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STATE BD. OF NURSING v. RUEBKE3/15/1996
The opinion of the court was delivered by
The State Board of Healing Arts (Healing Arts) and the State Board of Nursing (Nursing) appeal the trial court's denial of a temporary injunction by which the Boards had sought to stop E. Michelle Ruebke, a practicing lay midwife, from continuing her alleged practice of medicine and nursing.
The trial court found that (1) certain provisions of both the Kansas Healing Arts Act, K.S.A. 65-2801 et seq, and the Kansas Nursing Act, K.S.A. 65-1113 et seq., were unconstitutionally vague; (2) Ruebke's practices incident to her lay midwifery were not within the scope of either act; and (3) even if the acts were held to be constitutional and Ruebke fell within their practice definitions, she was exempted from coverage under both acts because of certain exceptions.
We have jurisdiction pursuant to K.S.A. 60-2101 (b).
Factual Background
The Boards' petition alleged Ruebke held herself out as a certified midwife; had been offering prenatal, labor, and delivery services to pregnant women in Kansas; and had been functioning as a registered professional nurse and/or a practitioner of the healing arts.
The petition set out details relating to three pregnancies: the Butterfields, where the petition alleged that twins had died and Ruebke had refused to permit the mother to be taken to the hospital (evidence showed it was Ruebke who had called the ambulance
and that one of the twins had died); the Strubles, where it was alleged (although the evidence failed to establish) that Ruebke, who was assisting Kathy Brace, identified herself as a state and nationally certified midwife; and the Ingrams where Ruebke assisted in a delivery directed by a nurse and complications developed, requiring the delivery to be performed in a local hospital.
Based on the allegations of the petition, the trial court issued a temporary restraining order pending a hearing on a temporary injunction.
The hearing on the temporary injunction revealed that Ruebke acts as a lay midwife comprehensively assisting pregnant women with prenatal care, delivery, and post-partum care. She is president of the Kansas Midwives Association and follows its promulgated standards, which include a risk screening assessment based upon family medical history; establishing prenatal care plans, including monthly visitations; examinations and assistance in birth; and postpartum care. She works with supervising physicians who are made aware of her mode of practice and who are available for consultation and perform many of the medical tests incident to pregnancy.
Ruebke does not advertise her services but is available to members of her church, friends, and Christians who hear about her by word of mouth. She delivers babies throughout the state and has supervising physicians in many different regions.
Ruebke does not charge for her services and considers them to be a ministry. Some families have given her money, others goods, and many have given her nothing.
Ruebke testified she had received a copy of and follows the consent decree dated November 15, 1984, from the District Court of Finney County, Kansas, in State ex rel. Board of Healing Arts v. Hitchcock, No. 84 C 238, which contained the following orders:
"1. Defendant shall be permitted to engage in the practice of mid-wifery in the State of Kansas, and such practice shall not be considered the practice of healing arts or the practice of medicine and surgery, so long as she utilizes a licensed physician in the vicinity who has agreed to be available in case of complications and to be available for consultation a
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