Frank v. South

• Decision Date: 04 May 1917
• Citation: 194 S.W. 375,175 Ky. 416
• Parties: FRANK ET AL. v. SOUTH ET AL., STATE BOARD OF HEALTH.
• Court: Kentucky Court of Appeals

194 S.W. 375

175 Ky. 416

FRANK ET AL. v. SOUTH ET AL., STATE BOARD OF HEALTH.

Court of Appeals of Kentucky.

May 4, 1917

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by John G. South and others, members of the State Board of Health, against Louis Frank and another. Judgment for plaintiffs, and defendants appeal. Reversed, and remanded for proceedings consistent with the opinion.

Settle C.J., dissenting.

A. J Carroll, of Louisville, for appellants.

M. M Logan, Atty. Gen., and Stanley E. Sloss and Kohn, Bingham, Sloss & Spindle, all of Louisville, for appellees.

HURT J.

The appellees are the members of the state board of health. The facts agreed upon and upon which the action is based will definitely describe the personnel of the appellants and their interest in the controversy, as well as the question to be determined. The action is an agreed one. The statement of facts agreed upon is substantially as follows: Appellant Louis Frank is a duly licensed physician and surgeon and has complied with all of the requirements of the law which regulates the practice of medicine in this state. However, he limits his practice to surgery. The appellant Margaret Hatfield is a duly licensed and trained nurse and has complied with all the requirements of the statutes relating to graduate or trained nurses, has had more than six years' experience as such, and has made a special study of administering anesthetics to patients submitting to surgical operations, and has taken a special course of instruction upon that subject, and has administered anesthetics to more than 1,200 patients who have undergone surgical operations, but she has never taken an examination for the purpose or obtained a certificate from the state board of health which would authorize her to administer anesthetics or to engage in the practice of medicine, and does not have any license which authorized her to practice medicine in any of its branches, either in this state or elsewhere. She is employed by her coappellant, Frank, to administer anesthetics to patients upon whom he performs surgical operations. He directs the kind of anesthetic to be administered, and the administration in each case is made by her under his personal directions and supervision, in so far as it is possible for him to supervise and direct her work. She does not administer anesthetics under any other circumstances, nor as an employé of any other physician or surgeon, and is compensated for her services by Dr. Frank. She has not opened an office nor announced to the public in any way a readiness to treat the sick or afflicted, nor has she ever prescribed for any one or treated any human ailment of infirmity by any method unless the administration of anesthetics to patients under circumstances stated is a treatment of a human ailment. Some of the medical associations and organizations of physicians and surgeons in the United States approve the employment of graduate or trained nurses to administer anesthetics to patients upon whom surgical operations are performed, and many surgeons in the United States employ such nurses for that purpose. The usual practice in this state in cases where graduate or trained nurses are in attendance has been for such nurses to administer hypodermics or morphia, atropia, ergot, and other drugs, when same were directed to be given by the physician in charge, in definite doses and at definite intervals, and frequently such is done by the nurses in the absence of the physician, but in accordance with his directions. The administration of anesthetics in surgical cases in this state has been usually performed by physicians. The usual practice in this state and elsewhere in surgical operations, where a graduate or trained nurse is in attendance, is for such nurse to prepare the patient for operation and to sterilize the instruments and dressing used in the operation and to administer medicine and drugs prescribed by the physician to the patient. In addition to the truth of the foregoing facts to which each party agreed, it was agreed that each party might show by affidavits the usual custom as to the administration of anesthetics by trained nurses in the country at large and the practice in this state as to persons who are not licensed physicians administering anesthetics. There was evidence to the effect that at several hospitals in this state it had formerly been the practice for persons other than licensed physicians to administer anesthetics to patients undergoing surgical operations, and that at one hospital it is the practice for trained nurses to do such work, but the practice of permitting any one except a licensed physician to administer anesthetics to patients undergoing surgical operations has been discontinued in all such hospitals, except one. It was also shown that until recent years at the city hospital in a large city in the state the practice had been for the students at a medical college to perform such duties, but that same has been discontinued at that hospital, and that now such work is done by licensed physicians. It was further shown that until in recent years the administration of anesthetics had been done to a considerable extent by unlicensed medical students, but at the present time licensed physicians were employed for the service in this state as an ordinary rule. It was, however, shown that in the country at large, while the most usual practice was to employ licensed physicians for such services, at many of the large and most noted hospitals trained nurses were employed for the service by many of the most learned and most skillful surgeons--notably at the Mayo clinic, where 100,000 surgical operations have been performed, at which the anesthetics were invariably administered by trained nurses. The record fails to show that in the examination of physicians for certificates by the state board of health that any examination is made specially touching their qualifications as anesthetists and that in the examination before the board for the examination of trained nurses no special examination is made touching upon that subject.

The appellees insist that upon the facts agreed upon and the proof on file that the appellant Margaret Hatfield is practicing medicine within the meaning of the law in this state, while the contrary is the contention of the appellants. The court below held to the view of the appellees, and hence this appeal.

The authority of the Legislature to regulate the practice of medicine as a profession requiring special training for the proper performance of its duties and to require persons before engaging in such services to undergo an examination by an authorized board and to obtain a certificate or license, as the authority to engage in the practice, and to place a penalty upon such as undertake such practice without a license or certificate, is unquestioned. Driscoll v. Com., 93 Ky. 393, 20 S.W. 431, 703, 14 Ky. Law Rep. 376; Webster v. State Board of Health, 130 Ky. 191, 113 S.W. 415; Hargan v. Purdy, 93 Ky. 424, 20 S.W. 432, 14 Ky. Law Rep. 383.

The evidence discloses a variety of opinions as to whether women or men make the most safe and efficient anesthetists, or whether trained nurses educated for the purpose or licensed physicians are most competent for the work of administering anesthetics to patients undergoing surgical operations. Some of the opinions are to the effect that the work of an anesthetist is most responsible, and that upon his or her competency and efficiency depends in some measure the success of the operation and in a large measure the safety of the patient, while others seem to hold to the opinion that the administering of the anesthetic should be attended with little danger to the patient, if the surgeon has properly performed his studies in the examination of the patient beforehand to discover his physical condition and whether there is any reason existing why a certain anesthetic should not be administered, and to what extent and in what quantity it should be administered, and thus equip himself to be able to give the necessary directions to the anesthetist. There is not any contention that a nurse trained for the purpose is not thoroughly competent for such duties, or that appellant Hatfield is not qualified for the work, and both sides to the controversy agree that one, to administer anesthetics safely and efficiently, must have training and experience for such purpose in order to be efficient and competent for the service, and this seems to go without question, whether the anesthetist is a licensed physician or a trained nurse. Some of the opinions are to the effect that the licensed physicians, taken as an entire body, contain a very large number of members who are not qualified for such duties never having made a special study of it and being without experience. The above differences of opinion are, however, questions for discussion and investigation by the members of the medical profession, and many of these questions should doubtless be settled by legislative action. The only question which this court can determine and which it is authorized to determine is whether the work performed by appellant, Hatfield, is the practice of medicine within the meaning of the law upon the subject. If it is, then she must discontinue such practice until she shall have undergone an examination and received a certificate from the appellee, board of health, authorizing her to do so; otherwise her conduct is penalized by the laws of this state against empiricism. It will not be without profit to advert somewhat to the history of legislation in this state touching the practice of medicine and kindred subjects and the purpose of such legislation. It will be called to mind...