiffs' motion for a stay on September 22, 2008, on the ground that the cease and desist order was ambiguous, as it directed the plaintiffs not to practice medicine, while they denied that they were practicing medicine. The board subsequently moved for a remand to reconsider its final decision.
On July 20, 2010, the board issued a revised final decision, changing the March 18, 2008 final decision only by modifying its order to read as follows:
1. [Plaintiffs] shall cease and desist from diagnosing a person's condition including but not limited to the assessing persons to determine the presence or absence of conditions that may require immediate or future medical care or the course of potential medical care.
2. [Plaintiffs] shall cease and desist from advising persons based upon their assessment of a person's condition (i) whether the assessment or diagnosis of health care providers who have seen the person are correct in their diagnosis or assessment that they have provided the person and (ii) whether to comply with or depart from directions or advice of licensed medical providers who have diagnosed and advised the person.
3. [Plaintiffs] shall cease and desist from advising persons based upon their assessment of a person's condition whether or not the assessment or intervention of licensed health providers is necessary.
For purposes of this order, a person includes a woman and/or her fetus. (SROR, pp. N-O.)
The plaintiffs then returned to court to pursue their appeal from the revised order. While the plaintiffs argue that the facts are somewhat different from those found by the board, they have not met their burden of proving that the board lacked substantial evidence to make its factual findings. "With regard to questions of fact, it is [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency." Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 800, 955 A.2d 15 (2008). The court therefore defers to the findings of fact as stated by the board in its final decision and reconsidered decision.
The only factual dispute raised by the plaintiffs at oral argument was over Finding of Fact 4 that found that the plaintiffs advised C.B. that she could have a home birth in the face of her physician's strong recommendation not to do so. The plaintiffs criticize this finding on the ground that the record shows that C.B. herself was adamantly in favor of delivery by the midwives. But the record also contains evidence that C.B.'s physician's nurse was told by C.B. on May 17, 2000 that the plaintiffs had assured her that a home birth was safe. (ROR, Volume V, transcript, November 14, 2003, p. 42.) Therefore there was sufficient evidence to support Finding of Fact 4.
The plaintiffs raise matters of law for the court's review. The court's standard of review of matters of law has been recently stated as follows: "Cases that present pure questions of law, however, invoke a broader standard of review . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference." (Citations omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). The issues of law have never been considered by the board prior to this case and therefore the court's review is plenary.
Before reaching the claims raised by the plaintiffs, the court addresses the board's contention that the plaintiffs are precluded from raising their issues in this administrative appeal. Under the Uniform Administrative Procedure Act (UAPA) § 4-179(a) where a panel of board members conducts a hearing and that panel is not a majority of the board, the board must give a party negatively affected by the proposed panel decision the opportunity to argue its case before the full board. Here the plaintiffs chose not to object to the panel decision before the full board.
The board argues that the plaintiffs, in failing to present their claims to the full board, fall into the basic rule that a party cannot raise claims in an administrative appeal "that were not asserted before the board." Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992). But this rule applies only to plaintiffs who "participate fully at hearings and then, on appeal, raise claims that were not asserted before the board." Id. This is not the situation in this appeal. Rather, the board's decisions are questioned in this appeal for the same reasons brought to the panel's attention both by the plaintiffs' evidentiary proof and legal argument. The board itself discussed the revised decision in executive session before its approval on July 20, 2010. This is not the Dragan situation where a party anticipates "a favorable decision, reserving the right to impeach it or set it aside if it happens to be against [it], for a cause which was well known to [it] before or during the trial." Id. Therefore the court does not agree that the plaintiffs are barred from raising their claims in this appeal.
Supplement to the administrative record, March 14, 2011, minutes, pages T-U.
The plaintiffs claim that the board lacks jurisdiction over them and further that § 20-9 as interpreted is unconstitutionally vague. To the resolve these issues, the court first looks briefly at the status of midwifery in Connecticut.
The court finds it appropriate to consult extratexual material as the meaning of § 20-9 and its relationship to other statutes is not plain and unambiguous. § 1-2z.
A public act of 1893 (Chapter CLVIII) established the regulation of both a practice of medicine and surgery and the separate practice of midwifery. Both were subject to licensing by the department of health. Subsequently in the 1918 revision of the general statutes, the practice of midwifery was regulated under § 2880 and medicine and surgery were separately regulated under § 2854.
In 1923, Public Act Chapter 264 added to the statutes on regulation of midwifery, an additional section detailing "the practice of midwifery." It defined midwifery and prohibited the midwife from assisting with a delivery before the seventh month of pregnancy. The provisions of the public act also controlled such matters as cleanliness by midwives and patients, equipment to be supplied to midwives, waiting with the patient for one hour after delivery, checking the afterbirth for complete delivery, cleansing the infant after birth, and a list of situations in which a physician must be consulted. Section 21 stated: "No midwife shall introduce her hands into the uterus. If, after one hour after the birth of the child, the mother being otherwise in good condition, the afterbirth, placenta and membranes, shall not be expelled or cannot be expelled by gentle manipulation of the uterus through the abdominal wall, a physician shall be called forthwith."
The 1923 public act was partially repealed in Chapter 91 of the public acts of 1929. The 1929 public act retained the definitional provisions of the 1923 public act, but removing the detailed description of the midwife's quasi-medical duties and obligations. The new text was codified in the General Statutes Revisions of 1930 (§ 2786 and following) and 1949 (§ 4419 and following), and was codified without change in the Revision of 1958 as Chapter 377, § 20-75 and following. Section 20-75, relying directly on the 1923 and 1929 public acts, provided as follows: "the practice of midwifery is defined as and limited to such assistance or offer of assistance as may be rendered by any person, for compensation received, promised or expected, to any woman in normal childbirth, without using any instrument or artificial or forcible or mechanical means and without performing or attempting to perform any version or removing or attempting to remove adherent placenta and without prescribing or using or advising the use of any drug other than a disinfectant. Each licensed midwife may give not more than one teaspoon dose of the fluid extract of ergot and only after the expulsion of the intact placenta."
A traditional homeopathic product used by midwives to control maternal bleeding after childbirth.
Section 20-84 set forth further restrictions on midwifery practice: "No midwife shall practice midwifery except in any case of normal labor in which there is an uncomplicated vertex or head presentation. No midwife shall, in any case of labor, use any instrument, or assist labor by any artificial, forcible or mechanical means, or perform version, or attempt to remove adherent placenta. No midwife shall attend any woman in labor until the seventh month of utero-gestation has past." Other sections of Chapter 377 of the general statutes required the midwife to obtain a license from the department of health. Section 20-76 declared that "[n]o person, except as otherwise provided by statute, shall practice midwifery until she has obtained a certificate of registration as provided in this chapter."
These statutes were in place during the 1960s and 1970s, but the number of midwives registered with the department of health under the statutes dropped off. The Hartford Courant reported on April 24, 1964 that there were only two midwives registered with the department of public health and there had not been any new applications in twenty years.
An attorney general's opinion of February 15, 1972 answered a question regarding the licensing of midwives. Registered nurses that performed midwifery had chosen not to register under § 20-76, but "it is our opinion that as long as the registered nurse, licensed practical nurse or designated assistant is rendering midwifery service under the direction, supervision, control and responsibility of said physician, there is no necessity for a certificate of registration as provided by Section 20-76 . . . However, should the registered nurse, licensed practical nurse or physician's assistant attempt to engage in the practice of midwifery, outside the direction, supervision, control and responsibility of a physician, he or she would not fall within the exception . . . and would be required to obtain the necessary certificate of registration." This attorney general's opinion led to P.A. 83-441. The public act repealed §§ 20-75 through 20-86 and established a state certification program specifically for nurse-midwives.
The 1983 public act deleted the regulatory provisions for midwives, as opposed to nurse-midwives, from the general statutes, and the legislature has not since addressed the role of independent midwives, with two exceptions. In 1990, the legislature passed P.A. 90-40, § 1 [codified as § 20-86g] allowing someone who was licensed by the health department as a midwife prior to 1983 to renew this license. The sponsor at the public hearing stated that the bill was intended to "restore midwifery as a professional class."(Public Health Committee, March 13, 1990, p. 733). P.A. 90-40, §§ 2,4. [§ 20-86h] allowed the department of public health to seek disciplinary action against a person "licensed as a midwife."
In addition, in 1996 a hearing officer of the department of public health refused to sanction an independent midwife, who did not claim to be a nurse-midwife, stating that "[i]f the Legislature wants to prohibit the practice of independent midwifery, section 20-86e could be amended to provide that only licensed nurse-midwives, and any other licensed professional(s) it deems appropriate, shall manage the `care of essentially normal newborns and women, antepartally, intrapartally, postpartally and gynecologically.' Such intent, however, is not expressed in the current statute." In re: Vidam, Petition No. 930205-00-0004 (June 11, 1996), p. 11. This proposed decision was approved by the department of public health on July 5, 1996.
With regard to the practice of medicine, the 1893 act declared: "No person . . . shall, in this state, for compensation, gain or reward, received or expected, treat, operate, or prescribe for any injury, deformity, ailment, or disease, actual or imaginary, of another person . . . unless or until he has obtained a certificate of registration as hereinafter provided." With minor changes, this exact statute is now in effect today as § 20-9(a). Commenting on the provisions of this statute as early as 1910, our Supreme Court noted that the legislature indicated "with clearness and certainty" what was the practice of medicine in Connecticut. State v. Faatz, 83 Conn. 300, 306, 76 A. 295 (1910). Faatz also stated a general rule applicable to the present case, lately expressed in Kindred Nursing Centers East, LLC v. Morin, 125 Conn.App. 165, 173, 7 A.3d 919 (2010): "The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature."
Today, a physician obtains a "license" from the department of public health under § 20-10 as opposed to a "certificate of registration."
Section 20-9 forbids an unlicensed person to diagnose or treat an injury, deformity, an ailment, or a disease. Neither the plaintiffs nor the board argue that a normal pregnancy falls under these terms, but as the plaintiffs' attorney conceded at oral argument, at a point an abnormal pregnancy might develop so that it falls under one of the four categories of § 20-9. In the case where a midwife were diagnosing or treating such an abnormal situation, she would be violating § 20-9. The board would have the authority (or jurisdiction) "in its discretion" to issue an order "providing for the immediate discontinuance of the violation." See § 19a-11; see also Ashe v. Dept. of Public Health, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0552582 (May 16, 1996, Hodgson, J.).
Webster's Dictionary defines an "injury" as "a hurt to the body."
Webster's Dictionary defines a "deformity" as "a physical blemish or distortion."
Webster's Dictionary defines an "ailment" as "a bodily sickness."
Webster's Dictionary defines a "disease" as "an impairment of the normal state of the living animal."
This was also the opinion of Dr. Gregory Shields, an expert called by the plaintiffs. (ROR, Volume VII, transcript, March 12, 2004, p. 102.)
From this discussion, the court concludes that the General Assembly has not clearly declared the practice of independent midwifery illegal in Connecticut. On the other hand, where such a midwife exceeds her traditional role (see, e.g., the language of the portions of Chapter 377 repealed in 1983), the midwife becomes subject to § 20-9 and to the cease and desist order provisions of § 19a-11.
The case of State Board of Nursing v. Ruebke, 913 P.2d 142 (Kans. 1996) is directly on point. The court quotes extensively from Ruebke as it resolves the issues raised by the plaintiffs. Ruebke held herself out to be a certified midwife offering prenatal, labor and delivery services to pregnant women in Kansas. The state board of healing arts sought an injunction against her, setting forth details relating to three deliveries in which she had participated. In each, delivery complications had arisen requiring the mother to be transported to a hospital.
See also B. Richardson, "The Regulation of Midwifery," 8 Geo.J. L. Pub. Policy 489 (2010).
In the trial court, the evidence showed that Ruebke was a "lay midwife," assisting pregnant women with "prenatal care, delivery, and post-partum care. She is president of the Kansas Midwives Association and follows its promulgated standards, which include a risk screening assessment based upon family medical history; establishing prenatal care plans, including monthly visitations; examinations and assistance in birth; and post-partum care. She works with supervising physicians who are made aware of her mode of practice and who are available for consultation and perform many of the medical tests incident to pregnancy." State Board of Nursing v. Ruebke, supra, 913 P.2d 148.
The court continued: "The factual findings, highly summarized, were that Ruebke, had not been shown to hold herself out as anything other than a lay midwife; has routinely used and consulted with supervising physicians; was not shown to administer any prescription drugs; was not shown to do any suturing or episiotomies, make cervical or vaginal lacerations, or diagnose blood type; and had engaged only in activities routinely and properly done by people who are not physicians." Id., 149.
The trial court had denied the injunctive relief. On appeal by the healing arts board, the Kansas Supreme Court began its analysis with their statute defining the practice of medicine, having its origin in 1870. Like the history for our § 20-9, the Kansas statute had not changed substantially and at the time of the opinion defined the practice of medicine as "the treatment, operation, diagnosis, prescription or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity or injury."
Also similar to Connecticut, in 1978, the Kansas legislature had created a new classification of nurses, a subclass of which was certified midwives. The court stated: "Although the regulations might be argued to show additional legislative intent to prohibit the practice of lay midwives, this argument has been rejected elsewhere. See Leigh v. Board of Registration in Nursing, 395 Mass. 670, 679-81, 481 N.E.2d 1347 (1985)." Id., 151. In another parallel to Connecticut's Vadam case, the court in State v. Mountjoy, 891 P.2d 376 (Kans. 1995), had set aside a prosecution of midwives for practicing the healing arts without a license.
Reaching the issues raised by the healing arts board, the court first found the definitional statute was not unconstitutionally vague "because the words it uses have ordinary and readily understood meanings." Id., 155. Next the court declared: [T]he terms in [the statute] used to define healing arts clearly and unequivocally focus exclusively on pathologies (i.e. diseases) and abnormal human conditions (i.e. ailments, deformities, or injuries). Pregnancy and childbirth are neither pathologies nor abnormalities." Id., citing Banti v. State, 289 S.W.2d 244, 247 (Tex.Crim. 1956) ("childbirth is a normal function of womanhood"), and distinguishing Smith v. State, 459 N.E.2d 401 (Ind.App.) (Indiana definition of medicine also includes "other conditions").
The court continued with an important qualification: "Although we hold the practice of midwifery is not itself the practice of the healing arts under our statutory scheme, our conclusions should not be interpreted to mean that a midwife may engage in any activity whatsoever with regard to a pregnant woman merely by virtue of her pregnancy." The court then quotes from Banti v. State, the Texas case cited above. "We should not be understood as holding that the statute could not be violated so long as the patient was a pregnant woman. Of course pregnancy would not prevent a woman from having a disease, disorder, deformity or injury for which she would require the services of a practitioner of medicine." Banti v. State, supra, 289 S.W.2d 247-48.
Under these circumstances, the court set forth the basic test: "Therefore, the question of whether Ruebke was engaged in the practice of the healing arts, under the facts of this case developed during the evidentiary hearing, is not resolved only by our conclusion that the practice of midwifery is not included in [the statute]. However, we need not decide the precise boundaries of what a midwife may do without engaging in the practice of the healing arts because, in the case before us, Ruebke was found to have worked under the supervision of physicians who were familiar with her practices and authorized her actions . . . We hold only that midwifery itself is not the practice of the healing arts and that, under the facts of this case, those activities beyond midwifery in which Ruebke might have engaged were excepted from the healing arts act by virtue of the supervision permitted by a licensed physician." State Board of Nursing v. Ruebke, supra, 913 P.2d 160-61.
Ruebke, so close to the situation in Connecticut, confirms this court's conclusion that § 20-9 is not unconstitutionally vague as written. With regard to jurisdiction, following Ruebke, the board has jurisdiction pursuant to both §§ 20-9 and 19a-11 to seek a cease and desist order in those cases where the midwife's actions exceed her role in normal childbirth. In other words, if an independent midwife "diagnoses" or "treats" a woman with an "ailment or disease" occurring in her pregnancy, she is practicing medicine under § 20-9 and is subject to an order that she immediately discontinue what the board finds to be an unlicensed practice. The board has been delegated by the legislature with the discretion to "exercise a judgment as to whether the facts before it fall within or outside the legislative design." Leib v. Board of Examiners for Nursing, 177 Conn. 78, 90, 411 A.2d 42 (1979).
Consulting the dictionary definitions for "injury, deformity, ailment or disease," the court cannot find that the plaintiffs have met their burden of proving that the meaning of medical practice in § 20-9 "cannot be fairly ascertained." Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 458, 984 A.2d 748 (2010).
Turning to the review of the order issued in this case, the court is not required to analyze whether all of the actions of the plaintiffs as found as facts by the board constitute the practice of medicine in violation of § 20-9. The order is justified if the plaintiffs failed to meet their burden that the board's decision was "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." § 4-183(j)(5); see also Schallenkamp v. DelPonte, 229 Conn. 31, 39, 639 A.2d 1018 (1994).
Thus it is unnecessary for the court to conclude whether the order is justified by Finding of Fact 2 that the plaintiffs "provided prenatal care to C.B."; or Finding of Fact 6 that the plaintiffs made the determination to advise C.B. "to go to the hospital because her baby had an elevated fetal heart rate."
The relevant Findings of Fact that support the order in this case are Finding of Fact 3 that the patient, C.B., 36 weeks pregnant, was advised by a physician at Central Connecticut Ob-Gyn against a home delivery; Finding of Fact 4 that the plaintiffs advised C.B. that she could have a home delivery despite her physician's clear advice; Finding of Fact 10 that at the scene, when the paramedics sought access to newborn E.B. to check him, one of the plaintiffs informed the paramedics that the child was fine and did not need to be "tortured"; Finding of Fact 11 that the plaintiffs refused to allow emergency medical personnel to take C.B. or E.B into the hospital from the parking lot; Finding of Fact 12 that the plaintiffs remained with C.B. for 30 to 40 minutes waiting for the placenta to deliver and only then told her to accompany the medical personnel to the hospital; and Finding of Fact 13 that the plaintiffs advised C.B. that she might leave E.B. and not bring him into the hospital while she was admitted.
The court notes that each of these facts have references to the transcripts in the record. The court has reviewed these references.
Such findings support the order, part 2, that the plaintiffs cease and desist from advising persons on whether a licensed medical provider has given correct information to a patient and whether or not to comply with this advice. The specific finding that Ruebke worked under the direction and supervision of physicians was the reason that the Kansas court concluded that its statute on the practice of medicine did not apply to her actions. These findings also support the order, part 3, prohibiting the plaintiffs from advising persons to disregard the sought intervention of licensed health providers.
With regard to the order, part 1, the court notes that part 1 directs a midwife not to assess a person's condition to determine whether medical assistance is necessary. This order has too broad a sweep to the extent that it forbids determinations associated with normal pregnancy, well-baby care, and the decision to refer a more complicated matter to a physician. Although the boundaries have not been specifically addressed, this opinion in general permits such activities by midwives.
If the order, part 1 is read only in the context of the findings of fact here — discussing with the patient the possibility of disregarding the advice that she received from a physician in her 36th week of pregnancy, refusing complete access by the paramedics, recommending to C.B. that she stay in her automobile for 30-40 minutes to see if the placenta issued, and advising that E.B. might remain with his father and grandmother in the automobile while C.B. entered the hospital — this order is appropriate. The order, part 1 clearly applies, pursuant to § 20-9, to these specific actions as taken by the midwives in this matter.
For the reasons stated above, the administrative appeal is dismissed.