Untitled Texas Attorney General Opinion ( 1973 )

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.
p. 114
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, 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