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Misdemeanor or felony? Unlicensed practice may be either

A student midwife who had been convicted of the unlicensed practice of medicine lost an appeal of that ruling April 18, when the Court of Appeal of California in Los Angeles ruled that the unlicensed practice of many of the actions associated with midwifery is also the unlicensed practice of medicine

(The People v. Katharine Louise McCall).

Although California law allows a student midwife to actively practice under the supervision of a licensed midwife or physician, the defendant in the case, student midwife Katharine McCall, took that liberty one step too far when she contracted with an expectant mother for delivery.

McCall did inform her client that she was not currently licensed and assured the woman that a licensed professional would be present at the birth.

However, no such person was, in fact, present during the prenatal care McCall provided, nor during the birth itself.

The delivery itself was not a simple one. During the birth, McCall informed her client that the baby’s head was stuck against the mother’s pelvic bone, an emergency situation known as shoulder dystocia. McCall acted to fix the situation, and the baby was delivered. And, aside from the actual guiding of the baby, McCall performed several other medical tasks during the delivery, such as administering lidocaine and stitching torn skin. At no point did McCall call for emergency assistance.

When prosecutors learned of the birth, McCall found herself charged with the unlicensed practice of medicine, a felony. After a jury trial, she was convicted, and her appeal followed.

McCall’s most cogent argument on appeal was that she was improperly charged with felony unlicensed practice of medicine when, if anything, she should have been charged with the unlicensed practice of midwifery, only a misdemeanor.

However, her case was not particularly strong. Both expert witnesses who testified on her behalf believed that she had acted correctly to fix the misalignment of the baby, as that was an emergency situation which could not wait for licensed professionals to arrive, but one of her witnesses also testified that he believed she had engaged in unlicensed medical practice by delivering the baby without supervision.

Justice Paul Turner, writing for the majority, also did not agree with McCall. The separate unlicensed practice provisions of the state’s medical practice act which cover physicians did not overlap, he noted, and even licensed midwives still needed the supervision of a physician. “Nothing in the Midwifery Act,” he wrote, “shields a midwife, licensed or unlicensed, from prosecution for practicing medicine without certification.”

The actions that could be considered the unlicensed practice of midwifery were different from those that constituted unlicensed practice of medicine, Turner said. “A person violates the Midwifery Act by holding him or herself out as a midwife when not licensed as such, or by failing to make required disclosures or to report required information. In none of those situations does the violation result in the illegal practice of medicine.”

He concluded: “Her conduct above and beyond the failure to secure supervision constituted, as the jury found, practicing medicine without certification.”