STATE OF MAINE
STATE OF MAINE
DOCKET NO. CR-96-27
The defendant is a lay or direct entry midwife. Maine law does not specify any certain qualifications or certification of lay midwives. Ms. Morrison has a B.A in zoology from the University of Maine. She gained her midwifery training through an apprenticeship in 1990-1992 and hands-on learning. She is a member of a national organization of direct entry midwives and passed a board examination in 2/95. She received some training in neonatal care and CPR at a two-day course in 1994. She has been learning about homeopathic medicine for ten years through courses, seminars, and workshops. She has an extensive library regarding homeopathy and has treated her family with such remedies for the past seven years. She had attended 88 births prior to Lauren Bouyea’s birth.
Ms. Morrison was hired by Albert and Diane Bouyea to assist in the birth of their second child, who was born on 3/28/95. Originally, the Bouyeas planned a hospital delivery but their plans changed during labor and their daughter was born at their home.
The defendant is charged with a violation of 17-A M.R.S.A. § 211, Reckless Conduct (1983). In order for the defendant to be found guilty, the State must prove beyond a reasonable doubt that on 3/28/95, the defendant recklessly created a substantial risk of serious bodily injury to Lauren Bouyea. The State must prove that the defendant consciously disregarded a risk that her conduct would create a substantial risk of serious bodily injury to Lauren Bouyea, 17-A M..R..S.A § 35(3)(A) (1983); 17-A M.RS.A § 2(23} (1983) (serious bodily injury). With regard to the term recklessly, the “disregard of the risk, when viewed in light of the nature and purpose of the person’s conduct and the circumstances known to him, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” 17-A M.R.S.A. § 35(3}(C) (1983).
The conduct alleged in the complaint involves the defendant’s placing of solid and liquid substances in the child’s mouth immediately after birth. The defendant admitted during her testimony that within three or four minutes after the birth, she pushed one pellet of a homeopathic medicine, laurocerasus. into Lauren’s mouth at a time when the child was gasping for breath. The defendant stated that the child was breathing immediately after birth but then began gasping and was not breathing at all when the emergency medical technicians arrived. The defendant would not have administered the pellet if the child had not- been breathing at all.
Dr. Richard Moskowitz, a family practice physician who specializes in homeopathic remedies, wrote the standard text concerning homeopathic remedies for pregnancy and childbirth. He has not attended births since 1982. He testified that laurocerasus was an appropriate remedy if the child was gasping for breath or not breathing at all He stated that the pellet would dissolve instantaneously and would be absorbed almost immediately; the process would take, at most, one second. Nancy Duncan is a registered nurse, nurse practitioner, and a certified nurse midwife; all of her certifications were obtained through state accredited programs. Ms. Duncan testified that the use of Iaurocerasus was appropriate considering applicable midwifery protocols and that she would have done the same thing under like circumstances.
The defendant also admitted that within ten minutes after the birth, she put two drops of another homeopathic remedy, Nature’s Rescue (rescue remedy), on Lauren’s mouth at a time when an oxygen mask was being used to aid the child’s breathing. Although there is a dispute on the record concerning whether the defendant or the EMT moved the mask aside so the defendant could apply the drops, it is undisputed that the mask was moved aside for one to four seconds. This remedy was given to focus the baby’s energy. Rescue remedy is 27% alcohol. The defendant, Dr. Moskowitz and Ms. Duncan agreed that the administration of rescue remedy was entirely appropriate under the circumstances and posed no risk to the child.
Dr. Elisabeth Rosquete, a neonatologist and the Assistant Director of N.I.C.U. at Central Maine Medical Center, did not agree that giving the child the pellet was appropriate. Because the child was in a condition of asphyxia, which ls confirmed by the defendant’s birthing record, the normal protective act of gagging and swallowing would not be present. Therefore, anything introduced into the mouth could easily be aspirated to the trachea and lungs, which would further inhibit the passage of air through the trachea and into the lungs and lead to hypoxia. This risk was higher for Lauren because she was not protecting her airway. Because of this risk of aspiration, solid medicine is never used for newborns. Further, even if the substance dissolved, it would not have been dissipated through the child’s body at a normal rate because of the low heart rate; the body was not sending blood to the tongue to absorb the substance. Accordingly, although Dr. Rosquete stated that she did not know what the pellet contained, the contents would not alter her opinion that the risk of harm to the child from the pellet exceeded any potential benefit. The pellet was an irritant or obstruction.
Dr. Rosquete also disagreed with the appropriateness of administering the liquid remedy. Oxygen was the child’s most important requirement at the time the. liquid was given; the flow of oxygen was interrupted to introduce something less important. The child was lying on her back and with a poor gag reflex, both of which increased the risk of aspirating the liquid. Further, because alcohol is an irritant, medicines for newborns are alcohol free. The alcohol increased the child’s predisposition to spasm, which would impede getting oxygen to the lungs. It was Dr. Rosquete’s opinion the administration of the liquid created a substantial risk that the child would revert to hypoxia and decreased heart rate even if the liquid was administered at a time when the child was pink, breathing with the aid of a mask, and had a heart rate of 130.
Hypoxia can cause persistent fetal circulation. One-half of the babies who develop such complications die. As is generally the case with newborns, there is no direct evidence, except for blood, of what was in Lauren’s lungs: they could also have contained pneumonia. fluid, or the remedies administered by the defendant. The excessive strider found on the tube removed from Lauren could be attributed to vocal chord irritation resulting from the alcohol in the Rescue Remedy, although, again, there is no direct evidence of that connection.
Based on this record, and particularly on Dr, Rosquete’s testimony, the court concludes that the State has proved that the defendant’s conduct created a substantial risk of serious bodily injury to Lauren Bouyea. Treating newborns in distress is Dr. Rosquete’s expertise. Her opinions and conclusions were thoroughly explained and are supported by other evidence. Dr. Moskowitz, on the other hand, has not attended a birth in fifteen years; his conclusions were generalized and were not similarly explained and supported. For example, he emphasized several times that both remedies used by the defendant posed no risk because both would have dissolved and been absorbed “very, very quickly.” He did not address Dr. Rosquete’s opinion that because of Lauren’s distressed condition and because she was very cold, the remedies would not have dissolved. quickly; even if they had dissolved, they would not have been absorbed at a normal rate. Accordingly, the chance of aspiration was increased and the chance of any potential benefit to Lauren of the remedies decreased.
The court does not conclude, however, that the State has proved beyond a reasonable doubt that the defendant acted recklessly. Considering the nature and purpose of the defendant’s conduct ‘and the circumstances known to her, the action she took was not a gross deviation the standard of conduct a reasonable and prudent person would have observed in that situation. Dr. Rosquete’s opinion concerning the risk lo Lauren from the defendant’s conduct is based on what she has learned during the following: college; medical school; a pediatric residency; two additional years in a neonatal fellowship, in which Dr. Rosquete dealt solely with high-risk deliveries and sick newborns; employment at several hospitals in Massachusetts and the southwest as a neonatologist; employment as an assistant professor; and four years as a neonatologist at CMMC. Her conclusions are the subject of expert testimony, not common sense, Maine law requires no such background or expertise for direct entry midwives. Ms. Morrison was giving what she believed to be, and what a physician and midwife agreed was, appropriate care to Lauren under the circumstances, according to midwifery protocols and accepted homeopathic literature. Dr. Moskowitz and Ms. Duncan would have done as the defendant did under e circumstances. Nothing in this record suggests that the defendant knew or should have known that her treatment or Lauren exposed the child to substantial risk of serious bodily harm. State v. DeCesere, 406 A.2d 616, 617 (Me. 1979) (defendant knew or should have known that kicking safety glass window could result in pieces of glass flying into officer’s eyes}; see State v. Phelps, 651 A.2.d 369, .370 (Me. 1994) (chasing victim into dark, unfamiliar area supports finding that defendant consciously disregarded risk victim could fall and suffer injury); State v. Gosselin, 594 A2d 1102, 1106 (Me. 1991) (following deceased with a loaded. working handgun supports finding that defendant consciously disregarded risk he might kill someone); State v. Thomas 507 A2d 1051, 1054 (Me. 1986) (shooting tire of moving automobile carrying four people could be found to be gross deviation from · reasonable conduct); State v. Perfetto, 424 A.2d 1095, 1098 (Me. 1981} (shooting during hunting season without certainty of target was gross deviation from standard of conduct of reasonable and prudent person); State v. Goodall, 407 A.2d 268, 279-80 (Me. 1979) (conscious disregard is subjective state of mind).
The finding and entry is
The Defendant is NOT GUILTY.
The clerk is directed to incorporate this judgment into the docket by reference.
Justice, Superior Court
Date: January 28, 1997.
This article was posted on July 23, 2018.