Family Planning Services Rendered to Minors

Subject:

Requested By: Margie Rose, M.P.H. Branch Head, Family Planning Branch Division of Health Services

Questions: (1)

Can a physician associated with a publicly supported family planning clinic delegate responsibility for medically related contraceptive services to a nurse practitioner or physician’s assistant whom he supervises and who functions under his standing orders?

(2)

If so, do the provisions of G.S. 90-21.4 provide immunity from civil or criminal liability to such a nurse practitioner or physician’s assistant for non-negligent acts performed under the physician’s supervision and while functioning under the physician’s standing orders?

Conclusions: (1)

Yes, if these functions are specifically approved for the individual nurse practitioner or physician’s assistant by the Board of Medical Examiners.

(2)

Yes, so long as the conditions described by Conclusion (1) are met.

G.S. 90-18(13) authorizes the performance of an act, task or function by an assistant to a person licensed as a physician by the Board of Medical Examiners when:

"b. Such act, task or function is performed at the direction or under the supervision of such physician, in accordance with rules and regulaitons promulgated by the Board (of Medical Examiners)."

G.S. 90-18(14) also authorizes:

"(14) The practice of nursing by a registered nurse engaged in the practice of nursing and the performance of acts otherwise constituting medical practice by a registered nurse when performed in accordance with rules and regulations developed by a joint subcommittee of the Board of Medical Examiners and the Board of Nursing and adopted by both boards."

Rules and regulations have been adopted by the Board of Medical Examiners providing for the performance by physician’s assistants of tasks traditionally performed by the physician himself. Also, that Board and the North Carolina Board of Nursing have jointly promulgated rules and regulations governing the performance of medical tasks or combinations of tasks at the direction of or under the supervision of licensed physicians. For both categories, provisions are made for determination by the Board of Medical Examiners as to the specific functions authorized for each individual person, the nature of supervision required, etc. Significantly, as to each category, the applicable rule requires the submission of the application for designation by the physician with whom the individual will work and who will assume responsibility for the individual’s performance.

The 1977 General Assembly ratified Chapter 582, entitled "An Act to Authorize Health Services for Minors." As a result, thereof, G.S. 90-21.5 now provides that any minor can give effective consent to a physician licensed to practice medicine in North Carolina for certain medical services, including services for the prevention, diagnosis and treatment of pregnancy (exclusive of abortion or sterilization procedures). Further, G.S. 90-21.4 now relieves such a physician from civil or criminal liability for not having obtained permission from the minor’s parent, legal guardian or person standing in loco parentis for these services. Under this statute, however, the physician is not released from liability for "negligence in the diagnosis and treatment of such a minor." In a recent opinion, the Attorney General has held that these last described statutes authorize a physician to render family planning services to a minor without parental consent. See Opinion of the Attorney General to Margie Rose, dated 31 August 1977, ___ N.C.A.G.___ .

It has long been the general rule in North Carolina that ". . . the nurse who folows the orders of the physician or surgeon in charge is not ordinarily liable if injury results form the treatment as prescribed." Jackson v. Joyner, 236 N.C. 259, 262 (1952). Further, ". . . if the acts and omissions complained of be negligent, they then are referable and imputable to the true author thereof, the physician who directed or suffered the negligent conduct through the instrumentality of an agent under his control, and that therefore the physician alone is responsible and liable therefor." Id., at page 262. Exceptions to these rules appertain in situations where the physician does not employ or select his assistants or attendants or where the treatment is obviously negligent, dangerous or contrary to accepted medical practices. See Davis v. Wilson, 265 N.C. 139 (1965); Byrd v. Hospital, 202 N.C. 337 (1932); 44 N.C.A.G. 299 (1975). Of course, the foundation for these rules is the doctrine of respondeat superior.

It would seem that what is contemplated by the physicians assistant and the nurse practitioner statutes and programs is a lesser degree of supervision by physicians over selected, qualified individuals than that which had previously existed over nurses and other assistants. However, there appears to be no reason why the established legal principles should not prevail. As a result, carrying these principles further in a logical fashion so as to deal with the presently authorized methods of operation, it would seem that the immunity statutorily granted to physicians by the new legislation should also apply to physicians assistants and nurse practitioners.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General