where any such task is performed under the supervision of an authorized instructor lawfully licensed in this state to perform such tasks.
(Ga. L. 1913, p. 101, § 6; Ga. L. 1918, p. 173, § 4; Code 1933, § 84-906; Ga. L. 1970, p. 301, § 4; Ga. L. 1972, p. 673, § 1; Code 1981, §43-34-26; Ga. L. 1993, p. 355, § 5; Ga. L. 2004, p. 379, § 1; Code 1981, §43-34-22, as redesignated by Ga. L. 2009, p. 859, § 1/HB 509.)
Cross references.- Requirements pertaining to persons using term "Doctor" or "Dr." in advertisement, business card, § 10-1-422.
Editor's notes.- Ga. L. 2009, p. 859, § 1/HB 589, effective July 1, 2009, redesignated former Code Section 43-34-22 as present Code Section 43-34-3.
JUDICIAL DECISIONS
Legitimate state interest in ensuring public's ability to make informed choice of physician.
- State is legitimately interested in assuring that the public have at least some of the information necessary to make an informed judgment in choosing a physician. Oliver v. Morton, 361 F. Supp. 1262 (N.D. Ga. 1973).
Hospital administrator subject to provisions.
- It is not error to charge the substance of former Code 1933, §§ 84-906 and 84-924 (see now O.C.G.A. §§ 43-34-22 and51-1-27) in connection with an action against a hospital administrator who was alleged to have mixed and administered drugs for relief of discomfort to patient at the hospital as a result of which the patient suffered bromide poisoning. Fulton Hosp. v. McDonald, 106 Ga. App. 783, 128 S.E.2d 539 (1962).
Corporation that accepted assignment of fees from physicians for purposes of administration, billing, and collection was not practicing medicine. Health Horizons, Inc. v. State Farm Mut. Auto. Ins. Co., 239 Ga. App. 440, 521 S.E.2d 383 (1999), cert. denied, 2000 Ga. LEXIS 35 (2000), cert. denied, 2004 Ga. LEXIS 241 (2004).
Mere failure to have license to practice does not authorize inference of negligence when one attempts to treat or operate on another and injures that person. Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950).
Plaintiff must show causal relation between lack of license and injury sustained.
- Allegations that duties and inhibitions imposed upon the defendant by statutes as to necessity of having a license to practice medicine or surgery were due to the plaintiff and child personally, and as members of the public seeking medical and surgical care, and that the death of the child was a natural and probable consequence of violation of such statutes by the defendant were subject to demurrer (now motion to dismiss) for failure to show anything having a causal relation to the death of the child. Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950).
Defendant's holding self out as physician is relevant to establish why plaintiff engaged defendant's services.
- Allegations that the defendant falsely held self out as a physician and surgeon, and that the defendant did not possess qualifications necessary for possession of a license are pertinent by way of history or inducement to show why the plaintiff engaged services of the defendant and for that reason should not be stricken on demurrer (now motion to dismiss), though irrelevant on question of the defendant's negligence. Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950).
State may show defendant held self out as physician when defendant denies practice.
- When main defense is that even though the defendant sold medicine, the defendant never practiced that profession, it is competent for the state to prove, if the state can, that the defendant did practice that profession generally, that the defendant held self out to public as being engaged in diagnosis or treatment of diseases, or that the defendant suggested, recommended, or prescribed medical treatment, with intention of receiving a fee therefor, or that the defendant considered self a doctor of medicine. Lyda v. State, 47 Ga. App. 45, 169 S.E. 751 (1933).
Notice of specific laws violated not required in preferred charges.
- In preferring charges in order to revoke license, it is unnecessary to specify law under which the charges are preferred. Hughes v. State Bd. of Medical Exmrs., 162 Ga. 246, 134 S.E. 42 (1926), later appeal, 165 Ga. 892, 142 S.E. 285 (1928).
Equity will not enjoin proceeding to revoke license when legal remedy provided.
- Court of equity will not enjoin board from hearing proceeding brought under this statute for revocation of license of physician upon charges that physician had been convicted of a crime involving moral turpitude and had caused publication and circulation of advertisement relative to diseases of the sexual organs since the physician has a complete legal remedy by making defense before board and appealing to the superior court. Hughes v. State Bd. of Medical Exmrs., 158 Ga. 602, 123 S.E. 879 (1924).
Definition of drugs.
- Drug is defined as the general name of substances used in medicines; any substance, vegetable, animal, or mineral used in composition or preparation of medicines; or any substance used as a medicine. Shawver v. State, 103 Ga. App. 1, 118 S.E.2d 202 (1961).
Podiatrists and allopaths distinguished from chiropractors or naturopaths and physicians.
- Sandford v. Howard, 161 Ga. App. 495, 288 S.E.2d 739 (1982).
Continued activity by physician who surrendered medical license.
- Physician who voluntarily surrendered a physician's medical license by allowing the license to expire was not authorized to write prescriptions as it violated O.C.G.A. § 43-34-26 (see now O.C.G.A. § 43-34-22), prohibiting the practice of medicine without a license; such surrender did not further require cancellation of the record of license in the office of the clerk of the Superior Court under former O.C.G.A. § 43-34-39 as such Code section only applied to revocation of licenses. Gunnells v. Marshburn, 259 Ga. App. 657, 578 S.E.2d 273 (2003).
Cited in Georgia State Bd. of Exmrs. in Optometry v. Friedmans' Jewelers, Inc., 183 Ga. 669, 189 S.E. 238 (1936); Georgia Ass'n of Osteopathic Physicians & Surgeons, Inc. v. Allen, 112 F.2d 52 (5th Cir. 1940); Georgia Ass'n of Osteopathic Physicians & Surgeons, Inc. v. Allen, 31 F. Supp. 206 (M.D. Ga. 1940); Shawver v. State, 103 Ga. App. 1, 118 S.E.2d 202 (1961); Reams v. Composite State Bd. of Medical Exmrs., 233 Ga. 742, 213 S.E.2d 640 (1975); Reams v. Composite State Bd. of Medical Exmrs., 237 Ga. 224, 227 S.E.2d 346 (1976); United States v. Composite State Bd. of Medical Exmrs., 656 F.2d 131 (5th Cir. 1981); Franklin v. Elmer, 174 Ga. App. 839, 332 S.E.2d 314 (1985).
OPINIONS OF THE ATTORNEY GENERAL
Legislative intent.
- It was never the legislative intent that naturopaths be authorized to practice medicine nor be licensed as physicians. 1960-61 Op. Att'y Gen. p. 415.
"Doctors of medicine," "licensed to practice in state," includes physicians and osteopaths.- Terms "doctors of medicine," "licensed doctors of medicine," "doctors of medicine licensed to practice in the state," and similar terms used in the statute include persons who have graduated from a medical college and hold a degree of Doctor of Medicine and those who hold degree of Doctor of Osteopathy. When those terms are used to describe qualifications of physicians to be hired by the Department of Human Resources, the department may hire physicians who have either degree. 1974 Op. Att'y Gen. No. 74-50.
Not all osteopaths hold "full practice" licenses.- Since phrase "doctor of medicine who is licensed to practice in the state" refers to those persons who hold degrees as Doctors of Osteopathy as well as Doctors of Medicine, the Department of Human Resources may employ persons holding either degree; however, while all practicing osteopaths are licensed under the statutes, thus qualifying all of them to practice in state hospitals or community service programs, not all hold "full practice" licenses. 1974 Op. Att'y Gen. No. 74-50.
Practice of naturopathy by persons other than those who were licensed pursuant to Ga. L. 1950, p. 168, or who are otherwise licensed as practitioners of healing arts in the State of Georgia, constitutes "practice of medicine" within meaning of former Code 1933, § 84-906 (see now O.C.G.A. § 43-34-22); such persons who intend to practice naturopathy in Georgia must either obtain a license from the Composite State Board of Medical Examiners (now Georgia Composite Medical Board) or from another licensing board of the healing arts whose regulatory scope would allow use of naturopathic methods in the practice of that profession. 1982 Op. Att'y Gen. No. 82-11.
Administration of medication and medical treatments by a licensed nurse, when prescribed by a physician practicing medicine in accordance with the provisions of O.C.G.A. Ch. 34, T. 43, does not constitute the proscribed practice of medicine. 1979 Op. Att'y Gen. No. 79-2.
To the extent that 1975 Op. Att'y Gen. 75-44 opines that unlicensed personnel may perform certain tasks pursuant to an established custom, when the performance of such tasks is not prohibited by another statute, that opinion is not inconsistent with the present one. However, because of amendments in the licensing acts in question, that opinion should no longer be relied upon and is expressly superseded. See former O.C.G.A. §§ 43-26-1(3) and43-26-30(2)(D). 1985 Op. Att'y Gen. No. 85-41 (decided prior to the 1990 repeal and reenactment of Article 1 of Chapter 26 of Title 43).
Naturopath may use word "Doctor" only when followed by word "Naturopathy" or letters "N.D." 1954-56 Op. Att'y Gen. p. 544.
Naturopath may not sign a death certificate. 1957 Op. Att'y Gen. p. 339.
Naturopath may not practice obstetrics.- Practice of obstetrics involves procedures which are not embraced within the definition of naturopathy; a naturopathic physician may not conduct an obstetrical practice in this state. 1965-66 Op. Att'y Gen. No. 65-96.
Laboratories of State Health Department (now Department of Human Resources) cannot examine specimens submitted by naturopaths. 1960-61 Op. Att'y Gen. p. 415.
Practice of acupuncture constitutes practice of medicine in the State of Georgia. Any change in the status of acupuncture would have to come from the legislature in the form of a specific exemption. 1992 Op. Att'y Gen. No. U92-1.
Nurses may telephone prescription orders into pharmacy after receiving order from physician. 1979 Op. Att'y Gen. No. 79-32.
Practice of "protocol" medicine by licensed nurse does not violate law.- The practice of "protocol" medicine by a licensed nurse when prescribed by a physician practicing medicine in accordance with the statute is not the unauthorized practice of medicine by a nurse. 1979 Op. Att'y Gen. No. 79-2.
Physician shall not delegate tasks to nurse requiring application of specialized knowledge or skill.- If act involves application of specialized medical knowledge or skill, a physician is not warranted in delegating the act to a nurse; if such an act is delegated, the physician, rather than hospital, is liable for the nurse's negligence. 1967 Op. Att'y Gen. No. 67-463.
Administration and performance of artificial insemination upon female human beings may not be delegated by a licensed physician to a physician's assistant or other qualified allied health personnel. 1982 Op. Att'y Gen. No. 82-87.
Delegation to unlicensed personnel.
- O.C.G.A. § 43-34-26 (see now O.C.G.A. § 43-34-22) does not authorize a physician to delegate tasks to unlicensed personnel when the performance of such tasks would otherwise require a license in an established category of health care. 1985 Op. Att'y Gen. No. 85-41.
Hearing tests.- Individual who does not possess license from Georgia State Board of Examiners for Speech Pathology and Audiology may not perform diagnostic hearing tests under supervision of a physician; however, such individual may perform routine hearing screenings under supervision of a physician. 1982 Op. Att'y Gen. No. 82-90.
Transcutaneous electrical nerve stimulation (TENS) used as a form of treatment, or the recommendation of such treatment, for the palliation, relief, or cure of physical or mental ailments of human beings constitutes the practice of medicine, unless otherwise excepted by statute. 1982 Op. Att'y Gen. No. 82-102.
Whether medication has been "prescribed" by physician is fact issue for board.- Question of whether administration of medication or provision of medical treatment has been "prescribed" by a physician practicing medicine in accordance with the statute is a factual question which must be resolved by the Composite State Board of Medical Examiners (now Georgia Composite Medical Board). 1979 Op. Att'y Gen. No. 79-2.
Interns and residents may prescribe, administer, and dispense narcotic drugs.- An intern or resident accepted for specialty or residency training in a hospital approved by the Composite State Board of Medical Examiners (now Georgia Composite Medical Board) may prescribe, administer, and dispense narcotic drugs to the extent required by the duties of the intern's or resident's position or by the program of training for a period of two years and for such additional period as the board by application may determine. 1971 Op. Att'y Gen. No. 71-157.
Determination of negligence in nurse's actions.- Since in a hospital the nurse-patient relationship is consensual rather than contractual, no liability is incurred by a nurse, a supervising physician, or a hospital when a nurse, well-trained both in recognizing signs and symptoms of cardiac conditions and in early corrective action, and following detailed instructions of the physician undertakes to make these decisions and carries out corrective actions, providing the nurse was not negligent in some manner. A determination of negligence would necessarily involve a factual determination. 1967 Op. Att'y Gen. No. 67-463.
Scope of authority of emergency medical technician-ambulance attendant.
- Emergency medical technician-ambulance attendant should be permitted to administer drugs and intravenous fluids only when directed to do so by a physician; when a physician cannot be physically present, direction through oral communications, as by telephone or radio, is sufficient; under these circumstances, the technicians do not violate Ga. L. 1972, p. 847, § 1 (see now O.C.G.A. § 43-34-26). 1973 Op. Att'y Gen. No. 73-139.
Unlicensed practice not justified.- Fact that practice of medicine is performed under supervision of licensed doctor does not justify unlicensed practice. 1970 Op. Att'y Gen. No. U70-241.
Compensation is not a necessary element to definition of practice of medicine. 1970 Op. Att'y Gen. No. U70-241.
Gratuitous service not of an emergency nature is prohibited. 1970 Op. Att'y Gen. No. U70-241.
RESEARCH REFERENCES
ALR.
- Constitutionality of statute prescribing conditions of practicing medicine or surgery as affected by question of discrimination against particular school or method, 37 A.L.R. 680; 42 A.L.R. 1342; 54 A.L.R. 600.
Liability to patient for results of medical or surgical treatment by one not licensed as required by law, 44 A.L.R. 1418; 57 A.L.R. 978.
Construction, as regards kind or character of treatment, of restrictive medical or surgical license, 86 A.L.R. 623.
Right of corporation or individual, not himself licensed, to practice medicine, surgery, or dentistry through licensed employees, 103 A.L.R. 1240.
Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.
Practicing medicine, surgery, dentistry, optometry, podiatry, or other healing arts without license as a separate or continuing offense, 99 A.L.R.2d 654.
Acupuncture as illegal practice of medicine, 72 A.L.R.3d 1257.