                         The Attorney             General         of Texas
                                            December     19,   1978

JOHN L. HILL
Attorney Genml


                      Honorable Max C. Butler, President              Opinion No. Ii- 12 9 5
                      Texas State Board of Medical Examiners
                      Southwest Tower Building, Suite 900             Re: What services may a mid-
                      all Rast Seventh Street                         wife or nurse midwife perform?
                      Austin, Texas 78701

                      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
4313 N. Tam!. e&m F
Mclom. TX. 70501                 deformity or injury, by any system or method, or to
51ms24547                        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 11through 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.       Sec. 1.02(24). Thus a midwife acting as the
agent or employee of a registered         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     rescribed by a doctor). Nurses also have authority under article 4518,
section 5(c 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 Nurse-
Midwives, a private body. These qualifications    are relevant to a determination   of
the appropriate degree of instruction and supervision to be provided by a physician.




                                           P.     5100
Honorable Max C. Butler   -   Page 5        (H-1283)



                                SUMMARY

          The Court of Criminal Appeals has held that midwifery is
          not the practice of medicine.      If it can be shown that
          performing and repairing an episiotomy or suturing lacera-
          tions 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 compli-
          cation.    Registered  nurses who are nurse midwives or
          certified nurse midwives have authority under article 4518,
          section 5 to perform the services inquired about.




DAVID M. KENDALL, First Assistant.




Opinion Committee

M




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