Thursday, March 21, 2013
Court Upholds Conviction of Unlicensed Midwife
By a MetNews Staff Writer
Legislation related to the practice of midwifery did not amend or supersede older law prescribing more serious penalties for the unlicensed practice of medicine, the Court of Appeal for this district ruled yesterday.
Div. Five affirmed the conviction of Katharine Louise McCall of practicing medicine without certification, a felony under Business and Professions Code Sec. 2052(a). Los Angeles Superior Court Judge Stephen A. Marcus placed McCall on three years’ probation at her 2011 sentencing.
The prosecution stemmed from the 2007 delivery of Joy Tienzo’s baby. According to a news account of the case, the baby’s shoulder was stuck during delivery and the mother suffered a vaginal tear.
Although the mother and baby recovered fully, McCall—an unlicensed student midwife—was charged with a felony. She acknowledged that she had promised the mother that a licensed midwife would be present at delivery, but claimed she was unable to reach one when Tienzo unexpectedly went into labor during the Thanksgiving weekend.
The defense argued that the only crime with which McCall could have been charged was violation of the Licensed Midwifery Practice Act of 1993, a misdemeanor. The statute, which was enacted in order to expand access to prenatal, delivery, and post-natal services to low-income women, establishes a system of midwife licensing under the auspices of the Medical Board of California.
It requires midwives to be supervised by licensed physicians during childbirth, and specifies that they are not authorized “to practice medicine and surgery.”
Presiding Justice Paul A. Turner, writing for the Court of Appeal, explained that while McCall could have been charged with a misdemeanor for performing midwife services without supervision, “she did a great deal more than that.” He cited expert testimony by doctors that McCall’s specific conduct, including suturing, placenta removal, and administering medication, constituted the practice of medicine.
The statute under which McCall was convicted, and the Midwifery Act, “do not overlap,” Turner wrote.
“The Midwifery Act provides for the licensing and regulation of midwives,” he said. “It authorizes licensed midwives to assist in normal childbirth under a physician’s supervision. Nothing in the Midwifery Act shields a midwife, licensed or unlicensed, from prosecution for practicing medicine without certification. “
In an unpublished portion of the opinion, Turner said the defendant was not prejudiced by the judge’s decision to allow an amendment of the information, which included allegations that the defendant practiced medicine in the course of performing prenatal and post-natal services, an issue as to which there was conflicting expert testimony at trial.
Since there was “no doubt” that the defendant practiced medicine without a license on the day of the delivery, any error in allowing the amendment of the information was necessarily harmless, the presiding justice concluded.
The case is People v. McCall, 13 S.O.S. 1397.
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