Arkansas State Nurses Ass'n v. Arkansas State Medical Board

George Rose Smith, Justice. This suit for a declaratory judgment was brought against the State Medical Board by the Arkansas State Nurses Association, a professional association whose membership includes about 100 “registered nurse practitioners,” a branch of the nursing profession created by Act 613 of 1979. Ark. Stat. Ann. §§ 72-746 (e) and 72-754 (f) (Repl. 1979). The suit seeks to invalidate the Medical Board’s Regulation 10, as an unauthorized and illegal attempt to regulate registered nurse practitioners. This appeal from the circuit court’s declaratory judgment upholding the Medical Board’s regulation comes to the Supreme Court under Rule 29 (1) (c). Ever since the passage of Act 128 of 1913 registered nurses have been licensed and regulated by law in Arkansas. Act 613, cited above, created a new class of nurses, registered nurse practitioners, consisting of registered nurses who have gone a step farther by taking postgraduate courses in an accredited school of nursing and by being licensed as registered nurse practitioners by the State Board of Nursing. Under the 1979 act nurse practitioners are authorized to engage in the usual practices of registered nurses and also, under the direction of a licensed physician, to engage in other activities specified by the State Board of Nursing. The Medical Board’s Regulation 10, now challenged, provides that whenever a physician employes an R.N.P. the physician must file prescribed forms with the Medical Board setting forth his own professional qualifications and experience in addition to those of the R.N.P., describing how the R.N.P.’s services are to be utilized, and listing all other physicians to whom the R.N.P. will be responsible in the absence of the employing physician. The following paragraphs in Regulation 10 are critical to this dispute: (3) No physician licensed to practice medicine in the State of Arkansas shall employ more than two (2) licensed Registered Nurse Practitioners at any one time; nor shall such physician assume responsibility for collaborating with or directing the activities of more than two (2) Registered Nurse Practitioners at any one time. (6) Violation of this regulation shall constitute “malpractice” within the meaning of the Arkansas State Medical Practices Act and shall subject the violator to all penalties provided therein. Paragraph (4) of the regulation provides that an exemption from the restriction to two R.N.P.’s may be granted to a physician in case of undue hardship, after a hearing, but no such exemptions had been sought when this case was heard below. We find the regulation to be invalid insofar as it restricts the number of R.N.P.’s that may be employed by a physician or a group of physicians and declares that a violation of the restriction is malpractice. The legislature has not even attempted to delegate to the State Medical Board the authority to define punishable malpractice. Quite the contrary, the legislature specified in the Medical Practices Act the sixteen instances of unprofessional conduct for which a physician’s license to practice medicine may be revoked or suspended. Ark. Stat. Ann. §§ 72-613 and -614. The matter of hiring too many R.N.P.’s does not fall within the malpractice statute by even the most liberal construction of its language. The Medical Board had no authority to create a non-statutory basis for the revocation of a physician’s license. In the second place, Regulation 10 is arbitrary on its face, so clearly so that testimony about its purpose or effects could not change or justify the plain meaning of its language. The matter of arbitrariness is not specifically argued in the appellant’s brief, but when the general public’s interest is being represented by one party in a class action such as this one, we do not permit the party to waive any point that should be considered. See Parker v. Laws, 249 Ark. 632, 460 S.W.2d 337 (1970). This is necessarily the rule, for otherwise the public’s right to raise other defects in the statute or regulation might be foreclosed by the doctrine of res judicata. McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939). If there were any possibility that further testimony might establish the validity of Regulation 10, we would remand the case for additional proof, as is our practice. Ark. Motor Vehicle Commn. v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W. 2d 453 (1982). Here the language of the regulation is so exact that we can conceive no such possibility. The Nurses Association argues that the purpose of the regulation is to restrict the number of R.N.P.’s that may be licensed. In response, Dr. Verser, a member of the Medical Board for 32 years and its secretary for 30, testified that the Board was not attempting to limit the number of R.N.P.’s, only to see that they are adequately supervised. Without the regulation, he said a doctor might hire 20 R.N.P.’s in different areas of a city and let them do the practice while he was on the golf course. We are not persuaded by the Medical Board’s protestations. As for a doctor’s neglecting his patients to go play golf, the Board already has specific authority to discipline a physician for “grossly negligent or ignorant malpractice.” § 72-613 (g). Moreover, if one doctor can adequately and effectively supervise two nurse practitioners, it is not reasonable to suppose that a group of ten doctors cannot supervise more than two equally well. The reality is that at a time when there is a need for additional medical care in some parts of the state, the effect of Regulation 10 would be to discourage registered nurses from becoming nurse practitioners, for the regulation would undeniably limit the number of jobs available to them. In a closely analogous case, the 1977 legislature created a classification called “physician’s trained assistants,” who were described by Dr. Verser as performing essentially the same functions as nurse practitioners. In the 1977 act creating physician’s assistants the legislature prohibited any one physician from employing more than two such assistants, but that limitation was not extended to groups of two or more physicians practicing together, as Regulation 10 seeks to do. §§ 72-2001 and -2014. We are not convinced that the Medical Board has the authority to adopt a restriction which the legislature did not adopt in a similar situation. Reversed. Hollingsworth, J., not participating. Hickman, J., and Special Justice Julian Fogleman, dissent.