STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1953

)

SARA PINKMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 19, 1991, in Boca Raton, Florida.

APPEARANCES

For Petitioner: Karen Miller, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

For Respondent: Thomas Sherman, Esquire

218 Almeria Avenue

Coral Gables, Florida 33134 STATEMENT OF THE ISSUE

The issue presented is whether Respondent violated the rules governing the practice of licensed lay midwives as alleged in the Notice of Formal Reprimand, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

By correspondence dated December 11, 1990, Petitioner notified Respondent that she was being reprimanded for violations of two rules regulating her conduct as a licensed lay midwife. On February 12, 1991, the Department issued a Notice of Formal Reprimand which incorporated the Department's December 11, 1990, letter. Respondent timely requested a formal hearing, and this matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Anne Richter. Respondent testified on her own behalf and presented the testimony of Justine Clay, Beth S. Rodriguez, and Atilla Eagleman, M. D. Additionally, Petitioner's Exhibits numbered 1-4 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties filed post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a lay midwife licensed by the state of Florida. She has practiced as a licensed lay midwife in Florida since 1981.

   
   

2. Respondent began her training in Boston, Massachusetts, in 1975 when she began participating in an apprenticeship program under the supervision of two Board-certified obstetricians. That training lasted for three years and included self-study, seminars, and workshops. As part of that apprenticeship program, Respondent delivered one hundred babies under the supervision of those physicians.

   
   

3. After moving to Florida, Respondent obtained her license as a lay midwife after attending fifteen births under the supervision of a physician and after taking a written and oral examination. Since being licensed in Florida, Respondent has attended and graduated from the South Florida School of Midwifery. She has subsequently been a preceptor and instructor at that School and is on the Board for the School. At the time of the final hearing in this cause, Respondent was only two months away from receiving her nursing degree. Respondent is a member of the Midwives Association of Florida.

   
   

4. During the course of her licensure in Florida, Respondent has attended all types of continuing education programs, particularly in the field of maternal and child health. While licensed in the state of Florida, she has attended between five hundred and seven hundred births, sometimes as the primary caregiver, sometimes assisting other midwives, and sometimes assisting physicians during hospital births. At all times material hereto, Respondent has maintained an ongoing relationship with Dr. Atilla Eagleman, an obstetrician and gynecologist. She frequently consulted with Dr. Eagleman, and he performed risk assessments on Respondent's patients. In other words, Dr. Eagleman was Respondent's "back-up" physician. Dr. Eagleman became Board-certified in December, 1990.

   
   

5. When patient Sandy Freireich first consulted with Respondent on May 11, 1989, Freireich was seventeen to eighteen weeks pregnant with her fourth child. Respondent told Freireich that in order for her to be accepted as one of Respondent's patients, she needed to provide Respondent with proof that she had obtained an initial risk assessment by a physician. Freireich told Respondent that she had obtained that examination from her regular doctor who was an obstetrician and that she would bring Respondent a copy of her medical records documenting that examination on her next visit. Since Respondent performs an initial risk assessment on her patients, she did so with Freireich and determined that she was a low-risk patient.

   
   

6. On at least seven occasions, Respondent told Freireich that Freireich had to provide Respondent with a copy of the initial risk assessment records from Freireich's physician. On each occasion Freireich promised to provide such a record. Respondent also strongly encouraged Freireich to see Dr. Eagleman and have him perform an initial risk assessment. Freireich agreed to do so. Respondent also requested permission from Freireich to allow Respondent to obtain Freireich's records directly from Freireich's doctor by having Freireich sign a medical records release form. Freireich insisted that she wanted to

   speak to her physician to make sure her doctor understood rather than simply sending him a form to release her records.

   
   

7. Along the way Freireich missed several appointments with Respondent. For those appointments which she kept, she failed to bring with her the promised documents.

   
   

8. On September 6, 1989, when Freireich was 32.4 weeks pregnant, she signed a medical release form authorizing Respondent to obtain her medical records directly from her doctor. On that visit, Respondent recommended to Freireich that she obtain her third trimester risk assessment from Dr. Eagleman.

   
   

9. On September 14, 1989, Respondent received records directly from Freireich's obstetrician. Those records did not contain an initial risk assessment for Freireich's current pregnancy.

   
   

10. On September 20, 1989, when Freireich was 34.4 weeks pregnant, Respondent caused Freireich to receive a risk assessment and a physical and prenatal examination by a certified nurse midwife in Respondent's office. That risk assessment also revealed that Freireich was a low-risk patient.

    
    

11. It is unknown whether Freireich ever obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. It is uncontroverted, however, that Respondent never received proof of such an initial risk assessment by a physician or by a certified nurse midwife. Furthermore, it is clear that Respondent consistently encouraged Freireich to obtain an initial risk assessment by a physician, and that it was Freireich who failed or refused to provide proof that such had been performed.

    
    

12. In 1987 the Department proposed a number of changes to the rules regulating the practice of midwifery. The Florida Midwives Association challenged the proposed rules, and the Association and the Department engaged in a long-term dialog thereafter. New rules did not become effective until 1991.

    
    

13. Although there were existing rules in place during that interim period, it became a common practice for midwives to contact Anne Richter, a consultant for the Department's midwife program. Based upon the information provided to her by a midwife, Richter would tell the midwife to care for a particular patient pursuant to the existing rules or pursuant to the proposed rules. It was common knowledge among the midwives in the state of Florida that the Department was informally allowing midwives to practice under the proposed rules rather than the existing rules and that one could call Anne Richter to obtain a "waiver" of rule requirements.

    
    

14. On one occasion, Respondent had telephoned Richter regarding a patient who had come to Respondent when she was thirty weeks pregnant and had not obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. Richter told Respondent that it was permissible for Respondent to accept that patient whose only risk factor was starting care after twenty-eight weeks. Respondent did not accept that patient. Although Respondent had intended to telephone Richter to seek permission to continue providing care to Freireich, Respondent neglected to do so.

    
    

15. On October 30, 1989, Freireich left a message cancelling her appointment for that day. Later that afternoon she contacted Respondent to advise Respondent that she was in labor. She declined to allow Respondent to

    come to Freireich's home until after 8:30 p.m. because she wanted her other children to be asleep before Respondent got there.

    
    

16. Respondent arrived at the Freireich home at 8:50 p.m. She assessed Freireich's labor, performed a physical examination, and began attending to Freireich's needs during labor.

    
    

17. At 11:30 p.m., the fetal heart rate was 150. The patient took a shower. When she finished her shower at 11:50 p.m., Respondent checked the fetal heart rate and found that it had decreased to 90. Respondent appropriately instructed the patient to lay on her left side and gave her oxygen at six liters since the deceleration in the heart rate may have been indicative of a problem that needed to be rectified.

    
    

18. At 11:53 p.m., Respondent appropriately checked the fetal heart rate and again found that it was 90.

    
    

19. Respondent then assessed the patient and found the patient to be fully dilated with the baby at between 0 and +1 stations. Since the patient was fully dilated, Respondent instructed her to push. Respondent again checked the fetal heart rate and found that it had decelerated to 60.

    
    

20. That the patient had a history of having rapid deliveries and was a multipara (had previously had one or more viable births) was significant in that it was very likely that with good expulsive efforts the baby would be delivered in a short time. Respondent was concerned when she got the decelerated fetal heart rate but believed birth to be imminent. An experienced birth practitioner can judge whether delivery will be expeditious.

    
    

21. At 11:58 p.m. the baby was at the +2 station (half the way down the birth canal, i.e., half way out). The fetal heart rate was 60 when Respondent again checked.

    
    

22. Respondent's extensive training and experience had made her aware that it was not unusual to encounter a decelerated fetal heart rate directly prior to birth. A deceleration of the fetal heart rate at the final stage of labor can result from "head molding," and the rotation of the baby. In other words, it is very common to have a fetal heart rate drop due to head compression and the transverse lie of the head during the final stages of delivery. In 98% of those cases, the decelerated fetal heart rate will return to base line. In Respondent's previous experience, babies who had similar deceleration in their heart rate came out vigorous and robust, or may have needed a little tactile stimulation or warmth to be resuscitated, but always came out normal.

    
    

23. Her training dictated that the proper procedure was to assess whether delivery was imminent. Respondent knew that a heart rate of 60 sustained for a few moments with no progress would be considered an emergency situation necessitating physician consultation or contacting emergency medical services for transportation to a hospital. On the other hand, a fetal heart rate of 60 sustained for a few moments with progress was not unusual, and the best course of action was to facilitate delivery of the baby. Since her patient was having strong contractions, was making good expulsive efforts, and the baby was descending rapidly down the birth canal, Respondent knew that birth was imminent.

24. Exactly twelve minutes after the patient came out of the shower, the baby was delivered. The baby was stillborn. Respondent had no indication prior to the delivery of the baby that the baby would be severely compromised or dead.

    
    

25. Respondent is fully trained in resuscitation of babies. She is certified in medical CPR, has taken many continuing education courses in emergency procedures, and is certified in and carries with her the equipment necessary for neonatal resuscitation: neosuctioning, an Ambu Bag, and oxygen.

    
    

26. When the baby was delivered at 12:02 a.m., Respondent caused one of the adults present to contact fire rescue. Respondent immediately began resuscitation efforts and continuously attempted to resuscitate the baby until the fire rescue unit arrived, which was fifteen minutes after fire rescue was called the first time.

    
    

27. Between the first decelerated fetal heart rate and delivery of the baby twelve minutes later, Respondent did not refer the patient to a physician or consult with Dr. Eagleman because to do so would have taken time away from managing a potentially dangerous situation and because she knew that Dr. Eagleman would merely tell her to get the baby delivered. Further, Respondent did not consider the drop in the heart tones to be abnormal requiring her to refer the patient to a physician since there was rapid progress and birth was imminent. Dr. Eagleman verified during the final hearing in this cause that had Respondent contacted him during the twelve minutes in question to report the decelerated heart rate, he would have told her to get off the telephone, go back to her patient, and "get the baby out."

    
    

28. Respondent had never previously delivered a stillborn. There is no suggestion made in this record either that Respondent should have known that the baby would be stillborn or that Respondent contributed in any way to cause that unfortunate outcome.

    
    

29. Respondent contacted Anne Richter to advise her what had happened and subsequently sent written reports to Richter detailing her care of patient Freireich.

    
    

30. Petitioner has never before taken disciplinary action against Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

32. It is the Department's position that Respondent violated the 1989 version of Rules 10D-36.42(1) and 10D-36.46(4)(e), Florida Administrative Code, and should receive a formal reprimand. Rule 10D-36.041(1), Florida Administrative Code (1989), provides as follows: "Lay midwives shall accept for services only those patients determined to be low risk pursuant to s. 10D- 36.042." Rule 10D-36.042, Florida Administrative Code (1989), provides for the conducting of risk assessments, lists many risk factors, assesses a score to be given to each risk factor, and describes the cumulative score threshold above which a patient cannot be served by a midwife. Subsection (1) of that Rule provides that "An initial complete history and physical examination to determine risk status shall be performed by a physician and preferably one with hospital

    obstetric privileges." Subsection (3)(b)9.a.(II) of that same Rule provides that there is a risk factor of 2 for a patient with a gestation period

    
    

    [o]f more than 28 weeks if the patient has had at least 1 previous viable birth (multipara), unless the patient provides an actual or true copy of a medical record documenting a prenatal physical examination and prenatal care by a licensed physician or certified nurse midwife.

    
    

33. The Department argues that Respondent violated Rule 10D-36.042(1), Florida Administrative Code (1989), because the patient did not have an initial risk assessment by a physician during her first 28 weeks of pregnancy, only a physician is authorized to perform an initial risk assessment, and Respondent should have terminated Freireich from her care once the 28-week period passed. Subsection (1) of that Rule does require that the initial risk assessment be performed by a physician. However, that portion of the Rule is not consistent with Subsection (3)(b)9.a.(II), which provides, in essence, that a midwife may accept a multipara patient more than 28 weeks pregnant if the patient provides the midwife with a copy of the medical records documenting the risk assessment physical examination performed by either a licensed physician or a certified nurse midwife. Both of those sections relate to the initial risk assessment, one of them requires the assessment to be made by a physician, and the other one requires the assessment to be made by a physician or a certified nurse midwife.

    
    

34. Respondent technically violated Rule 10D-36.042(1), Florida Administrative Code (1989), since that portion of that Rule does specify that an initial risk assessment be performed by a physician, and Rule 10D-36.041 provides that lay midwives shall accept only those patients determined to be

    low-risk. However, it is clear that Respondent did not willfully violate that Rule. At the time that Respondent accepted Freireich as a patient, she had no reason to know that Freireich would eventually cause Respondent to violate a Department rule.

    
    

35. Respondent is also charged with violating Rule 10D-36.46(4)(e), Florida Administrative Code (1989), which outlines the responsibilities of midwives during labor and delivery. Subsection (4) of that Rule provides as follows:

    
    

    Risk factors shall be assessed throughout labor to determine the need for physician consultation or emergency transport. The patient shall be referred for physician's care if the following conditions occur during labor, delivery, or immediately thereafter:

    
    

    * * *

    
    

    (e) Abnormal heart tones.

    
    

36. The Department argues that when the fetal heart rate dropped to 90 and then to 60, Respondent should have consulted with a physician or should have contacted emergency medical services so that those personnel could render assistance to Respondent's patient. The Department's witnesses specifically testified that emergency transport services are not only to be called for

    emergency transport but also for rendering assistance to the patient and midwife. The Department's interpretation is not supported by its Rule which specifies that an abnormal heart tone should cause the midwife to refer the patient to a physician's care and that the decision would involve either physician consultation or emergency transport. The Rule does not provide for consultation and assistance from emergency medical personnel as is argued by the Department.

    
    

37. There is no Department rule or guideline defining the term "abnormal heart tones." The Department's argument that the decelerated fetal heart rate required Respondent to obtain assistance is without basis. The overwhelming weight of the evidence in this cause is that it is common for the fetal heart rate to decelerate during the last stages of labor while the baby is rotating, being compressed, or descending quickly. The evidence is overwhelming that upon obtaining a decreased heart rate, the midwife should recheck that heart rate several times over the next few moments to make sure that the decreased reading is accurate, and should promptly assess the situation to determine if progress is occurring and if delivery is imminent. If delivery is imminent, the midwife should facilitate delivery and do what is necessary to "get the baby out."

    
    

38. Accordingly, Respondent did not violate Rule 10D-36.46(4)(e), Florida Administrative Code (1989), because she did not encounter an abnormal heart tone. Rather, she encountered and appropriately assessed a decelerated heart rate during the final stage of labor, a common event. Accordingly, there was no need for Respondent to refer the patient to a physician's care, and the need for physician consultation or emergency transport did not arise until the baby was delivered a few moments later and discovered to be stillborn. Respondent caused emergency transport to be contacted immediately upon delivery of that stillborn infant.

    
    

39. Rule 10D-36.055(2)(i), Florida Administrative Code (1989), provides that willfully or repeatedly violating any provisions of Chapter 10D-36 or any rule of the Department shall be grounds for disciplinary action, and Subsection

1. of that Rule sets forth ten factors to be considered in determining the appropriate disciplinary action to be imposed. As to Respondent's violation of Rule 10D-36.042(1), it is clear that Respondent believed her patient's representation that the patient had already received an initial risk assessment by a physician who was her regular obstetrician. Respondent repeatedly told her patient that she must bring in the documentation, attempted to obtain her patient's signature on a medical records release form, and referred her patient to Dr. Eagleman. Although the patient kept agreeing to be seen by Dr. Eagleman and/or to bring in the required report, the patient continued to fail to do so. Further, due to the internal inconsistency within Rule 10D-36.042 at the time in question, due to the fact that the Department was not requiring all lay midwives to comply with the Department's rules during the time in question, due to the fact that Respondent had previously obtained a "waiver" of the requirement that an initial risk assessment be performed by a physician, and due to the fact that a risk assessment by a certified nurse midwife was obtained by Respondent and is authorized by the Department's own rules, there is no evidence that Respondent willfully violated the Department's rules. Additionally, there is no evidence that Respondent repeatedly violated any Department rules. There is, therefore, no reasonable basis for taking disciplinary action against Respondent.

   RECOMMENDATION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered

   1. Finding Respondent guilty of violating Rule 10D-36.042(1), Florida Administrative Code (1989);

      
      

   2. Finding Respondent not guilty of violating Rule 10D-36.46(4)(e), Florida Administrative Code (1989);

      
      

   3. Finding that no disciplinary action should be imposed because the violation was neither willful nor repeated; and

      
      

   4. Dismissing the Notice of Formal Reprimand filed in this cause.

      
      

      DONE and ENTERED this 31 day of March, 1992, at Tallahassee, Florida.

      
      

      
      

      LINDA M. RIGOT

      Hearing Officer

      Division of Administrative Hearings The DeSoto Building

      1230 Apalachee Parkway

      Tallahassee, Florida 32399-1550

      (904) 488-9675 SC 278-9675

      
      

      Filed with the Clerk of the Division of Administrative Hearings this day of March, 1992.

      
      

      APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-1953

      
      

      1. Petitioner's proposed findings of fact numbered 1, 2, 7, 8, 15 and 16 are adopted either verbatim or in substance in this Recommended Order.

         
         

      2. Petitioner's proposed findings of fact numbered 3-6, and 9-14 are rejected as not being supported by the weight of the competent evidence in this cause.

         
         

      3. Respondent's proposed findings of fact numbered 1-9, 12, 13, 15, 19-33, and 35-39 are adopted either verbatim or in substance in this Recommended Order.

         
         

      4. Respondent's proposed finding of fact numbered 10 is rejected as not being supported by the weight of the competent evidence in this cause.

         
         

      5. Respondent's proposed finding of fact numbered 18 is rejected as being subordinate to the issues herein.

         
         

      6. Respondent's proposed findings of fact numbered 11, 14, 16, 17, 34, and

40 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

Karen Miller, Esquire District IX Legal Counsel Department of Health and

Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

Thomas G. Sherman, Esquire

218 Almeria Avenue

Coral Gables, Florida 33134

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001953

Orders for Case No: 91-001953