AGLO 1973 No. 83 - Jul 25 1973
CHIROPRACTOR ‑- PHYSICIAN AND SURGEONS ‑- ADMINISTRATION OF BLOOD TESTS AND URINALYSIS EXAMINATIONS
It is not unlawful for a person licensed as a chiropractor to make urinalysis examainations or blood tests not involving the severing or penetrating of the tissues of a human being.
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July 25, 1973
Honorable Dan Van Dyk
7585 Noon Road
Bellingham, Washington 98225
Cite as: AGLO 1973 No. 83
By recent letter you have asked for our opinion with regard to the legality of the performance of certain activities by persons licensed as chiropractors. Specifically you have asked:
"Under the revised code of Washington, is it lawful for a chiropractor to engage in the activities of giving blood tests and making urinalysis examinations? That is, is that testing and examination within the scope of a chiropractor's legal activities?"
We respond to these questions in the manner set forth in our analysis.
The licensing of chiropractors is covered, in general, by chapter 18.25 RCW; and RCW 18.25.030 provides, in material part, that:
"Any chiropractor who has complied with the provisions of this chapter may adjust by hand any articulation of the spine, but shall not prescribe for or administer to any person any medicine or drugs now or hereafter included in materia medica, nor practice obstetrics, nor practice osteopathy or surgery."
From this statute it will readily be seen that neither the giving of blood tests nor the making of urinalysis examinations is among the activities which a chiropractor is specifcally authorized to engage by virtue of his chiropractice license. This statement, however, does not fully answer your questions ‑ for the mere fact that a certain activity is not among those which a chiropractor is licensed by RCW 18.25.030 to perform does not necessarily mean that its performance by such a licensee is unlawful. In order for the activity to be unlawful it must either (a) fall within the scope of the [[Orig. Op. Page 2]] prohibition appearing in the final clause of this statute;1/ or (b) be an activity which may only be lawfully performed by a person holding some other license not possessed by the particular chiropractor.
In order to illustrate this analytical point, let us consider a licensed chiropractor who, for private recreational purposes, owns and operates a motorboat ‑ clearly an activity not falling within the scope of a "chiropractor's legal activities" as set forth in RCW 18.25.030. Of course the operation of such a motorboat, by a licensed chiropractor would only be illegal if it fell within the list of things which chiropractors are prohibited from doing under the above‑quoted provisions of RCW 18.25.030, or if it required some other license that the particular chiropractor did not have ‑ which, under present Washington law it does not. Conversely, since our statutes do require a license in order to operate a motor vehicle upon the highways of this state2/ a chiropractor without a valid driver's license may not drive a car ‑ but not becuase of anything contained in RCW 18.25.030, supra, or any other statute relating to chiropractors.
Let us now turn from these illustrations to those acts specifically referred to in your question; i.e., the giving of blood tests and the making of urinalysis examinations. Our examination of the Revised Code of Washington reveals no existing statutes imposing any licensing requirement as a precondition to the chemical or other examination of either blood or urine which has been withdrawn from a human being for testing purposes ‑ although the actual withdrawal of blood presents a separate question to which we will refer momentarily. Because no license is required for the performance of these activities, it therefore follows that they may lawfully be performed by any person including a person holding a chiropractor's license under chapter 18.25 RCW unless they are deemed to be among those activities specifically prohibited by the concluding clause of RCW 18.25.030.
Here repeated for ease of reference, this portion of that statute reads as follows:
"Any chiropractor who has complied with the provisions of this chapter . . . shall not prescribe for or administer to any person any medicine or drugs now or hereafter included in materia medica, nor practice obstetrics, nor practice osteopathy or surgery."
[[Orig. Op. Page 3]]
It seems obvious that neither the examination and testing of human blood nor of urine would constitute the prescription or administration of drugs or medicine; and thus the sole matter remaining to be considered is that of whether either of these activities would amount to the practice of obstetrics, osteopathy, or surgery ‑ a question which we also believe to be answerable in the negative.
Obstetrics, while not a statutorily defined term under our laws, is, of course, a well understood word referring to that branch of medical science that deals with birth and its antecedents and sequels. See, Webster's Third New International Dictionary, p. 1559. Osteopathy, which is statutorily defined in RCW 18.57.130, is not so defined as to cause any person making a blood test or urinalysis to be engaged in the practice of this profession. This leaves us, then, with the definition of the practice of medicine and surgery as contained in the following language of RCW 18.71.010:
"(1) The practice of medicine an surgery consists of the use of drugs or medicinal preparations in or upon human beings, severing or penetrating the tissues of human beings, and the use of any and all other methods in the treatment of diseases, injuries, deformities, or other physical or mental conditions, but shall not include the practice of chiropractic as defined in RCW 18.25.030." (Emphasis supplied)
Because of the last chance of this statute, it will readily be seen that if the testing of blood or the making of urinalysis examinations were actually within the scope of chiropractic under RCW 18.25.030, the matter under consideration would be ended right here. Since these activities are not specifically included in the stautory definition of chiropractic, however, we must ask the further question ‑ both in terms of the definition of medicine and surgery and in terms of the prohibition against so practicing without a special license in RCW 18.71.0203/ - of whether either of these [[Orig. Op. Page 4]] activities come within the affirmative scope of this last-quoted definition (RCW 18.71.010 (1)).
In our opinion they do not ‑ at least so long as the act of testing or examining the particular substance is strictly limited to testing or examining. In so concluding we are aware of a recent opinion by the Minnesota attorney general in which a somewhat contrary conclusion was reached,4/ but we differentiate that opinion on the basis of a different definition of the practice of medicine in that state.5/ If, however, the chiropractor also withdraws the substance to be tested (i.e., blood) by "severing or penetrating the tissues of human beings" the potential of a violation of both RCW 18.25.030 and RCW 18.71.020 must be said to exist. It could very well be concluded that the act performed in the withdrawal of blood for testing amounts to the practice of surgery within the prohibitions of both of these statutes.
[[Orig. Op. Page 5]]
Unfortunately we can say no more on this precise question at the present time ‑ for the reason that it is so closely related to another question presently pending before the courts of this state that the issuance of an official opinion would contravene office policy. We have reference to the pending case of State v. Wilson, Thurston County Cause No. 47707, involving the legality of the practice of acupuncture by a person not holding a license to practice medicine and surgery, and until this case has finally been determined our long-standing policy against passing upon any question which is in litigation before the courts will prevent us from providing you with a definitive opinion on the related question of the legality of an actual withdrawal of blood by a chiropractor for testing or any other purposes.6/
We trust that you will understand, and that the foregoing answers to the other aspects of your questions will be of some assistance to you at this time.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Accord, AGLO 1973 No. 7 [[to R. Frank Atwood, State Senator on January 11, 1973 an Informal Opinion AIR-73507]], copy enclosed, in which we advised that it is not within the scope of a chiropractor's profession to prescribe or administer vitamin pills, herbs, or substances of like nature constituting materia medica.
2/See, chapter 46.20 RCW.
3/"Any person who shall practice or attempt to practice or hold himself out as practicing medicine and surgery in this state, without having, at the time of so doing, a valid, unrevoked certificate as provided in this chapter, shall be guilty of a misdemeanor: Provided, That nothing in this section shall be so construed as to prohibit or penalize emergency life‑saving service rendered by a physician's trained mobile intensive care paramedic, as defined in RCW 18.71.200, if such emergency life‑saving service be rendered under the responsible supervision and control of a licensed physician. In each such conviction the fine shall be paid, when collected, to the state treasurer: Provided, That all fees, fines, forfeitures and penalties collected or assessed by a justice court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended. The director is authorized to prosecute all persons quilty of a violation of the provisions of this chapter."
See also the licensing exemptions per RCW 18.71.030.
4/See, Minn. Atty. General Opinion dated October 21, 1969, to the Minnesota Board of Medical Examiners.
5/See, M.S. 1967, § 147.10, the first sentence of which makes it a misdemeanor to practice medicine without a license, and the second of which then says:
"Any person shall be regarded as practicing within the meaning of this chapter who shall append the letters M.D., M.B., or D.O. to his name, or for a fee prescribe, direct, or recommend for the use of any person, any drug, or medicine or other agency for the treatment or relief of any wound, fracture, or bodily injury, infirmity, or disease; . . . provided . . . this section shall not apply to any . . . persons legally suthorized to practice healing . . . in this state so long as they confine [such] activities within the scope of their respective licenses . . ."
Applying this definition to the administration of blood tests by a chiropractor, the Minnesota attorney general said, at page 8 of his opinion:
"If a chiropractor reasonably believed that such a test would aid in the diagnosis of a condition which he was licensed to treat, use of the test would not, becuase of the proviso to § 147.10 quoted above, constitute the practice of medicine. However, if use of one of these tests did not have a relationship to the detection of any chiropractic condition, the chiropractor would have gone beyond the scope of his license in administering the test in violation of § 147.10."
6/The trial court in that case concluded:
"That practitioners licensed to practice either chiropractic or drugless healing are prohibited from severing or penetrating the tissues of human beings and from the use of drugs or medicinal preparations in or upon human beings in their practice; such acts constituting the practice of medicine and surgery."
An appeal has been filed from the final judgment entered by the Thurston County Superior Court in this action.