STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 18, 1975
Robert H. Hayes, M.D.
Secretary, Department of Health
Office Building No.2
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-112
Piercing ears is not a medical procedure under Medical Practices Act
Dear Doctor Hayes:
You have requested an official opinion from this office based upon the following factual situation:
There is a growing trend toward the use of ear rings which require pierced ears. With this trend many people are now beginning to pierce ears for this purpose. The danger which is seen by this office is that unqualified personnel expose a client to a greater risk of infection and deformity than that which would be expected by a licensed practitioner of the healing arts. The responsible physician will certainly afford the client adequate protection from risk of unwarranted infection and deformity. The entry of unlicensed practitioners of the healing arts into the field has precipitated a potential threat to the public's health.
Based upon the above factual situation you have asked the following question.
Is the piercing of the ear to be considered a surgical procedure under the Medical Practices Act?
SDCL 36-2-2 states in part as follows:
No person shall in any manner engage in, offer to engage in, or hold himself out as qualified to engage in the diagnosis or treatment of any human ill, unless such person is the holder of a legal and unrevoked license or certificate issued under the laws of South Dakota authorizing such person to practice the healing art covered by such license.... (emphasis added).
The Legislature has defined the word "diagnosis" in § 36-2-1 (3) to mean "the use professionally of any means for the discovery, recognition or determination of character of any human ill." Likewise the word "treatment" has been defined in § 36-2-1(4) to mean "the use of drugs, surgery, including appliances, manual or mechanical means, or any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill as defined herein." The definition of "human ill" found in § 36-2-1(2) is "any human disease, ailment, deformity, injury or unhealthy or abnormal physical or mental condition of any nature." Finally, the terms "healing art," "healing," "art of healing," "practicing healing," "practice of healing," mean "any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, unhealthy or abnormal physical or mental condition." § 36-2-1(6).
In your question you have asked if the practice of piercing ears is to be considered a surgical procedure. The term surgery is defined in Black's Law Dictionary as follows: "the art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries. Therapy of a distinctively operative kind, such as cutting operations, the reduction or putting up of fractures and dislocations and similar manual forms of treatment." Also the term "surgery" is defined in 70 C.J .S. § 1 p. 817 as "a branch of medical science." More specifically, it is that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries; the art, practice, or work of treating diseases, injuries, or deformities by manual operation or mechanical appliances, or a branch of medicine that is concerned with such treatment; therapy of a distinctively operative kind, such as cutting operations.
Based upon the above statutory definitions and the definition of the word surgery it is my opinion that the practice of piercing ears is not a surgical procedure under state law. A person engaged in the practice of piercing ears does not engage in the diagnosis or treatment of any human ill. Therefore, such a person is not practicing the healing art. Also, in that the term surgery connotes the treatment of a human ill by manual or mechanical means, the practice of piercing ears does not fit within that definition.
Respectfully submitted,
William Janklow
Attorney General
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