STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SARA PINKMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 80-322
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
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 September 15, 1980, and September 26, 1980, in Fort Lauderdale, Florida.
The following appearances were entered: Terry L. DeMeo, Esquire, Coral Gables, Florida, for the Petitioner, Sara Pinkman; and Harold L. Braynon, Esquire, Fort Lauderdale, Florida, for the Respondent, Department of Health and Rehabilitative Services.
Petitioner applied for licensure as a lay midwife, and Respondent denied her application. Petitioner, accordingly, filed her petition for Administrative Hearing alleging her entitlement to licensure based upon her qualifications and, alternatively, her entitlement to licensure based upon Respondent's untimely denial of her application. Accordingly, the issue for determination is whether Petitioner's application for licensure as a lay midwife should be approved. At the hearing in this cause, the Broward County Health Department and its Assistant Medical Director attempted to achieve party status in this proceeding, without even moving to intervene, by having their General Counsel appear at the hearing and declare his clients to be parties. His position was rejected.
Similarly, Respondent's Motion to Dismiss filed at the commencement of the hearing was denied.
Petitioner testified on her own behalf and presented the testimony of Dr.
George P. Trodella, Cora Braynon, Linda Johns, Dolores Wennlund, Diane Peterson, and Laurie Snyder. Additionally, Petitioner's Exhibits numbered 1 through 16 were admitted in evidence. Respondent offered no evidence.
To the extent that "Petitioner's Proposed Final Order," filed post-hearing, contains proposed findings of fact and to the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
As a certified parent educator for childbirth education for Home Birth, Inc., in Boston, Massachusetts, Petitioner taught couples preparation for childbirth at home. As a result of her interest in that subject matter, Petitioner served as an apprentice midwife under the supervision of two obstetricians/gynecologists in Boston for approximately three years. During that time, she delivered/attended approximately fifty home births and approximately twenty hospital births with Dr. Leo Sorger.
In 1978, Petitioner moved to Florida. She contacted Dolores Wennlund, the person in charge of the lay midwife program for Respondent, regarding licensure as a lay midwife in Florida based upon her experience. Wennlund wrote back that she would not consider any experience outside the State of Florida.
Petitioner commenced preparing herself for licensure as a lay midwife in Florida. She obtained an application form from Wennlund. She made arrangements with Dr. Max Marcus to attend home births under his supervision. On several occasions, she contacted or met with those persons at the Broward County Health Department with whom she was or would be in contact while seeking licensure and subsequently as a lay midwife.
Cora Braynon is the County Nursing Director for the Broward County Health Department. She supervises lay midwives in Broward County as part of her duties. She reviewed with Petitioner the equipment requirements set forth in Respondent's Lay Midwife Manual which would apply to Petitioner if she became licensed. She explained that Petitioner would be able to obtain silver nitrate from her once Petitioner was licensed, and she further explained that midwives are prohibited from attending certain types of patients. She explained that Petitioner need not worry about silver nitrate or about the restriction of attendance in normal cases only since Petitioner was only an applicant for licensure and, as such, was only attending births under the supervision of a physician who would have silver nitrate and who could attend any patient, even those of high risk.
Linda Johns has been employed registering births for the Broward County Health Department for approximately eight years. A person registering a birth in Broward County completes a photocopy of a birth certificate, and Johns types that information onto the original birth certificate. She then throws away the photocopy which contains the information provided by the registrant. It is Johns' responsibility to instruct a registrant on the proper completion of a birth certificate and to obtain all correct information necessary. The Petitioner reviewed with Johns the procedures for correctly completing a birth certificate according to the Broward County Health Department. Item No. 27 on Florida's Certificate of Live Birth requests information regarding the prophylactic drug used in the baby's eyes and seeks both the name of the drug used and the time the drug was given after birth. Petitioner specifically asked Johns the proper information to be placed on the certificate when the parents of the child refused to allow such a drug to be administered. Johns advised Petitioner that the words "no" or none were acceptable and thereafter accepted for filing from Petitioner birth certificates wherein Petitioner answered Item No. 27 as instructed by Johns.
George P. Trodella is a medical doctor and an Assistant County Health Director for the Broward County Health Department. He characterizes himself as one of the most vocal opponents of lay midwifery locally, statewide, and nationally. He believes that the lay midwifery statute should be abolished. His attempts to obtain the repeal of the lay midwifery statute during 1979 and
1980 were extensive. Using the official stationery of Respondent, Department of Health and Rehabilitative Services, and his official title as Assistant County Health Director for the Broward County Health Department, he contacted elected officials and medical organizations enlisting their aid in his attempt to stop the licensing of lay midwives. He spoke before the Florida Legislature and was interviewed in his office at the Broward County Health Department by The Miami Herald. He told the reporter interviewing him that he would give up his position with the Broward County Health Department before he would ever approve an application for licensure as a lay midwife. Dr. Trodella is not alone in his efforts to stop lay midwifery. On October 2, 1979, Dr. James T. Howell, Staff Director, Health Program Office, and State Health Officer of the Respondent, Department of Health and Rehabilitative Services (the same office to which Petitioner would submit her application for licensure), wrote Dr. Trodella advising him that the Health Program Office had submitted a bill repealing the lay midwifery statute to the Secretary to be included in the Department of Health and Rehabilitative Services legislative package.
On October 8, 1979, Petitioner submitted to Dr. Trodella her application for licensure as a lay midwife, since Respondent's application form contains a section requiring the signature of the county medical officer. All other sections of her application form were complete, and Petitioner included with the form a list of fifteen patients delivered by her in Florida, letters of recommendation from two registered practicing physicians, a written statement from Dr. Max Marcus that she attended each of the fifteen cases, a statement of her physical and mental fitness by the physician who conducted a physical examination of Petitioner, and a packet of documents for each of the fifteen patients giving basic family and medical history, experience with previous pregnancies, notes on labor and delivery, birth report and postpartum visit information, and the findings of the physical examination conducted on the newborn at birth.
On October 22, 1979, Dr. Trodella wrote to Petitioner as follows:
Your application for licensure for lay midwifery has been delayed due to the following reasons:
More information needed regarding attending physician's comments.
Verification of birth records.
Information regarding possible complications which may have arisen out of the home birth.
If you have any questions regarding this matter, please do not hesitate to contact me.
This letter does not request any information from the Petitioner.
On November 14, 1979, Dr. Trodella wrote to Dr. Marcus as follows: I am reviewing the application of Mrs. Sara
Pinkman for licensure as a lay midwife. I find it difficult to equate your approval of the candidate with relationship to her capability in obstetrics, since your specialty is obviously the practice of infant, children and adolescent medicine.
In examining the cases submitted by Mrs. Pinkman, I find that you have personally signed off in each instance that you personally attended and supervised the home births. This is in conflict with the birth certificates filed at the Broward County Health Department, since your name does not appear on several of the cases signifying [sic] the fact that you were in attendance at the births.
For the reasons stated above, a more thorough investigation of the applicant will be carried out.
This letter does not request additional information from Dr. Marcus, and Petitioner was not sent a copy of this letter.
Dr. Jose A. Torres administered Petitioner's physical examination required for licensure and was the other physician recommending that her application be approved. On November 14, 1979, Dr. Trodella wrote to Dr. Torres as follows:
I have reviewed your letter of recommendation regarding the above-named applicant who is seeking licensure for lay midwifery.
According to HRS Manuel (sic) 150-6, licensure procedures, letters of recommendation for an applicant should reflect the level of skill and competence exercised by the applicant. The applicant must prove reasonable skill and competence in maternity and infant care in regards to the practice of midwifery and this includes:
Management of labor and delivery.
Recognition and reporting of complications.
Responsibilities and limitations of midwifery practices.
Acceptance of patients.
Essential elements of antepartum and postpartum care.
It is apparent from your letter that your evaluation of Mrs. Sara Pinkman was concluded after talking with your colleagues. This is not acceptable and any positive recommendation should be from a direct result of your observations of the applicant, as outlined and stated above.
This letter fails to request Dr. Torres to provide any additional information, and a copy of this letter was not sent to Petitioner.
After Petitioner's application for licensure had been submitted to the Broward County Health Department, Linda Johns contacted the State Board of Health in Jacksonville to inquire as to the proper manner of responding to Item No. 27 when parents refused to allow a prophylactic drug to be used in the baby's eyes. Johns was advised that state law required that "refused" be answered in response to Item No. 27 and that either the back of the certificate be signed by the parents with an explanation why the treatment was refused or else a letter from the parents be submitted and attached to the application. Broward County did not follow that requirement until after Petitioner submitted her application for licensure, and Petitioner was never advised of this requirement. Rather, Petitioner followed the procedures required of her by the Broward County Health Department, and Johns approved and filed every birth certificate submitted to her by the Petitioner.
Birth certificates are confidential except under exceptional circumstances. Copies of them are not part of the application for lay midwife licensure. Of the fifteen births attended by Petitioner herein for licensure in the State of Florida, Petitioner did file birth certificates for most of them. However, patients Napier, Snyder, Markert, and Pearl filed their own certificates with Snyder filing hers in Dade County. Pursuant to instructions from Trodella, his secretary Diane Peterson telephoned Pearl and Snyder and told them she was verifying birth certificate information from the Broward County Health Department. She specifically did not mention Petitioner's name and specifically did not tell those persons that her phone call was, in reality, related to Petitioner's application for licensure. The record is devoid of any explanation as to how the Broward County Health Department obtained a copy of a birth certificate filed in Dade County or as to why telephone calls were made regarding information on birth certificates which were not prepared or filed by Petitioner.
Petitioner is able to properly and legibly complete birth certificates.
Petitioner attended and performed each of the fifteen births relied upon by her in her application for licensure. Additionally, Dr. Max Marcus was present at each of the fifteen cases, and the deliveries were performed under his supervision. Dr. Torres did not supervise her in any of the deliveries forming a part of her application.
Silver nitrate is a prescription drug. It can be obtained from the county health department for use in a baby's eyes by a licensed midwife but not by a lay person who hopes to become a licensed midwife.
On December 18, 1979, Trodella forwarded Petitioner's application to Dolores M. Wennlund, the employee of Respondent in charge of the lay midwife program, with the following transmittal letter:
RE: Lay Midwife Licensure Applicant, Mrs. Sara Pinkman
A meeting was held on the above date with the applicant, her lawyer, Ms. Terry DeMeo, Mr.
Alan Ludwig, Attorney for the Broward County Health Department, Ms. Diane Peterson, my secretary and myself, Dr. Trodella, for the sole purpose of reviewing the application of
the above-mentioned person for licensure as a lay midwife.
The application was turned down at this level for the following reasons:
Delivery kit did not contain silver nitrate as stipulated in HRS Manuel [sic] 150-6.
The birth certificates revealed that many patient's [sic) babies did not receive silver nitrate or any other prophylactic substitute within the period of twelve
(12) hours. In some cases, the patient refused, but no documentation accompanied the certificates.
The list of fifteen (15) deliveries submitted for approval stated a physician was present at the deliveries and this was found to be in conflict with some of the birth certificate reports and information obtained from some of the patients.
As a result of the foregoing, I do not believe Mrs. Sara Pinkman has demonstrated her ability to complete the necessary information for birth certificates and the proper installation of drugs to the babies [sic] eyes.
These discrepancies were discussed with the applicant.
By letter dated January 25, 1980, Wennlund denied Petitioner's application for licensure as follows:
Your application for licensure to practice midwifery under Chapter 485 of the Florida Statutes was received in this office December 21, 1979. Your application was
incomplete in that the written recommendation of the county health officer had not been included. The assistant county health officer informs me that the reasons for withholding recommendation were discussed with you in the presence of your attorney on December 18, 1979. I therefore regret to inform you that your application is denied.
Specifically, your application is denied because it is not accompanied by the county health officer's recommendation which is required by Rule 10D-36.22(1)(d) Florida Administrative Code (a copy of which has previously been furnished you) and those reasons explained by Dr. George Trodella to you on December 18, 1979.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes (1979).
Petitioner's position that she is entitled to licensure as a lay midwife is twofold: first, because Respondent's denial of her application was untimely and, second, because she meets all statutory requirements. Section 120.60(2), Florida Statutes (1979), requires that every application for licensure be approved or denied within ninety days after receipt of the application or receipt of any timely requested additional information. The application for licensure as a lay midwife contains a section to be completed by the county medical officer and directs the applicant to mail the completed application to Dolores Wennlund in Tallahassee, Florida. As stipulated to by the parties in their Prehearing Stipulation, Petitioner submitted her application to the Broward County Health Department on October 8, 1979.
However, the submittal of Petitioner's application to the health department so that her application could be completed is prerequisite to the filing of her application by Petitioner at the location designated by Respondent. Until the application is filed with the Respondent, the ninety-day statutory time period does not commence. It is illogical to require Respondent to guess when an application for licensure might have been left by an applicant at the office of the medical director of any of the counties in the State of Florida. The application itself states where filing shall take place. That filing was accomplished by Dr. Trodella when Dolores Wennlund received the application and the transmittal letter on December 21, 1979. Petitioner's application was denied by letter dated January 25, 1980, well within the ninety-day statutory period. Accordingly, Respondent's denial of Petitioner's application was timely.
Section 485.031, Florida Statutes (1979), sets forth the requirements necessary for the practice of midwifery as follows:
Every applicant for a license to practice midwifery must possess the following qualifications:
Be not less than 18 years of age.
Be able to read the manual for midwives intelligently and to fill out the birth certificates legibly; provided that in case of persons who have extended experience or in other exceptional circumstances, this requirement may be waived by the Department of Health and Rehabilitative Services.
Be clean and constantly show evidence in behavior and in home habits of cleanliness.
(4)(a) Possess a diploma from a school for midwives recognized by the department; or
Have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during lying-in period of at least 10 days each; and shall possess a written statement from said physician that she
has attended such cases in said 15 cases, with the date engaged and address of each; and that she is reasonably skilled and competent and establish the fact that she is reasonably skilled and competent to the satisfaction of the department; or
Present other evidence satisfactory to the department showing her qualifications, and
(5) Present evidence satisfactory to the department of good moral character in such form as the department by rule and regulation may prescribe.
To the requirements established by the Legislature, Respondent, Department of Health and Rehabilitative Services, has added a few of its own. Those additional requirements of the Department which have been challenged have been held invalid. State of Fla., Dept. of HRS v. McTigue, 387 So.2d 454 (1st DCA Fla. 1980). One of those additional requirements which has not yet been challenged as an invalid exercise of delegated legislative authority is found in Section 10D-36.22(1)(d) and reads as follows:
A written recommendation for licensure by the county medical director attesting to the applicant's ability to complete standard birth certificate forms and that the applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary.
Personnel of county health units are employed by both Respondent and the board of county commissioners, but their duties are determined by the Respondent. Section 154.04, Florida Statutes (1979). Since the inclusion of a favorable recommendation by the county medical director (or an assistant?) is a requirement of the Respondent and not of the Legislature, the only reasonable interpretation of that requirement is to view the role of the county medical director as that of an investigator on behalf of the department. Those duties assigned to him in reviewing an application for licensure as a lay midwife are both specific and limited. In the case at bar, the investigation conducted by Trodella for the Respondent herein bore little relation to the duties assigned to him. It is difficult to accept the objectivity of any decision by him in view of his intensive efforts to stop the practice of lay midwifery in general. The intensity of his personal feelings evidences itself in his review of Petitioner's application. No contact was made with Petitioner after she submitted her application to him until a meeting was arranged with Petitioner and her attorney in December. Between October 8 and December 18, the only contact with Petitioner was the letter to her telling her that Trodella had delayed her application. Further, there is little justification for Trodella's disparaging letters to the doctors who recommended Petitioner, for the misleading phone calls placed by Trodella's secretary, or for his reliance upon new birth certificate procedures instituted after Petitioner's application had been submitted.
The reasons for withholding his recommendation of Petitioner set forth in Trodella's December 18, 1979, letter to Wennlund are likewise suspect. He is
correct that Petitioner's delivery kit did not contain silver nitrate. He intentionally overlooks the fact that she would not be able to legally obtain silver nitrate until after licensure. His second reason for declining to recommend Petitioner is that she failed to follow procedures regarding birth certificates which procedures were instituted for the first time after the birth certificates in question had been filed and approved by an employee of Dr.
Trodella's own department. The responsibility for failing to follow the law regarding documentation on birth certificates lies with the Broward County Health Department and not with Petitioner who followed the procedures required of her by that department. Trodella's third reason is simply his own statement that a physician was not present at some of the fifteen deliveries. Yet, it is interesting to note that those deliveries at which he believes a physician was not present were not identified.
The evidence is uncontradicted that Petitioner is able to complete standard birth certificate forms, that Petitioner's behavior and habits are consistent with safe hygiene practices, and that the equipment and settings to be used by her in practice are safe and sanitary. Those are the three areas of inquiry assigned to Trodella for investigation, and no evidence has been presented justifying his withholding of his recommendation. Moreover, the parties hereto have stipulated in the Prehearing Stipulation, and the evidence supports that stipulation, that the only reason that Respondent denied Petitioner's application for licensure was the refusal of Trodella to recommend Petitioner. The wrongfulness of Trodella's refusal to recommend Petitioner for licensure becomes the responsibility of Respondent under the facts of this case for two reasons. First, Trodella's actions are not those of an individual employed by an independent entity; rather, Trodella's duties are assigned to him by the Respondent, and he is equally an employee of Respondent. Second, the specific office within the Respondent's departmental structure assigned the responsibility of approving or denying applications for licensure as a lay midwife knew of Trodella's goal to abolish the practice of lay midwifery, and there are indications that employees of that office openly support Trodella in his endeavors. In other words Respondent knew that Trodella was very unlikely to approve an applicant for licensure; yet it conducted no investigation of Petitioner's qualifications and simply ignored the fact that the reasons recited by Trodella for disapproving Petitioner's application bore no relevance to those areas of inquiry assigned to him by the Department in its rule.
Dr. Trodella's personal opinion of the practice of lay midwifery, right or wrong, is no more relevant to Petitioner's qualifications than is the personal opinion of the undersigned. Respondent's argument that Trodella is able to separate his personal beliefs from his official responsibilities is shown to be without merit considering Trodella's use of official stationery, his official title and office in his lobbying efforts and considering the manner in which he reviewed Petitioner's application.
Petitioner has clearly demonstrated her entitlement to licensure as a lay midwife, and Respondent has failed to show any proper basis for its denial of that application.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That a final order be entered approving the application of Petitioner Sara Pinkman for licensure as a lay midwife, subject to the satisfactory completion of the Department's standard examination.
RECOMMENDED this 31st day of August, 1981, in Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1981.
COPIES FURNISHED:
Terry L. DeMeo, Esquire
3081 Salzedo Street, 2nd Floor Coral Gables, Florida 33134
Harold L. Braynon, Esquire Department of Health and
Rehabilitative Services
201 West Broward Boulevard Fort Lauderdale, Florida 33301
Mr. Alvin J. Taylor, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Sep. 18, 1981 | Final Order filed. |
| Aug. 31, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 16, 1981 | Agency Final Order | |
| Aug. 31, 1981 | Recommended Order | Application for licensure as a lay midwife granted where all prerequisites met and denial based only on personal prejudice and bias of investigator. |
