The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-1011
of :
: July 31, 1995
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE DANIEL E. BOATWRIGHT, MEMBER OF THE
CALIFORNIA STATE SENATE, has requested an opinion on the following question:
May a nurse-midwife perform an episiotomy pursuant to a standardized procedure?
CONCLUSION
A nurse-midwife may not perform an episiotomy pursuant to a standardized procedure.
ANALYSIS
Under provisions of the Nursing Practice Act (Bus. & Prof. Code, '' 2700-2837;
"Act")1 the Board of Registered Nursing ("Board") issues certificates to practice nurse-midwifery to
persons licensed under the Act who are specially qualified ('' 2746-2746.8). The practice of
nurse-midwifery2 is defined in section 2746.5 as follows:
1
Unidentified section references hereafter are to the Business and Professions Code.
2
This opinion concerns the practice of nurse-midwifery, as distinguished from the practice authorized under the Licensed
Midwifery Practice Act of 1993 ('' 2505-2521).
1. 94-1011
"The certificate to practice nurse-midwifery authorizes the holder, under the
supervision of a licensed physician and surgeon, to attend cases of normal childbirth
and to provide prenatal, intrapartum, and postpartum care, including family-planning
care, for the mother, and immediate care for the new-born.
"As used in this chapter, the practice of nurse-midwifery constitutes the
furthering or undertaking by any certified person, under the supervision of a licensed
physician and surgeon who has current practice or training in obstetrics, to assist a
woman in childbirth so long as progress meets criteria accepted as normal. All
complications shall be referred to a physician immediately. The practice of midwifery
does not include the assisting of childbirth by any artificial, forcible, or mechanical
means, nor the performance of any version.
"As used in this article, `supervision' shall not be construed to require the
physical presence of the supervising physician.
"A nurse-midwife is not authorized to practice medicine and surgery by the
provisions of this chapter."3
In 62 Ops.Cal.Atty.Gen. 225 (1979), we concluded that section 2746.5 did not
authorize a nurse-midwife to perform episiotomies (a small surgical incision of the perineum to allow a
greater opening through which the baby emerges) under the direction of a physician. Whether a
nurse-midwife may do so pursuant to a standardized procedure was expressly left undetermined. (Id.,
at pp. 228-229 ["Whether certified nurse-midwives . . . may perform episiotomies . . . under
standardized procedures within the meaning of sections 2725 and 2726 involves separate issues that are
not addressed in this opinion"].) We now address that question.
Section 2725 describes "standardized procedures" as follows:
"In amending this section at the 1973-74 session, the Legislature recognizes
that nursing is a dynamic field, the practice of which is continually evolving to include
more sophisticated patient care activities. It is the intent of the Legislature in
amending this section at the 1973-74 session to provide clear legal authority for
functions and procedures which have common acceptance and usage. It is the
legislative intent also to recognize the existence of overlapping functions between
physicians and registered nurses and to permit additional sharing of functions within
organized health care systems which provide for collaboration between physicians and
registered nurses. Such organized health care systems include, but are not limited to,
3
The provision of "prenatal, intrapartum, and postpartum care" at childbirth constitutes the practice of medicine.
(Northrup v. Superior Court (1987) 192 Cal.App.3d 276, 280.) Thus the last sentence of section 2746.5 must be construed
to prohibit the practice of medicine other than as permitted in the statute itself or by some other provision of law. (See Magit
v. Board of Medical Examiners (1961) 57 Cal.2d 74, 83; 67 Ops.Cal.Atty.Gen. 122, 126-127 (1984).)
2. 94-1011
health facilities licensed pursuant to Chapter 2 (commencing with Section 1250) of
Division 2 of the Health and Safety Code, clinics, home health agencies, physicians'
offices, and public or community health services.
"The practice of nursing within the meaning of this chapter means those
functions, including basic health care, which help people cope with difficulties in daily
living which are associated with their actual or potential health or illness problems or
the treatment thereof which require a substantial amount of scientific knowledge or
technical skill, and includes all of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) Observation of signs and symptoms of illness, reactions to treatment,
general behavior, or general physical condition, and (1) determination of whether such
signs, symptoms, reactions, behavior, or general appearance exhibit abnormal
characteristics; and (2) implementation, based on observed abnormalities, of
appropriate reporting, or referral, or standardized procedures, or changes in treatment
regimen in accordance with standardized procedures, or the initiation of emergency
procedures.
"`Standardized procedures,' as used in this section, means either of the
following:
"(1) Policies and protocols developed by a health facility licensed pursuant to
Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety
Code through collaboration among administrators and health professionals including
physicians and nurses;
"(2) Policies and protocols developed through collaboration among
administrators and health professionals, including physicians and nurses, by an
organized health care system which is not a health facility licensed pursuant to Chapter
2 (commencing with Section 1250) of Division 2 of the Health and Safety Code. Such
policies and protocols shall be subject to any guidelines for standardized procedures
which the Division of Allied Health Professions of the Medical Board of California and
the Board of Registered Nursing may jointly promulgate; and if promulgated shall be
administered by the Board of Registered Nursing.
"Nothing in this section shall be construed to require approval of standardized
procedures by the Division of Allied Health Professions of the Medical Board of
California or the Board or Registered Nursing."4
4
Section 2726, also referenced in our 1979 opinion, states: "Except as otherwise provided herein, this chapter confers no
authority to practice medicine or surgery."
3. 94-1011
An applicant for a certificate to practice nurse-midwifery must, as noted at the outset,
initially be licensed by the Board as a registered nurse in addition to complying with all the provisions,
including educational prerequisites, established by the Board for certification as a nurse-midwife. (''
2746, 2746.1, 2746.2.) Accordingly, the provisions of section 2725, subdivision (d), pertaining to
standardized procedures, are fully applicable to certified nurse-midwives. (See, e.g., ' 2746.51
[furnishing of drugs or devices under standardized procedure]; see also Cal. Code Regs., tit. 16, '
1463.)5
As authorized by section 2725, subdivision (d)(2), the Board, in conjunction with the
Medical Board of California, has promulgated guidelines (Regs. 1470-1474) for the adoption of
standardized procedures in clinics, home health agencies, physicians' offices, and public or community
health services.6 Regulation 1474, subdivision (b), provides:
"Each standardized procedure shall:
"(1) Be in writing, dated and signed by the organized health care system
personnel authorized to approve it.
"(2) Specify which standardized procedure functions registered nurses may
perform and under what circumstances.
"(3) State any specific requirements which are to be followed by registered
nurses in performing particular standardized procedure functions.
"(4) Specify any experience, training, and/or education requirements for
performance of standardized procedure functions.
"(5) Establish a method for initial and continuing evaluation of the competence
of those registered nurses authorized to perform standardized procedure functions.
"(6) Provide for a method of maintaining a written record of those persons
authorized to perform standardized procedure functions.
"(7) Specify the scope of supervision required for performance of standardized
procedure functions. . . .
5
Unidentified regulation references hereafter are to title 16 of the California Code of Regulations.
6
These are "organized health care systems" that are not health facilities licensed under Health and Safety Code section
1253. We are informed that 98 percent of the births attended by nurse-midwives during 1993 took place in licensed health
facilities, such as hospitals, which would not be subject to the Board's guidelines. Nevertheless, we view the guidelines as
helpful in determining the scope of the policies and protocols in question.
4. 94-1011
"(8) Set forth any specialized circumstances under which the registered nurse is
to immediately communicate with a patient's physician concerning the patient's
condition.
"(9) State the limitations on settings, if any, in which standardized procedure
functions may be performed.
"(10) Specify patient record keeping requirements.
"(11) Provide for a method of periodic review of the standardized procedures."
Regulation 1472 provides that a registered nurse may perform standardized procedure functions only
under the conditions specified in a health care system's standardized procedures, and must provide the
system with satisfactory evidence that the nurse meets its experience, training, and/or education
requirements to perform such functions.
In our 1979 opinion, we concluded that a nurse-midwife could not perform an
episiotomy because it "requires the severance of tissue and is therefore a surgical procedure" involving
"the use of scissors or scalpel . . . an artificial and mechanical means of assisting childbirth within the
meaning of section 2746.5." (62 Ops.Cal.Atty.Gen., supra, 228.) Section 2746.5 expressly states:
"The practice of midwifery does not include the assisting of childbirth by any artificial, forcible, or
mechanical means, nor the performance of any version." 7 May a standardized procedure adopted
under the general grant of authority of section 2725, subdivision (d), authorize a nurse-midwife to
perform what the Legislature has declared a nurse-midwife may not perform in the practice of
midwifery?
In resolving this question, we may rely upon well established rules of statutory
construction. "`The words of the statute must be construed in context, keeping in mind the statutory
purpose, and statutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible.'" (Walnut Creek Manor v. Fair Employment &
Housing Com. (1991) 54 Cal.3d 245, 268.) "A statute must be construed `in the contest of the entire
statutory system of which it is a part, in order to achieve harmony among the parts.' [Citation.]"
(People v. Woodhead (1987) 43 Cal.3d 1002, 1009.) "[W]hen a special and a general statute are in
conflict, the former controls. (Code Civ. Proc., ' 1859.) `"[T]he special act will be considered as an
exception to the general statute whether it was passed before or after such general enactment."'
[Citations.]" (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420.)
The provisions of section 2725 regarding standardized procedures must be read in light
of the express limitations of section 2746.5. The general terms of the former may not be interpreted as
granting authority to adopt policies and protocols allowing what the latter forbids. Such construction
gives meaning to each of the statutes and harmonizes the provisions of the Act as a whole.
7
"Version" is "the manual operation of turning a fetus in the uterus to aid delivery." (Webster's Third New Internat. Dict.
(1971) p. 2545.)
5. 94-1011
We recognize that since our 1979 opinion, the Board has administratively construed
section 2746.5 as including the performance of episiotomies within practice of nurse-midwifery. In
1988 it determined that an episiotomy was part of a "normal childbirth" and "progress [meeting] criteria
accepted as normal" rather than involving "complications" and did not constitute "the assisting of
childbirth by any artificial, forcible, or mechanical means."8 Moreover, episiotomies are part of the
nurse-midwifery curriculum. (Reg. 1462, subd. (b)(4)(B).)9 As a consequence, episiotomies are now
commonly performed by nurse-midwives, both in California as well as nationally.
Nevertheless, we find no basis for concluding that the use of scissors or a scalpel to
make a surgical incision is anything other than "the assisting of childbirth by any artificial, forcible, or
mechanical means." We believe that the Legislature has used clear and unambiguous terms in section
2746.5 with respect to whether a nurse-midwife may perform surgery. If episiotomies are to be
performed by nurse-midwives, the language of section 2746.5 requires amendment; neither this office
nor the Board may rewrite the statute. (See Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d
1082, 1097 ["`. . . courts are no more at liberty to add provisions to what is therein declared in definite
language than they are to disregard any of its express provisions'"].)
In answer to the question presented, therefore, we conclude that a nurse-midwife may
not perform an episiotomy pursuant to a standardized procedure.
*****
8
However, it is to be presumed that the Legislature was aware of our 1979 opinion and if our conclusion were contrary to
its intent, some corrective measure would have been adopted with respect to the language of section 2746.5. (See Calif. Assn.
of Psych. Providers v. Rank (1990) 51 Cal.3d 1, 17; 71 Ops.Cal.Atty.Gen. 39, 44 (1988).)
9
The Board may of course require that the curriculum for nurse-midwifery include subjects outside the scope of practice.
(Cf., Cleveland Chiropractic College v. State Bd. of Chiropractic Examiners (1970) 11 Cal.App.3d 25, 43 [". . . there is
certainly nothing in the law which prohibits . . . requiring that prospective chiropractors be instructed in areas which are
beyond the scope of the chiropractor's competence"].)
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