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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5679 April 11, 1980 SCHOOLS AND SCHOOL DISTRICTS: Administration of medication by school personnel CHILDREN AND MINORS: Administration of medication by school personnel PUBLIC HEALTH CODE: Administration of medication by school personnel as practice of medicine PHYSICIANS AND SURGEONS: Administration of medication by school personnel as practice of medicine WORDS AND PHRASES: 'Practice of medicine'; 'Supervision' Although the act of administering medication constitutes the practice of medicine, a school administrator, teacher or designated employee may perform such act when properly delegated by a licensed physician and performed under the supervision of the delegating physician. In this context, 'supervision' means (a) continuous availability of the physician by direct communication, (b) availability of the physician to review the practice of the supervised person, and (c) provision by the physician of predetermined procedures and drug protocol. A school administrator, teacher or designated employee, who in good faith administers medication to a pupil in the presence of another adult pursuant to written permission of the pupil's parents or guardians and in compliance with the instructions of a physician, may only be held liable for civil damages in case of gross negligence or wilful and wanton misconduct. School administrators, teachers and designated employees are under no duty to assume responsibility for the administration of medication to pupils. The Honorable Gary M. Owen House of Representatives State Capitol Lansing, Michigan You have requested my opinion regarding the following factual situation: The parents of a public school pupil known to have allergic reaction to insect bites, have given written permission to school authorities to administer Adrenalin (epinephrine) to their child in an emergency situation if he or she is bitten by an insect. The pupil's physician has given written instructions for administration of the Adrenalin (epinephrine) under these specific circumstances and has arranged for a premeasured syringe of Adrenalin (epinephrine) to be at the school. It is assumed that no school nurse or other medically licensed personnel is present or immediately available. 1. Under the facts as presented, would the school administrator, teacher or designated employee administering the medication be engaged in the 'practice of medicine' in violation of the Public Health Code, 1978 PA 368; MCLA 333.1101 et seq; MSA 14.15(1101) et seq? 2. Are such procedures as set forth in the stipulated facts authorized by 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq? 3. Are school administrators, teachers or designated employees compelled to administer medications as set forth in the stipulated facts? 4. If school administrators, teachers or designated employees undertake the responsibility for administration of the medication as set forth in the stipulated facts, what duties are imposed upon them? Your questions will be answered seriatim. 1. Under the facts as presented, would the school administrator, teacher or designated employee administering the medication be engaged in the 'practice of medicine' in violation of the Public Health Code, 1978 PA 368; MCLA 333.1101 et seq; MSA 14.15(1101) et seq? 'Practice of medicine' is defined in 1978 PA 368, supra, Sec. 17001(1)(c), to mean: '. . . the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaken, attempting to do, or holding oneself out as able to do, any of these acts.' Clearly, the administration of medication to relieve a human complaint or physical condition falls within the definition of 'practice of medicine' as set forth above. OAG 1975-1976, No 4,877, p 344 (March 23, 1976); OAG 1975-1976, No 4,837, p 47 (February 26, 1975); OAG 1961-1962, No 3,557, p 79 (March 29, 1961). Notwithstanding the conclusion that the act of administering medication constitutes the practice of medicine, 1978 PA 368, supra, Sec. 16215, allows an unlicensed individual to perform particular acts when properly delegated by a licensed physician. 1978 PA 368, Sec. 16215, supra, provides as follows: '(1) A licensee who holds a license other than a health profession subfield license may delegate to a licensed or unlicensed individual who is otherwise qualified by education, training, or experience the performance of selected acts, tasks, or functions where the acts, tasks, or functions fall within the scope of practice of the licensee's profession and will be performed under the licensee's supervision. An act, task, or function shall not be delegated under this section which, under standards of acceptable and prevailing practice, requires the level of education, skill, and judgment required of a licensee under this article. '(2) A board may promulgate rules to further prohibit or otherwise restrict delegation of specific acts, tasks, or functions to a licensed or unlicensed individual where the board determines that the delegation constitutes or may constitute a danger to the health, safety, or welfare of the patient or public. '(3) To promote safe and competent practice, a board may promulgate rules to specify conditions under which, and categories and types of licensed and unlicensed individuals for whom, closer supervision may be required. '(4) An individual who performs acts, tasks, of functions delegated pursuant to this section does not violate the part which regulates the scope of practice of that health profession.' Under the circumstances set forth in your request, the administration of Adrenalin (epinephrine) would be a selected act, task or function. If the school administrator, teacher or designated employee administering the medication is properly trained to perform the injection and does so pursuant to the instruction of a physician, the statutory requirement is satisfied. It is also to be observed that the administration of medication must be performed 'under the supervision' of the delegating physician. 'Supervision' is defined by 1978 PA 368, supra, Sec. 16109(2), to mean: '. . . the overseeing of or participation in the work of another individual by a health professional licensed under this article in circumstances where at least all of the following conditions exist: '(a) The continuous availability of direct communication in person or by radio, telephone, or telecommunication between the supervised individual and a licensed health professional. '(b) The availability of a licensed health professional on a regularly scheduled basis to review the practice of the supervised individual, to provide consultation to the supervised individual, to review records, and to further educate the supervised individual in the performance of the individual's functions. '(c) The provision by the licensed supervising health professional of predetermined procedures and drug protocol.' Thus the circumstances described satisfy the definition of 'supervision' if the licensed health professional is available by direct communication and regularly reviews the child's condition and receipt of medication. Therefore, in response to your first question, a school administrator, teacher or designated employee may administer Adrenalin (epinephrine) under the facts you present provided that the requirements of 1978 PA 368, Sec. 16215 and Sec. 16109(2), supra, are fulfilled. 2. Are such procedures as set forth in the stipulated facts authorized by 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq? 1976 PA 451, supra, Sec. 1178, recognizes the desirability and necessity for attendance at school and, at the same time, the practicalities of continuing medical treatment for those students with medical problems. 1976 PA 451, Sec. 1178, supra, provides as follows: 'A school administrator, teacher, or other school employee designated by the school administrator, who in good faith administers medication to a pupil in the presence of another adult pursuant to written permission of the pupil's parents or guardian and in compliance with the instructions of a physician is not liable in a criminal action or for civil damages as a result of the administration except for an act or omission amounting to gross negligence or wilfull and wanton misconduct.' The statute recognizes that medically qualified people and facilities may be unavailable. Therefore, by requiring consent of the parents and instructions of the child's physician, the statute recognizes that the authority of the teacher, administrator or designated employee is limited. By requiring instructions from the physician, the statute also recognizes that the physician is one responsible for and actually directing the action. Subject to the limitations stated in response to your first question, it is my opinion that the statute specifically authorizes the administration of medication as set forth in the factual situation. 3. Are school administrators, teachers or designated employees compelled to administer medications as set forth in the stipulated facts? Although 1976 PA 451, Sec. 1178, supra, provides for liability only in cases of gross negligence or wilful and wanton misconduct, the act does not impose any affirmative duty upon a school administrator, teacher or designated employee to accept the responsibility for the administration of medication. Under well established common law principles, failure to attend to an injured person is not actionable. However, a person who undertakes to render assistance assumes the obligation of exercising due care in rendering such assistance. Roulo v Automobile Club of Michigan, 386 Mich 324; 192 NW2d 237 (1971), aff'g 24 Mich App 32; 179 NW2d 712 (1970). The rule was succinctly stated by the Michigan Supreme Court in Farwell v Keaton, 396 Mich 281, 290 fn 3; 240 NW2d 217 (1976): " [T]he law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger The remedy in such cases is left to the 'higher law' and the 'voice of conscience,' which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim.' Prosser, Torts (4th ed), Sec. 56, pp 340-341. "At the other end of the spectrum are cases where the peril to the plaintiff has come from a source in no way connected with defendant's conduct or enterprises or undertakings, past or present, but where the defendant has it in his power by taking some reasonable precaution to remove the peril. Here the law has traditionally found no duty, however reprehensible and unreasonable the defendant's failure to take the precaution may be. There is no legal obligation to be a Good Samaritan.' 2 Harper & James, the Law of Torts, Sec. 18.6, p 1046.' It is therefore my opinion that under the factual circumstances described, school administrators, teachers and designated employees are under no duty to assume responsibility for the administration of medication. (1) See OAG 1961-1962, No 3,537, p 155, 159 (September 6, 1961). 4. If school administrators, teachers and designated employees undertake the responsibility for administration of the medication as set forth in the stipulated facts, what duties are imposed upon them? Once school administrators, teachers and designated employees accept responsibility and comply with the provisions of 1976 PA 451, Sec. 1178, supra, liability is limited to an act or omission amounting to gross negligence or wilful and wanton misconduct. Gross negligence has been defined as an intentional failure to perform a manifest duty or a thoughtless disregard of the consequences as affecting life or property of another without the exercise of any effort to avoid them. Putt v Grand Rapids & Indiana R Co, 171 Mich 216; 137 NW 132 (1912). The definition of wilful and wanton misconduct has been set forth in Thomas v Consumers Power Co, 58 Mich App 486, 500-501; 228 NW2d 786 (1975), as follows: 'Next we must consider whether the allegations of the complaint will support a finding of 'wilful and wanton misconduct'. Gibbard, supra, also speaks to plaintiffs' claim in this regard: "If one wilfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligency--is different in kind. Where recovery is sought on the theory that the injury was caused by wilful, wanton or reckless misconduct of a defendant, as distinguished from negligence, there is no more reason for permitting the defense of contributory negligence than in a case of assault and battery. True, such misconduct in this State and elsewhere usually has been called negligence, the word being qualified by such adjectives as gross, wanton, reckless or wilful, but this is incorrect and has a tendency to mislead.' 225 Mich at 320-321. 'Wilful and wanton is defined in 2 Restatement of Torts 2d, Sec. 500, p 587; and by Prosser on Torts (3d Ed), Sec. 34, p 188. Restatement of Torts 2d, Sec. 500, defines 'reckless disregard for safety' as follows: "The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." It is, therefore, my opinion that an administrator, teacher or other school employee designated by the school administrator acting pursuant to the terms of 1976 PA 451, Sec. 1178, supra, and in compliance with 1978 PA 368, Sec. 16215, supra, although engaging in the practice of medicine, is not in violation of 1978 PA 368, supra. Such person is releived from civil liability for the administration of an intramuscular injection of Adrenalin (epinephrine) in an emergency situation due to an allergic reaction to an insect bite, provided that the terms of the statute are satisfied and provided further that there is no gross negligence or wilful and wanton misconduct. Frank J. Kelley Attorney General (1)
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