The first round in court…

Wendi Cleckner’s first battle written in her own words. This happened exactly one year ago…

Justice. Respect for all peoples. Women’s rights. These are issues that have always mattered to me. I have fought for them. I have sacrificed for them. And I will continue to do so until I have no breath.

The story…

Feb 2014, one year ago I attended the birth of a young, healthy, educated, and very strong woman. It was her first baby and this mama worked long and hard to hold her wee one. Just after noon she triumphantly pushed out her baby in a birth tub in her own bedroom. A baby’s cry, shouts of joy and blood. Who knew this normal happy homebirth would lead to a legal battle and a courtroom.

A little background…

In the state of Arizona midwives are licensed under the state department of health – AZDHS. They house our rules and regulate our scope and practice. For the most part our rules and regulations are not unreasonable. However, there are still many places within our rules that are antiquated, inappropriate, harmful and not the current standard of care despite the most recent rule changes. To read our full set of rules – http://www.azsos.gov/public_services/ Title_09/9-16.htm#pgfid

The two rules I want to highlight in this story provide a perfect example of how the department of health and their interpretations of our rules make it nearly impossible to do our job safely. R9-16-111 Prohibited Practice; Transfer of Care
B. A midwife shall not accept for midwifery services or CONTINUE MIDWIFERY SERVICES for a client who has or develops any of the following:

25. A postpartum hemorrhage of greater than 500ml in the current pregnancy

First, continuing midwifery services. When something comes up that is on the list of prohibited practice we are to transfer care immediately. As stated by AZDHS – when EMS arrives, the midwife is to walk out the front door, never to have contact with the woman again – (their interpretation of transfer of care). A midwife who has been with a family, caring for a mother and her baby for 9 months is suppose to relinquish care to a less trained, under qualified healthcare worker that is not as skilled in handling out of hospital births and complications. This abandonment of care is unethical, costly to every tax payer, wastes resources that could be better spent else where.

Second, a hemorrhage. 500ml in nearly all medical literature is a normal amount of bleeding after birth. Most literature does not consider a hemorrhage until 750-1000ml of blood. Yet at 500ml midwives have to transfer care to EMS and ultimately the hospital.

So lets go back to our story and read the rest of what happened…

As joy and celebration were happening over this beautiful birth, I noticed a normal gush of blood, then a little bit more. I asked the mama to get out of the pool so I could monitor more closely. Several minutes later the placenta followed as normal. As per our practice and dictated by our rules we watched this mama closely to make sure her bleeding was under control and uterus firm, which it was until an hour after birth. This healthy strong mama released more than

500 ml of blood which our rules state we need to transfer care to a hospital. This mother, being a naturopath, extremely body conscious and capable in making her own health decisions firmly told me she would not go into a hospital upon discussing what my rules dictate. Her bleeding ceased, she was completely stable and yet according to AZDHS rules and interpretation would require me to transport to a hospital.

What was I to do? Go against medical ethics? Go against federal case law? Call EMS against her wishes? Waste precious times and resources of our EMS on a healthy stable person? Have 5-10 firefighters come tromping though her beautiful homebirth to find a completely stable healthy mama that will refuse to go to the hospital?

I respected her choice to not have EMS activated and invade her home only to turn them away. I stayed, as I believe any good and moral midwife would do. I continued care for this new mom through 6 weeks and I do not regret a moment of it.

AZDHS regulation is required to file a report for every client. I filled out this report honestly and openly documenting the accurate blood loss of over 500 ml. I know was turning myself in to a very hostile department of health that would potentially pursue this legally. I had several reasons for full disclosure. I don’t want to hide. I am a damn good midwife, who gives fantastic and SAFE care to all of my clients. I should not have to lie about it. I should be able to document accurately with out fear. I want the department and the world to know exactly what we are doing in order to have accurate accounts. If I did not report this accurately it sends the message that the department’s rules are good and can be followed. There are some rules that put us all in compromising positions and should be changed! I am a justice fighter. I am not afraid of bullies. So I stood strong behind the care I gave knowing it would probably land me in a courtroom, which it eventually did.

April would start my battle. My first email from the department requesting my records was 4/24/2014. I submitted my records immediately. Apparently AZDHS misplaced the first set of records, so the department requested records again on 5/23/2014.

On July 2, 2014 I was served papers of a notice of intent to suspend my license for one year. AZDHS Intent to Suspend Midwifery License for One Year Court date was set for Aug 8. I did not respond, only waited for my Aug 8 hearing.

Sidenote, most of you know midwives are midwives because it is a calling. We are by no means rich, and most of us barely make enough to get by without a partner contributing. That being said, I could not afford a lawyer. I was very confident in standing behind my midwifery care but trembling at the legal system and the games I didn’t know the rules for the impending process. As Aug 8 came closer I was coming to terms with the fact I am fighting the department of health. That is a big and powerful entity and ultimately they do control my license. I very well could lose it for a whole year. Heavy thought, being I am my only provider.

On Aug 4 I got notice that they were postponing my trial to give me time to “negotiate.” As per the history with the department, most midwives negotiate outside the courtroom for a lower penalty. I wanted a formal hearing with an objective view to make a judgement on the midwifery care I provided because I gave the best possible care according to national and international standards. I was not willing to negotiate about something in which I did nothing wrong. So the new court date was set for Sept 16 and I continued to wait.

On Sept 16 I showed up ready to battle confidently. For the next 4 hours I witnessed an administrative law judge question again and again the department’s ridiculous rules and thought processes or lack there of. This judge GOT IT! I didn’t have to do anything, that is how bad some of our rules are. It is evident to all, including our justice system. Since I was self represented, the judge helped me through the legal game. I was not prepared to back up any of my arguments so she left my case open in order to give me time to submit further evidence. It was such a victory for Homebirth and Midwives!

My hearing was kept open for 30 days. I immediately found a lawyer willing to help me write something pro bono. It was eloquent and perfect. I was grateful. We submitted it Oct 13. Wendi’s Final Argument
AZDHS had 2 weeks to respond. On Oct 27 they submitted a uneducated, unfounded rebuttal. AZDHS Final Argument

The judge then had 30 days to make a judgement which put us at Nov 27. When Thanksgiving came and went and the Monday following I still heard nothing from the judge, I called. I was informed the recommendation was to be sent directly to the department and once they make a final decision I could see the judges response. That due date was Dec 15.

Let me take a moment to talk about the waiting game. I believe midwives are the very best at this trait called patience. That really is our job in a nutshell. But the last four months of 2014 were among the most excruciating! In Sept I really started to look at this whole thing as a battle I was ready to fight even if it meant loosing my license for a season. It was worth it to me. This battle was costly. In the event that the department would win and I loose my license for a year, I started to reign back on accepting clients. I looked at it as a sabbatical, a much needed one at that. By the time Nov rolled around I was delivering my “last baby” in anticipation to the impending judgement. I came to peace about stepping away from midwifery and tried to find the good in the situation. In the process, I had to sell my house because I just could not afford payments anymore and I took a job at a restaurant to pay my living expenses. I almost had to file bankruptcy. It was a rough winter, but again, still worth the ultimate fight.

On Dec 15 the final judgement came from AZDHS. AZDHS Final Verdict I also got my hands on the judges recommendation. Judge Lang’s Recommendation to AZDHS
I am not going to give much attention to AZDHS’s judgement because it was ridiculous. They reduced my punishment from one year suspension to one month suspension and 40 hours of CEUs and two years of probation. If the dept really thought I did something wrong and the dept really thought they were in the right and the dept is really going to disregard a judge’s recommendation, then why the compromise?

What I do want to focus on, and give major props to, is the judges recommendation. IT WAS AMAZING!!!! Judge Lang’s Recommendation to AZDHS PLEASE READ IT! It is fantastic. She outlines so clearly all the craziness of our rules. She blames the department completely for putting me and all midwives in this predicament. It is a great read especially for you midwives!

My response to the department was as follows:

To whom it may concern:
I received the judge’s recommendation and AZDHS’s final verdict. Though I do not agree, nor understand the departments blatant disregard for the judge’s recommendation, I will comply to the terms as stated by the department:

“Suspension for a period of no less than 30 days and no more than six months beginning on the effective date of the orders herein. if appellant completes 40 hours of continuing education units that are pre-approved by the department and that are consistent with AAC R9 – 16–105, suspension of more than 30 days will be lifted by the department. The 40 hours of department pre-approved continuing education units must include continuing education units related to emergency measures and procedures.”

I need to know from the department EXACTLY what CEU’s are pre-approved by the department. I need to know the specific PROCESS you want me to follow for pre-approval. I need this information ASAP. I also need to know the firm deadline for the CEU’s to be completed.
As pointed out clearly by Judge Lang, “AZDHS knows that it’s own rules and lack of guidance have put the midwife in this position…AZDHS has known about the potential problem posed by the rules for years and yet has failed to arrive at a solution itself.” I would hope the department will address this sooner rather than later.

I served my one month. I did my 40 hours CEUs. My licenses was reinstated as of January 27. In stepping back from my practice for a brief time I realized a couple of things-
I AM A MIDWIFE. In every sense of that statement, I can not deny it or run away from it. It is who I am and I am SO glad to be back. So all the rumors of me hanging my hat for good can stop. I am back. I am a midwife.

THERE IS STILL A BATTLE. We press on. There is a lot of work to do. Women still need to have their right to autonomy and midwives still need to be protected. Midwives’ rules need to be fixed!! There is a lot we can do legally, but it will take a lot of time and money. I am in it for the long haul. Are you?
For the next steps of involvement – https://www.crowdrise.com/RightsforHomebirthAZ
For updates and continued action items, keep checking
Website – http://www.rightsforhomebirth.com
Facebook page – https://www.facebook.com/groups/256480614406716/ 

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