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The Commonwealth Court of Pennsylvania recently rendered a decision on an interesting case, which implicated the interplay of the regulation of the practice of medicine and midwifery by the Pennsylvania State Board of Medicine and personal religious values to have a midwife and not a doctor or hospital, care for a woman during pregnancy and childbirth. The case is styled Goslin v. State Bd. of Medicine, at 937 A.2d 531 (Pa. Cmwlth. 2007). The Commonwealth Court reviewed, upon appeal of petitioner Diane Goslin, the board’s conclusion that she had unlawfully engaged in the practice of medicine and midwifery, and its assessment of civil fines relative thereto. The Commonwealth Court ultimately upheld the decision, but remanded the case for a reassessment of the civil penalties. Case Factual and Procedural Background Goslin, the petitioner, was a practicing midwife in central Pennsylvania, particularly serving the Amish community, for more than 26 years. The record showed that she provided exemplary care to the women she serviced. The board did not assert that Goslin ever practiced in a negligent or dangerous manner. The board did not assert that any of Goslin’s patients ever sustained injuries as a result of her services. The majority of the women she served either had no health insurance and/or their religious beliefs discouraged them from giving birth in a hospital. Goslin obtained a certification from a national midwife organization, the North American Registry of Midwives, but she never obtained a certificate from the commonwealth of Pennsylvania, or its licensing agencies. In August 2006, the board issued an order to show cause alleging that Goslin engaged in the unlawful practice of medicine and midwifery in violation of Sections 10, 35 and 39(b) of the Medical Practice Act of 1985. Ultimately, the board concluded that Goslin engaged in the unlicensed practice of medicine and midwifery and assessed civil penalties. Goslin appealed to the Commonwealth Court and filed an application for a stay or supersedeas pending appeal. Opinion of the Commonwealth Court The commonwealth first went through an overview of the statutory background regarding the state regulation of the midwifery profession. First, in 1929 the state passed a law, which made it unlawful for any person, except a licensed physician or osteopath, to practice midwifery before receiving a certificate from the Pennsylvania State Board of Medical Education and Licensure. (Act of April 4, 1929, P.L. 160). Next, in 1974, a new law was enacted, adopting the Medical Practice Act of 1974, which stated that the State Board of Medicine could continue to license, register and regulate persons practicing midwifery. Next came the Medical Practice Act of 1985, or 1985 Act. The court looked at the definition of “midwife” and “nurse midwife” under that act, which defines such persons as “[a] individual who is licensed as a midwife by the Board.” That same act also held that any midwife who was licensed prior to the enactment of the act to practice midwifery could continue to do so in accordance with regulations of the board. Therefore, a person could be “grandfathered” in if he/she had a certificate prior to the 1985 Act. The court upheld the conclusion that Goslin never obtained a license or certificate from the commonwealth under any of the three aforementioned acts. The court then reviewed the standard for a petition to be successful on seeking a stay of a decision. Petitioners must meet the following four criteria: (1) show a “likelihood of success on the merits”; (2) demonstrate that absent a stay, “the applicant will suffer irreparable injury”; (3) show that a stay’s issuance will not cause “substantial harm to the other parties”; and (4) demonstrate that a stay’s issuance “will not adversely affect the public interest.” The first prong is not to be considered “inflexibly” by a reviewing court. The court may properly grant a stay if there is a strong showing of evidence by the applicant that the other three factors strongly favor the issuance of the stay. A reviewing court is to extend “a great degree of deference” to an administrative body’s “expertise in interpreting legislative enactments.” The court will defer to an agency’s interpretation of its rules and regulations “unless the interpretation is unreasonable or the interpretation frustrates the legislative purpose.” Looking first at the “unauthorized practice of medicine,” the court reviewed the board’s findings of fact which concluded that Goslin did the following in her practice: prenatal checkups, sometimes including hemoglobin tests; assistance with labor and delivery of the baby; postpartum care and pap tests; examination of newborns. She also coaches the mother through labor, “catches” the baby and ties and cuts the cord if a member of the family does not desire to do so, and contacts a physician in the event of medical emergency. As stated by the board, the 1985 Act defines “medicine and surgery” as “[t]he art and science of which the objectives are the cure of disease 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.” Under the 1985 Act, “healing arts” are “[t]he science and skill of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body.” Under Pennsylvania law, only licensed physicians may lawfully practice medicine, unless somehow exempted under the 1985 Act. Given the findings of fact, the Commonwealth Court could not conclude that the board had not rendered a reasonable conclusion that Goslin engaged in the unlawful practice of medicine. Turning next to the unlawful practice of midwifery, the court likewise concluded that Goslin had engaged in the practice of midwifery, without obtaining certification or licensure as required by Pennsylvania law. First Amendment Issues The court also addressed the freedom of association issues raised in this case. The court recognized that there is a disconnect between the board’s regulation of the practice of medicine in the protection of Pennsylvania’s citizens and a person’s right, based on religious beliefs or other reasons, to reject having a licensed professional care for his/her personal health. The court acknowledged the strong interests that both of these sides have, and determined that adult individuals had a right to make decisions about their own health. However, according to the court, an unborn child has no voice regarding health care decisions for it, which persuaded the court to rule against Goslin. The court also noted that only a litigant may assert his or her constitutional rights. In this case, the court noted that Goslin has not raised any specific religious reason for continuing her practice. The women she serves may have religious reasons for using her services, but they are not parties to the case at hand, and therefore the court was not persuaded by the assertion of their rights as a defense for Goslin. In dicta, the court noted that even if Goslin had raised these First Amendment issues, the court was not convinced that the Pennsylvania General Assembly could not enact legislation, and the board could not enact rules and regulations, disallowing lay midwives from practicing in the commonwealth. The court stated that it recognized parents’ rights to make decisions about how to deliver their children, but that it also believed “the Commonwealth has a paramount interest in ensuring that the lives of unborn fetuses are medically protected.” The court therefore concluded that Goslin had not satisfied the first prong of successfully seeking a stay. For the same rationale, the court concluded that the other prongs, with the exception of the irreparable harm prong, were likewise unmet. The petition to stay was denied. Although denying the petition to stay on the cease and desist aspect, the court did grant a stay on the penalties aspect of the board’s order. The court cautioned the board that the penalties imposed upon Goslin to it seemed “unconscionable.” The board was told it was not permitted to collect the penalties levied until the Commonwealth Court decided the matter on the merits. The court also cautioned that the board should reconsider the fines levied, in the amount of $11,000, based on the fact that Goslin appeared to act in good faith. In a footnote the court added that it found the fine “as not only punitive but also repugnant to traditional concepts of justice.” Vasilios J. Kalogredis is president and founder of Kalogredis Sansweet Dearden & Burke, a health care law firm, and Professional Practice Consulting Inc., a health care consulting firm, in Wayne, Pa. Among his areas of expertise are group practice arrangements, practice sales and mergers, doctor contract drafting and negotiation, tax and retirement planning for physicians, joint ventures, fraud and abuse matters, and evaluation of practice options for physicians. He can be contacted at 800-688-8314 or by e-mail at [email protected].

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