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Board overreached in action against midwives, court finds

The state medical board exceeded its authority when it issued cease-and- desist letters to two midwives whose advice resulted in the birth of a baby in the back of a car as well as hospital stays for both the new mother and baby, a Connecticut appellate court ruled July 23

(Albini v. Connecticut Medical Examining Board).

The decision limits the medical board’s control to advice and practices that concern deviations from a healthy state of being and would seem to exclude advice about healthy, relatively-non-problematic births.

The case centered around prenatal care that the two midwives, Mary Ellen Albini and Joan Mershon, provided to an expectant mother beginning in 1999 or 2000. Contrary to the advice given by the mother’s physician based on the position and fetal weight of the baby, the two midwives advised their client that a home birth was possible.

That advice proved short-lived when, during the birth, complications arose and the two midwives advised their client to travel to a hospital. However, the baby, apparently unhappy to deviate from the plan, began to arrive during the car ride, and the whole party pulled into a parking lot, where the birth occurred.

Although Albini and Mershon attempted to refuse arriving emergency responders access to the baby and the new mother, and initially advised against medical attention at each step, further complications eventually sent first the mother and then the baby, who was having difficulty breathing, to the hospital.

The end results of the mess, aside from a baby, were charges against Albini and Mershon filed by the state’s public health department. After hearings ended in 2005, the state medical board determined the two had been practicing medicine without a license and issued a cease-and-desist order.

Albini and Mershon appealed the order, claiming that the board had no jurisdiction over their activities as midwives, and the case eventually rose to the Appellate Court.

The court, in an opinion written by Judge Barry Schaller, agreed with the midwives and ruled that the board had exceeded its authority. The statute under which the midwives had been charged, “by its plain language,” the judge wrote, “defines the scope of unauthorized practice of medicine specifically in terms of abnormalities or deviations from a healthy state of being.”

The board, however, had written in its decision that Albini and Mershon had engaged in diagnosing their patient’s “condition,” a word Schaller noted could encompass a healthy person, and the use of that wording put the board’s ruling beyond its jurisdiction. The appeal was upheld and the offending section of the board’s order was ordered stricken.