Point by point specifics of medical practice regulatory enactments

Point by point specifics of medical practice regulatory enactments,
beginning with 1876 thru 1989:

                        *** 1876 ***

The progenitor legislation later to be known as the medical practices act is called "An Act to Regulates the Practice of Medicine", found on page 792 of 1876 legislative record. It begins with the statement "Every person practicing medicine in any of it's departments shall posses the qualifications required by this Act".

The 1876 "Act to regulate the practice of medicine" imposed certain duties and obligations upon those who "held themselves out" to practice medicine and surgery, foremost was the obligation to furnish "satisfactory proof"' of a formal education in the art and science of the medical profession and to establish both competence and good moral character to the satisfaction of the public. To carry out the intention of these regulations the Act authorized the appointment by county medical societies of a local board of medical examiners; its official function was to verify the genuineness of the diploma & other documents, to administer competency exams and to discipline medical practitioners for unprofessional or dishonorable behavior.

Certificates of medical practice were initially issued to those who already possessed a diplomas from chartered schools. Those not yet graduated from medical school in 1876 were required to pass a exam as proof of their ability to safely use these "heroic measures" such as surgery in an era that had yet to discover antibiotics, safe blood transfusions or benign anesthetics.

Named as qualifiers are the presentation of a diploma to a county board of medical examiners (SEC.2) who would, after determining its authenticity, grant a certificate that "shall be conclusive as to the rights of the lawful holder of the same to practice medicine in this State". Such diplomas had to be from "legally chartered medical institutions in good standing" (SEC.3). Further more, the examining board were required to verify genuineness of all diplomas and supporting documentation thru use of affidavit (SEC.4) and also given the authority to set fees and collect monies for administrative purposes.

Sec. 5 concerns a cut-off date for grandfathering in, after which time all new applicants will have to pass an examination. SEC 6 & 7 concern the registering of certificates with the county clerk, SEC.8 sets fees for those candidates applying for the licensing exam. SEC.9 stipulates that examinations may be either oral or written and "shall be of an elementary & practical character, but sufficiently strict to test the qualifications of the candidate as a practitioner".

SEC.10 authorizes the examining board to refuse certificate on grounds of unprofessional or dishonorable conduct and permits revoking certificates for like cause. It also establishes the right of appeal to the body appointing the board (county medical societies). SEC.11 defines a "physician" as well as the concept of the 'practice of medicine' as: "Any person shall be regarded as practicing medicine, within the meaning of this Act, who shall profess publicly to be a physician and to prescribe for the sick of who shall append to his name the letter of "M.D.". It also states that nothing shall prohibit students from prescribing under the supervision of preceptors nor to prohibit gratuitous service in case of emergency.

SEC.12 (anti-snake oil act!) stipulates that "any itinerant vender of any drug, nostrum, ointment, or appliance of any kind intended for the treatment of disease or injury or ...publicly profess to cure or treat disease, injury or deformity by any drug, nostrum, manipulation, or other expedient (to hasten) shall pay $100 a month (application fee for medical certificate was only $10!)

SEC.13 establishes that it is a crime punishable by fine and imprisonment to practice medicine or surgery without first complying with the provisions of this Act. It also makes filing false documents or forged affidavits a felony offense. The last section, number 14, sets the official effective date for the Act to regulate the practice of medicine.

In 1878, an "Act supplemental to amendatory of an Act entitled "An act to regulate the practice of medicine" was passed. It was concerned with fine-tuning the specific arrangements for the election of the county boards of medical examiners. It was the first on many 'housekeeping' amendments and does not change the premises as stated in the progenitor enactment.

*** Amendments, Revisions and New Legislation 1878-1917 ***

Over the next 41 years five amendments, revisions and new additions became law. The official and ever lengthening titles of each new piece of legislation helps to tell the tale. The original act was called "An Act to regulate the practice of medicine in the State of California", followed by "An Act supplemental & amendatory of an Act entitled 'An Act to regulate the practice of medicine'" passed in 1878. In 1901, a new act was passed entitled "An Act to regulate the practice of medicine & surgery and for the appointment of a board of medical examiners in the matter of said regulation." It established the first state board as an interdisciplinary board appointed by the Governor from lists given to him by the Medical, Homeopathic & Eclectic Medical Societies. It stipulated that regular meeting would be held in San Francisco, which at the time was the location of the Stanford University School of Medicine. It is likely that was heavily influenced by professors from Stanford.

The 1901 Act set a curriculum for medical education and established a specific definition of the illegal practice (SEC. 12) as: "Any person practicing medicine or surgery .. without ..a valid, unrevoked certificate". Sec. 16 lists four definitions of illegal practice as:

1. those who profess to be, or hold themselves out as being engaged as doctors, physician, or surgeons in the treatment of disease, injury, deformity of human beings.

2. those who for pecuniary or valuable consideration shall prescribe medicine, magnetism or electricity in the treatment of disease, injury, or deformity

3. those who for pecuniary or valuable consideration, shall employ surgical, or medical means or appliances for the treatment of disease, injury, or deformity

4. those who for pecuniary or valuable consideration, shall prescribe or use any drug or medicine, appliance or medical or surgical treatment or perform any operation for the relief or cure of any bodily injury or disease

Sec. 17 repeals acts or parts of acts in conflict with the 1901 enactment.

The 1907 act was entitled "An Act for the regulation of the practice of medicine and surgery, osteopathy and other systems or mode of treating the sick or afflicted in the state of California. and for the appointment of a board of medical examiners in the matters of said regulation"(!). It provided that the board of examiners would consist of 11 members, 5 medical, 2 homeopath, 2 eclectic, & 2 osteopaths. It authorized 3 certificates to be issued: 1) medicine & surgery, 2) osteopathy, and 3) "other system or modes of treating the sick or afflicted not referred to in this section", however, it does not yet define the extent and character of each of these categories. The bulk of the Act relates to the administration of the examining board, and stipulates the frequency and place of public meeting.

The 1907 Act preserves the exemptions of emergency care and adds a similar protection for domestic remedies and adds a clause that prohibits discrimination against any "particular school" of medicine, surgery, osteopathy or any other system or mode of treating the sick or afflicted, as well as establishing that it's provisions are not to be construed as to "interfere in any way with the practice of religion" nor apply to or to regulate any kind of treatment   prayer. SEC.18, repeals all acts or parts of acts in any way conflicting with the 1907 leg, SEC.19 sets the effective date of the Act.

In 1909, is "an Act to amend section 16 of an "Act to regulate ...etc-1907). Section 16 concerns practitioners originally licensed under earlier acts (permits recognition). It also adds naturopathic physicians to the list of approved "systems or modes of treatment".

1911 is amendatory of the 1907 Act; the simple 1 line title of the progenitor legislation has by now grown to 17 line, as each amendment contains the full title of its predecessors. This enactment deals primarily with "imposing certain duties and obligations upon all persons who shall practice medicine & surgery .. and providing penalties for a violation of any of the provisions.." It revises SEC.6 by adding a 'grandfather' clause for "any person who had practiced a special branch of medicine & surgery ... for a period of not less that 35 years". It also add SEC. 13a, which relates to primarily to criminal sanctions for the sale or barter or counterfeiting of medical or osteopathic degrees. It restates again the basic premise underlying such penalties as the crime of impersonating a medically educated person as a false or fraudulent representation.

1913 enactment, entitled "An act to regulate the examination of applicants for license and the practice of those licensed to treat disease, injuries, deformities or other physical or mental conditions of human beings (etc. for additional 9 lines) is primarily an substantial in-house revision.

It is also the first post-Flexner report legislation. The Carnegie Foundation Flexner Report recommended the closure of all "irregular" (as defined by them) medical schools, hitting hardest at black institutions and those who accepted women or other minorities or who taught drugless curriculums such as naturopathy and homeopathy. It meant that the Carnegie Foundation made substantial monetary grants to all the "regular" medical schools and simultaneously withdrew charitable aid to the rest, leaving them to flounder for the next few years and eventually to go bankrupt and close.

The 1913 legislation repealed the 1907 revision, the only one to be repealed in its entirety. In a radical departure from it predecessors, the 1913 enactment replaces the equalitarian & interdisciplinary state board of examiners with an MD-only political appointees of the governor. Never do we see an enactment, revision or amendatory legislation that sets to zero, including this one, but in regard to the internal workings of the board and the setting of educations standards, the form of this legislation most clearly represents that of the current codification created by the 1937 legislature. However, the intent and content of basic premise of 1876 is faithfully carried forward thru the legislative language in regard to the actual practice of medicine. Definitions of a physician and medical care survives intact.

One substantive change however is in the categories of medical practitioners. Until now there have been three certificates - MD, osteopathy and "other" systems and modes of treating the sick. The three-tired scheme is now reduced to a simple binary distinction in which one is either a 'drugs & surgery' practitioner OR a "drugless practitioner" - now encompassing naturopaths, homeopaths and various eclectic schools of the healing arts.

It establishes 4800 hours of formal medical school education as the minimum requirement for a "medical", ie. drug practitioner, and 2400 for a "drugless practitioner" and mandatory state administered exam, in addition to a diploma, to qualify for licensure. It stipulates that all certificates must state the extent and character of practice which is permitted under there entitlement and creates a "reciprocity certificate" for those licensed to practice in other state or territories.

*** The infamous "Other mental or physical condition" phrase ***

The phrase "or other mental or physical condition" does not come from the progenitor legislation authorizing the regulation of medical practice. Instead, it appears for the first time in the title of this 1913 housekeeping bill. Neither the concept nor the specific language was a part of the original definitions of a 'physician' or of 'medical practice'. When it does appear in the 1913 "Act to Regulate the Examination of Applicants" it is not intended to broaden the provisions for criminal prosecution under #13 (the "illegal practice of medicine" section). Rather it was a necessary bit of fine-tuning that permits the use of medical methods & surgical techniques in circumstances other than sickness & affliction. It settled questions such as do regulations concerning the "systems or modes of treating the sick, injured or afflicted" prevent medical care providers from interacting professionally with the 'not-sick'?

It address that question by specifying, thru the incision of "other mental and physical conditions" that medical licensure extends to include circumstances in which illness is not currently present such as public health occupations, scientifically conducted experiment on healthy people, screening tests, cosmetic surgery, prescribed medicine (Rx lower cholesterol level) and other possibilities. In that context, it permit physicians to render maternity care but it does not specify by this passive permission that such a loosely configured category, an 'etcetera' to the aforementioned provision, was to fundamentally change the whole flavor of medical regulation in which all mental and physical conditions are not to become the exclusive proprietary domain of medical doctors any more that permitting physicians and psychologist to address circumstances of sexual dysfunction would mandate that all sexual acts are henceforth permitted only under the supervision of medical care providers.

This title phrase also appears in its revision of the 'illegal practice of medicine'. However, to better determine legislative intent, we must first examine it's immediate predecessor, section 13a of the 1911 revision. What we see is a list of 11 different "offenses", all faithful to their predecessor legislation. It is the now familiar litany against flagrantly illegal actions such as fraud, impersonation, forging of documents, unauthorized use of the title doctor or suffix of MD, the selling of medical school diplomas and similar criminal acts which are the equivalent of a negative definitions of 'character and extent of practice'. There is nothing new here.

This list of violations matches the legislative imperative to protect the public, preserve physician privilege and fetter out scoundrels wherever they may be - it does not create a new order of magnitude of medical regulation in which non-drug, non-surgical health care, which by definition is NOT a system or mode of treating the sick, NOT a category of drug use and surgery, becomes directly subsumed under medical supervision.

In 1913 the same 11 categories of offence are divided into two contiguous sections, the language is simplified somewhat but it is the same meat on the same bones, notable only for the slight clarification which permits medical treatments that are not directly 'pathological' but none-the-less a bonafide function of medical practice, which would permit such now common place medical activities as screening tests, cosmetic surgery, preventative medicine and scientifically conducted experiments on human beings and 'other mental & physicals conditions'.

This initially innocuous phrase is the grandchild of the concept which defines medical and surgical practice to be the exclusive domain of the medically-educated. Systems and modes of treating the sick and afflicted gives rise to the regulation of themselves, and regulation gives rise to the necessity for stipulations and stipulations give rise to the need for clarification. "Other mental & physical conditions" is a clarifying statement, not a statement meant by the framers of the 1913 legislation to expanded the medical scope of practice to include all mental and physical conditions of human life.

Over the decade this passage has leaked into a broader & broader interpretations and eventually becomes detached from original it's mooring in the housekeeping measure meant to address the circumstances of medical licensure. None longer faithful to its antecedents, it is currently used as a license to prosecute anyone for anything that in any remote or fanciful way can be construed by the medical community as to "a mental or physical condition" over which it wishes to maintain exclusive control.

1915 - minor adjustment only although it repeats almost in toto the 1913 enactment.

     *** 1917 -- Progenitor Midwifery Legislation ***

The specific legislation that added midwifery certificates to those already authorized was an amendment of the 1913 "Act to regulate examinations of applicants for license, and the practice of those licensed, to treat diseases, injuries, deformities, or other physical or mental conditions of human beings". It states that a new section #24* relating to midwifery is added providing the method of citing said act and providing penalties for the violation thereof. The content of the legislations matches the tone of the title which says nothing directly about the practice of midwifery except that "method of citing said act and providing penalties for the violation". This legislative jurisdiction is not in any way the equivalent of a Midwifery Practice Act!

(*#24 is an error in legislative record, is actually #12 1/2)

The question of extent and character of practice permitted for midwifery are sparse to the vanishing point. It states that such certificates shall entitle the holder to attend cases of childbirth. It defines the practice of midwifery with equal sparseness as "the furthering or undertaking by any person to assist a woman in normal childbirth." Thus ends the 13 word description of "extent & character", to be followed by a 60 word proscription of what a midwife shall not be permitted to do.

Midwifery specifics continues under Section 9 pertaining to educational requirement which state that an applicant for midwifery certificate must complete course of instruction in anatomy, physiology, obstetrics, hygiene and sanitation. Three methods to achieve this educational goal are provided for: 1. a one-year 'resident' course in a hospital, 2. a 3 month course of instruction from a 'reputable' hospital or 3. a course of unstated length from any school of medicine in the enumerated topics. Section 9 also sets preliminary educational qualifications to be 1 year of high school work prior to October 1918, after which a diploma from a 4 year high school or its equivalent will be required.

Section 10 stipulates the number of hours of instruction required for each category of applicant; 4000 hours for physician, 2000 hours for drugless practitioners, 664 for "chiropody" (podiatry) & 415 for midwives, given as 75 hours in both anatomy & physiology. 100 hours in hygiene & sanitation and 165 hours in obstetrics. The 165 hours of 'obstetrics', equivalent of OB-101, are the same for physician, drugless practitioners and midwives. One may assume that this all-purpose course concerned itself primarily with mechanisms of normal childbearing, abet as stated in the scientific language of those who wrote the medical textbooks of the era. Oddly enough, this medical/midwifery stipulations required no study of the formalized discipline of midwifery as it has been taught in Europe for more than 200 years.

Section 11 decrees that each category shall pass an examination in what we would now term "core competencies"; for midwives the 3 categories stipulated are a reiteration of the earlier topics of anatomy, physiology, obstetrics, hygiene and sanitation. Further down in this section are stipulations for passing scores and for a retake topics failed. Section 11 also provides for "grandfathering" drugless practitioners (6 years practice + one years of formalized training).

Section 12 & 1/2 stipulates 'grandfathering' for chiropody/ podiatrics (1 year + proof of good moral character and competency) and 'grandmothering' for midwives (1 year + proof of competency and good moral character) and, at the description of the board, passage of an oral, practical or clinical exam. Proof of competence is defined as attendance at 25 labor and 25 mothers and newborns during the 10-day 'lying-in period'. Good moral character is defined as affidavits from 2 physicians and one layman, "preferably a clergyman, priest, rabbi or recognized minister of the gospel".

In addition to the proof of one year or more of practice and submission of character references, "satisfactory proof of competency" for midwives are specified (not so for drugless practitioners or podiatrists) as "proof of the attendance and completion of 25 cases of labor ... as evidenced by the submission of the names of the mother and a reference to the birth certificate required under law".

Section 14 concerns definitions of unprofessional or dishonorable conduct for all categories of licentiate: in 1917 it was amended by the addition of items 13 thru 18 in which 6 additional categories of "unprofessional" conduct for midwives are decreed, all authorizing suspension and/or revocation of licensure at the description of the medical board. Revocation of the certificate to practice is the equivalent of an eternal injunction, ie. once a midwife takes the oath of her office, she may never again be a "non-professional"; if found guilty of unprofessional conduct and her license is revoked, she may never again practice midwifery.

Unlike provision on unprofessional conduct concerning physicians, which are primarily character defects (such as misleading advertisements, moral turpitude, intemperance, impersonation, and "cappers" & "steerers"- ambulance chasers employed by a practitioner to procure patients), the stipulations for 'unprofessional' conduct for midwives are more in the form of a negative definition of "character & extent" of practice permitted. Here again we see the proscriptions against use of instruments &/or artificial, forcible, or mechanical means accompanied by a lists of circumstances which, by law, compel a certified midwife to call for the assistance of a physician.

Item 13 begins by the list by stating the "when it appears to the satisfaction of the board that .. due caution and circumspection were not used or that (midwife) .. did not use proper aseptic and antiseptic precautions" the certificate issued may be revoked. Earlier sections dealing with suspension & revocation of physician licensure establishes that such disciplinary acts must be accompanied due process which requires the board to serve notice of a formal hearing, and includes depositions, witnesses & rebuttal statements by the accused. It appears that certified midwives were accorded no similar protection of due process.

Item 14 permits revocation for a violation, neglect or refusal to comply with health statutes of any state, county, city, or township. Item 15 stipulates revocation for any midwife who fails to call a physician for a laboring mother with a "complicated vertex presentation" (compound presentation as when the baby's arm is extended along side the head).

Item 16 likewise permits revocation on grounds of "failure to call a physician" for any pregnancy in which the following conditions develop: contracted pelvis or other deformities interfering with labor, vaginal bleeding, swelling of face and hands, excessive vomiting, persistent vomiting, dimness of vision, convulsions, . While this section was first written in 1917, the evident conditions listed are universally agreed upon to represent serious dysfunctions and pathologies of pregnancy and rightfully belong in the providence of obstetrical management.

Item 16 continues with a similar list regarding active labor in which include again a complicated vertex presentation, excessive bleeding, prolapse of the cord, swelling or tumor that obstructs the birth, unduly prolonged labor, exhaustion & signs of collapse. Obvious pathologies of the postpartum or postnatal period are listed next, beginning with abnormal conditions of the mother defined as excessive bleeding, foul-smelling locia, persistent temperature elevation to 101 degrees for 24 hours, chills with elevated temperature, convulsions, swelling and redness of the breasts or inability to nurse the baby. Next are listed abnormal conditions of the newborn such as deformities, malformations or injuries, inability to suckle, inflammation or discharge from the navel, swelling & redness of the eye. bleeding from the mouth, navel or bowels, inability to urinate. Again, one must note that these are in fact excellent guidelines for non-medical practice, as relevant today as when written 75 years ago.

Item 17 - establishes beyond a doubt that introduction of hand for podalic version and extraction of baby by its feet and/or for the extraction of adherent placental tissues is medical/surgical practice and thus proscribed to midwives. Item 18 stipulates equipment required for correct aseptic technique, mandating that a midwife carry the listed items which include such common-place things as a nail brush, green soap, blunt scissors for cutting the cord, soft twine for tying the cord and absorbent cotton.

While the total number of positive descriptive words defining midwifery practice are limited to 13, approximately 700 are used to define & stipulate what a midwife is not permitted to do.

However, these same 713 words as found in the progenitor enactment of 1917 represent the intent and content of all subsequent midwifery legislation. The amendatory act of 1921 reiterates in an attenuated version the content of 1917. 1933 is an exact replication of 1921.

                     *** 1937 ***

1937 legislation was new not for its content but rather for its form - the medical practice act was codified into a numerical system that assigned a unique number to each substantive sentence or paragraph. In regard to the practice of midwifery, again we the same bones with the same meat on them. The content is rearranged but except for the deletion of the original provision for grandmothering midwives, it too is an exact replication. Its major unique contribution was a stream-lined version of requirements for the midwife's application for certification entitled, appropriately enough "The midwife's application" or article #9. Stipulated in article 9 are the same minimum requirements of a 4-year high school diploma or equivalency and 415 hours of medical instruction in "obstetrics", sanitation and hygiene from chartered educational institutions approved by the medical board.

Again it is interesting to note that the legislative provisions do not address the fact that midwifery is distinct in origin, in philosophy, in training and in practice from both nursing and from the practice of medicine. The bulk of the provisions regarding state-certified practice are found under section. 13 - the penalties for illegal practice and unprofessional conduct. In 1937, those stipulations are neatly arranged in outline form for better reading but they are the same.

       *** Nursing & Trained Attendant Provisions ***

The 1937 medical practice legislation also codified regulations for registered nurses and for "trained attendants". In each of these instances, a positive "extent and character" statement begins the provision.

For nurses it reads "A nurse within the meaning of this chapter is one who has had a course of instruction in an accredited school of nursing" ( section . 2720). It continues "This chapter does not affect or apply to the gratuitous nursing of the sick by fiends or members of the family OR to any person nursing the sick for hire who does not in any way assume to be or practice as a registered nurse" section.2721).

For a trained attendant ( section. 4500) it states that the State Department of Health may (a) issue certificates to applicants to care for the sick as trained attendants, (b) formulate & issue rules and regulation, (c) establish training centers, (d) prescribe the course of instruction, (e) provide for an exam before issuing a certificate.

Each of these subdivision contains a provision for "offences against the Chapter. For nurses it reads: "It is unlawful for any person, not holding a certificate of registration issued by the department to use the title 'registered nurse' or the letters RN or to impersonate in any manner or pretend to be a 'registered nurse" (Sec. 2765).

For trained attendants, offenses are stipulated as "...it is unlawful for any person to advertise as, or assume the title of trained attendant, or to use after his name the words "trained attendant" or any other words, letters or figures to indicate that the person using the same is a trained attendant or to impersonate an any manner or pretend to be a trained attendant" section. 4542.

What is conspicuously absent is reference in ANY legislation giving certified midwives these same exclusive privileges of entitlement by establishing criminal penalties for "holding one's self out to be a certified midwife", using any of the "word. letters or figures" of a certified midwife, or practicing midwifery without a "valid, unrevoked certificate".

                    *** 1949 ***

The last amendatory legislation that concerned the certificate of midwifery practice was passed twelve years and one entire world war later. In May of 1949, a revision in chapter 233 of 2135 which repealed the category known as "drugless practitioner" and stated that henceforth only 3 certificates were to be authorized to the medical board - #1. physician/ surgeon, #2 Podiatry (minor surgery of the feet) and #3. certificate to practice midwifery. This legislation was to take effect October First, 1949.

In July of 1949, the medical board submitted legislation that repealed article 9, entitled "The Midwife's Application" along with a second revision of the list of 3 certificates issued by the medical board in which, inexplicably, the category of 'drugless practitioner", which had just 60 days prior been abolished, was now added back to the list and midwifery was deleted. Thus the board of Medical Examiners voluntarily surrendered it's interest in maintaining the structures of regulation thru it's own agency, drawing to a close three decades of jurisdiction in which a corporate medical body busied itself with setting educational requirements, competency exams and medical licensure for a non-medical category of caregiver.

When the medical board abolishes a non-medical category of certification, that category goes back into a non-regulated status of neutrality. This means that a non-medical practitioner is to be judged not by 'professional' standards as formally stipulated in law but rather his or her conduct will be held to the standard of the 'reasonable man (or woman) in any judgment of conduct or misconduct.

                *** 1874, 78, 80, 89 ***

These additional statues contribute little new material. However, they continue to do two important things: 1) to acknowledge certified but non-nurse midwifery as a present tense practice, & 2) continue to carry forward Article #24, now codeified as Sec. 2505 thru 2525. Most important, they do not repeal or abolish the category of "Midwife" as they did in regard to "drugless Practitioner"

                   *** Conclusions ***

Until such a time as an agency of cal government issues a license for midwifery practice, prosecuted for failure to have a valid certificate by either Chapter five or any other chapter of the B&P Code, must itself fail as it is legally impossible to obtain what does not exist.

Until further research is done into this 32 year period of time remarkable for appears to be a good-will relationship between the board of medical examiners and non-medical midwives, one can only speculate as to the nature of the arrangement. Why was jurisdiction voluntarily assumed in 1917 and why did the Medical board has divested itself of it's jurisdiction by removing itself as a regulator of midwives in 1949?

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