The Attorney General of Texas 

December 19, 1978 

JOHN L. HILL 

Attorney Genml 

4313 N. Tam!. e&m F 

Mclom. TX. 70501 

51ms24547 

Honorable Max C. Butler, President 

Texas State Board of Medical Examiners 

Southwest Tower Building, Suite 900 

all Rast Seventh Street 

Austin, Texas 78701 

Opinion No. Ii- 12 9 5 

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” is defined as follows: 

Any person shsll be regarded as practicing medicine 

within the meaning of this 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 or physical, or any physical 

deformity or injury, by any system or method, or to 

effect cures thereof. 

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, 229 S.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 why the 

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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Honorable Max C. Butler - Page 2 (H-1293) 

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, or those in attendance 

at childbirth- put drops in child’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 254 m2d 513 (T 

+ 

ex. Grim. App. 1953). In 

each case, the defendant held himsel out as a practitioner 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 a disease, disorder, deformity or injury for which she would require the 

services of a practitioner 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, S 1 (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 of fact questions. See, e.g., Green v. State, 305 S.W.2d 

609 (Tex. Crim. App. 1957) (expert testimony that application of coagulating needle 

constituted the practice of medicine). We do not resolve fact questions in the 

opinion process; however, we can answer the legal questions you present. 

Your first two questions 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 of fact questions. Whether or not a midwife may perform and repair an 

episiotomy or suture lacerations would depend on whether these services are 

generally provided in connection with normal childbirth. ln m, the midwife gave 

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Honorable Max C. Butler - Page 3 (H-12g3) 

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 is as follows: 

3. ls a midwife authorized to possess and administer 

drugs or medication which are classified as either ‘dangerous 

dn& under the provisions of article 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 of his 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 of business. Sec. 4(a), (b). Thus, a 

midwife may ‘possess such drugs as a physician’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 I through V of the act. Sees. 2.01 - 2.07. The Commissioner of Health 

may add substances to the schedules or delete or reschedule substances enumerated 

in the act. Sec. 2.09(a). Any person who dispenses a controlled substance must 

possess a valid registration from the Director of the Texas Department of Public 

Safety. Sec. 3.01(a); see 9 1.02(S). A licensed physician may receive a registration 

to dispense substan&& Schedules 11 through V upon 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). A registered physician is a “dispenser” within the terms of the 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 of a hypodermic containing a controlled substance with intent to inject 

it in a human being. Sec. 4.07(a). 

Your fourth question is as follows: 

4. ls a midwife authorized to make a diagnosis of 

disease or obstetrical complication? 

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Honorable Max C. Butler - Page 4 (H-1393) 

It is clear that the diagnosis of a “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 as follows: 

5. Do the statutes of this 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?’ 

In our opinion, the statutes do recognize differences. Nurse midwives and certified 

nurse midwives are persons who have been licensed by the Board of Nurse 

Examiners as professional nurses. Thus the statutes defiiing “professional nursing” 

are relevant to their authority to perform midwife services. “Professional nursing” 

is defined in part to include 

the- performance for compensation of any 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, S 5. This statute provides independent authority for a registered 

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 nurse could 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, 

P to 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 4516 would in our 

opinion include the authority to watch for and recognize abnormal qmptoms of 

pregnancy which might lead to a diagnosis of disease 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., 83 A.L.R.3d 1020 (1975). A certified nurse midwife 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 of instruction and supervision to be provided by a physician. 

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Honorable Max C. Butler - Page 5 (H-1283) 

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 may legally perform such 

services. A midwife 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 5 to perform the services inquired about. 

SUMMARY 

DAVID M. KENDALL, First Assistant. 

Opinion Committee 

M 

p. 5101