Smith v. State ex rel. Medical Licensing Bd. of Indiana

• Court: Indiana Appellate Court
• Writing for the Court: RATLIFF; BUCHANAN, C.J., and SHIELDS
• Citation: Smith v. State ex rel. Medical Licensing Bd. of Indiana, 459 N.E.2d 401 (Ind. App. 1984)
• Decision Date: 07 February 1984
• Docket Number: No. 2-683A204,2-683A204
• Parties: Vickie SMITH, Defendant-Appellant, v. STATE of Indiana, ex rel. MEDICAL LICENSING BOARD OF INDIANA, Plaintiff- Appellee, and Debbie Geer, Defendant-Appellee.

Page 401

459 N.E.2d 401

Vickie SMITH, Defendant-Appellant, v. STATE of Indiana, ex rel. MEDICAL LICENSING BOARD OF INDIANA, Plaintiff- Appellee and Debbie Geer, Defendant-Appellee.

No. 2-683A204.

Court of Appeals of Indiana Second District.

Feb. 7, 1984.

Robert V. Bridwell, Haymaker, Hirsch & Fink, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Gerald A. Coraz, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge, Writing by Designation.

STATEMENT OF THE CASE

Appellant Vickie Smith appeals from the Marion Superior Court's grant of summary judgment in favor of appellee, the State of Indiana on the relation of the Medical Licensing Board of Indiana, and from the grant of permanent injunction against Smith. We affirm.

FACTS

The State of Indiana, on the application of the Medical Licensing Board, brought an action against Vickie Smith and another, seeking to permanently enjoin both individuals from practicing medicine and midwifery without the proper licenses. Pending the outcome of the substantive portion of the case, the parties agreed to a temporary injunction to prohibit Smith from performing certain acts and the court so ordered. The parties subsequently filed cross motions for summary judgment. The lower court granted the state's motion and permanently enjoined Smith from practicing medicine or midwifery without a license. It is from this judgment that Smith now appeals. ¹

ISSUES

Appellant presents three issues on appeal. Rephrased, they are as follows:

1. Did the lower court err in concluding that the acts of Smith constituted the unauthorized practice of medicine?

2. Are the statutes sought to be enforced by the state unconstitutionally vague?

3. Is the lower court's judgment supported by its findings and conclusions?

DISCUSSION AND DECISION

Issue One

The appellant's acts constituted the unauthorized practice of medicine.

It is unlawful to practice medicine in this state without holding a valid license to do so, Indiana Code section 25-22.5-8-1 (1982), and an action may be brought in the name of the state on the petition of the complainant to enjoin the unlawful practice of medicine, Indiana Code section 25-22.5-8-4 (1982). The practice of medicine is defined, in part, as "holding oneself out to the public as being engaged in the diagnosis, treatment, correction or prevention of any disease, ailment, defect, injury, infirmity, deformity, pain or other condition of human beings, or the suggestion, recommendation or prescription or administration of any form of treatment, without limitation...." Ind.Code Sec. 25-22.5-1-1.1(a)(1) (1982) (emphasis supplied). This court has previously noted that "[p]regnancy is the existence of the condition beginning at the moment of conception and terminating with delivery of the child." Lutheran Hospital of Fort Wayne, Inc. v. Department of Public Welfare of Allen County, (1979) Ind.App., 397 N.E.2d 638, 643 (emphasis supplied). Accordingly, it is clear that the treatment of pregnancy would constitute the practice of medicine.

In the instant case, Smith admitted, and the court found, that she had conducted manual, internal vaginal examinations, pelvic measurements, examinations for fluid retention, cervical examinations and dialations, monitoring of fetal heartbeats, uterine measurements, and examinations of blood and urine. Smith also admitted assisting women in childbirth. She further prescribed certain vitamins for pregnant women under her care and advised such women concerning their diets during pregnancy. While it would generally be a question of fact on a motion for summary judgment as to whether certain conduct constituted the practice of medicine, here we can say that the extensive prenatal care and actual deliveries performed by Smith did indeed constitute the practice of medicine as a matter of law. Because Smith admits that she has never been licensed to practice medicine in this state, we must conclude that the lower court properly granted the state's motion for summary judgment based upon Smith's unauthorized practice of medicine. The permanent injunction against such unauthorized practice was, therefore, also properly granted.

The lower court also concluded that Smith's acts constituted the practice of midwifery and thereupon also enjoined her from practicing midwifery as well. Appellant contends that because midwifery is not defined by statute as the practice of medicine, the state cannot enjoin its practice pursuant to Indiana Code sections 25-22.5-8-1, 4 (1982). The state argues that a license to practice midwifery pursuant to Indiana Code section 25-22.5-5-5 (1982) is a limited license to practice medicine. The practice of midwifery without a license, it is argued, is, therefore, the unauthorized practice of medicine. We agree with the state's position.

Midwives must be granted "a limited license which allows [them] to practice only midwifery in this state." Ind.Code Sec. 25-22.5-5-5 (1982). Smith correctly notes that the licensing statute does not expressly describe midwifery as the practice of medicine. However, our construction of the applicable statutes leads us to the conclusion that midwifery does constitute the limited practice of medicine.

It is well settled that where a statute is ambiguous or unclear, this court may construe the provisions of that statute. Dague v. Piper Aircraft Corp., (1981) Ind., 418 N.E.2d 207, 210; Wright v. Reuss, (1982) Ind.App., 434 N.E.2d 925, 929; Sue Yee Lee v. Lafayette Home Hospital, Inc., (1980) Ind.App., 410 N.E.2d 1319, 1322-23, trans. denied (1981). This court will always construe the statute in question so as to give effect to the apparent intent of the legislature. Dague, 418 N.E.2d at 210; State v. Kokomo Tube Co., (1981) Ind.App., 426 N.E.2d 1338, 1345. In construing the statute, we may not view it in isolation, but must ascertain its effect and application by viewing it in context with the entire act. Paul v. Metropolitan School District of Lawrence Township, (1983) Ind.App., 455 N.E.2d 411, 412-13. See also Foremost Life Insurance Co. v. Department of Insurance, (1980) Ind., 409 N.E.2d 1092, 1096 (on appeal court will construe provisions so as to give effect to entire statute). Further, we will accord words their plain meaning. State ex rel. Southern Hills Mental Health Center, Inc. v. Dubois County, (1983) Ind.App., 446 N.E.2d 996, 1001; State ex rel. Van Buskirk v. Wayne Township, Marion County, (1981) Ind.App., 418 N.E.2d 234, 241. Beyond the statute's language, we may also look to titles and headings of statutes in determining the intent of the legislature. Pry v. Pry, (1947) 225 Ind. 458, 468, 75 N.E.2d 909, 913. Our construction of the statutes in the instant case leads us to the conclusion that the legislature did intend to include midwifery within the ambit of the practice of medicine.

Although not defined in the code, when given its plain and ordinary meaning, a midwife is "a woman who assists at childbirth." Black's Law Dictionary 1143 (rev. 4th ed. 1968). Childbirth is the cessation or termination of the condition known as pregnancy. The treatment of that condition involves the practice of medicine, as we have already noted.

Indiana Code section 25-22.5-5-5 (1982) deals with the licensing of midwives. It states, in pertinent part:

"[The applicant must apply for and] receive a limited license which allows him to practice only midwifery in this state. An applicant for a midwifery license must meet all registration requirements which are required for applicants for physicians' licenses in this article. A midwifery licensee is subject to suspension, revocation, retirement or surrender for the same reasons as provided in the case of physicians' licenses. [Emphasis supplied.]"

The statute sets out the midwife's limited license requirement in clear distinction to the physician's unlimited license to practice medicine, as set out in Indiana Code sections 25-22.5-1-1.1, 2 (1982). To read the statute in any other manner, would be to presume that the "limited license" language was without effect. This we will not do. Combs v. Cook, (1958) 238 Ind. 392, 397, 151 N.E.2d 144, 147 (it is not to be presumed that any part of an act is meaningless and effect must be given to every word and clause if possible). We also note that midwives are included within Title 25, article 22.5 entitled "PHYSICIANS". We consider this to be yet another indication of the legislature's intent. Therefore, although it is not expressly stated as such, it is clear that the legislature intended to include midwifery within the practice of medicine, as a limited form thereof. Accordingly, we conclude that the practice of midwifery without a license would constitute the unauthorized practice of medicine. Because appellant admits that she never possessed a midwife's license, the lower court properly granted the state's motion for summary judgment based upon Smith's unauthorized practice of midwifery. The permanent injunction against such unauthorized practice was, therefore, also properly granted.

Appellant argues that because Indiana Code section 25-22.5-5-5 does not define the practice of midwifery, the Medical Licensing Board is bound by the definition of midwife as promulgated in 844 Indiana Administrative Code 3-1-2 (Supp.1983). ² That section states, in part, that "[t]he practice of nurse-midwifery embodies the practice of professional nursing...." Id. Continuing, Smith notes that Indiana Code section 25-22.5-1-2(k) excludes nurses from the purview of Indiana Code section 25-22.5-1-1.1 as far as it relates to the unlawful practice of medicine. However, Indiana Code section 25-22.5-1-2(r) states that nurses "shall not be excluded if they perform any act not otherwise authorized them by the laws of this state when such act qualifies in whole or in part as the practice of medicine...." Id. (emphasis supplied). Because we conclude that appellant's acts constitute the...