Connecticut Appellate Court: Midwifery Does Not Constitute the Practice of Medicine in Normal Pregnancies

4 comments
Image Credit:  CT Judicial Branch
Image Credit: CT Judicial Branch

 

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.

 

4 comments on “Connecticut Appellate Court: Midwifery Does Not Constitute the Practice of Medicine in Normal Pregnancies”

  1. There doesn’t seem to be anything barring the state from enacting new laws that ban non state licensed midwives or non CNMs though. Am I wrong?

    1. You would be correct, Cathie. This decision only tells us what the State, under its current statutes and regulations, can and can’t do as far as regulating the independent practice of midwifery as the purported practice of medicine.

  2. So in a nutshell, when attending to normal pregnancies, midwives are not considered doctors and so are free to continue their normal practices. Did I get that right? So it’s a good day for CT supporters of midwifery, yes?

    1. Whoops, just saw your comment Jen. Or I saw it before and forgot to reply, lol. Yes, the decision was very positive. It is basically saying that the State cannot prohibit midwives from providing ordinary care to pregnant women and women in labor under normal circumstances. Of course, there remains the huge gaping hole of how far outside normal can you go and still be considered to be practicing midwifery and not medicine. There are many of the opinion that the State of CT should regulate CPMs to take care of this issue and allow more midwives to be reimbursed by various health insurance plans. On the other hand, there are those who believe, based on this experience in other states, that regulation could have negative effects by controlling what exactly the CPMs can and cannot do, imposing burdensome administrative requirements on them, etc.

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