Untitled Texas Attorney General Opinion

The Attorney General of Texas

JIM MATTOX
June 21, 1984
Attorney General

Supreme Court Building Honorable Chet Brooks opinion No. JM-173
P. 0. Box 12546
Austin. TX. 76711. 2546
Chairman
512/475G?501
Committee on Health 8 Human Resources Re: The Nurse Practice Act
Telex 0101674.1367 Texas State Senate exception for acts done
Telecopier 5121475.0266 P. 0. Box 12068, Capitol Station under the control or super-
Austin, Texas 78711 vision or at the instruction
714 Jackson. Suite 700
of a physician
Dallas, TX. 75202-4506
2141742-6044 Dear Senator Brooks:

Your letter ~requesting an opinion from this office poses the
4624 Alberta Ave., Suite 160
following questions:
El Paso. TX. 70605-2703
015/533.3484
1. Do the provisions of section 3.06(d) of the
Medical Practice Act, article 4495b, V.T.C.S.,
r 31 Texas, Suite 700 governing physicians’ delegation of authority to
,oustm, TX. 77002-3111 nonphysicians apply to acts exempted from the
713,223.5666
Nurse Practice Act as ‘acts done under the control
or supervision or at the instruction of one
606 Broadway, Suite 312 licensed by the Texas Board of Medical Examiners?’
Lubbock, TX. 70401-3470
606,747.5236 2. Does the Board of Medical Examiners have
the authority to regulate the details and means
4309 N. Tenth, Suite S and manner of the physician’s [delegations of
,&Allen, TX. 76501-1665 authority to nonphysicians acting under the]
5121662-4547 control or supervision or at the instruction of
one licensed by the Texas State Board of Medical
200 Main Plaza, Suite 400 Examiners? In other words, may the board adopt
San Antonio. TX. 76205.2707 regulations requiring that: (a) the instruction
51212254101 be addressed to the particular person who will do
the act, (h) the instructing physician be
familiar with the training and skill,s of the
An Equal Opportunity/
Affirmative Action Employer
person who will do the act, or (c) the
instruction be directed to a natural person and
not to an institution or corporation?

Article 4495b, section 1.03(8) defines “practicing medicine” as
follows:

(8) . . . A person shall be considered to be
practicing medicine within this Act:

p. 759
Honorable Chet Brooks - Page 2 (JM-173)

(A) who shall publicly profess to be a
physician or surgeon and shall diagnose, treat. or
offer to treat any disease or disorder, mental or
physical, or any physical deformity or injury by
any system or method or to effect cures thereof;
or

(B) who shall diagnose, treat, or offer to
treat any disease or disorder, mental or physical,
or any physical deformity or injury by any system
or method and to effect cures thereof and charge
therefor, directly or indirectly, money or other
compensation.

Article 4518. V.T.C.S., contains the following definition of
"professional nursing":

sec. 5. Insofar as any of the following acts
require substantial specialized judgment and skill
and insofar as the proper performance of any of
the following acts is based upon knowledge and
application of the principles of biologixal,
physical, and social science as acquired by a
completed course in an approved school of
professional nursing, 'Professional Nursing' shall
be defined as the performance for compensation of
any nursing act (a) in the observation, assess-
ment , intervention, evaluation, rehabilitation,
care and counsel and health teachings of persons
who are ill, injured or infirm or experiencing
changes in normal health processes; (b) in the
maintenance of health or prevention of illness;
(4 in the administration of medications or
treatments as prescribed by a licensed physician
or dentist; (d) in the supervision or teaching of
nursing; (e) in the administration, supervision,
and evaluation of nursing practices, policies, and
procedures. The foregoing shall not be deemed to
include acts of medical diagnosis or prescription
of therapeutic or corrective measures.

There is considerable overlap between these definitions. A
physician's license authorizes him to perform all nursing acts within
sections 5(a). (b), and (c). The medical acts delegated to non-
physicians are virtually always acts involving the care and treatment
of a patient. Moreover, s physician's license authorizes him to
perform all nursing acts involving diagnosi~s,treatment, and care of a
patient. See generally Baker v. State, 240 S.W. 924 (Tex. Grim. App.
1921); Attorney General Opinions MW-318 (1981); H-1295 (1978); H-27
(1973). We will therefore limit this opinion to those nursing acts
set out in sections 5(a), (b). and (c), since it seems apparent that

p. 760
Honorable Chet Brooks - Page 3 (JM-173)

this will adequately address the delegations about which you are
concerned.

The Nurse Practice Act permits licensed nurses under certain
circumstances to perform medical acts that they could not otherwise
perform without violating article 4495b. See V.T.C.S. art. 4495b,
53.06(b)(4). The two acts are in pari mass and should be read
together. -See 53 Tex. Jur. 2d Statutes 5186, at 280.

When the Medical Practice Act and the Nurse Practice Act are read
together, it is apparent that a licensed physician is exempted from
the Nurse Practice Act only when his actions are authorized by the
Medical Practice Act. Article 4528 makes the Nurse Practice Act
inapplicable

to acts done by persons licensed by any board or
agency of the State of Texas if such acts are
authorized by such licensing statutes. (Emphasis
added).

It is equally clear, however, that a physician violates the Medical
Practice Act if he fails to conform his delegations of medical acts to
the requirements of subsection 3.06(d)(l) of that act, article 4495b.
V.T.C.S., which reads:

[A] person licensed to practice medicine shall
have the authority to delegate to any qualified
and properly trained person or persons acting
under the physician's supervision any medical act
which a reasonable and prudent physician would
find is within the scope of sound medical judgment
to delegate if. in the opinion of the delegating
phvsician, the act can be properly and safely
performed by the person to whim the medical act is
delegated and the act is performed in its
customary manner, not in violation of any other
statute, and the person does not hold himself out
to the public as being authorized to practice
medicine. The delegating physician shall remain
responsible for the medical acts of the person
performing the delegated medical acts. The [Texas
State Board of Medical Examiners] may determine
whether or not an act constitutes the practice of
medicine, not inconsistent with this Act, and may
determine whether any medical act may or may not
be properly or safely delegated by
physicians . . . . (Emphasis added).

A physician is not relieved of his responsibility under the
Medical Practice Act simply because the exception to the Nurse
Practice Act makes the Nurse Practice Act inapplicable to "acts done

p. 76i
Honorable Chet Brooks - Page 4 (JM-173)

?

under the control or supervision or at the instruction of" a
physician. V.T.C.S. art. 4528. The Medical Practice Act expressly
provides that the physician "remains responsible for the medical acts
of the person performing the delegated medical acts." Moreover, his
personal exemption from the Nurse Practice Act is conditioned upon the
validity of his acts under the Medical Practice Act. Thus, in answer
to your first question, we advise that the provisions of section
3.06(d) of the Medical Practice Act apply to a physician's delegation
of authority to a non-physician even though the act delegated may come
within the term, "nursing act," as described by the Nurse Practice
Act.

In contrast, however, the Nurse Practice Act exemption for
non-licensed persons acting under the supervision, control or
instruction of a licensed physician is not conditioned upon the
physician's actual authority to delegate theact. In our opinion, the
Nurse Practice Act is designed to protect persons who, in good faith,
act at the direction of a licensed physician, though the physician may
have violated the Medical Practice Act in giving the direction.

Section 3.07(i) of the Medical Practice Act, with which the Nurse
Practice Act must be read, expressly provides:

A person to whom a physician has delegated a
medical act to perform is not guilty of practicing
medicine without a license unless the person acts
with knowledge that the delegation and action
thereunder is a violation of this Act.

We conclude that a physician may violate the Medical Practice Act by
delegating nursing acts in a manner not permitted by the Medical
Practice Act, but that a person performing the delegated nursing act
in good faith -- although acting as the delegate= of such a physician
-- violates neither the Nurse Practice Act nor the Medical Practice
Act.

Your second question consists of a general inquiry and three
subparts. The general question asks whether the Texas State Board of
Medical Examiners has authority to regulate the details, means, and
manner of delegating nursing acts to be done under a physician's
control or supervision or at his instruction.

We have already observed that the provisions of section 3.06(d)
of the Medical Practice Act apply to a physician's delegation of
article 4518 nursing acts to non-physicians. The final sentence of
subsection 3.06(d)(l) of the Medical Practice Act, states:

The board may determine whether or not an act
constitutes the practice of medicine, not
inconsistent with this Act. and may determine

p. 762
Honorable Chet Brooks - Page 5 (JM-173)

whether any medical act may or may not be properly
or safely delegated by physicians . . . .

since, in our view, nursing acts in question are species of medical
acts under the Medical Practice Act , we advise that the Texas State
Board of Medical Examiners does have such authority, consistent with
the Medical Practice Act.

The subparts of your question concern the authority of the Texas
State Board of Medical Examiners to require that a physician's
instructions be addressed to a particular person. to require that the
instructing physician be familiar with the training and skills of the
person who will perform the delegated act, or to require that such
instructions be directed to a natural person rather than to an
institution or corporation.

Regulations of the board respecting a physician's delegations of
medical acts must be "not inconsistent" with the Medical Practice Act,
which expressly states that

the individual physician should be given the
greatest opportunity to exercise his best
independent professional judgment in deciding what
medical acts can be safely delegated; therefore.
rules of the board regulating delegation should
have the purpose of promoting such exercise of
professional judgment and decision by not
containing, except as absolutely necessary, global
prohibitions or restrictions on delegation of
medical acts . . . .

V.T.C.S. art. 4495b, §1.02(8). Furthermore, the act is to be
construed in a way that permits licensed physicians to delegate such
acts to "any qualified and properly trained person or persons" under
his supervision. Id. 03.06(d)(l). We think the Texas State Board of
Medical Examiners, pursuant to the statute. might set standards
applicable to the selection of persons "qualified and properly
trained" to perform particular acts under the physician's supervision,
but not itself to select the only individuals to whom such acts might
be delegated. -Cf. 22 T.A.C. 1193.1 (1982).

We also believe the board has statutory authority to require that
physicians be familiar with the training and skills of the person whom
the physician instructs to perform delegated medical acts. Such power
is easily encompassed by the express authority of the board to
"determine whether any medical act may or may not be properly or
safely delegated by physicians." V.T.C.S. art. 4495b. 53.06(d)(l).

Similarly, it would not be inconsistent with the Medical Practice
Act for the board to require that instructions of a physician
concerning the performance of delegated medical acts be directed only

p. 763
Honorable Chet Brooks - Page 6 (JM-173)

to natural persons. Section 1.03(6) of the act states that the word
"person," as used in the act, "means an individual unless otherwise
expressly made applicable to a partnership, association, or
corporation." Section 3.06(d) thereof, which allows such delegations,
speaks only of "persons" and is not "otherwise made applicable" to
institutions or corporations. _Cf. Attorney General Opinions MU-318
(1981); H-395 (1974).

SUMMARY

A physician may violate the Medical Practice
Act by delegating nursing acts in a manner not
permitted by the Medical Practice Act, but a
non-licensed person performing the delegated
nursing act in good faith -- although acting as
the delegatee of such a physician -- violates
neither the Nurse Practice Act or the Medical
Practice Act. The Texas State Board of Medical
Examiners has authority, consistent with the
Medical Practice Act, to regulate the details,
means and manner of delegating nursing acts done
under a physician's control or supervision or at
his instruction.

Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton

p. 764