# The Attorney General ofTexas
December 19, 1978 JOHN L.HILL AttorneyGenml

4313 N.Tam!. e&m F Mclom. TX.70501 51ms24547 Honorable MaxC.Butler, President Texas State Board of Medical Examiners Southwest Tower Building, Suite 900 all Rast Seventh Street Austin, Texas 78701 Opinion No. Ii- 1295 Re: What services may a midwife or nurse midwife perform?

Dear Dr. Butler: You ask several questions about the. services which midwives may legally provide in Texas. Articles 4510,4510a, and 45lOb, V.T.C.S., prohibit the practice of medicine by persons who are not licensed by the Board of Medical Examiners. “Practicing medicine” isdefined as follows:

Any person shsll be regarded aspracticing medicine within the meaning ofthis Chapter: 1. Who shall publicly profeas to be a physician or surgeon and shall diagnose, treat or offer to treat any diease.or disorder, mental orphysical, or any physical deformity or injury, by any system or method, or to effect curesthereof. 2. 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, or to effect cures thereof and charge therefor.
. . . V.T.C.S. art. 4510a The Court of Criminal Appeals held in Banti v. State, 229S.W.Zd 244 (Tex. Grim. App. 1956), that a midwife who assisted a woman in parturition was not practicing medioine within the statutes. It found no reason whythe Legislature could not distinguish in the statutes between the work of a midwife and the practice of medicine. Since childbirth is a normal function of womanhood,’ the defendant had not treated her client “for a disease, deformity or injury or effect a cure thereof. ” 289 S.W.2d at 247. The court stated as follows:

Not only has the Legislature failed to include within the definition of, ‘practicing medicine’ the branch of medical science which has to do with the care of

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women during pregnancy and parturition called ‘obstetrics’ but has in a number of statutes recognized practical obstetrics or midwifery as outside the realm of the medical practice act &. at 247. See V.T.C.S. art. 4441(doctors, midwives, nurses, orthose in attendance at childbirth- put drops inchild’s eyed; art. 4477, Rule 46a(physician, midwife, or person acting as midwife shall file birth certificate). The court distinguished two prior opinions upholding convictions for the unauthorized practice of medicine where the patient was a pregnant woman. See Vlassis v. State, 266 S.W.2d 934 (Tex. Crim. App. 1956);DeHa v. State 254m2d 513(T + ex. Grim. App. 1953). In each case, the defendant held himsel out asapractitioner of medicine and treated others for diseases and disorders. Neither defendant was a. midwife and the services rendered to the pregnant woman were not confined to her care at childbirth. Finally, the court noted that pregnancy would not prevent a woman from having adisease, disorder, deformity or injury for which she would require the services ofapractitioner of medicine. You do not question that legal authority exists for a midwife to assist a woman in childbirth. See also V.T.C.S. art. 4445a, S1(physician or other person permitted by law to attend a pregnant woman shall have blood sample tested for syphilis); V.T.C.S. art. 4477, Rule 22(nurse or midwife shall report inflammation of newborn’s eyes); Rule 498 (midwives shall register with local registrar of vital statistics). However, you have asked five specific questions about the range of services which a midwife may provide without engaging in the practice of medicine. We believe that some of your questions cannot be answered without the investigation and resolution offact questions. See, e.g., Green v.State, 305S.W.2d 609(Tex. Crim. App. 1957)(expert testimony that application ofcoagulating needle constituted the practice of medicine). We do not resolve fact questions in the opinion process; however, wecan answer the legal questions youpresent. Your first twoquestions are as follows: 1. May a midwife perform an episiotomy [incision to prevent tearing]? 2. ls the midwife authorized to repair the episiotomy or a laceration of the birth canal by suturing the wound following delivery of the child? We believe your first two questions cannot be fully answered without the resolution offact questions. Whether or not a midwife may perform and repair an episiotomy or suture lacerations would depend on whether these services are generally provided inconnection with normal childbirth. lnm, the midwife gave

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her client an injection. The court did not single out that particular act as the practice of medicine, apparently viewing it as one aspect of assistance at childbirth. If the facts show that these services are incident to normal childbirth, as briefs submitted to us suggest, then we believe the **courts** would hold that a midwife may provide them. Your third question isas follows: 3. ls a midwife authorized to possess and administer drugs or medication which are classified as either ‘dangerous dn& under the provisions ofarticle 4476-14,V.T.C.S., or as ‘controlled substances’ under article 4476-15,V.T.C.S.? Article 4476-14, V.T.C.S., regulates the sale and distribution of “dangerous drugs,” defined to include certain specific substances and any drug or device bearing the legend: WCaution: federal law prohibits dispensing without prescription.” Sec. 2(3). It makes several exceptions to its prohibitions and regulations regarding the delivery of dangerous drugs. Thus a wpractitioner,” defiied to include a licensed physician, may dispense dangerous drugs in the,course ofhis practice. Sets. Z(e), 3(a)(2). Such drugs may be delivered to or possessed by the agents and employees of a practitioner for use in the usual course ofbusiness. Sec. 4(a), (b). Thus, a midwife may ‘possesssuch drugs asaphysician’s agent. Article ‘4476-15, V.T.C.S., regulates the manufacture, delivery, possession, and administration of certain %ontrolled substances,” which are listed by name in Schedules Ithrough Vof the act. Sees. 2.01- 2.07. The Commissioner of Health may add substances to the schedules or delete orreschedule substances enumerated in the act. Sec. 2.09(a). Any person who dispenses a controlled substance must possess a valid registration from the Director ofthe Texas Department of Public Safety. Sec. 3.01(a);see 91.02(S). Alicensed physician may receive a registration to dispense substan&& Schedules 11through Vupon application and payment of a fee. No provision is made for registration of midwives. However, the agent or emplayee of a registered dispenser of any controlled substance may possess controlled substances in the usual course of business without also registering. Sec. 3.01(eXl). Aregistered physician isa “dispenser” within the terms ofthe act. Sec. 1.02(10), (11). In addition, a hospital or other institution may be registered to administer a controlled substance. agent or employee of a registered Sec. 1.02(24). Thus a midwife acting as the physician or hospital is not subject to the registration requirement found in section 3.01(a). In addition a practitioner “or a person acting under his direction” is excepted from the penalty provision for possession ofahypodermic containing a controlled substance with intent to inject it inahuman being. Sec. 4.07(a).
**Your**fourth question isas follows:

4. ls a midwife authorized to make a diagnosis of **disease**or obstetrical complication?

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It is clear that the diagnosis ofa “disease or disorder,.

..physical deformity or in#uy” constitutes the practice of medicine. V.T.C.S. arts. 4510, IfilOa, ISlOb. Consequently, midwives may not make such diagnoses unless they are licensed by the Board of Medical Examiners. Your final question is asfollows:

5. Do the statutes ofthis state recognize any difference in the authority for the delivery of midwife services by a lay midwife,’ a hurse midwife,’ or a ‘certified nurse midwife?’ Inour opinion, the statutes dorecognize differences. Nurse midwives and certified nurse midwives are persons who have been licensed by the Board of Nurse Examiners asprofessional nurses. Thus the statutes defiiing “professional nursing” are relevant to their authority to perform midwife services. “Professional nursing” isdefined inpart to include

the-performance forcompensation ofany nursing act (a)in the observation, care and counsel of the ill, injured or infirm; (b)in the maintenance of health or prevention of illness of others; (c)in the administration of medications or treatments as prescribed by a licensed physician or dentist..

.. V.T.C.S. art. 4516,S5. This statute provides independent authority for aregistered nurse to perform some of the services you inquire about. For example, a nurse may administer treatments prescribed by a physician. Thus, even if performing an episiotomy or making sutures were held to constitute medical treatment, a registered nursecould provide these services at the doctor’s direction. See also Attorney General Opinion WW-1403(1962) (duty of nurse to carry out medical treatment section 5(c rescribed by a doctor). Nurses also have authority under article 4518,

Pto administer dangerous drugs or controlled substances prescribed by a licensed physician. & Attorney General Opinion H-737 (1975). The authority to observe the ill, injured or infirm given by section S(a)of article 4516would in our opinion include the authority to watch for and recognize abnormal qmptoms of pregnancy which might lead to adiagnosis ofdisease or obstetrical complication by the physician. In each instance, the registered nume performs services at the instruction or with the supervision of a licensed physician. The appropriate degree of instruction or supervision by the physician will vary with the nurse’s experience and qualifications. See aenerally Attorney General Opinions H395 (1974);H-27 (1973); Annot., 83A.L.R.3d 1020(1975). Acertified nursemidwife has completed advanced training in midwifery and has been certified by the American College of NurseMidwives, a private body. These qualifications are relevant to a determination of the appropriate degree ofinstruction and supervision tobeprovided by aphysician.

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The not Court of Criminal Appeals has held that midwifery is the practice **of** medicine. If it can be shown that performing and repairing an episiotomy or suturing lacerations are services generally performed in connection with normal childbirth, then a midwife maylegally perform such services. Amidwife may possess and administer statutorily regulated drugs as the agent of a licensed physician. Midwives may not diagnose a disease or obstetrical complication. Registered nurses who are nurse midwives or certified nurse midwives have authority under article 4518, section 5to perform the services inquired about. SUMMARY

DAVIDM.KENDALL, First Assistant.

Opinion Committee M

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