August 24, 1982

Mr. Robert D. Johnson 
Executive Secretary 
State Board of Medical & Osteopathic Examiners 
608 West Avenue North 
Sioux Falls, South Dakota 57104

Official Opinion No. 82-44

Physician's Assistants as Medical Corporations

Dear Mr. Johnson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

A physician's assistant licensed in the State of South Dakota has incorporated under the laws of the State of South Dakota.

Based on the above facts, you have asked the following question:

QUESTION: 

May a physician's assistant, who has been incorporated, be granted a certificate of registration as a medical corporation, pursuant to the provisions of SDCL 47-11-7?

In pertinent part, SDCL 41-11-7 states: 

No corporations shall open, operate or maintain an establishment for any of the purposes set forth in § 47-11-1 without a certificate of registration from the board of medical and osteopathic examiners, hereinafter referred to as the board.

SDCL 47-11-1 states: 

One or more persons licensed pursuant to chapter 36-4, hereinafter referred to as the Medical Practice Act, may associate to form a corporation pursuant to the provisions of law pertaining to private corporations to own, operate  and maintain an establishment for the study, diagnosis and treatment of human ailments and injuries, whether physical or mental, and to promote medical, surgical and scientific research and knowledge; and for any other purpose incident or necessary thereto; provided medical or surgical treatment, consultation or advice may be given by employees of the corporation only if they are licensed pursuant to the Medical Practice Act.  In any corporation formed under this chapter one or more persons may act as the sole stockholders, directors or officers of such corporation.

No provision is made in SDCL 47-11-1 for incorporation of persons licensed pursuant to SDCL 36-4A.  Although SDCL 36-4A, dealing with physician's assistants did not become law in South Dakota until 1973, twelve years after the creation of SDCL 47-11, dealing with medical corporations, that fact alone does not account for the absence of physician's assistants under the coverage of SDCL 47-11-1.

Amendments to both SDCL 36-4A and the statutes dealing with all forms of professional corporations have taken place since 1973.  The applicable statutes are clear and unambiguous.  The absence of coverage of physician's assistants in SDCL 47-11 is attributable to the desire not to include physician's assistants under such coverage, and to limit medical corporations to persons licensed as physicians or surgeons under SDCL 36-4.  Therefore, it is my opinion that the answer to your question is NO, a physician's assistant may not  be granted a certificate of registration as a medical corporation under the provisions of SDCL 47-11-7.

Respectfully submitted,

Mark V. Meierhenry
Attorney General