Letter Opinion 1971 No. 031

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                                                                February 25, 1971
 
 
 
Honorable Bob Curtis
State Representative, 12th Dist.
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 31 (not official)
 
 
Re:  House Bill No. 603
 
Dear Sir:
 
            This is in response to your request for an opinion on the definition of "major surgery," both in the context of chapter 18.36 RCW, drugless therapeutics, which presently regulates the activities of naturopaths, and of House Bill 603.
 
                                                                     ANALYSIS
 
            The drugless therapeutics act was enacted in 1919, (chapter 36, Laws of 1919) and has not been amended since that time.  The act makes no reference to naturopaths or the practice of naturopathy.  However, in AGO 57-58 No. 53, it was indicated that under RCW 18.36.060 (5):
 
            ". . . if the board of examiners recognizes a branch of the profession described as 'naturopathy' it could in the exercise of its discretion issue a license authorizing the holder thereof to practice 'a branch of drugless therapeutics known as naturopathy.'"
 
            Thereafter, naturopaths were granted licenses under chapter 18.36 RCW to practice drugless therapeutics, which is defined in RCW 18.36.010 as consisting of:
 
            ". . . hydrotherapy, dietetics, electrotherapy, radiography, sanitation, suggestion, mechanical and manual manipulation for the stimulation of physiological and psychological action to establish a normal condition of mind and body, but shall in no way include the giving, prescribing or recommending of pharmaceutic drugs and poisons for internal use, the purpose of RCW 18.36.010 through 18.36.165 being to confine practitioners hereunder to drugless therapeutics."
 
             [[Orig. Op. Page 2]]
            Nowhere under the drugless therapeutics act is there any affirmative authorization to engage in any surgery, irregardless of whether it is "minor" or "major."  Under the provisions of that law the Washington state supreme court has indicated that drugless healers do not have the legal authority to perform any surgical operation.  See, State v. Kelsey, 46 Wn.2d 617, 283 P.2d 982 (1955), and State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).  Even prior to these supreme court decisions this office, in AGO 1923-24 p. 215 (copy enclosed) indicated that such practitioners could not engage in any surgery whether it be "major" or "minor."  Thus, under the current law drugless healers have a limited scope of practice and cannot engage in any surgical operation.
 
            The definition of naturopathy in § 1 of House Bill No. 603 is curiously worded in that it specifically says that it does not ". . . include major surgery, . . .".  The exclusion of "major surgery" raises by inference the connotation that naturopathists can perform something less than "major surgery."  If this is the intention of the bill, it should be amended clearly to indicate whether it is in fact authorizing the naturopath to perform some surgery.  The necessity for such an amendment, if this is the true intent of the bill, is to avoid leaving the question to a judicial decision.  The failure to make abundantly clear the authority granted to license practical nurses by the enactment of § 5, chapter 15, Laws of 1963, resulted in a narrow reading of that authority by the state supreme court in Barber v. Reinking, 68 Wn.2d 139, 411 P.2d 861 (1966).  There, of course, is no assurance that in the absence of clarifying language the court would broadly or narrowly read the scope of practice for naturopathy.
 
            Nowhere within House Bill No. 603 is the term "major surgery" defined.  Furthermore, we do not find a current statutory definition of this term.  If the bill were enacted in its present form, it would probably be necessary to resort to standard dictionary definitions.  Furthermore, it would be necessary to separately look at the definitions of "surgery," and the adjective "major" since the conjunctive term is not used in the dictionary.  The typical dictionary definition of those words are:
 
            "Surgery" ‑ "1. Medical science, art, and practice concerned with the correction of deformities and defects, the repair of injuries, etc., by manual and instrumental operations.  2. A surgeon's operating room or laboratory.  3. The work done by a surgeon.  4. The treatment of other than human diseases by methods analogous to those of a surgeon;" (Webster's New Collegiate Dictionary, 2nd ed. p. 854.)
 
             [[Orig. Op. Page 3]]
            "Major" ‑ "1. Greater in number, quantity, or extent.  . . ."  (Ibid. at p. 507.)
 
            Obviously these dictionary definitions do not provide a satisfactory answer to your inquiry.  If resort were made to medical texts for definitions of "major surgery," we would assume that there might be agreement on a number of surgical operations but there probably would be a considerable number which would fall in the "gray" area; that is, some texts might classify them as "major surgery" under certain conditions while other texts might classify them as "minor."  In your letter you made specific reference to births and abortions.  We would assume that there might be some differences of opinion in the medical profession as to whether those constitute minor or majory surgery.
 
            In light of the patent ambiguity of the term "major surgery," we would strongly recommend that if this bill is enacted, serious consideration should be given to amending the bill so as to spell out in rather precise terms what surgical activities, if any, the legislature desires to have included or excluded from the practice of naturopathy.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Edward B. Mackie
Deputy Attorney General