JANET LEIGH vs. BOARD OF REGISTRATION IN NURSING.

LIACOS, J. The Board of Registration in Nursing (board), after a hearing, suspended Janet Leigh's license to practice as a registered nurse. G. L. c. 112, Section 61 (1984 ed.). Leigh sought review of the board's decision before a single justice of this court. G. L. c. 112, Section 64 (1984 ed.). See Gurry v. Board of Pub. Accountancy, 394 Mass. 118, 129 (1985), and cases cited. The single justice vacated the board's decision and remanded the case to the board for further consideration. On reconsideration, the board "sustain[ed] its earlier decision to suspend Janet Leigh's license, on the grounds that Janet Leigh's practice of midwifery without [the] Board's authorization is in violation of G. L. c. 112, Sections 80B-D and the Board's regulations promulgated thereunder, and constitutes gross misconduct in the practice of nursing." [Note 1] Leigh again sought review of the board's decision before a single justice of this court. The single justice reserved decision and reported the case to the full bench of this court.

Leigh argues, inter alia, that the board was without jurisdiction to suspend her license, that she has been deprived of due process of law under both the Federal and State Constitutions, and that G. L. c. 112, Section 80C (1984 ed.), as interpreted by the board, is unconstitutional as violating the guarantees of due process of law and the equal protection of the laws. She also argues that several of the board's findings are not supported by substantial evidence.

The board made sixteen findings of fact, only some of which are relevant to its conclusion that Leigh's unauthorized practice of midwifery constitutes gross misconduct in the practice of nursing. The relevant findings are:

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" 1. Janet Leigh is a registered nurse with a currently valid Massachusetts license in effect continuously since issued on May 1, 1970. "...

" 8. Since 1977 Janet Leigh has practiced as a professional midwife in the metropolitan Boston area, attending women at home births.

" 9. In contracting to provide her services as a midwife, Janet Leigh informs clients of her status as a registered nurse with obstetrical training.

"10. Janet Leigh attends births in a manner similar to an obstetrician at a spontaneous birth. She provides certain equipment and supplies for home births, including an obstetrical instrument which measures fetal heart beat.

"11. For her services as a midwife, Janet Leigh charges a standard fee which in 1982 was $400.

"12. Janet Leigh attended [a woman] at a homebirth on September 23, 1982, when complications during labor required [the woman] to be taken to the hospital. Janet Leigh accompanied her in the ambulance and gave her history to the admitting physician. [The woman's] physician was Janet Leigh's back up physician for the home birth, but because of the emergency nature of [the] complications, Janet Leigh did not call the back-up physician, but arranged for an ambulance to be called.

"13. By statute and regulation, nurse midwives may not attend births in the home.

"14. Janet Leigh has not applied to the Board for authorization to practice nursing in the expanded role of nurse midwife, and is not certified as a nurse midwife.

"15. Janet Leigh lacks the `appropriate education,'G. L. c. 112, Section 80B and 244 C.M.R. 4. 13(1), to be authorized to practice as a nurse midwife.

"16. Janet Leigh is aware of Board regulations governing nurse-midwives, but believes she is not in violation

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of such regulations because she interprets them not to apply to her practice as a professional midwife."

The board concluded that Leigh was a registered nurse engaged in the unauthorized practice of midwifery in violation of G. L. c. 112, Sections 80B [Note 2] and 80C, [Note 3] and board regulations codified at 244 Code Mass. Regs. Section 4.00 (1980). [Note 4] As a sanction,

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the board, on remand from the single justice, suspended her license for one year and stated that after one year it would consider reinstatement of her license if she appears before the board and represents that "she is no longer in violation of Board regulations governing the practice of midwifery." [Note 5]

1. The board's authority to suspend Leigh's license. General Laws c. 112, Section 61, empowers the board to "suspend, revoke or cancel any certificate, registration, license or authority issued by it, if it appears to the board that the holder of such certificate, registration, license or authority, is insane, or is guilty of deceit, malpractice, gross misconduct in the practice of his profession, or of any offence against the laws of the commonwealth relating thereto." The board decided that Leigh was guilty of gross misconduct in the practice of nursing on the basis of its conclusion that she violated G. L. c. 112, Sections 80B and 80C, and regulations thereunder. The term "gross misconduct" has been interpreted broadly. Compare Forziati

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v. Board of Registration in Medicine, 333 Mass. 125 (1955), with Camoscio v. Board of Registration in Podiatry, 385 Mass. 1002 (1982).

Leigh argues that her acts did not constitute gross misconduct in the practice of nursing. She makes essentially two separate arguments to support this claim. The first is that she was engaged in the practice of "lay midwifery," which is outside the practice of nursing. The second is that she was not engaged in the unauthorized practice of medicine. Leigh's arguments fail to rebut the board's central conclusion: that she violated G. L. c. 112, Sections 80B and 80C, and the regulations promulgated thereunder at 244 Code Mass. Regs. Section 4.00, which regulate the conduct of nurses acting as midwives.

In 1975 the Legislature amended G. L. c. 112, Section 80B, to expand the definition of "[p]rofessional nursing" to include "the performance of such additional acts by a nurse with appropriate education as are approved by the board [of registration in nursing] and the board of registration and discipline in medicine in rules and regulation which shall be promulgated and implemented by the board, or which are generally recognized by the nursing and medical professions as proper to be performed by a professional nurse with appropriate education." St. 1975, c. 846, Section 2. In 1977 the Legislature amended G. L. c. 112, by adding Section 80C in a statute entitled "An Act providing for the practice of nurse-midwifery." St. 1977, c. 129. General Laws c. 112, Section 80C, provides that "[a] nurse-midwife who is designated by the board of registration in nursing pursuant to the provisions of section eighty B may engage in the practice of midwifery" and requires that such nurse midwives function as part of a health care team that includes a licensed physician and that the deliveries they attend take place in licensed facilities. See note 3, supra, for the full text of G. L. c. 112, Section 80C. General Laws c. 112, Section 80D, created an advisory committee of nurse midwifery" and to prepare an annual report for the board concerning "current functions, standards of practice and qualifications in the practice of nurse-mid-wifery."

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In 1980, the board, acting under the authority of G. L. c. 112, Section 80B, and G. L. c. 30A, Section 2 (1984 ed.), see 244 Code Mass. Regs. Section 4.01, promulgated a set of regulations entitled "Massachusetts Regulations Governing the Practice of Nursing in the Expanded Role." 244 Code Mass. Regs. Section 4.00. The purpose of these regulations was "to establish the conditions under which nurses registered with the Board of Registration in Nursing may practice in an expanded role." 244 Code Mass. Regs. Section 4.02. The regulations "govern the education and practice requirements applicable to nurses practicing in the expanded role." 244 Code Mass. Regs. Section 4.04 A "[n]urse practicing in the or [sic] an expanded role" is defined as "a nurse with active, current registration as a registered nurse in the Commonwealth who possesses, in addition to generic nursing skills, additional knowledge and skills acquired through appropriate education and clinical experience or their equivalent... which enables her to practice in the expanded role." 244 Code Mass. Regs. Section 4.05 (7). One such "expanded role." is that of a "Nurse Midwife." 244 Code Mass. Regs. Section 4.11 (1). "The requirements governing authorization as a nurse practicing in an expanded role consist of active registration as a registered nurse in the Commonwealth and compliance... with the following requirements." 244 Code Mass. Regs. Section 4.13. The requirements of the regulation for certification as a nurse midwife are set forth in Section 4.13 (1) (a), quoted in note 4, supra.

The board found, and Leigh admitted, that Leigh is a registered nurse and that she practiced as a "professional midwife." As a professional midwife, she assisted at home births. In so doing she violated G. L. c. 112, Section 80C, and the board's regulations. The regulations flatly prohibit a nurse from practicing in an expanded role without the board's authorization under the regulations. 244 Code Mass. Regs. Section 4.12 (1). By being a registered nurse and practicing as a midwife without board authorization to practice as a nurse in the expanded role of nurse midwife, Leigh has violated this prohibition. In so doing, she also violated G. L. c. 112, Section 80C.

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Leigh argues strenuously, and is joined by amici curiae [Note 6] in her argument, that she did not violate the board regulations pertaining to nurse-midwifery because she was not practicing "lay-midwifery," which she claims is separate and distinct from nurse-midwifery. Her argument ignores the clear language of both the statute and the regulations, which does not distinguish between lay-midwifery and nurse-midwifery with regard to registered nurses. "The statutory language, when clear and unambiguous, must be given its ordinary meaning... [T]he statutory language is the principal source of insight into legislative purpose." Bronstein v. Prudential Ins. Co. of Am., 390 Mass. 701, 704 (1984). General Laws c. 112, Section 80C, states simply that a "nurse-midwife...may engage in the practice of midwifery" (emphasis added). Title 244 Code Mass. Regs. Section 4.24 (1) mandates requirements for "[g]uidelines authorizing a nurse to practice midwifery" (emphasis added). Thus, apparently, the Legislature, and the board acting under authority granted by the Legislature, did not intend to distinguish between the practice of nurse-midwifery and the practice of lay-mid-wifery. The Legislature and the board simply stated that nurses may not engage in the practice of midwifery unless they meet certain qualifications and are certified. Leigh, a registered nurse, engageged in the practice of midwifery without certification. Thus, she violated the statute and the regulations.

We do not conclude that Leigh violated G. L. c. 112, Section 80C, and 244 Code Mass. Regs. Section 4.00 by virtue of her practice of midwifery alone. The board's decision contains some statements which could be interpreted to mean that it disciplined Leigh on the basis that the practice of midwifery, itself, was an offense warranting discipline. [Note 7] Moreover, the board's brief

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before this court takes this position with some force. [Note 8] Leigh counters this argument of the board by arguing that the practice of midwifery does not constitute the unauthorized practice of medicine. While the question whether the practice of midwifery constitutes the unauthorized practice of medicine is not before us, we think it appropriate to comment briefly on the question, in light of the position of the parties.

There is no statutory prohiibition against the practice of midwifery by lay persons. The Legislature has not regulated midwifery by persons other than nurses. [Note 9] Nor do we interpret our case law to prohibit the practice of midwifery as the unauthorized practice of medicine. In Commonwealth v. Porn, 196 Mass. 326 (1907), this court upheld the conviction of a midwife

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for the unauthorized practice of medicine. [Note 10] However, the basis of her conviction was not her practice of midwifery per se but the fact that she used "the usual obstetrical instruments, which she used rarely on occasions of emergency, but never if a physician could be called in time" and "six printed prescriptions or formulas in treating her patients." Id. at 327. [Note 11] This court stated: "[W]hen, in addition to ordinary assistance in the normal cases of childbirth, there is the occasional use of obstetrical instruments, and a habit of prescribing for the conditions described in the printed formulas which the defendant carried, such a course of conduct constitutes a practice of medicine in one of its branches" (emphasis supplied). Id. Thus, "ordinary assistance in the normal cases of childbirth," which we interpret to mean the practice of midwifery, would not be considered the practice of medicine. [Note 12] Cf. Higgins v. McCabe, 126 Mass. 13,

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19 (1878) (judgment for defendant midwife affirmed in tortsuit: "there was no evidence that the defendant was unskilful or negligent in the performance of any of the duties with which she was properly chargeable in that capacity [as midwife]").

We conclude that while the board had authority under G. L. c. 112, Section 61, to suspend Leigh's license on the basis that her violation of Section 80C and board regulations constituted gross misconduct in the practice of nursing, the board had before it no other basis for disciplining Leigh. Since the record is not clear that her violation of Section 80C and board regulations was the sole basis for the board's decision, we vacate the board's decision and remand the matter to the board for reconsideration.

2. The constitutional attack on G. L. c. 112, Section 80C. Leigh makes several constitutional arguments against the validity of G. L. c. 112, Section 80C. Most of them are based on the same erroneous premise that was followed by the board, namely, that the board's power to discipline a nurse for the practice of midwifery derives from the board's power to regulate midwifery generally. Since we have rejected this premise, we need only consider some of the arguments made by Leigh. Leigh argues that the statute (1) violates the fundamental right of a mother to choose where she will give birth, and who will attend her; (2) offends due process of law because it lacks a rational basis; and (3) violates the guarantee of the equal protecton of the laws. She also argues that the board failed to notify her of the charges against her in violation of her right to due process of law.

a. The due process challenge on behalf of pregnant women. Leigh claims that a mother has a fundamental constitutional right "to choose where she will give birth and who will attend her." She argues that this right comes within the right of privacy in matters relating to family life and procreation recognized in Roe v. Wade, 401 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); and Skinner v. Oklahoma, 316 U.S. 535

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(1942). She also argues that she has standing to raise the due process rights of the pregnant women with whom she has a professional relationship. See Eisenstadt v. Baird, 405 U.S. 438, 443-446 (1972); Griswold v. Connecticut, supra at 481. She argues that G. L. c. 112, Section 80C, unconstitutionally infringes on the right of mothers to have home births because it prohibits the practice of midwifery by lay persons and restricts the practice of midwifery by nurses to hospitals or licensed birth centers. As previously stated, we do not agree with the argument that Section 80C prohibits midwives who are not licensed nurses from attending home births. See note 9, supra. Thus, we do not consider Leigh's argument further.

b. Leigh's due process challenge. Leigh's second constitutional argument is that Section 80C deprives her of her right to practice her profession. See Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 372 (1979) ("the right to engage in any lawful occupation is an aspect of the liberty and property interests protected by the substantive reach of the due process clause of the Fourteenth Amendment to the United States Constitution and analogous provisions of our State Constitution"). While she concedes that this has not been recognized as a fundamental right, she argues, correctly, that the Federal due process clause requires that a statute must bear "a reasonable relation to a permissible legislative objective," Pinnick v. Cleary, 360 Mass. 1, 14 (1971), and the State Constitution requires that legislation bear "a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418 (1940). We conclude, however, that Section 80C meets these tests, including the stricter test under the State Constitution. See Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 421 (1965).

In assessing a due process challenge to social or economic legislation, "[i]t is not for us to inquire into the expediency or the wisdom of the legislative judgment," Sperry & Hutchinson Co., supra. "Our task here is ... both limited and clear: we must determine whether [Section 80C] represents a valid exercise of

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the police power. And we do so by assessing the rationality of the connection between the legislative means adopted in [Section 80C] and those permissible public ends the Legislature may plausibly be said to have been pursuing." Blue Hills Cemetery, Inc. v. Board of Registration In Embalming & Funeral Directing, supra. The Legislature apparently concluded that nurses needed training beyond their nursing training in order to practice midwifery. There is nothing in this record to establish that this conclusion is without rational basis. Accordingly, we must presume that it is rational for the Legislature to prohibit nurses from practicing midwifery without that additional training. [Note 13] "Those who challenge the constitutionality of such legislation `carry a heavy burden in seeking to overcome the statute's presumption of constitutionality.'" Blue Hills Cemetery, Inc., supra at 371, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978). See Walden v. Board of Registration in Nursing, ante 263, 271-272 (1985). General Laws c. 112, Section 80C, cannot be invalidated on this ground.

c. Additional constitutional challenges. Leigh makes two additional constitutional arguments. First, she argues that Section 80C "is an [u]nconstitutional [e]xtension by [i]mplication of [a] [c]riminal [s]tatute." Leigh essentially claims that G. L. c. 112, Section 80C, in conjunction with G. L. c. 112, Sections 6, 80, could be used to prosecute a lay person who practices midwifery for the unauthorized practice of nursing or medicine. Such a prosecution, she claims, would violate the principle that criminal laws must be construed strictly and must give clear warning of proscribed conduct. See Commonwealth v. Rhodes, 389 Mass. 641 (1983), and Commonwealth v. Healey, 17 Mass. App. Ct. 537 (1984). We do not address her argument in view of our discussion at note 9, supra, where we state that we do not agree with the argument that G. L. c. 112, Section 80C, was intended to prohibit the practice of midwifery by persons other than nurses.

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Leigh argues that she did not receive adequate notice of the scope of her hearing in the board's show cause order. We consider this argument to be without merit. The show cause order stated, inter alia, that the hearing would be to determine whether she was guilty of "deceit, malpractice and/or gross misconduct in the practice of [her] profession... because of [her] practice as a registered nurse in an expanded role as a nurse-midwife without Board authorization in violation of Board's Rules and Regulations 244 CMR 4.12(1) and 4.13(1) and 4.16." This order provided sufficient notice of what was to be decided by the board. [Note 14]

3. Substantial evidence. Leigh argues that four of the board's findings of fact are not supported by substantial evidence. Two of the findings she challenges are not essential to the board's conclusion. We consider only those challenged findings which bear on the board's ultimate conclusion. The findings which bear on the board's decision are numbered 9 and 10. See supra at 673. With respect to finding no. 9, that Leigh "informs [midwifery] clients of her status as a registered nurse," the record contains substantial evidence to support this finding. Leigh's clients who testified at the hearing stated that Leigh told them that she was a nurse. We note that some of them stated that this fact came up in conversation or it was in response to a question of theirs; nonetheless, we think that their testimony is substantial evidence for the board's finding.

With respect to finding no. 10, there is substantial evidence in the record to support the finding that Leigh "attends... spontaneous birth[s]." There is no substantial evidence to support

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the additional statement in finding no. 10 that Leigh, by using "certain equipment and supplies for home births," in addition to the instrument which measures fetal heartbeat, acted as an obstetrician. While there was evidence of the use of oxygen and a blood pressure cuff, there was no other testimony to the effect that Leigh engaged in the practice of medicine. To the extent that finding no. 10 is supported by substantial evidence, it would not warrant the board in concluding that Leigh engaged in the unauthorized practice of medicine.

4. Conclusion. We hold that the board had the power to discipline Leigh on the basis that she violated G. L. c. 112, Section 80C, and board regulations at 244 Code Mass. Regs. Section 4.00. The board could conclude that such violation constituted gross misconduct in the practice of nursing. G. L. c. 112, Section 61. The board was not warranted on this record in disciplining her on any other basis; the mere practice of midwifery itself is not ground for discipline. Leigh has not demonstrated that Section 80C violates the constitutional requirements of due process. Since the board has shifted ground in the course of these proceedings as to the basis of its claim of power to discipline Leigh, and it is possible that the board determined its sanction on the theory that midwifery itself is illegal, we set aside its decision and remand the matter to the board for reconsideration in light of this opinion.

So ordered.