News from Connecticut
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Midwives who help moms give birth at home are not practicing medicine
Court: Connecticut Appellate Court
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| By Susan Lawrence
Home birth advocates in the state of Connecticut cheered a recent ruling by the Connecticut Appellate Court. The court ruled the Connecticut Medical Examining Board did not have the authority to issue a "cease and desist" order to prevent certified professional midwives from assisting women during pregnancy and childbirth.
In 2000, a pregnant woman planned to have two certified professional midwives, Mary Ellen Albini and Joan Mershon, help her give birth to her child at home. The parents of the child ignored the advice of the wife's doctor who told them they should come to the hospital to have the baby. Their obstetrician warned them that their baby’s birth could become complicated due to the positioning of the baby in the womb and other factors. The parents called the midwives to attend the birth at home when the mother began going into labor. However, upon their arrival the midwives determined the birth could be problematic and recommended the mother go to the hospital to have the baby. The mother ended up giving birth to the child in the car on the way to the hospital. The midwives assisted with the birth. At the hospital, a few hours following the birth, the baby developed complications. The baby was placed in the hospital’s neonatal intensive care unit for treatment and the baby's condition improved. The pediatrician in attendance at Bristol Hospital’s emergency room, where the parents brought the baby after birth, later filed a complaint against the two midwives with the department of public health.
The medical examining board held several administrative hearings on the matter and eventually, according to the court ruling,
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...the board issued an order that the plaintiffs immediately "cease and desist" from practicing medicine unless and until (they) are properly licensed.[5][6]
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The midwives appealed the decision to the New Britain District Superior Court. Judge Henry S. Cohn found the board’s order too vague to be enforced, so the board issued a more detailed order designed to prevent midwives from engaging in the unauthorized practice of medicine.
In their appeal of the second order, plaintiffs Albini and Mershon argued the Connecticut Medical Examining Board's actions would prevent anyone who was not a certified nurse-midwife from acting as a midwife in the state of Connecticut. Certified nurse-midwives are subject to regulation by the state of Connecticut. They generally work in hospitals under the supervision of doctors.
By comparison, certified professional midwives are not currently regulated by the state, and they do not have medical degrees. However, in order to obtain national certification, they must comply with specific training and educational standards. According to the Connecticut Law Tribune: "By most estimates, there are about 6 certified professional midwives who attend home births in Connecticut."[7]
According to a study by the Centers for Disease Control and Prevention, only one percent of all U.S. births take place at home. However, between 2004 and 2008 the number of home births increased 20%. Some doctors' groups oppose home births, arguing that in the event of an emergency a mother or baby’s life could be in danger if medical equipment and doctors are not readily available. However, according to Diane Polan, the attorney who represented the two midwives in the case, “Evidence shows that home births are safe and that the mortality rates are as low, or lower than with hospital births.”[7]
Priya Morganstern, a public interest lawyer on the board of directors for the Foundation for the Advancement of Midwifery, claims the appellate court’s ruling confirmed midwives are not practicing medicine. She hopes access to care by a midwife will become more available in the state. She explained:
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The state should license (certified professional midwives) and could then oversee them as it does any other health professional. . . If midwives were licensed, they would be eligible for insurance reimbursement. . .[7][6]
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A press contact for the State Attorney General’s Office said the office had not yet made a determination about whether to appeal the case to the Connecticut Supreme Court. |
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News from Mississippi
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Buildings and interests collide in lingering Hurricane Katrina lawsuit
Court: Mississippi Supreme Court
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| By Alma Cook
The Mississippi Supreme Court has ordered a circuit court to reconsider its ruling that the owners of a Gulf Coast casino are not liable for damages caused when their facility broke free from its moorings and drifted into a nearby hotel during Hurricane Katrina.[8]
In preparation for the imminent hurricane in August 2005, Silver Slipper Casino Venture was ordered by the Mississippi Gaming Commission to close and evacuate its property, President Casino. The building, not intended to be mobile, was secured in the water by six four-legged moorings and designed to rise securely with the tide up to twenty feet above normal water levels. When the storm landed on the coast, the facility was ripped from the marina and drifted about a mile northwest, eventually settling atop the Biloxi Beachfront Hotel, a property of Eli Investments, LLC. Eli claims that the collision destroyed the main building and caused significant damage to other parts of the hotel.[9]
In 2007, Eli sued Slipper for negligence, asserting that the incident could have been prevented if the site had been properly maintained. Eli lost the case; Judge Roger Clark of the Harrison County Circuit Court granted summary judgment to Slipper on two counts: (1) that the company had maintained its dock according to Gaming Commission requirements and (2) that it was not liable for "Acts of God" (natural events beyond human control).[9]
Upon appeal, Eli argued that despite Slipper's compliance with the Commission's structural code, the code itself was "enacted merely as a condition of licensure, not as a conclusive standard of care for all casinos in all circumstances." The company also insisted that in light of the Gulf's history of storms, a disaster like Katrina—an "Act of God" as it may have been—ought to have been reasonably anticipated. The state supreme court agreed.[9]
Wrote Chief Justice William Waller in the court's opinion,
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[T]here exists a genuine dispute of material fact as to whether Silver Slipper was negligent in mooring the President Casino adequately to withstand Hurricane Katrina. If a jury finds that Silver Slipper, through the exercise of reasonable care, could have prevented the damage to Eli's property, the 'Act of God' defense will not apply.[8][6]
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In the unanimous decision handed down on July 25, the trial court's ruling was reversed and remanded for further consideration.[9] |
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News from Colorado
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First gay divorce in Colorado under new civil union law
Court: Colorado 4th Judicial District
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| By Samantha Ward
On July 28, 2013, the Colorado 4th Judicial District closed the book on the first gay divorce in the state's history. The state, courtesy of a new state law, now recognizes same-sex civil unions--but not gay marriage. Additionally, the state will now dissolve civil unions or same-sex marriages originating in other states, provided some requirements are met.
The couple behind the precedent-setting divorce, Juli Yim and Lorelei Jones, married in Massachusetts in 2009. That state permits same-sex marriage under its laws. However, according to Yim, the relationship "went sour." Yim moved to Colorado and has now found a new partner. Jones currently lives in Virginia. The day the civil union law became final, Yim went to her local courthouse and filed the necessary paperwork to dissolve her marriage to Jones. Now that her divorce is final, Yim plans to wed her current partner, Suzie Calvin, on May 1, 2014. Given the current state of the law in Colorado, however, the wedding will have to take place in another state as Colorado still does not allow gay marriages to be performed within its borders.[10]
Colorado's new civil union law, effective May 1, 2013, according to the Denver Post, gives...
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"legal protections including division of property, financial responsibility between former spouses, parental visitation and child support to splitting couples. . . . The new law prohibits anyone who is married or in a civil union in another state from entering a civil union in Colorado with someone other than their legally recognized spouse."[11][6]
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The law institutes several important new rights for gay couples in the state. First is the right for out-of-state marriages or civil unions to be recognized in Colorado as a civil union. Second is the ability to dissolve that civil union in Colorado, provided one spouse has lived in the state for at least 90 days.[12] Gay rights advocates, however, are critical of the residency requirement written into the new law. They argue that it is "an inconvenience because it can put lives on hold for those who have moved to different states."[10] Yet, in Massachusetts, where Yim and Jones were married, any couple (gay or straight) seeking a divorce must reside within the state for one year before beginning proceedings.[12]
Second parent adoption is also now recognized in Colorado under the new law. This means that Yim will be able to adopt as a second parent Calvin's biological children once the two are married or enter into a civil union.[12]
There are currently six other same-sex divorces pending in Colorado.[10] |
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News from Iowa
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Iowa Supreme Court allows emotional damages in attorney malpractice case
Court: Iowa Supreme Court
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| By Ryan Cherry
For the first time, on July 19, 2013, the Iowa Supreme Court has allowed an award for emotional damages to be assessed in an attorney malpractice suit. While emotional damages have been allowed in attorney malpractice cases before, this case represents the first time that the Supreme Court has allowed both emotional distress and punitive damages in such a case.[13] The emotional distress claim was originally dismissed by Judge Robert B. Hanson of the Iowa District Five Court in Polk County. However, in an opinion authored by Chief Justice Mark Cady, the Supreme Court affirmed the decision of the Iowa Court of Appeals to reverse the dismissal and remanded the case for the limited purpose of determining the emotional and punitive damages.[13][9]
The facts leading up to the case involve Klever Miranda and Nancy Campoverde, a couple from Ecuador, in their quest to become legal U.S. citizens. The couple had been living in the U.S. illegally since the early 1990s. Des Moines attorney Michael Said, who represented Miranda after Miranda received notice of a removal order in 2005, advised Miranda and Campoverde to return to Ecuador to file the appropriate visa paperwork in order for them to return legally, sponsored by their son. Based on this advice and the alleged assurance that it had a 99 percent chance for success, Miranda returned to Ecuador in 2005 and Campoverde followed in 2007. After their son became a U.S. citizen, which was shortly after Campoverde arrived in Ecuador, the couple filed the paperwork which Said had filled out for them. Not only were their applications denied, but the Ecuadorian consulate also informed the couple that they would not be able to return to the U.S. for 10 years since they had left voluntarily. The paperwork which Said had instructed the couple to file only applied if the sponsor was a parent or spouse of the person seeking sponsorship and not the offspring.[13][9]
In reinstating the emotional distress claims, the Supreme Court focused on the fact that Said was aware of the likelihood of emotional distress for the couple if his plan failed. According to the court, the memorandums drafted by Said, which accompanied the paperwork filed by the couple, highlighted the "extreme hardship" which the two would suffer if their petitions for sponsorship were denied. The court also stated that there was evidence which would "permit a jury to find he knew it was very likely that his conduct would result in emotional harm." An expert for the couple even testified that the strategy which Said employed was "meritless."[13][9]
The lone dissenting opinion, written by Justice Thomas Waterman, expressed the opinion that the court "should continue to disallow emotional distress awards in a legal malpractice action in which the attorney is merely found negligent."[9]
The majority opinion, however, seemed to suggest that the actions of Said rose to a level greater than mere negligence. In the discussion of the punitive damages claim, the court stated that a reasonable jury could find that Said acted...
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...with willful or wanton conduct by pursuing a course of action with knowledge that it is contrary to the plain language of the governing statute.[6]
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[9] Such action increases the likelihood of injury and suggests that Said's actions were more than mere negligence. Nevertheless, in addressing the emotional damages claim, the court called Said's actions "negligent conduct especially likely to cause severe emotional distress."[9] The court further stated that Mr. Said should be held liable because his role had endowed him with the duty of care to protect against the very emotional distress his plan was guaranteed to cause if the decision-maker addressing the petition simply followed the law.[13][9] |
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