People v. McCallPeople v. McCall
- Reporters:
- ,
- Before:
- Turner, Armstrong, Kriegler
TURNER, P. J.—
I. INTRODUCTION
A jury convicted defendant, Katharine Louise McCall, of practicing medicine without certification, a felony. (
The central facts are undisputed. Defendant was a student midwife. She was not licensed to act as a midwife. Under the Midwifery Act, she was authorized to engage in midwifery only as part of her course of study. Further, she could lawfully engage in midwifery only under the supervision of a licensed midwife, “who is present on the premises at all times client services are provided,” or a physician and surgeon. (
There was conflicting testimony as to whether defendant had engaged in the uncertified practice of medicine. There was also evidence defendant had been confronted with an emergency situation during the delivery. In addition to considering the testimony, we have examined all of the exhibits.
Dr. Erich Pollak was called as a witness for the prosecution. Dr. Pollak had been practicing medicine for 50 years. He was a medical consultant with the Medical Board of California. He had participated in the investigation of defendant‘s conduct. Dr. Pollak opined that a layperson who engages in examination, diagnosis, treatment or operation has unlawfully practiced medicine. According to Dr. Pollak, an unlicensed and unsupervised student midwife engages in the uncertified practice of medicine when he or she checks a patient‘s blood pressure; conducts urinalysis; palpates a pregnant patient‘s abdomen; checks a baby‘s heart rate with a Doppler ultrasound; examines a woman‘s cervix for dilation during labor; guides a baby out of the birth canal; clamps and cuts an umbilical cord; removes the placenta;
Dr. Martin Chenevert testified for the defense. Dr. Chenevert disagreed with Dr. Pollak‘s opinion that defendant practiced medicine without certification during the prenatal visits with Ms. Tienzo. In Dr. Chenevert‘s opinion, an unlicensed student midwife may perform the following acts without illegally practicing medicine so long as the student has not diagnosed or treated the patient: take a patient‘s blood pressure; listen to a baby‘s heartbeat with a Doppler ultrasound; palpate a pregnant woman‘s stomach; and have a woman urinate on a protein strip. In addition, so long as a layperson does not make a “firm diagnosis,” palpating a pregnant woman‘s stomach and suspecting a breech position does not constitute practicing medicine. Dr. Chenevert further explained that shoulder dystocia constitutes a medical emergency. Under those circumstances, seeking emergency assistance would not be a sufficient response. The emergency would have to be dealt with at the location where it occurred. Postpartum hemorrhaging is a potentially life-threatening situation. It would be appropriate for a student midwife to respond on site and administer Pitocin to reduce bleeding. It would also be appropriate to stitch a perineal tear to stop further blood loss where a patient had already lost a lot of blood from another source.
Dr. Stuart Fischbein also testified for the defense. Dr. Fischbein had 25 years’ experience as an obstetrician and gynecologist. Dr. Fischbein agreed with Dr. Pollak that the following conduct constituted practicing medicine: suturing; placenta removal; and administering Pitocin. Dr. Fischbein disagreed, however, that defendant had practiced medicine during the prenatal visits. Dr. Fischbein testified: “[P]renatal care in the midwifery model is essentially 95 percent advice and 5 percent screening, and I don‘t consider either of those to be the practice of medicine.” Dr. Fischbein testified that if shoulder dystocia occurred, the condition would have had to be resolved within a minute or two. Dr. Fischbein also testified, however, that defendant did unlawfully practice medicine when she delivered Ms. Tienzo‘s baby.
III. DISCUSSION
A. Defendant Was Subject to Felony Prosecution
1. The Williamson Rule
Defendant asserts she could not lawfully be subject to felony prosecution under the general statute prohibiting the uncertified practice of medicine. (
Our review is governed by the rules of statutory construction. (See People v. Murphy, supra, 52 Cal.4th at pp. 86–88; In re Williamson, supra, 43 Cal.2d at p. 655.) As our Supreme Court has explained: “[W]e must look first to the words of the statute because they are the most reliable indicator of legislative intent. (People v. Lawrence (2000) 24 Cal.4th 219, 230 [99 Cal.Rptr.2d 570, 6 P.3d 228].) If the statutory language is clear and unambiguous, the plain meaning of the statute governs. (Id. at pp. 230–231.)” (People v. Lopez (2003) 31 Cal.4th 1051, 1056 [6 Cal.Rptr.3d 432, 79 P.3d 548]; accord, People v. Licas (2007) 41 Cal.4th 362, 367 [60 Cal.Rptr.3d 31, 159 P.3d 507].) Further, ” ‘We do not . . . consider the statutory language “in isolation.” [Citation.] Rather, we [must] look to “the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]” [Citation.] That is, we [should] construe the words in question ” ‘in context, keeping in mind the nature and obvious purpose of the statute . . . .’ [Citation.]” . . .’ (People v. Murphy (2001) 25 Cal.4th 136, 142 [105 Cal.Rptr.2d 387, 19 P.3d 1129].)” (In re Reeves (2005) 35 Cal.4th 765, 783 [28 Cal.Rptr.3d 4, 110 P.3d 1218].)
The rule of law on which defendant relies was set forth in In re Williamson, supra, 43 Cal.2d at page 654. ” ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.’ (People v. Breyer [(1934)] 139 Cal.App. 547, 550 [34 P.2d 1065]; Riley v. Forbes [(1924)] 193 Cal. 740, 845 [227 P. 768].)” (In re Williamson, supra, 43 Cal.2d at p. 654; accord, People v. Murphy, supra, 52 Cal.4th at p. 86.) Our Supreme Court examined the Williamson rule in People v. Murphy, supra, 52 Cal.4th at pages 86–88: “Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the
In Williamson, for example, the defendant was charged with conspiring to act as a contractor without a license in violation of the general conspiracy statute,
2. Statutory Context
a. Overview
Both the general provision under which defendant was convicted and the specific statute governing midwifery are found in division 2 of the Business and Professions Code, Healing Arts,
b. Article 3: The Physician‘s and Surgeon‘s Certificate
The Division of Licensing of the Medical Board of California is authorized to issue a physician‘s and surgeon‘s certificate. (
c. Article 24: The Licensed Midwifery Practice Act
Article 24 of chapter 5 of division 2 of the Business and Professions Code, part of the Medical Practice Act, contains the Midwifery Act. The legislative purpose in adopting the Midwifery Act was to increase the availability of prenatal, delivery and postdelivery care to low-income women. Increased access to prenatal and delivery care was expected to decrease the high rate of mortality due to low birth weight in newborns. (Stats. 1993, ch. 1280, § 1, pp. 7535–7536.)3 The Midwifery Act authorizes the Division of Licensing of the Medical Board of California to issue a license to practice midwifery. (
With respect to midwifery students,
d. Defendant Was Subject to Felony Prosecution for Practicing Medicine Without Certification
It is clear from the foregoing that the general and specific statutes do not overlap.
Further, none of the elements of the general statute correspond to those of the special statute. The following are the acts prohibited by
B., C.*
*See footnote, ante, page 1006.
The judgment is affirmed.
Armstrong, J., and Kriegler, J., concurred.