Milton v. Department of Health & Rehabilitative Services
Milton v. Department of Health & Rehabilitative Services
Opinion of the Court
Appellant challenges the revocation of her midwifery license. We reverse and remand.
On October 3, 1988, an amended administrative complaint was filed charging appellant with numerous violations of rules regarding acceptance and treatment of pa
Appellant takes issue with the finding made in connection with the second enumerated rule violation that the weight of the McNeely infant could have been detected by appellant through palpation, a procedure by which the fetus is felt through the womb. McNeely had gone without prenatal care for twenty-five weeks before coming under the care of the appellant. After a long and difficult labor, McNeely’s baby was stillborn. At the time of delivery, the infant weighed ten pounds, ten ounces, which is in excess of 4,000 grams.
Rule 10D-36.046(4)(g) provides that a patient is to be referred to a physician if during labor the estimated fetal weight is' less than 2,500 grams or greater than 4,000 grams.
Neither of the two experts called by HRS specifically testified that the weight of the McNeely baby could have been estimated during labor to be in excess of 4,000 grams by the palpation method. Further, neither expert, or any other HRS witness, testified as to the accuracy of weight estimates by palpation during labor and delivery. Both experts testified that fetal size can be estimated by comparing fundal height with the week of gestation and by monitoring the mother’s weight gain. This testimony, however, is not competent proof that appellant failed to properly assess the weight of the McNeely infant during labor itself, which is what is contemplated by Rule 10D-36.046(4)(g).
Because we find that one of the hearing officer’s findings of fact is not supported by competent, substantial evidence, we reverse and remand this case to the hearing officer for consideration of a recommended penalty consistent with this opinion. The other issue raised by appellant in this appeal is moot given our holding.
REVERSED and REMANDED.
. This rule provides:
"10D-36.046 Responsibilities of Lay Midwives During the Labor and Delivery, the In-trapartum Period.
(4) Risk factors shall be assessed throughout labor to determine the need for physician consultation or emergency transport. The patient shall be referred for physician’s care if
the following conditions occur during labor, delivery, or immediately thereafter:
(g) Estimated fetal weight less than 2500 grams or greater than 4000 grams.”
. One aspect of the final order regarding the penalty imposed bears mention. In evaluating the violations in the light of section 10D-36.-
Case-law data current through December 31, 2025. Source: CourtListener bulk data.