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The People v. Katharine Louise Mccall

March 20, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KATHARINE LOUISE MCCALL, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. (Los Angeles County Super. Ct. No. BA377545)

The opinion of the court was delivered by: Turner, P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed.

I. INTRODUCTION

A jury convicted defendant, Katharine Louise McCall, of practicing medicine without certification, a felony. (Bus. & Prof. Code,*fn2 § 2052, subd. (a).) She was placed on three years' probation. Defendant, an unlicensed, unsupervised student midwife, asserts she could not be prosecuted for a felony as charged. Rather, defendant argues she could only be convicted of a misdemeanor violation of the Licensed Midwifery Practice Act of 1993 (§ 2505 et seq.) (the Midwifery Act). In the published portion of this opinion, we explain why defendant could properly be convicted as charged. In addition, defendant argues she was convicted of an offense not shown by the evidence at the preliminary hearing. In the unpublished portion of this opinion, we explain why any error in granting the prosecutor's motion to amend the information was harmless.

II. THE EVIDENCE

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. (§ 2514.) In November 2007, Joy Tienzo, who was six to seven months pregnant, contracted with defendant for midwife services. In their conversations, defendant said she was not licensed. Ms. Tienzo was told a licensed midwife would attend the birth. Defendant provided prenatal care to Ms. Tienzo on a regular basis over several weeks. Defendant checked Ms. Tienzo's blood pressure and conducted urine tests. Defendant palpated Ms. Tienzo's abdomen and monitored the fetus's heart rate. Defendant attended Ms. Tienzo's labor and delivery. During the labor and delivery, defendant: checked Ms. Tienzo's vital signs; examined Ms. Tienzo's cervical dilation; monitored the baby's heart rate; told Ms. Tienzo the baby had "shoulder dystocia"-- that is, the baby's head was stuck against Ms. Tienzo's pelvic bone; guided the baby out; clamped and cut the umbilical cord; manually removed the placenta from the uterine wall; gave Ms. Tienzo an injection of Pitocin to stop hemorrhaging; and administered Lidocaine and sutured a tear in Ms. Tienzo's perineum. At no time during the labor and delivery did defendant make any effort to call an emergency operator. During a post-delivery checkup, defendant examined the sutures and offered to remove excess skin at the site. Ms. Tienzo declined the offer. At no time was defendant supervised by a licensed midwife, a physician or a 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: check's a patient's blood pressure; conducts urinalysis; palpates a pregnant patient's abdomen; checks a baby's heart rate with a Doppler; 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; administers Pitocin or Lidocaine; stitches a perineal tear; performs a newborn checkup; examines sutures; and offers to remove a flap of skin.

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; 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. (§ 2052, subd. (a).) Rather, defendant argues she was subject only to misdemeanor prosecution for violating the Midwifery Act (§ 2514). She argues section 2514, a specific criminal statute governing midwifery, supplants section 2052, subdivision (a), a general prohibition governing medical practice. (See People v. Murphy (2011) 52 Cal.4th 81, 86-88; Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, fn. 14; In re Williamson (1954) 43 Cal.2d 651, 655.) The issue, defendant claims, is whether she is being subjected to a greater punishment than specified by the Legislature. (See Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250, fn. 14; People v. Woods (1986) 177 Cal.App.3d 327, 333-334.) Defendant's argument is without merit.

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.) 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; accord, People v. Licas (2007) 41 Cal.4th 362, 367.) 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] ...


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