JIM MATTOX Attorney General 

# The Attorney General of Texas

June 21, 1984

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 512/475G?501 Telex 0101674.1367 Telecopier 5121475.0266

714 Jackson. Suite 700 Dallas, TX. 75202-4506 2141742-6044 Honorable ChetBrooks opinionNo. JM-173 Chairman Committee on Health 8 HumanResources Re: The Nurse Practice Act Texas State Senate exception for acts done P. 0. Box 12068,Capitol Station under the control or superAustin, Texas 78711 vision or at the instruction of a physician

Dear SenatorBrooks:

4624 Alberta Ave., Suite 160 El Paso. TX. 70605-2703 015/533.3484


## r 31 Texas, Suite 700 ,oustm, TX. 77002-3111 713,223.5666

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An Equal Opportunity/ Affirmative Action Employer Your letter~requestingan opinion from this office poses the followingquestions:

1. Do theprovisionsof section 3.06(d)of the Medical Practice Act, article 4495b, V.T.C.S., governing physicians’ delegation of authority to nonphysicians apply to acts exempted from the Nurse PracticeAct as ‘actsdone under the control
or supervision or at the instruction of one licensedby theTexas Board ofMedical Examiners?’

2. Does the Board of Medical Examiners have the authority to regulate the details and means and manner of the physician’s [delegations of authority to nonphysicians acting under the] control or supervision or at the instruction of
one licensedby the Texas State Board of Medical Examiners? In other words, may the board adopt regulations requiring that: (a) the instruction be addressed to the particularperson who will do the act, (h) the instructing physician be familiar with the training and skill,sof the person who will do the act, or (c) the instruction be directed to a natural person and not to an institutionor corporation?
Article 4495b, section 1.03(8) defines “practicingmedicine” as follows:
(8)

. . .A person shall be considered to be

practicingmedicinewithin thisAct:

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(A) who shall publicly profess to be a physicianor surgeonand shalldiagnose, 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 treatany disease or disorder,mental or physical,
or any physical deformity or injuryby 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 "professionalnursing":

sec. 5. Insofar as any of the following acts require substantialspecializedjudgment 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 professionalnursing, 'ProfessionalNursing' shall be defined as the performance for compensationof any nursing act (a) in the observation, assessment, 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 evaluationof nursingpractices,policies, and procedures. The foregoing shall not be deemed to include acts of medical diagnosis or prescription of therapeuticor correctivemeasures.
There is considerable overlap between these definitions. A physician's license authorizeshim to perform all nursing actswithin sections 5(a). (b), and (c). The medical acts delegated to nonphysicians are virtually always acts involving the care and treatment of a patient. Moreover, s physician's license authorizes him to performall nursingacts involvingdiagnosi~s, treatment,and care of a patient. See generally Bakerv. 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

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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 theMedical PracticeAct and theNurse PracticeAct 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 licensedby 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 PracticeAct ifhe fails to conformhis delegationsof 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 iswithin the scopeof soundmedical judgment to delegate if. in the opinion of the delegating phvsician, the act can be properly and safely performedby theperson to whim themedical 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 delegatedmedical acts. The [Texas State Board of Medical Examiners] may determine whether or not an act constitutes the practice of medicine, not inconsistentwith this Act, and may determinewhether any medical act may or may not be properly or safely delegated by physicians

. . . . (Emphasisadded).

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

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?

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 theNurse PracticeAct is conditionedupon the validity of his acts under theMedical PracticeAct. Thus, in answer to your first question, we advise that the provisions of section 3.06(d) of theMedical PracticeAct apply to a physician's delegation of authority to a non-physicianeven though the act delegatedmay 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'sactual authority to delegate theact. In our opinion, the Nurse PracticeAct is designed to protect persons who, in good faith, act at the direction of a licensedphysician, though thephysicianmay have violated theMedical PracticeAct in giving the direction.
Section 3.07(i) of theMedical PracticeAct,with which theNurse PracticeActmust be read, expresslyprovides:

A person to whom a physician has delegated a medical act toperform isnot guilty of practicing medicine without a license unless the person acts with knowledge that the delegation and action thereunder is a violation of thisAct.

We conclude that a physicianmay 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 controlor supervisionor 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 theMedical PracticeAct, states:

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

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whether anymedical actmay ormay not be properly
or safelydelegatedby 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, consistentwith theMedical PracticeAct.

The subparts of your question concern the authority of the Texas State Board of Medical Examiners to require that a physician's instructionsbe addressed to a particularperson. to require that the instructingphysicianbe familiarwith 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 institutionor corporation.
Regulations of the board respectinga physician's delegations of medical actsmust be "not inconsistent"with theMedical PracticeAct, which expressly states that

the individual physician should be given the greatest opportunity to exercise his best independentprofessionaljudgment in decidingwhat 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 absolutelynecessary,global prohibitions or restrictions on delegation of medicalacts

. . . .
V.T.C.S. art. 4495b, §1.02(8). Furthermore, the act is to be construed in a way that permits licensedphysicians 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" toperformparticularactsunder thephysician'ssupervision, but not itself to select the only individuals towhom such acts might be delegated. Cf. 22 T.A.C. 1193.1 (1982).

-
We alsobelieve theboard has statutoryauthority to require that physiciansbe familiarwith the trainingand skillsof thepersonwhom thephysician instructstoperformdelegatedmedical acts. Suchpower is easily encompassed by the express authority of the board to "determine whether any medical act may or may not be properly or safelydelegatedby physicians." V.T.C.S. art. 4495b. 53.06(d)(l). Similarly, itwould not be inconsistentwith theMedical Practice Act for the board to require that instructions of a physician concerning the performanceof delegatedmedical acts be directed only

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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.

AttorneyGeneral of Texas

TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral
Preparedby SusanL. Garrison AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman David Brooks ColinCarl SusanGarrison JimMoellinger Nancy Sutton

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