Montana Attorney General Opinion 16-53

Opinion No. 53. Medicine, Illegal Practice of -Midwife. HELD: 1. A midwife of skill and experience, practicing obstetrics, is not engaged in the illegal practice of medicine. 2. If a midwife of skill and experi- ence is in attendance on a woman in confinement, and no physician is pres- ent, and childbirth results in lacera- tions of the private parts, it would be her duty to suture these lacerations, and in so doing she would be guilty of no violation of the law. February 28, 1935. Edith L. Brown, R. N. Secretary, State Board of Examiners for Nurses Helena, Montana You recently requested our opmlOn upon the state of facts found in the following letter received by you from Margaret Beddor, R. N., of Wolf Point, Montana: "1 would like to be advised if there is any law regarding lay people giv- irig ether anesthesia and hypoder- mics. We have a great number here in Wolf Point who do; also who de- liver babies without a doctor· and do the suturing of repairs. It does not seem right if the law does allow it when a registered nurse would not think of such a thing." The writer doubtless had in mind a possible violation of the law govern- ing the practice of medicine in this state. Section 3122, Revised Codes 1921, reads thus: "Any person practicing medicine or surgery within this state without first having obtained a cer- tificate to practice, as provided by law, and after his certificate to prac- tice has been revoked, or contrary to the provisions of this article, shall for each violation of the provisions of this code, or any act relating to the prac.- tice of medicine or surgery in this state, be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than one thousand dollars nor less than two hundred and fifty dollars, or by imprisonment in the county jail not exceeding one year, nor less than ninety days, or by both said fine and imprisonment, as the court may determine. Any per- son shall be regarded as practicing within the meaning of this article who shall append or affix the letters M. B. or M. D., or the title of Dr. or Doctor, or any other sign or appellation in a medical sense to his or her name, who shall publicly profess either on his own behalf,in his own name, in his trade name, or on behalf of any other per- son, corporation, association, partner- ship, either as manager, bookkeeper solicitor, or other agent, to cure: treat, relieve, or palliate any ailment, disease, or infirmity of the mind or body of another by using or pres crib- 50 OPINIONS OF THE ATTORNEY GENERAL ing any drug, medicine, or surgical treatment, or who shall recommend, prescribe, or direct, for the use of any person, any drug, medicine, ap- pliance, apparatus, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or bodily injury, or other deformity, after having re- ceived, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation; provided, however, that nothing in this section shall be construed to re- strain or restrict any legally licensed osteopathic practitioner practicing under the laws of this state. Nothing in this act shall prohibit any legally licensed pharmicist or mercantile dealer from selling any drugs or med- icines which are now allowed to be sold under the laws of the state of Montana or the United States." Under this statute, to constitute practice of medicine, it is necessary for a person to do some one of these four things: (1) To affix the letters M. B. or M. D., or the title of Dr. or Doctor, or any other sign or appellation in a medical sense to his or her name; (2) to publicly profess to be a physician or surgeon; (3) to publicly profess either on his own behalf, in his own name or in his trade name, or on be- half of any other person, corporation, association or partnership, either as manager, bookkeeper, solicitor, or other agent, to cure, treat, relieve or palliate any ailment, disease, or in- firmity of the mind or body of another by using or prescribing any drug, medicine, or surgical treatment; (4) and to recommend, prescribe, or di- rect, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or bod- ily injury, or other deformity, after having received, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift or compen- sation. Under the first subdivision the gravamen of the statute is the af- fixing of a medical appellation to the name. Under the second subdivision the gravamen of the statute is pub- licly professing to be a physician or surgeon. Under the third subdivision the gravamen of the statute is public- ly professing in one's own behalf or in behalf of another to treat the sick or afflicted. Under neither of them is any actual treatment of a patient ne- cessary and therefore the question of compensation is not involved. The fourth subdivision deals with the ac- tual treatment of or prescription for the sick or injured, and provides that such attention, even to only one per- son, if for present or prospective pay shall constitute the practice of medi- cine. (Territory v. Lotspeich, 94 Pac. 1025.) Leaving out of consideration for the moment the things required at and immediately preceding delivery, it is apparent, we think, that the other acts complained of, without more, do not constitute a breach of the provisions of section 3122, even though it be conceded that the per- sons who do those acts are without certificates to practice medicine. Sections 2530, 2535, 2538 and 3121, Revised Codes 1921, recognize the right of a midwife to follow her avo- cation. Indeed, the last section ex- pressly excepts midwives of skill and experience from the provisions of the Act (sections 3116-3124, R. C. M. 1921), regulating the practice of med- icine. (State v. Wood, 53 Mont. 566.) The term "midwife" means a female obstetrician, and the term "midwife- ry" has been defined as the practice of obstetrics. (Commonwealth v. Porn, 196 Mass. 326, 82 N. E. 31, 13 Ann. Cas. 569.) If, then, a midwife of skill and ex- perience is in attendance on a woman in confinement, and no physician is present, and childbirth results in lac- erations of the private parts, we have no hesitation in saying that it would be her duty to suture these lacera- tions, otherwise there might be dan- ger of serious hemorrhages. In do- ing so she would be guilty of no vio- lation of the law.