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Morris v. Department of Professional Regulation

Case Date: 02/18/2005
Court: 1st District Appellate
Docket No: 1-01-2779, 1-03-3739 C

FIFTH DIVISION
February 18, 2005



Nos. 1-01-2779 & 1-03-3739: Cons.

 

VALERIE VICKERMAN MORRIS, ) Appeal from the
n/k/a Valerie Vickerman Runes, ) Circuit Court of
  ) Cook County.
               Plaintiff-Appellant, )  
  )  
v. ) No. 00 CH 13175
  )  
THE DEPARTMENT OF PROFESSIONAL )  
REGULATION and LEONARD SHERMAN, )  
Not Individually But as Director, )  
The Department of Professional Regulation, )  
  ) Honorable
  ) Richard Billik,
               Defendants-Appellees. ) Judge Presiding.
VALERIE VICKERMAN RUNES, ) Appeal from the
  ) Circuit Court of
               Plaintiff-Appellant, ) Cook County.
  )  
v. )  
  )  
THE DEPARTMENT OF )  
PROFESSIONAL REGULATION ) No. 03 CH 6025
and ROBERT HEWSON, Not Individually )  
But as Director, The Department )  
of Professional Regulation, ) Honorable
  ) Aaron Jaffe,
               Defendants-Appellees. ) Judge Presiding.

 

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Valerie Vickerman Runes, filed two complaints in administrative review. Thefirst complaint sought to reverse defendant, Illinois Department of Professional Regulation's orderrequiring her to cease and desist the practice of midwifery. The second complaint sought toreverse the Director of the Illinois Department of Regulation's (Director's) order suspending hernursing license for three years, followed by two years' probation, fining her $2,500 and requiringher to complete a 12-hour ethics course. The circuit court affirmed both orders. In thisconsolidated appeal, plaintiff contends the circuit court erred by affirming the orders requiring herto cease and desist the practice of midwifery and suspending and disciplining her nursing license. We affirm the orders requiring plaintiff to cease and desist the practice of midwifery andsuspending her nursing license and fining her; we vacate the requirement that plaintiff complete anethics course.

Plaintiff held herself out as a direct-entry or lay midwife in Illinois from 1983 throughAugust 2001. For a fee, plaintiff performed prenatal exams on her patients, helped them delivertheir babies at home, and provided postpartum and newborn care. Plaintiff has never beenlicensed by defendant to perform midwifery care.

Defendant issued plaintiff a license to practice as a registered nurse on February 24, 1999. Plaintiff began working at Provena St. Joseph Hospital as a registered nurse in the labor anddelivery unit, but continued her practice as a direct-entry midwife on the side. Provena St. JosephHospital terminated plaintiff on July 5, 2000, after learning that she had been practicing midwiferyon a patient who, following a home birth with plaintiff, was admitted to the hospital forpostpartum bleeding.

On August 4, 2000, defendant issued an order for plaintiff to cease and desist the practiceof midwifery in Illinois until she was properly qualified and licensed. On September 8, 2000,plaintiff filed a complaint for administrative review of the defendant's cease and desist order. Plaintiff argued that defendant did not have the statutory power to regulate direct-entry midwives,and that defendant was without jurisdiction to issue a cease and desist order against plaintiff. OnJune 18, 2001, the trial court entered an order affirming defendant's cease and desist order. Plaintiff filed a notice of appeal on July 18, 2001.

Meanwhile, on August 15, 2000, defendant filed an amended seven-count complaintagainst plaintiff. Counts I through IV alleged plaintiff had provided nursing care that she was notqualified or licensed to provide, including midwifery services, collecting blood specimens,ordering clinical laboratory tests without a physician's order, ordering ultrasounds to beperformed on her patients, and using the designation "C.N.M." (Certified Nurse Midwife) whenordering tests. Count VI alleged plaintiff used fraud, deceit, or misrepresentation in applying fora license when she failed to disclose a 1998 cease and desist order on her application for aregistered nurse license. Count VII alleged plaintiff violated a final administrative action whenshe disobeyed the 1998 cease and desist order. Defendant asked that plaintiff's registered nurselicense be suspended, revoked, or otherwise disciplined.

An administrative hearing was held upon defendant's amended complaint. At the hearing,plaintiff testified that she worked as a midwife providing prenatal services, delivery assistance, andpostpartum care for patients between 1983 and August 2001. Plaintiff operated her midwiferyservice out of her home in Elgin. Plaintiff testified that some of the midwifery services sheregularly provided were: prenatal examinations, including a Pap smear; detailing the patient'smedical history; performing an obstetrical assessment; and informing the patient of her due date. In addition, plaintiff used Perfect Imaging, Inc., to perform ultrasounds on her patients and usedLabCorp to perform testing on her patient' blood specimens.

Plaintiff testified that she received a registered nurse license on February 24, 1999. Plaintiff obtained a job as a nurse in the labor and delivery unit of Provena St. Joseph Hospital,but continued to operate her midwifery service out of her home. Hospital administrationterminated plaintiff's employment on July 5, 2000. In a written discharge, the hospital toldplaintiff she had been fired for "jeopardizing [her] RN license and reputation of Provena St.Joseph Hospital by illegally practicing outside of the parameters of the Illinois nursing license." Plaintiff continued providing midwifery care until August 2001.

Cheri Moran, a certified nurse midwife holding licenses as an advanced practice nurse,certified nurse midwife, and registered nurse, testified that the term "certified nurse midwife" is anational certification given by the American College of Nurse Midwives. To become a certifiednurse midwife, a nurse must complete a specific course of academic study and concurrent clinicalpractice, and then pass a national certification exam.

Ms. Moran testified that under the Nursing and Advanced Practice Nursing Act (NursingAct) (225 ILCS 65/5-1 (West 2000)) as amended in August 1998, registered nurses are able toapply for an advanced practice nursing license if they have certain credentials and meet certainspecifications set forth in the law, with a certified nurse midwife being one type of advancedpractice nurse. Direct-entry midwives cannot practice as advanced practice nurses under theNursing Act because they do not hold a registered nurse license, and they are not certified by theAmerican College of Nurse Midwives. Ms. Moran opined that plaintiff acted as an advancedpractice nurse, in violation of the Nursing Act, when she ordered ultrasounds, provided prenatalcare, performed newborn exams and follow-up postpartum exams, and ordered and interpretedlaboratory tests.

In contrast to the testimony of Ms. Moran, Doctor Marsden Wagner, an independentconsultant on maternity care, opined that none of the care provided by plaintiff constituted thepractice of medicine or nursing.

Elizabeth Fitzmaurice, a registered nurse and vice-president for patient care at Provena St.Joseph Hospital, testified that plaintiff violated the Nursing Act by practicing midwifery withoutthe proper certification. Ms. Fitzmaurice also testified that plaintiff's employment with thehospital was terminated after the hospital learned that plaintiff had acted as a midwife for a patientwho was later admitted to the hospital with postpartum bleeding.

Daniel Cybulski, a self-employed medical sonographer who performs diagnosticultrasounds for physicians and obstetrical patients, testified that he performed about 20ultrasounds for plaintiff between March 1997 and February 1999. Mr. Cybulski testified thatwhen he first came to plaintiff's home, she referred to herself as a "certified nurse midwife."

On May 24, 2002, the administrative law judge (ALJ) ruled defendant had proved the firstfour counts of its amended complaint, specifically, that plaintiff provided nursing care that she wasnot qualified or licensed to provide. The ALJ recommended a 30-day suspension of plaintiff'snurse license, followed by a two-year probation during which plaintiff must complete a 12-hourethics update course, report her employment activities, and pay a $1,000 fine. After reviewing thecase, the Nursing Board adopted the ALJ's findings of fact and conclusions of law, butrecommended that plaintiff's license be indefinitely suspended for at least three years followed by atwo-year probation, that plaintiff pay a $2,500 fine and complete a 12-hour ethics course, and thatshe not misrepresent herself as a certified nurse midwife. Defendant's Director adopted theNursing Board's decision, and plaintiff's license was suspended indefinitely for a minimum of threeyears on March 24, 2003.

Plaintiff filed a complaint in the circuit court for administrative review of the Director'sdecision on April 2, 2003, and asked for injunctive and declaratory relief pursuant to section 1983of the Civil Rights Act (42 U.S.C.