June 25, 1980
Subject:
Physicians; Determination of Death; The Practice of Medicine.
Requested By:
Page Hudson, M.D. Chief Medical Examiner Medical Examiner Section Division of Health Services
Question:
Is the determination of death regarded as "practicing medicine or surgery" as defined in G.S. 90-18?
Conclusion:
Yes.
- G.S.
- 90-18 states in part that "(a)ny person shall be regarded as practicing medicine or surgery within the meaning of this Article who shall diagnose or attempt to diagnose, treat or attempt to treat, operate or attempt to operate on, or prescribe for or administer to, or profess to treat any human ailment, physical or mental, or any physical injury to or deformity of another person." The broad scope of this definition is limited by fourteen exceptions set forth in the statute. For instance, physician assistants and nurse practitioners may perform medical acts when so authorized. See G.S. 90-18.1 and 90-18.2. Determination of whether a person requires treatment and the nature of the treatment is diagnosis of a human ailment and therefore constitutes the practice of medicine. Determination of whether a person is living or dead is a component of diagnosis of a human ailment.
- G.S.
- 90-323, enacted in 1979 as part of the revision of Article 23 of Chapter 90 relating to the right to natural death and brain death, clearly addresses this issue. It states in part that "(the) determination that a person is dead shall be made by a physician license to practice medicine applying ordinary and accepted standards of medical practice."
The section further states that brain death may be used as a basis for determination of death. The reference to brain death in the section does not limit the requirement of determination of death by a physician to only occasions where brain death is employed as the determination criterion. Such a construction would be inconsistent with the plain words of the statute and the definition of the practice of medicine or surgery in G.S. 90-18.
Our opinion that determination of death is required to be made by a physician does not necessitate that a physician must be summoned to "pronounce" an obviously deceased body dead as, for example, in the case of the finding of a partially decomposed body in the woods. The law only requires that a death certificate shall be filed for each death which occurs in the State. The medical certificate portion of the certificate must be completed by the attending physician, a hospital physician or the physician who performed an autopsy. G.S. 130-46 only requires that a physician certify the cause of death. It also does not require that a physician must pronounce every individual dead. Finally, G.S. 130-198, which requires medical examiners to be notified of certain deaths, does not mandate that a medical examiner pronounce any person dead. The duties of a medical examiner are to investigate, file a report, complete the death certificate, and, if appropriate, order an autopsy.
Therefore, it is the opinion of this Office that determination or pronounce of death is an integral part of the practice of medicine because it dictates whether life-saving measures will be discontinued or not initiated at all. However, it is necessary only when there is a question of whether an individual is alive or dead.
Rufus L. Edmisten Attorney General
Robert R. Reilly Assistant Attorney General