Goslin v. State Board of Medicine

949 A.2d 372, 2008 WL 2151413

• Court: Commonwealth Court of Pennsylvania
• Decided: June 2, 2008
• Docket: 1830 C.D. 2007
• Status: Published

Opinions

OPINION BY

Judge FRIEDMAN.

Diane Goslin (Goslin) petitions for review of the September 26, 2007, order of the State Board of Medicine (Board), which: (1) ordered Goslin to cease and desist from the practices of medicine and midwifery; (2) imposed a civil penalty of $10,000 on Goslin for the unlicensed practice of medicine; and (3) imposed a civil penalty of $1,000 on Goslin for the unlicensed practice of midwifery. We reverse.

On October 3, 2006, the Board issued an amended order to show cause why the Board should not impose penalties upon Goslin for: (1) engaging in the practice of medicine without a license and holding herself out to the public as being authorized to engage in the practice of medicine and surgery in violation of sections 10 and 39(b) of the Medical Practice Act of 1985 (1985 Act);¹ and (2) engaging in practice as a nurse-midwife without a license and holding herself out to the public as being authorized to engage in practice as a nurse-midwife in violation of sections 35 and 39(b) of the 1985 Act, 63 P.S. §§ 422.35 and 422.39(b). (R.R. at 4a-6a.)

The matter came before a hearing examiner, who issued an adjudication and order, concluding that: (1) Goslin did not violate sections 10 and 39(b) of the 1985 Act by engaging in the unauthorized practice of medicine or by holding herself out to the public as being authorized to engage in the practice of medicine and surgery; but (2) Goslin violated sections 35 and 39(b) of the 1985 Act by engaging in unauthorized practice as a nurse-midwife and by holding herself out to the public as being authorized to engage in practice as a nurse-midwife. (H.E.’s Conclusions of Law, Nos. 3-6.) On July 31, 2007, the Board issued a notice of intent to review the hearing examiner’s decision, and Goslin filed a brief on exceptions to the hearing examiner’s decision.

After reviewing the record, the Board made the following relevant findings of fact:

1. At all times pertinent to the factual allegations, [Goslin] did not hold a license to practice medicine and surgery in the Commonwealth of Pennsylvania.

2. At all times pertinent to the factual allegations, [Goslin] did not hold a license to practice as a nurse midwife in the Commonwealth of Pennsylvania.

4. [Goslin] holds herself out to the general public as a lay midwife and a certified professional midwife who is certified by the North American Registry of Midwives.[²]

6. [Goslin] advertised her business through the use of business cards asserting that she is a CPM (Certified Professional Midwife).

11. In her capacity as a lay midwife, [Goslin] provides the following services:

a. Prenatal checkups, including, on occasion, hemoglobin tests;

b. Assistance with labor;

c. Assistance with the delivery of the baby;

d. Postpartum care and pap tests as needed; and

e. Newborn examinations, including weight, measurements, lungs, check for newborn jaundice, PKU test, cord care, nursing history, elimination/void history.

12. As part of her services as a lay midwife, [Goslin] assists with home births; specifically, [Goslin] will:

a. “Coach” the Mother through labor;

b. “Catch” the baby if a family member does not want to do so;

c. Tie and cut the cord if a family member does not want to do so; and

d.' Contact a doctor in the event that an - emergency situation arises in which medical care is required.

(Board’s Findings of Fact, 1-2, 4, 6, 11-12) (citations omitted).

Based on these findings, the Board concluded that: (1) Goslin violated sections 10 and 39(b) of the 1985 Act by engaging in the practice of medicine, but Goslin did not hold herself out to the public as being authorized to engage in the practice of medicine and surgery; and (2) Goslin violated section 1 of the Midwife Regulation Law of 1929 (1929 Law)³ by engaging in the practice of midwifery without a license and by holding herself out to the public as a midwife and, thus, is subject to a sanction under section 39(b) of the 1985 Act. (Board’s Conclusions of Law, Nos. 3-6.) The Board then issued a cease and desist order and imposed civil penalties.⁴ Goslin now petitions this court for review.⁵

I. Practice of Medicine

Goslin argues that the Board erred in concluding that Goslin violated sections 10 and 39(b) of the 1985 Act by engaging in the practice of medicine. We agree.

The Board concluded that Goslin violated sections 10 and 39(b) of the 1985 Act by providing “antepartum, intrapartum, postpartum and/or nonsurgically related gynecological care.” (Board’s Conclusions of Law, No. 3.) However, the Board’s regulations define “[m]idwifery practice” as “antepartum, intrapartum, postpartum and nonsurgically related gynecological care.” 49 Pa.Code § 18.1. Thus, the Board concluded that Goslin practiced medicine and surgery in violation of sections 10 and 39(b) simply by practicing midwifery.

Section 10(1) of the 1985 Act provides, in pertinent part, that “[n]o person other than a medical doctor shall ... [practice medicine and surgery.”⁶ 63 P.S. § 422.10(1). If practicing midwifery is practicing medicine and surgery, as the Board maintains, then “no person other than a medical doctor shall ... practice [midwifery].” Id. However, registered nurses with nurse-midwife licenses may practice midwifery under section 35 of the 1985 Act.⁷ Thus, practicing midwifery cannot be construed to be the same as practicing medicine and surgery for purposes of determining whether a person has violated sections 10 and 39(b) of the 1985 Act.

Because the Board found only that Gos-lin practiced midwifery, the Board failed to establish that she practiced medicine and surgery in violation of sections 10 and 39(b) of the 1985 Act.

II. Midwifery

Goslin next argues that the Board deprived her of due process by failing to provide notice that she was charged with violating section 1 of the 1929 Law for practicing as a midwife without a license and for holding herself out to the public as a midwife.⁸ We agree.

In an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard. Grossman v. State Board of Psychology, 825 A.2d 748 (Pa.Cmwlth.), appeal denied, 575 Pa. 693, 835 A.2d 710 (2003). The purpose of the notice requirement is to afford the person reasonable notice of the charges against her so that she will have sufficient opportunity to answer the charges. Woods v. State Civil Service Commission, 590 Pa. 337, 912 A.2d 803 (2006). For such notice to be adequate, it must at the very least contain a sufficient listing and explanation of charges so that the individual can know against what charges she must defend herself if she can. Id.

The Board charged Goslin with violating sections 35 and 39(b) of the 1985 Act by practicing as a nurse-midwife without a nurse-midwife license and by holding herself out to the public as being authorized to engage in practice as a nurse-midwife. Section 35 of the 1985 Act provides:

(a) General rule. — A nurse-midwife license empowers the licensee to practice midwifery in this Commonwealth as provided in this act. The board shall formulate and issue such rules and regulations, from time to time, as may be necessary for the examination, licensing and proper conduct of the practice of midwifery.

(b) Requirements. — No nurse-midwife license will be issued unless the applicant is a registered nurse licensed in this Commonwealth. An applicant for a midwife license must have completed an academic and clinical program of study in midwifery which has been approved by the board or an accrediting body recognized by the board.

63 P.S. § 422.35. Section 39(b) of the 1985 Act provides, in pertinent part, as follows:

(b) Civil penalties. — In addition to any other civil remedy or criminal penalty provided for in this act, the board ... may levy a civil penalty ... on any person who practices medicine and surgery or other areas of practice requiring a license, certificate or registration from the board without being properly licensed, certificated or registered to do so under this act.

63 P.S. § 422.39(b) (emphasis added). Section 35 of the 1985 Act clearly governs the Board’s issuance of nurse-midwife licenses to licensed registered nurses. Because Section 39(b) of the 1985 Act specifically refers to proper licensing “under this act,” section 39(b) authorizes the Board to impose penalties only upon persons who practice as a nurse-midwife without a nurse-midwife license.⁹

Section 1 of the 1929 Law deals with midwifery but has nothing to do with nurse-midwives or nurse-midwife licenses.¹⁰ Section 1 of the 1929 Law states, “it shall be unlawful for any person or persons ... to practice midwifery ... before receiving a certificate ... authorizing such person or persons so to do” 63 P.S. § 171 (emphasis added). A midwife here is “[a]ny person or persons ... who shall attend a woman in childbirth for hire, or who shall make a practice of attending women in childbirth gratuitously or for hire.... ” Section 6 of the 1929 Law, 63 P.S. § 176 (defining “midwife”) (emphasis added). Thus, section 1 of the 1929 Law regulates, by the issuance of certificates, persons who are not registered nurses with nurse-midwife licenses, but who make a practice of attending women in childbirth gratuitously or for hire.¹¹

Given the different purposes of the two statutes, we conclude that the nurse-midwife charges against Goslin under the 1985 Act did not give Goslin adequate notice to defend against the midwife offenses described in the 1929 Law.¹²

Accordingly, we reverse.

President Judge LEADBETTER dissents as to Part I (practice of medicine) only.

Judge SMITH-RIBNER concurs in result as to Part II (midwifery issue) but dissents to Part I (practice of medicine).

Judge PELLEGRINI concurs in the result only.

ORDER

AND NOW, this 23rd day of May, 2008, the order of the State Board of Medicine, dated September 26, 2007, is hereby reversed.

1 . Act of December 20, 1985, P.L. 457, 63 P.S. §§ 422.10 and 422.39(b).

2 . The parties had stipulated that Goslin "advises that she is not a certified nurse midwife licensed by the Commonwealth.” (Joint Stipulations, No. 4, R.R. at 71a) (emphasis in original). However, the Board inexplicably excluded this stipulation from its findings of fact.

3 . Act of April 4, 1929, P.L. 160, 63 P.S. § 171. Section 1 of the 1929 Law states that it shall be unlawful for any person to practice midwifery before receiving a certificate authorizing such person to do so. 63 P.S. § 171. Section 5 of the 1929 Law states:

"Any person practicing midwifery as a profession, or advertising herself as a midwife, without first obtaining the certificate aforesaid, or lawfully holding a license under the laws of the Commonwealth, shall, upon conviction thereof in a summary proceeding ... be sentenced to pay a fine of not less than ten dollars ($10.00) and costs, nor more than one hundred dollars ($100.00) and costs....”

63 P.S. § 175.

4 . Goslin filed an application for stay with this court. By order dated October 31, 2007, this court denied the application with respect to the Board's order to cease and desist from the practice of midwifery but granted the application with respect to the imposition of penalties.

5 . This court’s scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law or whether the necessary findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

6 .The phrase "medical doctor” is defined as follows:

"Medical doctor.” An individual who has acquired one of the following licenses to practice medicine and surgery issued by the board:

(1) License without restriction.

(2) Interim limited license.

(3) Graduate license.

(4) Institutional license.

(5) Temporary license.

(6) Extraterritorial license.

Section 2 of the 1985 Act, 63 P.S. § 422.2. The phrase "medicine and surgery” is defined as "the art and science of which the objectives are the cure of diseases and the preservation of the health of man, including the practice of the healing art with or without drugs, except healing by spiritual means or prayer.” Id. The phrase "healing arts” is defined as the "science and skill of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body.” Id.

7 . If section 10 applied to the practice of midwifery, then every registered nurse with a proper nurse-midwife license would be practicing medicine in violation of section 10.

In this regard, we note that, under 49 Pa. Code § 18.6(5), a nurse-midwife may perform "medical services,” i.e., services that lie within the scope of the practice of medicine and surgery but "beyond the scope of midwifery,” if a collaborating physician delegates the authority to do so and other conditions are met. See 63 P.S. § 422.2 (defining "medical service” as an activity that lies within the scope of the practice of medicine and surgery). This regulation makes clear that the practice of medicine and surgery is distinct from, and beyond the scope of, midwifery.

8 . The parties stipulated that the Board brought the action against Goslin solely pursuant to the 1985 Act. (See Joint Stipulations, No. 1; R.R. at 70a.)

9 . We note that neither section 35 nor section 39(b) of the 1985 Act permit the Board to impose a civil penalty for holding oneself out as a nurse-midwife. However, under section 38 of the 1985 Act, it shall be unlawful for any person to "attempt to offer to practice” as a nurse-midwife without a valid nurse-midwife license. 63 P.S. § 422.38.

10 . Indeed, before the 1985 Act, there were no nurse-midwives or nurse-midwife licenses. We also note that the Board, having concluded that Goslin violated the 1929 Law, cannot now argue that the 1985 Act repealed the 1929 Law. See section 1971 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1971 (relating to the implied repeal of a statute). Moreover, if the Board made that argument, and we agreed, then the Board’s imposition of penalties for violations of section 1 of the 1929 Law would be null and void.

11 . We recognize that statutes in pari materia shall be construed together, if possible, as one statute. Section 1932(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932(b). However, the 1985 Act and the 1929 Law do not relate to the same class of persons. Although both relate to midwifery, the 1985 Act relates to the licensing of registered nurses as nurse-midwives and the 1929 Law relates to the granting of certificates to other persons who attend women in childbirth.

12 . Moreover, we note that, although the Board concluded that Goslin violated section 1 of the 1929 Law by holding herself out to the public as a midwife, section 1 does not make such conduct unlawful. It is section 5 of the 1929 Law that prohibits a person from "advertising herself as a midwife” without a certificate or a license. 63 P.S. § 175.