Last year, the Connecticut Superior Court considered an administrative appeal by two midwives who were sanctioned by the state’s Medical Examining Board (the agency that licenses physicians) for the alleged practice of medicine without a license. I would love to summarize the facts of the case here, but it’s a long story with lots of technical details, and I don’t think I can do the case justice by simplifying it down to a paragraph. Suffice to say that the Board told the two midwives, who were Certified Professional Midwives licensed not by the State of Connecticut but by NARM, a private organization, that they overstepped their boundaries as midwives by providing what constituted medical advice to a woman during the course of her prenatal care, as well as during labor. On appeal, Judge Henry Cohn found that the Board had, in fact, overstepped its own authority in going too far with the cease and desist order. He found that the CPMs could assess the woman’s condition and determine whether to seek medical help, for example, just as any non-physician can assess that something is clearly wrong and that it is necessary to go to the hospital. However, the Court did not disturb the Board’s findings that the CPMs acted illegally by providing advice contrary to that of the woman’s OB/GYN (she had received parallel care during her pregnancy).
In case you’re wondering, Mom and Baby are alive and well and, from what I am told, did not seek any action against the CPMs, or see any reason to. However, it is reported that a doctor who was disturbed by the woman’s attempted homebirth, which ended in a hospital transfer, reported the CPMs to the State, beginning this litigation — back in 2000. The Board’s cease and desist order was not issued until 2008, and it took three more years for this matter to be heard by the Superior Court. Because the decision was a partial win, partial lose for both the State and the CPMs, the parties have filed cross-appeals with the Connecticut Appellate Court, where the case awaits oral argument.
As mentioned above, the Medical Examining Board, the agency that licenses physicians, heard the case and then sanctioned the two CPMs for the unauthorized practice of medicine. It’s what would happen if I held myself out to the public as a licensed physician, when in fact I am just a lay person, and then went about treating people under the guise that I am a doctor.
But Certified Professional Midwives don’t practice medicine. They practice midwifery.
The State of Connecticut does not license CPMs, but it does define and regulate the practice of nurse-midwifery. In Connecticut, you can be licensed as a Certified Nurse-Midwife if you are eligible for registered nurse licensure by the State, are certified by the American College of Nurse-Midwives, and have completed additional hours in pharmacology.
What exactly constitutes the practice of medicine? Section 20-9 of the Connecticut General Statutes defines the practice of medicine by describing what one may NOT do in the absence of a physician’s license: “No person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in section 20-10, and then only in the kind or branch of practice stated in such license.” (Emphasis added.) This statute also includes a list of circumstances that are expressly not considered to be the unauthorized practice of medicine. Nurse-midwifery is included in the list, as is the rendering of emergency medical assistance.
Funny, I didn’t realize that being in labor constituted an “injury, deformity, ailment or disease.”
Which brings me back to exactly what CPMs do for a living: Just because the State doesn’t license CPMs doesn’t make what they do illegal, and it certainly does not mean that any midwife who is not a nurse-midwife is, by default, practicing medicine without a license. The State neither prohibits nor promotes the practice of attending homebirths. There are no built-in criminal penalties in Connecticut for attending a homebirth, nor is the act of giving birth at home itself illegal. If such prohibitions did exist, then a woman giving birth at home by herself, or a husband or aunt who stays with the woman during her homebirth to provide emotional support, could be hauled away to jail. So it is important to keep the court decision in the proper context: the crux of Albini et al. v. Medical Examining Board is whether the State overstepped its authority in telling the CPMs that they could not advise their client on matters concerning her pregnancy and the birth of her baby.
In Albini, the CPMs had told the mother that she could have a homebirth after an OB had told her not to, because of a transverse lie. I don’t know if we are missing facts here — perhaps the CPMs found a way to reposition the baby prior to attempting a homebirth, perhaps not — but this occurrence set the stage for the State to tell the story of two unlicensed midwives who recklessly told a pregnant woman to ignore her doctor’s advice at the peril of herself and her child, rather than the story of two trained professionals who independently assessed a woman’s pregnancy and issued a separate opinion that a home delivery was feasible. Consider that, if the woman had instead sought a second opinion from another licensed OB/GYN, and that second doctor rather than a CPM had provided the contrary advice, there would be no action against Doctor #2 for the unauthorized practice of medicine.
Regardless of whose story you find more convincing, should the State be in the business of shutting down homebirth midwives? The purpose of licensing physicans to practice medicine is to protect consumers, including consumers who are pregnant women, who may choose to obtain care from an OB/GYN or a CNM, but may instead choose to deliver at home with a CPM, or some other individual — or no one at all. But in the U.S., the overwhelming majority of women receive their prenatal care from an OB/GYN practice and deliver their babies in a hospital; in 2008, only 0.67% of recorded births in the U.S. were the result of a planned homebirth.
Will birth outcomes improve in this state by contorting the legal definition of the practice of medicine to include the oversight of the normal birth process, just because the woman chooses to remain at home during her labor? I think not. Let’s hope that the Medical Examining Board drops the witch-hunt, and instead, starts taking action that will actually improve the care provided to pregnant and laboring women — perhaps by recognizing the private CPM certification and taking reasonable measures to regulate the practice.