Goslin v. State Board of Medicine

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent with regard to the majority’s decision to reverse the order of the State Board of Medicine finding that Diane Goslin engaged in the unauthorized practice of medicine and violated Section 10 of the Medical Practice Act (Act), Act of December 20, 1985, P.L. 457, as amended, 63 P.S. § 422.10. Goslin defines herself as a “lay midwife” and has no professional nursing or other degree. Section 10 (“Unauthorized practice of medicine and surgery”) provides:

No person other than a medical doctor shall engage in any of the following conduct except as authorized or exempted in this act:
(1) Practice medicine or surgery.
(2) Purport to practice medicine and surgery.
(3) Hold forth as authorized to practice medicine and surgery through use of a title, including, but not necessarily limited to, medical doctor, doctor of medicine, doctor of medicine and surgery, doctor of a designated disease, physician, physician of a designated disease, or any abbreviation for the foregoing.
(4) Otherwise hold forth as authorized to practice medicine and surgery.

*378Based on the undisputed facts of record, the Board properly concluded that Goslin practiced medicine and surgery by practicing “a component of the healing art by caring for women during their pregnancy, prior to and through their labor and delivery, and providing care to women and their newborn infants after delivery.” Board’s Adjudication, p. 13. The Board conceded that the state of pregnancy is not a disease, but it concluded based on its expertise that pregnancy nevertheless carries with it certain inherent risks and complications of diseases and ailments and that the safe management of a woman’s pregnancy requires use of diagnostic and treatment skills. It determined that the practice of midwifery1 is subsumed within the practice of obstetrics and that healthcare practitioners who violate a licensing statute are necessarily in violation of the Medical Practice Act.

Because of its significance to this case, I emphasize the fundamental principle and reasoning articulated by the Board in its final adjudication:

The regulation of the practice of the healing arts is critical to the public health, safety, and welfare. The harm that unlicensed unqualified persons can do to people who they purport to care for is obvious. The entire regulatory scheme pertaining to professional licensing of healthcare practitioners is based on the universally recognized principal that the state has an interest in making sure only qualified individuals provide healthcare because of the inherent risks involved.
[Goslin’s] conduct betrays a disregard for the laws of this Commonwealth and a disregard for the welfare of others. [Goslin] possesses no recognizable qualification for providing health care to others. She has no education or training that is recognized in the Commonwealth .... [I]t is well understood in the medical community that pre-natal care, assessment, nutritional counseling and the like are essential for maintaining the health of the mother as well as the child. Regular examinations during the pregnancy can alert the health care provider to potential problems and help avoid potentially catastrophic complications. [Goslin] has no qualifications to provide such care. Accordingly her violations of the law are grave because her conduct puts women and their newborn infants at risk.

Board’s Adjudication, pp. 21-22. I turn next to the Board’s findings of fact, which *379recite from the parties’ Joint Stipulations. The Board describes services that Goslin provides, to Amish and non-Amish pregnant women alike, including actual testing of women and newborns along with gynecological testing as needed:

11. In her capacity as a lay midwife, [Goslin] provides the following services:
a. Pre-natal 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 Adjudication, p. 4; Reproduced Record, pp. 70a-73a.

The record establishes that Goslin engaged in very specific medical practices and protocols and that she was not licensed to do so as a physician as required by Section 10 of the Act. Although the Board determined that Goslin did not hold herself out as a physician, her conduct and activities in providing care for pregnant women in labor and delivery as well as pre-natal and post-natal care constitute the act of engaging in the unauthorized practice of medicine. As amicus curiae Pennsylvania Medical Society (Medical Society) points out in its brief, any person who performs any part of the practice of medicine and surgery does so under three sources of authority, i.e., licensure as a physician, licensure as a non-physician health care professional or by lawful delegation of authority from a physician. See Section 10 of the Act; Section 19, 63 P.S. § 422.19; and Section 20, 63 P.S. § 422.20, respectively. Goslin operates under none of these sources.

The Medical Society notes that a definition of medicine and surgery in Section 2 of the Act, 63 P.S. § 422.2, refers to the healing arts as “[t]he science and skill of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body” and that Goslin’s activities fall within the scope of this definition. In short, Goslin determines which pregnancy appears to be normal and which appears to be complicated, and during labor and newborn assessments she makes triage decisions to determine if an emergency exists. The Medical Society opines that these decisions are at the core of the practice of obstetrical medicine.

This case was decided upon Joint Stipulations and exhibits rather than testimony, and arguably a more thorough record could have been made regarding the extent of Goslin’s testing and the other activities she performed that involve the practice of medicine. I nevertheless dissent because of the nature of the activities involved and the fact that the Board has expertise in determining what activities constitute the practice of medicine and has an obligation to ensure that those who perform medical procedures are competent, qualified and authorized to do so. At a glance, one can easily discern that Gos-lin’s activities are not so common that they *380can be performed by anyone who is not trained or licensed in the health care field.

Goslin performs “hemoglobin tests,” which are administered to detect the severity of anemia or polycythemia. Sted-man’s Medical Dictionary, 26th Edition at 777 defines “hemoglobin” in part as follows: “When Hb [hemoglobin] is exposed to certain chemicals, its normal respiratory function is blocked; e.g., the oxygen in Hb02 is easily displaced by carbon monoxide, thereby resulting in the formation of fairly stable earboxyhemoglobin (HBCO), as in asphyxiation resulting from inhalation of exhaust fumes from gasoline engines.” Goslin purports to administer these tests, which require skill and knowledge to interpret.

Goslin performs “PKU tests,” which require skill to administer and quite obviously to interpret. Stedman’s Medical Dictionary at 1371 describes PKU as an “ [abbreviation for phenylketonuria.” That term is defined in part as a “Monge-nital deficiency of phenylalanine 4-mono-oxygenase ...; it causes inadequate formation of L-tyrosine, elevation of serum L-phenylalanine, urinary excretion of phe-nylpyruvbic acid and its metabolites,... which can produce brain damage resulting in severe mental retardation....” Medical literature explains the importance of finding this disease early and how and when the test is performed. Most significantly, Goslin performs “Pap tests” (also referred to as pap smears and commonly known as a medical screening procedure by a medical professional using a speculum inserted in a woman’s body to obtain cell samples to be analyzed for detecting infection or other conditions of the body). Stedman’s Medical Dictionary at 1629 describes pap smears: “of vaginal or cervical cells obtained for cytological study. Syn Papanicolaou s.” Cytology is defined in part as the study of “anatomy, physiology, pathology, and chemistry of the cell.” Id. at 437. It also defines speculum at 1643. A review of Goslin’s other practices and procedures might very well produce the same analysis.

I do not disagree with the sentiment that a woman should have the person she wants to assist in the labor and delivery of her newborn. However, in cases where the individual who performs such services offers them to the public for a fee (or even no fee), then it is up to the Board to protect the mother and her newborn by ensuring that the individual is competent, qualified and licensed to provide the services. It is not up to the pregnant woman to decide that untrained and unlicensed individuals should engage in the unauthorized practice of medicine, even if they are prepared to call a doctor in case of emergency. One must ask what the consequences might be in those cases where the individual cannot detect an emergency due to his/her lack of skill and knowledge. See, e.g., Commonwealth Exhibit 1 (coroner’s investigation report) admitted into evidence.

In Barran v. State Board of Medicine, 670 A.2d 765, 767-768 (Pa.Cmwlth.1996), the Court deferred to the Board’s expertise in denying a license to a doctor, and it stated a principle that is pertinent to the matter at hand:

The state has the right to regulate and license professionals to protect the public health; and an applicant for licensure bears the burden of proving that he or she meets the qualifications for obtaining a license to practice a profession or occupation....
As the ultimate factfinder, the Board may accept or reject the testimony of any witness in whole or in part, and this Court is bound by the credibility determinations made by the Board.... *381When reviewing a decision by the Board, this Court may not reweigh the evidence presented or judge the credibility of witnesses. Kundrat v. State Dental Council and Examining Board, 67 Pa.Cmwlth. 341, 447 A.2d 355 (1982). Moreover, the Board contains medical doctors and the Secretary of Health pursuant to Section 3 of the MPA, 63 P.S. § 422.3; and it is empowered to make determinations and draw conclusions on factual issues without resorting to additional medical testimony. Kundrat. (Citation omitted.)

The Board’s expertise is evident in its composition: Commissioner of Professional and Occupational Affairs; Secretary of Health; two members representing public at large; six medical doctors with unrestricted licenses to practice medicine and surgery in the Commonwealth for five years immediately preceding appointment; and one member who shall be a nurse midwife, a physician assistant, a certified registered nurse-practitioner or a respiratory care practitioner licensed or certified under the laws of the Commonwealth. See Section 3 of the Act, 63 P.S. § 422.3.

The Board members are appointed by the Governor with the advice and consent of a majority of the Senate, and as gleaned from the Court’s reasoning in Kundrat it can logically be assumed that the professionals who sit on the Board and heard a case are in fact knowledgeable and experienced in their respective fields and the procedures associated therewith and that they may draw upon their expertise in ruling on the cases before them. That is precisely what the Board did in the case sub judice. Drawing upon the members’ respective knowledge and experience, as doctors, nurse, nurse midwife and other health care professionals, they determined that Goslin engaged in the unauthorized practice of medicine for which she was not licensed in violation of Section 10 of the Act.

The Board’s decision is entitled to deference by the Court unless the Board committed an error of law, made findings not supported by substantial evidence or committed a constitutional violation. Barran. Judging by the medical definitions alone of some of the procedures undertaken by Goslin in her birthing practice, it is evident that the Board in its expertise did not commit any errors in determining that Goslin engaged in the unauthorized practice of medicine. I therefore would affirm the Board on this ground.

President Judge LEADBETTER joins in the dissent.

. The term “lay midwife” has no statutory definition, but the Board’s regulations promulgated pursuant to the Act defines a "Midwife” as "[a] person licensed by the Board to practice midwifery” and defines "Midwifery practice” as "management of the care of essentially normal women and their normal neonates — initial 28-day period. This includes antepartum, intrapartum, postpartum and nonsurgically related gynecological care.” 49 Pa.Code § 18.1. Further, Section 18.5(a) provides that "[a] midwife may not engage in midwifery practice without having entered into a collaborative agreement” with a physician, and Section 18.6 further elaborates in relevant part:

The midwife is authorized and required to do the following:
(1) Engage in midwifery practice as defined in § 18.1....
(2) Maintain a midwife protocol and collaborative agreements....
(3) Prescribe medical, therapeutic and diagnostic measures ... in accordance with the midwife protocol or a collaborative agreement, or both.
(4) Administer specified drugs as provided in collaborative agreements or as directed by a collaborating physician....
(5) Perform medical services in the care of women and newborns that may be beyond the scope of midwifery, if the authority ... is delegated by the collaborating physician in the collaborative agreement....