State Bd. of Nursing v. Ruebke

Citation913 P.2d 142,259 Kan. 599
Decision Date15 March 1996
Docket NumberNo. 73851,73851
Parties, 64 USLW 2605 The STATE BOARD OF NURSING and State of Kansas ex rel. State Board of Healing Arts, Appellants, v. E. Michelle RUEBKE, Appellee.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Where the trial court denies a temporary injunction based on a finding that a statutory act authorizing the injunction is unconstitutional, the proper scope of review is first to determine, as a matter of law, with unlimited review, whether the trial court erred in holding the act unconstitutional.

2. The constitutionality of a statute, the violation of which is a criminal offense, should ordinarily be determined by the standards applied to criminal statutes generally, even though considered in the context of a civil suit.

3. A statutory act which provides for both criminal penalties and license revocation should be interpreted by reference to sound public policy.

4. A common-sense determination of fairness is the standard for vagueness to be used in the context of an injunction action in which provisions of the Kansas Healing Arts Act and Kansas Nursing Act are challenged. That is, can an ordinary person exercising common sense understand and comply with the Act? If so, it is constitutional.

5. A statute will not be declared unconstitutionally void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law.

6. In their ordinary usage, the terms in K.S.A. 65-2802(a) used to define the healing arts clearly and unequivocally focus exclusively on pathologies and abnormal human conditions. Pregnancy and childbirth are neither pathologies nor abnormalities.

7. The specific terms in the statutory definition of the healing arts do not include the normal delivery of children and are not unconstitutionally vague.

8. The term "the practice of medicine and surgery," which is included in the statutory definition of the healing arts, is not unconstitutionally vague because it has an established legal meaning in this state--a meaning which does not include a midwife's aiding in childbirth.

9. There is no indication contemporaneous with the enactment of the healing arts regulatory scheme that unlicensed midwifery was being illegalized.

10. Even if traditional and time-honored techniques employed by midwives fit within a technical definition of the practice of medicine or surgery, if the legislature did not intend to regulate the historically separate practice of midwifery, then it should not be considered the practice of medicine or surgery for the purposes of the Kansas Healing Arts Act.

11. This court recognizes a strong preference, where consistent with legislative intent for interpreting certain subjects as outside a statute's scope, rather than declaring the statute unconstitutional.

12. A statute must be interpreted in the context in which it was enacted and in light of the legislature's intent at that time.

13. An activity is not incident to the practice of medicine merely because it is engaged in by some members of the medical profession. One thing is incident to another only if it naturally and inseparably depends upon, appertains to, or follows another that is more worthy.

14. The practice of midwifery is separate and distinct from the practice of medicine. The practice of midwifery is not incident to the practice of medicine or surgery so that it becomes part of the healing arts by the application of K.S.A. 65-2869.

15. Midwifery itself is not the practice of the healing arts. Under the facts of this case, we hold that those activities beyond midwifery in which defendant midwife might have engaged were excepted from the Kansas Healing Arts Act by virtue of the supervision provided by a licensed physician.

16. Nursing deals with "persons who are experiencing changes in the normal health process." K.S.A. 65-1113(d)(1). As these words are commonly understood, pregnancy and childbirth do not constitute changes in the normal health process, but the continuation of it.

17. Assistance in childbirth rendered by one whose practical experience with birthing provides comfort to the mother is not nursing under the Kansas Nursing Act, such that licensure is required.

Appeal from Butler District Court; Charles M. Hart, Judge. Affirmed in part and reversed in part.

Mark S. Braun, Assistant Attorney General, argued the cause and was on the brief for appellant State Board of Nursing.

Mark W. Stafford, Special Assistant Attorney General, argued the cause and was on the briefs for appellant State Board of Healing Arts.

Kathryn Gardner, of Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., of Wichita, argued the cause and was on the brief for appellee.

LARSON, Justice:

The State Board of Healing Arts (Healing Arts) and the State Board of Nursing (Nursing) appeal the trial court's denial of a temporary injunction by which the Boards had sought to stop E. Michelle Ruebke, a practicing lay midwife, from continuing her alleged practice of medicine and nursing.

The trial court found that (1) certain provisions of both the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., and the Kansas Nursing Act, K.S.A. 65-1113 et seq., were unconstitutionally vague; (2) Ruebke's practices incident to her lay midwifery were not within the scope of either act; and (3) even if the acts were held to be constitutional and Ruebke fell within their practice definitions, she was exempted from coverage under both acts because of certain exceptions.

We have jurisdiction pursuant to K.S.A. 60-2101(b).

Factual Background

The Boards' petition alleged Ruebke held herself out as a certified midwife; had been offering prenatal, labor, and delivery services to pregnant women in Kansas; and had been functioning as a registered professional nurse and/or a practitioner of the healing arts.

The petition set out details relating to three pregnancies: the Butterfields, where the petition alleged that twins had died and Ruebke had refused to permit the mother to be taken to the hospital (evidence showed it was Ruebke who had called the ambulance and that one of the twins had died); the Strubles, where it was alleged (although the evidence failed to establish) that Ruebke, who was assisting Kathy Brace, identified herself as a state and nationally certified midwife; and the Ingrams where Ruebke assisted in a delivery directed by a nurse and complications developed, requiring the delivery to be performed in a local hospital.

Based on the allegations of the petition, the trial court issued a temporary restraining order pending a hearing on a temporary injunction.

The hearing on the temporary injunction revealed that Ruebke acts as a lay midwife comprehensively assisting pregnant women with prenatal care, delivery, and post-partum care. She is president of the Kansas Midwives Association and follows its promulgated standards, which include a risk screening assessment based upon family medical history; establishing prenatal care plans, including monthly visitations; examinations and assistance in birth; and post-partum care. She works with supervising physicians who are made aware of her mode of practice and who are available for consultation and perform many of the medical tests incident to pregnancy.

Ruebke does not advertise her services but is available to members of her church, friends, and Christians who hear about her by word of mouth. She delivers babies throughout the state and has supervising physicians in many different regions.

Ruebke does not charge for her services and considers them to be a ministry. Some families have given her money, others goods, and many have given her nothing.

Ruebke testified she had received a copy of and follows the consent decree dated November 15, 1984, from the District Court of Finney County, Kansas, in State ex rel. Board of Healing Arts v. Hitchcock, No. 84 C 238, which contained the following orders:

"1. Defendant shall be permitted to engage in the practice of midwifery in the State of Kansas, and such practice shall not be considered the practice of healing arts or the practice of medicine and surgery, so long as she utilizes a licensed physician in the vicinity who has agreed to be available in case of complications and to be available for consultation and examination, and so long as she will provide such physician with her prenatal records of the patient in the event the physician so requests prior to delivery.

"2. The plaintiff Board of Healing Arts shall, prior to December 1, 1984, notify the Kansas Medical Society and Kansas Association of Osteopathic Medicine of the contents of this order, and further shall notify all doctors of medicine and all doctors of osteopathy licensed by it of the contents of this order no later than July 15, 1985, all such notices to be in writing."

Ruebke testified she fully complies with all the requirements of the vital statistics laws of the State of Kansas and registers all births as the state requires.

Dr. Debra L. Messamore, an obstetrician/gynecologist, testified she had reviewed the Kansas Midwives Association standards of care and opined those standards were similar to the assessments incident to her practice as an OB/GYN. Dr. Messamore concluded that in her judgment the prenatal assessments made by Ruebke were obstetrical diagnoses.

Dr. Messamore testified that the prescriptions Ruebke has women obtain from their physicians are used in obstetrics to produce uterine contractions. She further testified the Kansas Midwives Association standard of care relating to post-delivery conditions of the mother and baby involved obstetrical judgments. She reviewed the birth records of the Butterfield birth and testified that obstetrical or medical judgments were reflected. Although admitting that many procedures at issue could be performed by a nurse rather than a physician, she opined,

"Obstetrics includes taking care of the...

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