Phone: (803) 896-4500 Sheridon Spoon April Koon Alex Imgrund
Advice Counsel to the Board
providing legal advice to all Boards, Commissions
and Panels, as well as their administrative staff.
These attorneys do not provide legal advice to
parties outside LLR.
Phone: (803) 896-4500
Approved by the Board: May 19-21, 1997 Board meeting
Service Area: Medical
Subject: Primary Diagnosis by Out-of-State Physicians
It is the board's position that an out-of-state physician who renders a primary diagnosis on a patient physically located in this state is practicing medicine, as defined by state law, and must be licensed in South Carolina.
S.C. Code Ann, Section 40-47-60 (1986) in pertinent part provides, "No person shall practice medicine, surgery or osteopathy within this state unless he is twenty-one years of age and has been authorized to do so pursuant to the provisions of [the South Carolina Medical Practice Act]."
S.C. Code Ann. Section 40-47-40 states that "Any person shall be regarded as practicing medicine within the meaning of this article who ... 8 shall diagnose, cure, relieve in any degree or profess, or attempt to diagnose, cure or relieve any human disease, ailment, abnormality or complaint, whether of physical or mental origin, by attendance or advice, by prescribing, using or furnishing any drug, appliance, manipulation, adjustment or method or by any therapeutic agent whatsoever." (Emphasis added.)
Accordingly, any person making a diagnosis is practicing medicine as defined by state law. The Board has interpreted the term "diagnose" as meaning the primary diagnosis. A primary diagnosis by its nature has an interpretive component that involves the exercise of medical judgment, as opposed to merely reporting a numerical value from a test. That interpretation attempts to harmonize the provisions of Section 40-47-40 with Section 40-47-240, which provides an exemption from state licensing requirements for, among others, "physicians or surgeons of other states or territories in actual consultation with a licensed physician or surgeon in this State, ..." (Emphasis added.) This exemption has been interpreted by the Board as permitting consultants and physicians making secondary diagnoses to practice medicine within the definition of Section 40-47-40 without first obtaining a license in this state. However, a person rendering a primary diagnosis is outside the bounds of this exemption, as it is interpreted and applied by the Board.
The Board adheres to the view that the practice of medicine occurs where the patient is physically located, therefore, the physician must be licensed in that state. This position is consistent with the purpose of state licensure requirements, which is to protect the members of the public in the state, and it is the position followed by most other state medical boards that have considered the question.
Therefore, the Board holds that an out-of-state physician who performs an act that constitutes the practice of medicine on a patient physically located in this state is practicing medicine, as defined by state law, and must be licensed in South Carolina. For example:
(a.) When a South Carolina physician requests an out-of-state pathologist to examine a specimen and make a primary diagnosis, the out-of-state pathologist is required by state law to have a South Carolina license. However, an out-of-state pathologist who merely reports a numerical value, such as a prothrombin time, would not have to be licensed in this state.
(b.) Similarly, when a clinical physician sends a specimen to a laboratory where an out-of-state pathologist examines the specimen and renders a primary pathology diagnosis, the out-of-state pathologist is practicing medicine, and therefore, must be licensed in accordance with South Carolina law.
(c.) When a South Carolina physician requests an out-of-state radiologist to read an x-ray and make a report concerning the patient's condition, the radiologist's assessment and conclusion in the report is a primary diagnosis and is the practice of medicine, as defined by state law, and a South Carolina license is required.
Finally, in this regard, it should also be recognized that S.C. Code Ann, Section 40-47-200(F) states that "[m]isconduct" which constitutes grounds for revocation, suspension, or restriction of a license or limitation on or discipline of a licensee is satisfactory showing to the Board that the holder of a license: ... "(5) has knowingly performed an act which in any way assists an unlicensed person to practice medicine or osteopathy." Violation of this provision may subject physicians licensed in this state to disciplinary action against their professional licenses.