Hunter v. State

WILNER, Chief Judge. On an agreed statement of facts, appellant was convicted in the Circuit Court for Carroll County of having violated Md. Code Health Occupations art., § 8-701(a). That section states: “Except as otherwise provided in this title, a person may not practice, attempt to practice, or offer to practice registered nursing in this State unless licensed by the [State Board of Nursing] to practice registered nursing.” For that violation, appellant received a 180-day suspended sentence. Appellant is a midwife, and it was her practice of that profession that formed the basis for the conviction.

The State’s position was, and is, that only a registered nurse is allowed to practice midwifery, that the practice of midwifery therefore constitutes the practice of registered nursing, and that, as appellant was not licensed to practice registered nursing, she was in violation of § 8-701(a). Appellant rejoins that § 8-701 (a) does not apply to the practice of “traditional” midwifery, which is the form she practices. She acknowledges that, from at least 1978 to 1981, ¹⁴⁸ the law required all midwives to be registered nurses, but she asserts that, when the Legislature amended the law in 1981, it either intentionally or inadvertently repealed that requirement and allowed non-nurses, and indeed persons unlicensed by anyone, to practice “traditional” midwifery. She adds that, if the current law does require midwives to be registered nurses, it would infringe on the Constitutional right of privacy possessed by her clients to choose an unlicensed midwife to aid in the delivery of their baby.

She also complains that her motion to suppress certain statements made during her arrest should have been granted. We disagree with her contentions and shall affirm the judgment below. FACTS In the early morning hours of December 19, 1994, a newborn baby boy was brought to the emergency room of the Carroll County General Hospital. Upon arrival, the baby was under full cardiac arrest; attempts to resuscitate him were unsuccessful.

Hospital personnel contacted Child Abuse and Sexual Assault Unit Investigator Gary Childs regarding the baby’s suspicious death. Investigator Childs learned that the mother, Cynthia Morgan, had delivered her baby at home with appellant’s assistance. Appellant was hired by Mr. and Mrs. Morgan to perform prenatal care for Mrs. Morgan and to deliver their baby at home. She informed Mr. and Mrs. Morgan that she was not a certified nurse-midwife, but instead was a “traditional” or “lay” midwife. 1 The agreed-upon fee for her services was $1400. ¹⁴⁹ Mrs. Morgan told the emergency room staff that her membranes had ruptured at approximately 4 a.m. on December 17, 1994, although she did not begin to feel contractions until 9 a.m. on December 18.

Mrs. Morgan said that appellant arrived at approximately 3 p.m. on the 18th, performed an examination, and informed Mrs. Morgan that she was approximately 5 centimeters dilated. By 11 p.m., Mrs. Morgan was almost fully dilated. She began to push, and continued to push for approximately 4 hours. When the head of the baby was apparent, appellant told the husband to call 911.

Appellant reported that, just prior to delivery, the baby’s heart rate was 120 to 130 beats per minute. When the paramedics arrived at the Morgan home, they observed that the baby was receiving C.P.R. and oxygen. The baby was soon thereafter taken to the hospital. On December 20, 1994, Dr. J. Laron Locke performed an autopsy on the baby.

The autopsy report indicated that the baby was a stillborn full-term baby and that maceration and his airless lungs indicated that the baby had died in útero. In his opinion, the baby died from infection resulting from chorioamnionitis, which is an infection of the maternal or placental membranes. The doctor stated that the baby died 24 to 48 hours prior to birth but was alive before the infection began because he had mounted a defense to the infection. In the opinion of Dr. Nancy Petit, who extended prenatal care to Mrs. Morgan, proper medical attention would have detected that the mother and baby were suffering from an infection and that proper care could have prevented the baby’s death.

There was no evidence, however, that anything appellant did during the delivery process caused or contributed to the baby’s death. Appellant has never been licensed in Maryland as a practical nurse, registered nurse, or certified nurse. On January 19, 1995, the State obtained an arrest warrant for appellant, charging her with two counts of reckless endangerment and one count of practicing registered nursing without a license in violation of Md.Code Ann. Health Occupations art., § 8— ¹⁵⁰ 701(a). Pursuant to a plea agreement, the prosecutor entered a nolle prosequi on the charges of reckless endangerment and appellant pled not guilty to the practicing nursing without a license charge.

After her conviction of that offense, this appeal ensued. DISCUSSION (1) The Regulation of Midwifery As noted, the State’s case rested on the proposition that the practice of midwifery constitutes the practice of registered nursing and that, as appellant is not a registered nurse, what she did constitutes a violation of § 8-701(a). To determine whether this is so, we need to examine both the present statutory scheme and the preexisting laws that it replaced, for the answer is not so clear as either side suggests merely from the current wording of the statute. Section 8-701(a) says nothing about midwifery.

It simply precludes the practice of registered nursing without a license. Section 8-710(a) makes the violation of § 8-701 a misdemean- or subject to a fine of $5,000 and one year in prison. Those sections are part of the Maryland Nurse Practice Act, which comprises title 8 of the Health Occupations article. Section 8—101(f) defines the term “practice registered nursing” as “[ (1) ] the performance of acts requiring substantial specialized knowledge, judgment and skill based on the biological, physiological, behavioral or sociological sciences as the basis for assessment, nursing diagnosis, planning, implementation and evaluation of the practice of nursing in order to: (i) Maintain health; (ii) Prevent illness; or (in) Care for or rehabilitate the ill, injured, or infirm.” The definition continues: “(2) For these purposes, ‘practice registered nursing’ includes: ¹⁵¹ (i) Administration; (ii) Teaching; (iii) Counseling; (iv) Supervision, delegation and evaluation of nursing practice; (v) Execution of therapeutic regimen, including the administration of medication and treatment; (vi) Independent nursing functions and delegated medical functions; and (vii) Performance of additional acts authorized by the [State Board of Nursing] under § 8-205 of this title.” (Emphasis added.) Section 8-101(g) defines the term “registered nurse” as an individual licensed by the Board to practice registered nursing.

Section 8-205, referred to in § 8—101(f)(2)(vii), authorizes the State Board of Nursing, among other things, to adopt regulations to carry out the provisions of the title, to set standards for the practice of registered nursing, to adopt regulations for the performance of “additional nursing acts” that “[rjequire education and clinical experience,” and to adopt regulations for registered nurses “to perform independent nursing functions that ... [rjequire formal education and clinical experience.” Section 8-301, which ties into § 8-701, requires that an individual be licensed by the Board before practicing registered nursing in the State. So far as we can tell, midwifery is mentioned in only two parts of title 8. Section 8-503 directs the State Board of Nursing to appoint a peer review committee for each of three classes of nurses, one of which is “[cjertified nurse midwives.” It defines the term “[njurse midwife,” presumably for purposes of that section, as “a registered nurse who is certified under this title to practice nurse midwifery and who is also certified by the American College of Nurse Midwives.” 2 The ¹⁵² principal reference to midwives is in subtitle 6, comprising §§ 8-601 through 8-603. That subtitle is captioned “Special Nurse Midwife Provisions.” Section 8-601 defines the term “[pjractice nurse midwifery” as “the management and care of essentially normal newborns and of essentially normal women antepartally, intrapartally, and postpartally [including] (i) Family planning and well woman reproductive care; (ii) The prescribing of substances commonly used in the practice of nurse midwifery as determined by the Board in consultation with the State Board of Pharmacy and the State Board of Physician Quality Assurance; (iii) The prescribing of [specified controlled substances] commonly used in the practice of nurse midwifery as determined by the Board in consultation "with [the aforementioned two Boards]; and (iv) The dispensing of the substances prescribed in accordance with the provisions of subparagraphs (ii) and (iii) of this paragraph in the course of treating a patient at: 1.

A medical facility or clinic that is operated on a nonprofit basis; 2. A health center that operates on a campus of an institution of higher education; or 3. A public health facility, a medical facility under contract with a State or local health department, or a facility funded with public funds.”. Section 8-602 states simply that “[t]he practice of nurse midwifery is governed by rules and regulations that are ¹⁵³ adopted under § 8-205 of this title and that concern additional acts in the practice of registered nursing.” (Emphasis added.) Section 8-603 provides that an individual who was licensed as a nurse midwife on June 30, 1981 is governed by title 8 and any other provisions that concern additional acts in the practice of registered nursing that relate to the practice of nurse midwifery.

That appears to be the extent of the statutory regulation of midwifery. The heart of the regulatory scheme is in the regulations adopted by the State Board of Nursing, pursuant to § 8-205. They are found in COMAR, title 10, subtitle 27, chapter 5. The first regulation, COMAR 10.27.05.01, defines “nurse midwifery” as “the health care management of newborns and clients throughout their reproductive life cycle,” which seems to be considerably broader than the statutory definition.

It also defines the term “certified nurse midwife” as “a registered nurse who is certified by the [American College of Nurse Midwives Certification Council] and by the Board.” COMAR 10.27.05.02 sets forth the requirements for certification as a nurse midwife. They include holding a current license to practice registered nursing in Maryland and a current certification as a nurse midwife by the American College and having a written agreement, approved by the Board, with a physician. Upon certification, the nurse midwife may, among other things specified in COMAR 10.27.05.06, perform “[i]ndependent management of clients appropriate to the skill and knowledge of the certified nurse midwife and the nurse midwife’s agreement and protocols” and “[m]anagement, in collaboration with a physician, of clients with medical complications.” COMAR 10.27.05.10 provides that, pursuant to Health Occupations article § 8-602, an individual may not practice nurse midwifery unless certified under these regulations or otherwise permitted by law to engage in those activities. It is apparent, then, that the requirement that a person be a licensed registered nurse in order to engage in the practice of ¹⁵⁴ midwifery must rest either on finding that practice to be included within the definition of “practice registered nursing” in § 8—101(f) or on the combination of § 8-602 and the COMAE regulations just noted.

There is no more specific requirement. We do not regard these provisions as quite so clear and unambiguous as either the State or appellant regard them. We need, then, to search for what the Legislature intended, and this requires an examination of legislative history. The first incipient regulation of midwives in Maryland came in 1898, in an Act dealing principally with infectious diseases (1898 Md.Laws, ch. 436).

In a new section 34F added to art. 43 of the Code, the Legislature required (1) that midwives register with the Registrar of Vital Statistics for the city or county in which they practiced, and (2) that they immediately notify the local health officer if they find a “lying-in woman” to have fever and refrain from attending “any other parturient woman or woman in child-bed” until authorized by the health officer. The first comprehensive regulation came with 1910 Md. Laws, ch. 722. That Act required midwives to be licensed by the clerk of the circuit court but specified that the clerk could not issue a license unless the applicant had a certificate from the State Board of Health that he or she had successfully passed an examination given by the Board or that the applicant had engaged in the practice of midwifery prior to 1910. To be eligible to take the examination, and thus be certified, a non-grandfathered applicant, among other things, had to present (1) a certificate from a physician or hospital that he or she had attended at least five cases of childbirth and was competent to attend ordinary cases of labor, and (2) certificates from three reputable citizens that the applicant was of good moral character.

The law precluded midwives from making vaginal examinations, attempting to deliver a retained placenta, attempting to use forceps, or attempting version or other forcible delivery. It also required them to report certain postpartum complications to a physician or the Health Commissioner. ¹⁵⁵ The 1910 law was rewritten by 1924 McLLaws, ch. 294. That Act made it unlawful for any person not licensed as a midwife or physician “to attend women in childbirth, habitually or for hire, except under the personal direction and supervision of a licensed practitioner of medicine.” As with the 1910 enactment, existing midwives were grandfathered in, but all other persons had to obtain a license from the State Board of Health. In place of the examination required under the 1910 law, the requirement for licensure, aside from good moral character, was a determination by two physicians named by the Board that the applicant was qualified.

Even licensed midwives were precluded from attending other than “normal cases of childbirth” and from administering drugs other than under the supervision of a physician. The State Board of Health was directed to keep an accurate registry of midwives and was charged with administering the law. The 1924 law remained in effect until 1978, when the Legislature, for the first time, expressly required that an applicant for a license as a midwife (1) be licensed in Maryland as a registered nurse, and (2) be certified by the American College of Nurse-Midwives as a nurse midwife. 1978 Md. Laws, ch. 582. The licensing function was switched from the Secretary of Health and Mental Hygiene, who had succeeded to the duties of the State Board of Health, to the Board of Examiners of Nurses.

The law also made clear that any person who violated the Act, including the provision that an unlicensed person may not “attend women in childbirth habitually or for hire,” was guilty of a misdemeanor. The Act exempted from the new requirements any person holding an existing license; those persons could simply renew their licenses. We come now to 1981 and the law that, with one amendment in 1990, now governs. There were actually two bills enacted in the 1981 session dealing with midwives.

The first was House Bill 1, which was a comprehensive Code Revision bill that enacted the Health Occupations article, revising the existing laws dealing with ¹⁵⁶ those occupations. Because it did not purport to make any substantive changes in the existing 1978 law, the bill followed closely the format of that law. In § 7-602 of the new article, it provided that an individual had to be licensed by the Board before practicing midwifery habitually or for hire, unless he or she practiced under the personal direction and supervision of a physician. Section 7-603 stated that, to qualify for a license, an applicant, among other things, had to be a registered nurse and certified as a nurse midwife by the American College of Nurse-Midwives.

Revisor’s Notes to those sections informed the Legislature that the new language was derived from the existing law without substantive change; they also pointed out a number of gaps and discrepancies in the existing law. During its drafting of the Health Occupations article, in the summer of 1980, the Commission to Revise the Annotated Code was sufficiently concerned about these discrepancies to ask that the Legislature study the midwife provisions during the 1980-81 interim with a view to making some substantive changes. A Staff Report dated July 18, 1980, pointed out: “While the midwife provisions were drafted to cover both the ‘granny’ midwives who were required to have little formal education, and the registered nurses who have additional training in midwifery, through attrition, the only individuals currently governed or eligible to become licensed as midwives are the registered nurses who have additional training in midwifery.” The Staff Report further noted that, initially, the Commission had intended to draft the midwifery laws separately from the nursing provisions, but that, since the administration of the midwifery laws had been vested in the Nursing Board and since “currently the only individuals eligible to be or to become licensed as midwives in this State are registered nurses,” the Committee had incorporated the midwifery provisions into the nursing law. The second bill, House Bill 461, was obviously the attempt to review in substance the laws dealing with