A pregnant pause: Sacramento midwife’s legal battle against state awaits ruling

Decision could have far-reaching implications for out-of-hospital birthing practices in California

This is an extended version of a story that ran in the September 15, 2016, issue.

A final ruling with potentially significant implications for out-of-hospital birthing practices in California was postponed this month in a Sacramento courtroom.

Sacramento midwife Ruth Cummings is battling the California Board of Registered Nursing, which formally accused her in May 2013 of failing to recognize a pregnant client was experiencing early labor pains during a 2010 phone conversation. Three days after that conversation, the client experienced a stillbirth at an emergency room. (See “Midwives under attack,” by Brooke Purves, August 6, 2015.)

The BRN accused Cummings of gross negligence and unprofessional conduct. In November 2014, an administrative law judge placed the state-certified nurse-midwife on three years of medical probation, according to court documents. Cummings, who runs The Birth Center, Sacramento’s only midwife-operated birth facility unaffiliated with any hospitals or medical groups, appealed the administrative ruling in Sacramento Superior Court in May of last year. Two months later, a judge stayed Cummings’ probation until her case was resolved.

Now, a ruling is almost at hand.

At a September 2 hearing, Judge Timothy Frawley posed seven questions about the miscarriage incident to both parties. After listening to responses from Cummings’ attorney Steven Simas and BRN representative lawyer Leslie Burgermyer, Frawley held off on delivering a same-day verdict.

Though Cummings was not available for comment due to the pending petition, Susan Fischer Wilhelm, Ph.D., whose baby was delivered by Cummings, said she felt positive about the court proceedings.

“It’s not clear what will happen at this point, [but] I walked out of the courtroom feeling celebratory,” Wilhelm said. “Regardless of what the judge rules, the proceedings Friday were very favorable towards my midwife.”

Aside from Wilhelm, 86 people, many of them past clients, have filed court declarations in support of Cummings.

A spokeswoman for the California Department of Consumer Affairs, which oversees the BRN, declined comment due to the pending nature of the case.

A ruling has the potential to end the ongoing litigation against Cummings, which Wilhelm said would provide enormous relief for out-of-hospital midwives. If the BRN prevails, however, The Birth Center would almost certainly close.

Wilhelm says that would send a chilling message to midwives, who are already in short supply around the state.

Cummings’ case isn’t without precedent. Last summer, a San Francisco County judge granted a similar appeal to certified nurse-midwife Yelena M. Kolodji, whom the BRN alleged had “failed to have proper physician supervision” during her home-birth practice. In a court order accompanying his May 2015 ruling, Judge Richard B. Ulmer Jr. wrote that the BRN had “acted in an arbitrary and capricious manner.”

Cummings’ court battle is particularly poignant for advocates of out-of-hospital midwifery, as recent support for such practices has faced bureaucratic opposition. Assembly Bill 1306 would have removed the physician supervision requirement for out-of-hospital CNMs, but failed to advance August 31, when assembly members were unable to reach concurrence on a senate amendment to the bill.

Cummings’ attorney expects a decision within weeks.

Editor’s note: An earlier version of this story mistakenly reported that Susan Fischer Wilhelm, Ph.D. testified on behalf of her midwife Ruth Cummings.