Honorable J. G. Rodarte,   M. D.                 Opinion No.   H-   27
President,  Texas State Board
of Medical Examiners                             Re:   May ambulance attendants
1612 Summit Avenue,   Suite 303                        not in the physical presence
Fort Worth,  Texas 76102                               of a licensed physician pro-
                                                       vide emergency    medical care
                                                       for ill or injured persons if
                                                       such care is directed by a
                                                       licensed physician by telephonic
Dear   Dr.   Rodarte:                                  or radio communications?

    Your letter concerning ambulance attendants and asking whether under
certain circumstances     they may render emergency medical care presents             an
extremely   difficult question.

     We are not given sufficient facts to determine whether or not ambulance
attendants are practicing medicine.     A medical practitioner is defined by
Article 4510, Vernou’s   Texas Civil Statutes,  as any person:

              “(1) 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; (2) or 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;      provided,   how-
         ever, that the provisions   of this Article  shall be construed
         with and in view of Article   740, Penal Code of Texas,      and
         Article 4504, Revised Civil Statutes of Texas as contained
         in this Act. ”

    Virtually   the same   definition   is contained   in Article   741,   Vernon’s
Texas Penal     Code.




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Honorable   J. G.   Rodarte,   page 2   (H-27)




     Article 740 of the Penal Code and Article 4504 of the Revised Civil
Statutes to which reference      is made contain exceptions and provide that
neither the penal statute nor the civil statute shall apply to various
other occupations     specified,   including,  among others,    the teachings of
any church in the administration        to the sick or suffering without the
use of any drug or material       remedy; to dentists; to duly licensed optom-
etrists;  to duly licensed chiropractors;      to nurses “who practice nursing
only”,   etc.

     Unless ambulance Btt’endants qualify as nurses,  they are not within
the exceptions of Article 3qO of Vernon’s   Texas Penal Code or Article
4504 of Vernon’s    Texas Civil Statutes. Acts 1967. 60th Leg.,    Ch. 665,
p. 1759, is entitled “An Act Relating to the Practice of Professional
Nursing”.    It amended Article 4518, Vernon’s   Texas Civil Stat&es.
by adding a 5 5 as follows:

             ” ‘Professional     nursing’ shall be defined for the
        purposes of this Act as the performance          for compensation
        of any nursing act (a) in the observation,        care and counsel
        of the ill, injured or infir.m;,(b) in the maintenance       of
        health or prevention of illness of others; (c) in the admin-
        istration of medications       or treatments   as prescribed    by a
        licensed physician or dentist; (d) in the supervision        or
        teaching of nursing,      insofar as any of the above acts re-
        quire substantial     specialized   judgment and skill and insofar
        as the proper performance         of any of the above acts is
        based upon knowledge and application of the principles
        of biological,    physical and social science as acquired
        by a completed course in an approved school of professional
        nursing.    The foregoing      shall not be deemed to include acts
        of medical diagnoses or prescription         of therapeutic or
        corrective     measures.    ”

    A $ 6 was added to Article 4518 at the same time providing          that
nothing in the chapter was to permit the practice of medicine.

    Article 4528, Vernon’s     Texas Civil Statutes, <part of the same act
relating to the practice of professional     nursing, was amended in 1969
(Acts 1969, 61st Leg.,   ‘Ch. 476, p. 1571) to read:




                                        p. 115
Honorable   J. G. Rodarte,     page 3    (H-27)




             “This law shall not be construed to apply to: the
        gratuitous nursing of the sick by friends; the furnishing
        of nursing care where the treatment is by prayer or
        scriptural  means alone; acts done under the control,
        or supervision   or at the instruction of one licensed
        by the Texas State Board of Medical Examiners;
        Licensed   Vocational Nurses:    . . . ” (Emphasis  added)

     There is no statute specifically    regulating ambulance attendants or
prescribing   what they may and may not do.         However,      Article 4590(b)
governing,ambulances     generally,    requires,    in § 2,. that each ambulance
carry as minimum emergency          equipment,    a first aid kit and traction
splints for the proper transportation      of fractures     of the extremities.
By $ 3 it requires that each ambulance,        when in service,       be accompanied
by at least one person “who has acquired theoretical            or practical   know-
ledge in first aid . . . evidenced by a certificate        issued to such person
by the State Board of Health”.
               :
    It is obvious that the ~statute contemplates      that ambulance    attendants
shall do more than merely transport.

     Finally,  as you have advised us, the Texas State Board of Medical
Examiners     has, through the years,   recognized    the needy for emergency
treatment in the absence of a licensed physician and has consistently
held “that unlicensed persons could legally perform acts which
would constitute.the    practice of medicine if such persons were under
the reasonable    control and supervision   of a licensed physician”.

    This administrative   construction  is entitled to great weight.  Burroughs
v. Lyles,  142 Tex. 704, 181 S. W. 2d 570 (1944); Heaton v. Bristol,   317
S. W. 2d 86 (Tex. Civ. App. , Waco, 1958, err. ref. ), cert. den. ,359 U.S.  230,
3 L. Ed. 2d, 765, 79 S. Ct. 802 (1959).

     You have called out attention to Article la, Vernon’s      Texas Civil
Statutes,   the so-called  “Good Samaritan Law”.      It provides that no
person rendering emergency       care shall be liable in civil damages but
it expressly   excepts from its provisions   those who render care for
remuneration     or with the expectation of remuneration,     etc.  We~do not
believe it has any real bearing upon the question you present.

    It is apparent that there is some overlapping   of function between
those defined as practicing   “professional nursing” and those defined           as


                                        p. 116
Honorable   J. G.   Rodarte,    page 4   (H-27)




practicing  medicine.    To the extent that, factually,    it can be said
that an ambulance attendant is practicing      the functions of a .nurse,
the exception of Article 4528 of acts done under the control or
supervision   or at the instruction of one licensed by the Texas State
Board of Medical Examiners        will apply provided,   in fact, the
ambulance attendant is acting under the control or supervision         or
at the instruction of a licensed physician.

     On the other hand, if he goes further and is factually performing
the function of a physician rather than that of a nurse, there is no
exception which would apply and we feel that technically     he would
be, in violation of the statutes. As a practical matter,   it is unlikely
that under those circumstances,    the statutes would be actively
enforced.

                               SUMMARY

            Ambulance attendants not in the physical presence
        of a licensed physician who provide emergency       care
        within the scope of nursing,   acting under the control
        or supervision  or at the instruction  of a licensed physician
        by telephonic or radio communications,      are not engaged
        in the unlawful practice of medicine.     However,   those
        who provide care beyond the scope of nursing well may
        be practicing medicine in violation of law even though
        care is directed by a licensed physician by telephonic or
        radio communications.

                                     Very    truly yours,




APPRmVED:




DAVID M. KENDALL,         Chairman
Opinion Committee                           p. 117
