How could a Texas physician delegate nursing or medical acts to an unlicensed person, and what could the medical board regulate?

Texas AG Opinion JM-173: Physician Delegation Rules

Plain-English summary

JM-173 concluded that the Medical Practice Act's delegation requirements applied when a physician delegated authority to a nonphysician, even when the delegated task also fit the Nurse Practice Act's description of a nursing act.

"The provisions of section 3.06(d) of the Medical Practice Act apply to a physician's delegation of authority to a non-physician even though the act delegated may come within the term, 'nursing act,' as described by the Nurse Practice Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

A physician could violate the Medical Practice Act through an improper delegation. But an unlicensed person who performed the delegated nursing act in good faith did not violate either act merely because the physician's direction was unlawful.

"A physician may violate the Medical Practice Act by delegating nursing acts in a manner not permitted by the Medical Practice Act, but a person performing the delegated nursing act in good faith ... violates neither the Nurse Practice Act nor the Medical Practice Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

The Texas State Board of Medical Examiners could regulate the details, means, and manner of delegating these acts, provided its rules remained consistent with the Medical Practice Act.

"The Texas State Board of Medical Examiners has authority, consistent with the Medical Practice Act, to regulate the details, means and manner of delegating nursing acts done under a physician's control or supervision or at his instruction."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What standard governed a physician's delegation?

The physician could delegate to a qualified and properly trained person under supervision when a reasonable and prudent physician would find delegation within sound medical judgment and the task could be performed properly and safely.

"A person licensed to practice medicine shall have the authority to delegate to any qualified and properly trained person or persons acting under the physician's supervision any medical act which a reasonable and prudent physician would find is within the scope of sound medical judgment to delegate."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Who remained responsible for the delegated act?

The delegating physician.

"The delegating physician shall remain responsible for the medical acts of the person performing the delegated medical acts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

When could the unlicensed delegate face unauthorized-practice liability?

The person was not guilty of practicing medicine without a license unless the person knew that the delegation and the action violated the Medical Practice Act.

"A person to whom a physician has delegated a medical act to perform is not guilty of practicing medicine without a license unless the person acts with knowledge that the delegation and action thereunder is a violation of this Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Could the medical board require the physician to know the delegate's training and skills?

Yes. JM-173 said that requirement fit the board's authority to determine whether medical acts could be properly and safely delegated.

"The board has statutory authority to require that physicians be familiar with the training and skills of the person whom the physician instructs to perform delegated medical acts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Could instructions be directed to a corporation rather than a natural person?

The board could require instructions to be directed only to natural persons because the statute's definition of person meant an individual unless expressly extended to an entity.

"It would not be inconsistent with the Medical Practice Act for the board to require that instructions of a physician concerning the performance of delegated medical acts be directed only to natural persons."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Could the board choose the only individuals eligible to receive delegation?

No. It could set standards for qualified and properly trained people, but not select the exclusive individuals to whom physicians could delegate.

"The Texas State Board of Medical Examiners ... might set standards applicable to the selection of persons 'qualified and properly trained' to perform particular acts under the physician's supervision, but not itself to select the only individuals to whom such acts might be delegated."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Background and statutory framework

The opinion limited its analysis to nursing acts involving patient observation, assessment, intervention, evaluation, rehabilitation, care, health teaching, health maintenance, illness prevention, and administration of prescribed medications or treatments.

"We will therefore limit this opinion to those nursing acts set out in sections 5(a), (b), and (c)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

JM-173 read the Medical Practice Act and Nurse Practice Act together because the two schemes overlapped.

"The two acts are in pari materia and should be read together."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

The Nurse Practice Act exemption protected good-faith action under a licensed physician's supervision, control, or instruction, even if the physician exceeded delegation authority.

"The Nurse Practice Act is designed to protect persons who, in good faith, act at the direction of a licensed physician, though the physician may have violated the Medical Practice Act in giving the direction."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Citations and references

• Medical Practice Act section 3.06(d)(1) supplied the physician-delegation standard and board authority.

"The board may determine whether any medical act may or may not be properly or safely delegated by physicians."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

• Article 4528 supplied the Nurse Practice Act exception for acts under physician control, supervision, or instruction.

"A physician is not relieved of his responsibility under the Medical Practice Act simply because the exception to the Nurse Practice Act makes the Nurse Practice Act inapplicable to 'acts done under the control or supervision or at the instruction of' a physician."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0173
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0173.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
June 21, 1984
Attorney General

Supreme      Court Building             Honorable Chet Brooks                    opinion No. JM-173

P. 0. Box 12546
Austin. TX. 76711. 2546
Chairman
512/475G?501
Committee on Health 8 Human Resources Re: The Nurse Practice Act
Telex 0101674.1367 Texas State Senate exception for acts done
Telecopier 5121475.0266 P. 0. Box 12068, Capitol Station under the control or super-
Austin, Texas 78711
vision or at the instruction
714 Jackson. Suite 700 of a physician
Dallas, TX. 75202-4506
2141742-6044
Dear Senator Brooks:

Your letter ~requesting an opinion from this office poses the 4624 Alberta Ave., Suite 160 following questions:
El Paso. TX. 70605-2703
015/533.3484
1. Do the provisions of section 3.06(d) of the Medical Practice Act, article 4495b, V.T.C.S.,
r 31 Texas, Suite 700 governing physicians’ delegation of authority to
,oustm, TX. 77002-3111
nonphysicians apply to acts exempted from the
713,223.5666
Nurse Practice Act as ‘acts done under the control or supervision or at the instruction of one
606 Broadway, Suite 312 licensed by the Texas Board of Medical Examiners?’
Lubbock, TX. 70401-3470
606,747.5236
2. Does the Board of Medical Examiners have
the authority to regulate the details and means
4309 N. Tenth, Suite S
and manner of the physician’s [delegations of
,&Allen, TX. 76501-1665
authority to nonphysicians acting under the]
5121662-4547
control or supervision or at the instruction of
one licensed by the Texas State Board of Medical
200 Main Plaza, Suite 400
Examiners? In other words, may the board adopt
San Antonio. TX. 76205.2707
regulations requiring that: (a) the instruction
51212254101
be addressed to the particular person who will do
the act, (h) the instructing physician be familiar with the training and skill,s of the An Equal Opportunity/
Affirmative Action Employer person who will do the act, or (c) the instruction be directed to a natural person and not to an institution or corporation?

Article 4495b, section 1.03(8) defines “practicing medicine” as follows:

(8) . . . A person shall be considered to be practicing medicine within this Act:
Honorable Chet Brooks - Page 2 (JM-173)

(A) 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; or

(B) 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.

Article 4518. V.T.C.S., contains the following definition of "professional nursing":
sec. 5. Insofar as any of the following acts require substantial specialized judgment and skill and insofar as the proper performance of any of the following acts is based upon knowledge and application of the principles of biologixal, physical, and social science as acquired by a completed course in an approved school of professional nursing, 'Professional Nursing' shall be defined as the performance for compensation of any nursing act (a) in the observation, assess- ment , intervention, evaluation, rehabilitation, care and counsel and health teachings of persons who are ill, injured or infirm or experiencing changes in normal health processes; (b) in the maintenance of health or prevention of illness;
(4 in the administration of medications or treatments as prescribed by a licensed physician or dentist; (d) in the supervision or teaching of nursing; (e) in the administration, supervision, and evaluation of nursing practices, policies, and procedures. The foregoing shall not be deemed to include acts of medical diagnosis or prescription of therapeutic or corrective measures.

There is considerable overlap between these definitions. A physician's license authorizes him to perform all nursing acts within sections 5(a). (b), and (c). The medical acts delegated to non- physicians are virtually always acts involving the care and treatment of a patient. Moreover, s physician's license authorizes him to perform all nursing acts involving diagnosi~s,treatment, and care of a patient. See generally Baker v. State, 240 S.W. 924 (Tex. Grim. App. 1921); Attorney General Opinions MW-318 (1981); H-1295 (1978); H-27 (1973). We will therefore limit this opinion to those nursing acts set out in sections 5(a), (b). and (c), since it seems apparent that Honorable Chet Brooks - Page 3 (JM-173)

this will adequately address the delegations about which you are concerned.

The Nurse Practice Act permits licensed nurses under certain circumstances to perform medical acts that they could not otherwise perform without violating article 4495b. See V.T.C.S. art. 4495b, 53.06(b)(4). The two acts are in pari mass and should be read together. -See 53 Tex. Jur. 2d Statutes 5186, at 280.

When the Medical Practice Act and the Nurse Practice Act are read together, it is apparent that a licensed physician is exempted from the Nurse Practice Act only when his actions are authorized by the Medical Practice Act. Article 4528 makes the Nurse Practice Act inapplicable
to acts done by persons licensed by any board or agency of the State of Texas if such acts are authorized by such licensing statutes. (Emphasis added).

It is equally clear, however, that a physician violates the Medical Practice Act if he fails to conform his delegations of medical acts to the requirements of subsection 3.06(d)(l) of that act, article 4495b. V.T.C.S., which reads:

[A] person licensed to practice medicine shall have the authority to delegate to any qualified and properly trained person or persons acting under the physician's supervision any medical act which a reasonable and prudent physician would find is within the scope of sound medical judgment to delegate if. in the opinion of the delegating phvsician, the act can be properly and safely performed by the person to whim the medical act is delegated and the act is performed in its customary manner, not in violation of any other statute, and the person does not hold himself out to the public as being authorized to practice medicine. The delegating physician shall remain responsible for the medical acts of the person performing the delegated medical acts. The [Texas State Board of Medical Examiners] may determine whether or not an act constitutes the practice of medicine, not inconsistent with this Act, and may determine whether any medical act may or may not be properly or safely delegated by physicians . . . . (Emphasis added).

A physician is not relieved of his responsibility under the Medical Practice Act simply because the exception to the Nurse Practice Act makes the Nurse Practice Act inapplicable to "acts done

p. 76i

Honorable Chet Brooks - Page 4 (JM-173)

?

under the control or supervision or at the instruction of" a physician. V.T.C.S. art. 4528. The Medical Practice Act expressly provides that the physician "remains responsible for the medical acts of the person performing the delegated medical acts." Moreover, his personal exemption from the Nurse Practice Act is conditioned upon the validity of his acts under the Medical Practice Act. Thus, in answer to your first question, we advise that the provisions of section 3.06(d) of the Medical Practice Act apply to a physician's delegation of authority to a non-physician even though the act delegated may come within the term, "nursing act," as described by the Nurse Practice Act.

In contrast, however, the Nurse Practice Act exemption for non-licensed persons acting under the supervision, control or instruction of a licensed physician is not conditioned upon the physician's actual authority to delegate theact. In our opinion, the Nurse Practice Act is designed to protect persons who, in good faith, act at the direction of a licensed physician, though the physician may have violated the Medical Practice Act in giving the direction.

Section 3.07(i) of the Medical Practice Act, with which the Nurse Practice Act must be read, expressly provides:

A person to whom a physician has delegated a medical act to perform is not guilty of practicing medicine without a license unless the person acts with knowledge that the delegation and action thereunder is a violation of this Act.

We conclude that a physician may violate the Medical Practice Act by delegating nursing acts in a manner not permitted by the Medical Practice Act, but that a person performing the delegated nursing act in good faith -- although acting as the delegate= of such a physician
-- violates neither the Nurse Practice Act nor the Medical Practice Act.

Your second question consists of a general inquiry and three subparts. The general question asks whether the Texas State Board of Medical Examiners has authority to regulate the details, means, and manner of delegating nursing acts to be done under a physician's control or supervision or at his instruction.

We have already observed that the provisions of section 3.06(d) of the Medical Practice Act apply to a physician's delegation of article 4518 nursing acts to non-physicians. The final sentence of subsection 3.06(d)(l) of the Medical Practice Act, states:

The board may determine whether or not an act constitutes the practice of medicine, not inconsistent with this Act. and may determine Honorable Chet Brooks - Page 5 (JM-173)

whether any medical act may or may not be properly or safely delegated by physicians . . . .

since, in our view, nursing acts in question are species of medical acts under the Medical Practice Act , we advise that the Texas State Board of Medical Examiners does have such authority, consistent with the Medical Practice Act.

The subparts of your question concern the authority of the Texas State Board of Medical Examiners to require that a physician's instructions be addressed to a particular person. to require that the instructing physician be familiar with the training and skills of the person who will perform the delegated act, or to require that such instructions be directed to a natural person rather than to an institution or corporation.

Regulations of the board respecting a physician's delegations of medical acts must be "not inconsistent" with the Medical Practice Act, which expressly states that
the individual physician should be given the greatest opportunity to exercise his best independent professional judgment in deciding what medical acts can be safely delegated; therefore. rules of the board regulating delegation should have the purpose of promoting such exercise of professional judgment and decision by not containing, except as absolutely necessary, global prohibitions or restrictions on delegation of medical acts . . . .

V.T.C.S. art. 4495b, §1.02(8). Furthermore, the act is to be construed in a way that permits licensed physicians to delegate such acts to "any qualified and properly trained person or persons" under his supervision. Id. 03.06(d)(l). We think the Texas State Board of Medical Examiners, pursuant to the statute. might set standards applicable to the selection of persons "qualified and properly trained" to perform particular acts under the physician's supervision, but not itself to select the only individuals to whom such acts might be delegated. -Cf. 22 T.A.C. 1193.1 (1982).

We also believe the board has statutory authority to require that physicians be familiar with the training and skills of the person whom the physician instructs to perform delegated medical acts. Such power is easily encompassed by the express authority of the board to "determine whether any medical act may or may not be properly or safely delegated by physicians." V.T.C.S. art. 4495b. 53.06(d)(l).

Similarly, it would not be inconsistent with the Medical Practice Act for the board to require that instructions of a physician concerning the performance of delegated medical acts be directed only Honorable Chet Brooks - Page 6 (JM-173)

to natural persons. Section 1.03(6) of the act states that the word "person," as used in the act, "means an individual unless otherwise expressly made applicable to a partnership, association, or corporation." Section 3.06(d) thereof, which allows such delegations, speaks only of "persons" and is not "otherwise made applicable" to institutions or corporations. _Cf. Attorney General Opinions MU-318 (1981); H-395 (1974).

SUMMARY

A physician may violate the Medical Practice Act by delegating nursing acts in a manner not permitted by the Medical Practice Act, but a non-licensed person performing the delegated nursing act in good faith -- although acting as the delegatee of such a physician -- violates neither the Nurse Practice Act or the Medical Practice Act. The Texas State Board of Medical Examiners has authority, consistent with the Medical Practice Act, to regulate the details, means and manner of delegating nursing acts done under a physician's control or supervision or at his instruction.

Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton

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