Sermchief v. Gonzales, No. 64692

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWELLIVER; HIGGINS, GUNN and DONNELLY, JJ., and MORGAN; RENDLEN; BLACKMAR; BILLINGS
Citation660 S.W.2d 683
PartiesChaiyarat SERMCHIEF, et al., Appellants, v. Mario GONZALES, et al., Respondents, and State of Missouri, Intervenor-Respondent.
Docket NumberNo. 64692
Decision Date22 November 1983

Page 683

660 S.W.2d 683
Chaiyarat SERMCHIEF, et al., Appellants,
v.
Mario GONZALES, et al., Respondents,
and
State of Missouri, Intervenor-Respondent.
No. 64692.
Supreme Court of Missouri,
En Banc.
Nov. 22, 1983.

Frank Susman, Roselee Adlin, Stephen G. Hamilton, Susan Schermer, St. Louis, for appellants.

Michael Wolff, St. Louis, Richard S. Brownlee, III, Jefferson City, Gene P. Schultz, St. Louis, Dara Klassel, Eve W. Paul, New York City, Elizabeth D. Badger, Kansas City, John Ashcroft, Atty. Gen., Sara Rittman, Asst. Atty. Gen., Jefferson City, Patricia M. Nagel, St. Louis, Paul L. Bradshaw, Jean Paul Bradshaw, Springfield,

Page 684

David J. Kornelis, Edward W. Kriss, Kansas City, Michael R. Nack, Clayton, Robert R. Northcutt, Dept. of Social Services, Jefferson City, for amicus curiae.

David Brydon, James Swearengen, Johnny K. Richardson, Mark W. Comley, Jefferson City, for respondents.

John Ashcroft, Atty. Gen., Paul M. Spinden, Asst. Atty. Gen., Jefferson City, for intervenor-respondent.

WELLIVER, Judge.

This is a petition for a declaratory judgment and injunction brought by two nurses and five physicians 1 employed by the East Missouri Action Agency (Agency) wherein the plaintiff-appellants ask the Court to declare that the practices of the Agency nurses are authorized under the nursing law of this state, § 335.016.8, RSMo 1978 2 and that such practices do not constitute the unauthorized practice of medicine under Chapter 334 relating to the Missouri State Board of Registration For the Healing Arts (Board). The petition further requests that the Board be enjoined from taking any steps, either civil or criminal, to enforce the unauthorized practice of medicine provision of § 334.010 against these parties. The holding below was against appellants who make direct appeal to this Court alleging that the validity of the statutes is involved. Mo. Const. art. V, § 3. While the case may involve no more than application of the statutes, we retain jurisdiction because of the general interest in this matter. Mo. Const. art. V, § 4. We reverse.

I

The facts are simple and for the most part undisputed. The Agency is a federally tax exempt Missouri not-for-profit corporation that maintains offices in Cape Girardeau (main office), Flat River, Ironton, and Fredericktown. The Agency provides medical services to the general public in fields of family planning, obstetrics and gynecology. The services are provided to an area that includes the counties of Bollinger, Cape Girardeau, Perry, St. Francis, Ste. Genevieve, Madison, Iron and Washington. Some thirty-five hundred persons utilized these services during the year prior to trial. The Agency is funded from federal grants, Medicaid reimbursements and patient fees. The programs are directed toward the lower income segment of the population. Similar programs exist both statewide and nationwide.

Appellant nurses Solari and Burgess are duly licensed professional nurses in Missouri pursuant to the provisions of Chapter 335 and are employed by the Agency. Both nurses have had post-graduate special training in the field of obstetrics and gynecology. Appellant physicians are also employees of the Agency and duly licensed to practice medicine (the healing arts) pursuant to Chapter 334. Respondents are the members and the executive secretary of the Missouri State Board of Registration for the Healing Arts (Board) and as such are charged with the enforcement, implementation, and administration of Chapter 334.

The services routinely provided by the nurses and complained of by the Board included, among others, the taking of history; breast and pelvic examinations; laboratory testing of Papanicolaou (PAP) smears, gonorrhea cultures, and blood serology; the providing of and giving of information about oral contraceptives, condoms, and intrauterine devices (IUD); the dispensing of certain designated medications; and counseling services and community education. If the nurses determined the possibility of a condition designated in the standing orders or protocols that would contraindicate the use of contraceptives until further examination and evaluation, they would refer the patients to one of the Agency physicians. No act by either nurse is alleged to have caused injury or damage to any person. All acts by the nurses were done pursuant to

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written standing orders and protocols signed by appellant physicians. The standing orders and protocols were directed to specifically named nurses and were not identical for all nurses.

The Board threatened to order the appellant nurses and physicians to show cause why the nurses should not be found guilty of the unauthorized practice of medicine and the physicians guilty of aiding and abetting such unauthorized practice. Appellants sought Court relief in this proceeding.

The trial can be capsulized by saying that the foregoing facts were either stipulated or agreed to by all parties. The appellants, in addition to the two nurses and the director of the Agency, called four witnesses who were permitted to express their opinion that the nurses' described acts were within § 335.016.8. The four witnesses called by appellants were, Phyllis Drennan, Dean of Nursing, University of Missouri-Columbia; Sallye Brown, Director of the Nurses Association of the American College of Obstetricians and Gynecologists; Sister Jeanne Meurer, Director of St. Louis University Graduate Program in Nurse Midwifery and Director of Nurse Midwifery, Department of Health and Hospitals, St. Louis; and Dr. Lawrence Kahn, Director of Nurse Practitioner Program, Washington University, St. Louis. Respondents called Dr. Hubert Ritter, Chairman of the obstetrics-gynecology (OBGYN) unit of St. Louis University; Dr. Raymond Ritter, a Cape Girardeau physician, practicing general and traumatic surgery and a former member of the Board of Healing Arts; and Dr. Kathleen LeVeck, a former nurse and 1980 graduate of St. Louis University Medical School, now in residency in OBGYN at St. Louis University Hospitals, all of whom expressed the view that the acts of the nurses were outside the contemplation of § 335.016.8 and constituted the practice of medicine prohibited by § 334.010. Virtually all of the admitted testimony of these seven witnesses consisted of their opinion of what the trial court described in its memorandum opinion as the ultimate issues for determination:

A. Does the conduct of plaintiff nurses Solari and Burgess constitute "Professional Nursing" as that term is defined in § 335.016.8, RSMo?

B. If the Court finds and concludes that any act or acts of plaintiff nurses Solari and Burgess does not or do not constitute(s) "professional nursing" and, constitutes the unauthorized practice of medicine under § 334.010, RSMo the Court must then determine if § 334.010, RSMo is unconstitutionally vague and uncertain on its face and, thus, is in violation of the specificity requirements of the Fifth and Fourteenth Amendments to the United States Constitution and of Article 1, § 10 of the Missouri Constitution.

All of appellants offers to prove the general practices of nursing, national or other recognized guidelines and standards for nursing, or the legislative intent with reference to the 1975 revision of the Nursing Practice Act, Chapter 335, were overruled by the trial court.

In our opinion the trial court correctly defined the issues of the case, both of which we deem to be matters of law to be determined by the Court. The trial court then made extensive findings of fact, the first nine denominated as stipulated and undisputed facts and the last nine denominated as controverted facts. The last nine findings are:

10. Pursuant to the standing orders and protocols (Joint Exhibits 3, 4 and 5), plaintiffs Burgess and Solari provided oral contraceptives, IUD's and vaginal medications to their patients.

11. Providing oral contraceptives, IUD's and vaginal medications is the administration of medications and treatments.

12. Plaintiffs Burgess and Solari administered these medications and treatments which were not prescribed by a person licensed in this state to prescribe such medications and treatments.

13. Plaintiffs Burgess and Solari performed pelvic examinations and based upon their findings, attempted to diagnose

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the existence or nonexistence of contraindications to the use of oral contraceptives, IUD's and vaginal medications, set out in their standing orders and protocols (Joint Exhibits 3, 4 and 5).

14. Graduation from a school of medicine or a school of osteopathy is a prerequisite for one to be capable of interpreting the results of a pelvic examination.

15. The State Board of Nursing regulations do not require professional nursing programs to include courses in pathology or physical diagnosis.

16. The acts of plaintiffs Burgess and Solari in utilizing the findings derived from pelvic examinations which they performed to attempt to diagnose the existence or nonexistence of contraindications to the use of oral contraceptives, IUD's and vaginal medications, require an individual to draw upon education, judgment and skill based upon knowledge and application of principles in addition to and beyond biological, physical, social and nursing sciences.

17. The acts of plaintiffs Burgess and Solari in administering oral contraceptives, IUD's and vaginal medications, without the same being prescribed by a person licensed in this state to prescribe such medications and treatments, require an individual to draw upon education, judgment and skill based upon knowledge and application of principles in addition to and beyond biological, physical, social and nursing sciences.

18. The conduct of plaintiffs Burgess and Solari in utilizing the findings derived from pelvic examinations which they performed to attempt to diagnose the existence or nonexistence of contraindications to the use of oral contraceptives, IUD's and vaginal medications, as...

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51 practice notes
  • Link, In re, No. 67529
    • United States
    • United States State Supreme Court of Missouri
    • July 15, 1986
    ...of the problems sought to be remedied and the circumstances and conditions existing at the time of enactment. Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983). It is presumed that the legislature was aware of the interpretation placed upon existing statutes by the courts, and that in a......
  • State ex rel. Chandra v. Sprinkle, No. 65400
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1984
    ...of the Court" or "friends of one party" having a special axe of their own to grind. In Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983), I noted that the case attracted amici briefs resembling a "letter writing campaign directed at a legislative body" and calle......
  • Bachtel v. Miller County Nursing Home Dist., No. SC 84835.
    • United States
    • United States State Supreme Court of Missouri
    • July 29, 2003
    ...the problems sought to be remedied and the circumstances and conditions existing at the time of the enactment. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo. banc A. The Omnibus Nursing Home Act Provides a Private Right of Action to Private Nursing Home Residents and Employees. This Court ......
  • Tichenor v. Missouri State Lottery Com'n, No. 69992
    • United States
    • United States State Supreme Court of Missouri
    • January 5, 1988
    ...jurisdictional inquiry because of the importance of the questions presented. Mo. Const. Art. V, Secs. 3, 4; Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983). We are greatly helped by the excellent briefing and oral argument by counsel for both sides, on an expedited schedule. We find t......
  • Request a trial to view additional results
51 cases
  • Link, In re, No. 67529
    • United States
    • United States State Supreme Court of Missouri
    • July 15, 1986
    ...of the problems sought to be remedied and the circumstances and conditions existing at the time of enactment. Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983). It is presumed that the legislature was aware of the interpretation placed upon existing statutes by the courts, and that in a......
  • State ex rel. Chandra v. Sprinkle, No. 65400
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1984
    ...of the Court" or "friends of one party" having a special axe of their own to grind. In Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983), I noted that the case attracted amici briefs resembling a "letter writing campaign directed at a legislative body" and calle......
  • Bachtel v. Miller County Nursing Home Dist., No. SC 84835.
    • United States
    • United States State Supreme Court of Missouri
    • July 29, 2003
    ...the problems sought to be remedied and the circumstances and conditions existing at the time of the enactment. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo. banc A. The Omnibus Nursing Home Act Provides a Private Right of Action to Private Nursing Home Residents and Employees. This Court ......
  • Tichenor v. Missouri State Lottery Com'n, No. 69992
    • United States
    • United States State Supreme Court of Missouri
    • January 5, 1988
    ...jurisdictional inquiry because of the importance of the questions presented. Mo. Const. Art. V, Secs. 3, 4; Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983). We are greatly helped by the excellent briefing and oral argument by counsel for both sides, on an expedited schedule. We find t......
  • Request a trial to view additional results

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