Our State appellate court recently issued a decision in the ten-year-old saga of Albini v. Connecticut Medical Examining Board, in which the administrative agency responsible for the licensing and regulating of physicians sought to prevent two certified professional midwives from engaging in activity that it claimed constituted the practice of medicine without a license. Let me insert a disclaimer here that this blog post is not intended to address the political issue underlying this case of whether CPMs or other homebirth midwives should be licensed in the State of Connecticut. Instead, what follows below is a short review and explanation of the court’s decision.
First, the facts that brought this case before the Medical Examining Board to begin with are summarized in the Appellate Court’s decision, which can be found here.
Next, understand that when the court reviews decisions by any administrative agency, the court is usually required to uphold the agency’s decision, so long as there is substantial evidence in the record of what went on at the hearing before the agency to support the basic findings of fact and legal conclusions. In other words, the court’s review is limited, and it will generally give wide discretion to administrative agencies to interpret their own laws, meaning that the agency has to act arbitrarily in order for the court to disturb what went on below. But in this case, the court applied a broader standard called plenary review, which applies when the court first needs to figure out what an applicable statute means before it can resolve the underlying dispute.
So what happened in Albini? First, the Appellate Court observed that the statute that defines who may practice medicine, C.G.S. § 20-9, provides in relevant part that “[n]o person shall . . . diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease . . . until he has obtained [a] license.” Next, the court found that the plain language of this statute means that the practice of medicine is defined by the treatment of “abnormalities or deviations from a healthy state of being.”
According to the Appellate Court, the problem with the Medical Examining Board’s cease and desist order against the midwives was that it prevented them from diagnosing or assessing any “condition,” even when such “condition” was a normal pregnancy. Relying on the opinions of experts who had testified that a healthy pregnancy is not an “injury, deformity, ailment or disease” as contemplated in C.G.S. § 20-9, the court found that the practice of midwifery in such cases does not constitute the practice of medicine. Therefore, when it comes to the ordinary, independent practice of midwifery, the Medical Examining Board has no authority to tell midwives that they can’t provide care in the context of a normal pregnancy.
Applying this analysis, the court found that the Medical Examining Board’s overly broad cease and desist order against the two CPMs amounted to the unlawful regulation of their practices as the purported practice of medicine without a license. Connecticut joins Kansas and Texas, states with similar statutes that have also held that midwifery is not the practice of medicine in the context of a normal pregnancy.
For more information, you can read the Connecticut Law Tribune’s story on the decision here.