Nora McNeill’s Licensure Trial by Stephen Mansell
published in the Birth Gazette, Spring 1992, Volume 8, No. 2
In 1974, the California Legislature enacted Business and Professions Code Section 2725, which authorized practice under standardized procedures by nurses supervised by physicians. The Legislature did not specify the extent of the supervision and specified that nothing in the Act was to be construed to require approval of standardized procedures by the Board of Registered Nursing (BRN).
For a number of years following the enactment of Business and Professions Code Section 2725, a number of registered nurses practiced midwifery under standardized procedures, apparently with little or no input by the BRN.
In 1980, the Board of Registered Nursing enacted Sections 1470, et seq. of the Nurse Practice Act, which outlined guidelines for standardized procedures and asserted for the first time that nurses practicing under standardized procedures, including nurses practicing midwifery, had to submit their standardized procedures to the Board of Registered Nursing for a review.
On September 28, 1990, the Board of Registered Nursing prohibited midwifery practice under standardized procedures in an uncirculated memorandum. The prohibition was promulgated with no public hearing, public discussion or requests for comment for nurse midwives. The prohibition was not circulated to registered nurses, registered nurses practicing midwifery under standardized procedures, or as far as we can tell, even to certified nurse midwives.
The Board of Registered Nursing’s position outlined in the memorandum is a remarkable exercise in circular reasoning. The BRN asserts that the Legislature, by legislating the establishment of certified nurse midwives, must have intended to prohibit practice under standardized procedures. This conclusion was reached despite the fact the Legislature enacted both portions of the Business and Professions Code during the same session and the fact that nurses had been practicing midwifery under standardized procedures for some 16 years without legislative criticism.
The BRN then began bringing administrative accusations against registered nurses practicing under standardized procedures seeking to have their licenses revoked, without bothering to tell them that the BRN had secretly banned the longstanding practice.
Nora McNeill, a registered nurse who has been practicing midwifery under standardized procedures and physician’s supervision beginning November, 1986, was one such nurse. Nora filed a copy of her standardized procedures with the BRN at their request in 1986. She never heard from the Board again until prosecution began.
In 1987, an anonymous complaint was mailed to the Board of Registered Nursing. The Board sent an investigator to the Shasta General Hospital. The head nurse of the labor and delivery unit turned over patient records to the investigator without a subpoena or patient authorization, a gross violation of the patient’s right to confidentiality and privacy.
The investigator then contacted Ms. McNeill and scheduled an appointment. Ms. McNeill contacted an attorney from our office and appeared at the meeting with her husband and the attorney. During the interview, it became apparent that the investigator had illegally obtained patient records. When the investigator was questioned on this, he abruptly terminated the interview.
Shortly after the investigator returned to Sacramento, the BRN sent the standardized procedures
Ms. McNeill had filed with them to a certified nurse midwife in Loma Linda, California for review. The certified nurse midwife made a number of critical comments about the standardized procedures which were placed in Ms. McNeill’s nursing license file, but were never transmitted to her for correction. The Board of Registered Nursing said absolutely nothing to Ms. McNeill about her standardized procedure guidelines or the investigation for over three years. In March 1991, Ms. McNeill applied to become a certified nurse midwife. Within thirty days, the BRN filed an accusation against her which sought to have her nursing license revoked for practicing nurse midwifery without a certificate and further for gross negligence.
Every single allegation of the accusation was false. For example, one allegation was that Ms. McNeill had not provided the BRN with standardized procedures. The blatant falsity of this accusation was shown by the fact that the Board had paid for a review of “unsubmitted” standardized procedures three years earlier.
The allegations of gross negligence were based upon a critical review of the medical records by yet another certified nurse midwife. The criticism in the review was due to the absence of charted procedures in the records. As it turned out, the reviewer had received an edited set of patient records, which omitted key evidence that exonerated Ms. McNeill.
When Ms. McNeill received the accusation, she contacted our office. Like many registered nurses, Ms. McNeill does not have a great deal of money. Unlike a criminal defendant, Ms. McNeill was not entitled to have a public defender appointed to defend her. Arrayed against her were a Deputy State Attorney General, full time investigators, expert witnesses and all the other resources the California Board of Registered Nursing could bring against her.
Early in the course of the proceeding prior to trial, it became apparent that the Board of Registered Nursing had an agenda of selectively prose-cutting uncertified nurse midwives practicing under standardized procedures in an effort to put them out of the business. The Board refused to discuss any alternative to trial and withheld key evidence from their investigation, despite our attempts to obtain the information.
We contacted all of the patients involved in the specific allegations of the Complaint and obtained their declarations, which refuted point by point, each and every factual allegation made against Ms. Mc Neill. Copies of those declarations, Nora’s declaration and an extended analysis of the accusation were sent to State Deputy Attorney General prior to the trial. The Board of registered Nursing refused to consider the factual evidence and insisted that they were going to have a trial, come hell or high water.
In addition to the patients who volunteered as witnesses, we were extremely fortunate that Candy Whitridge, a certified nurse midwife who has been practicing in the northern California area for many years, agreed to serve as an expert witness at no cost.
At the beginning of the trial, the State Deputy Attorney General attempted to take the position that practice under standardized procedures had never been authorized by the State and that such practice constitute illegal practice of midwifery. The State Deputy Attorney General was rather embarrassed by letters we presented that demonstrated that the Board of Registered Nursing had been aware of and had ratified such practice for many years prior to 1990. The Administrative Law Judge ultimately reprimanded the State Deputy Attorney General, advising her that it did not matter what the Board of Registered Nursing thought the law should be; it is what the Legislature enacted that counted.
As it turned out, the case ended with a whimper, not a bang. The State’s expert witness had not been provided with the full records of the patients, as well as the declarations of the patients and Ms. McNeill prior to trial. When she appeared for the declarations, she asserted that she would not be ready to testify for at least two weeks. The Judge gave her 24 hours. She reappeared and reversed her position on every allegation. The State then dismissed the entire accusation.
It became quite apparent during this charade that the State was accustomed to using its resources in the way of attorneys, experts and investigators to steamroller nurses who did not have the resources to hire attorneys and assert their rights. As a taxpayer and as an attorney, I was profoundly offended by the Board of Registered Nursing’s abuse of the entire system and waste of taxpayers’ dollars. Needless to say, both Ms. McNeill and I were delighted to see real justice done.
I would be happy to talk to other nurses who are involved in similar proceedings here in California and would be happy to share information with them.
Stephen Mansell’s mailing address is P.O. Drawer 994607, Redding, California 96099-4607