State, Dept. of Health and Rehabilitative Services v. McTigue, s. PP-195
| Decision Date | 14 August 1980 |
| Docket Number | Nos. PP-195,PP-226,s. PP-195 |
| Citation | 387 So.2d 454 |
| Parties | STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant/Cross-Appellee, v. Joan McTIGUE, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
George L. Waas, Tallahassee, for appellant/cross-appellee.
Catherine B. Tackney and John T. Chandler, Fort Pierce, for appellee/cross-appellant.
This is an appeal and a cross-appeal from a final order entered by a hearing officer, Division of Administrative Services, holding that Rule 10D-36.21(2), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and that Rule 10D-36.22(a)(1)2 constitutes a valid exercise of delegated legislative authority. We affirm the hearing officer's invalidation of Rule 10D-36.21(2), requiring a lay midwife license applicant to furnish a written statement from a licensed Florida physician, as an unlawful exercise of delegated legislative authority. However, we disagree with and reverse the determination that Rule 10D-36.22(a)(1)2, requiring the applicant to furnish the name of patients whose deliveries have been previously attended, constitutes a valid exercise of delegated legislative authority.
An applicant for a license to practice midwifery must possess qualifications, under Section 485.031(4)(b), Florida Statutes (1977), including the requirement that the applicant
(b) Have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during lying-in period of at least 10 days each; and shall possess a written statement from said physician that she has attended such cases in said 15 cases, with the date engaged and address of each; and that she is reasonably skilled and competent and establish the fact that she is reasonably skilled and competent to the satisfaction of the Department . . . .
To implement the above statute, the Department enacted Rule 10D-36.21(2) by defining "physician" as "a person who shall have been duly licensed in Florida to practice medicine or osteopathy." Appellee McTigue, who attended a two-year training program for physician's assistant in the State University of New York in Stoneybrook, was unable to furnish a written statement from a physician duly licensed in Florida, because all of her training and experience occurred in New York under the supervision of a New York physician. In support of her application she furnished a statement by Dr. Reagan, licensed as a physician in New York, but not in Florida, certifying her compliance with the experience requirement of the statute.
We adopt the cogent reasoning and the law as applied by the hearing officer. The word "physician", as used in the statute, has a plain and ordinary meaning usually denoting a practitioner of medicine, a person duly authorized or licensed to treat diseases (Black's Law Dictionary, Third Edition); a person skilled in the art of healing; specifically, a doctor of medicine (Webster's Seventh New Collegiate Dictionary). Applying the rule of statutory construction that words are to be given their plain and ordinary meaning, it is obvious that a "physician", unless the wording of the statute or the context requires otherwise, could be a physician duly licensed under the laws of any state, not just Florida. By adding the requirement that the physician be a Florida physician the rule is an invalid exercise of delegated legislative authority because it modifies the statute by adding an additional criterion to be met by the applicant. State, Department of Transportation v. Pan American Construction Company, 338 So.2d 1291 (Fla. 1st DCA 1976). We find no indication from the statute that the supervising physician furnishing the written statement must be licensed in Florida. This requirement could easily have been imposed by simply adding the word "Florida" had the legislature so intended. We reject the Department's contention that reference must be made to Chapter 458, Medical...
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