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10/21/94 DR. THOMAS TUCKER v. STATE DEPARTMENT

October 21, 1994

DR. THOMAS TUCKER
v.
STATE DEPARTMENT OF PUBLIC HEALTH



Appeal from Montgomery Circuit Court. (CV-91-445). Eugene Reese, TRIAL JUDGE.

Released for Publication January 27, 1995.

Wright

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

At the time of this proceeding, Dr. Thomas Tucker was a licensed physician engaged in the practice of medicine. In 1990 the Alabama State Board of Health determined that Dr. Tucker's "private office" was subject to the rules relating to the licensure and certification of abortion or reproductive health centers. Dr. Tucker filed an appeal of the declaration in the Circuit Court of Montgomery County. The Board counterclaimed. The parties submitted cross-motions for summary judgment. The trial court found in favor of the Board. Dr. Tucker appeals.

Dr. Tucker argues that the trial court erred in finding that the Board had the authority to regulate the procedures performed in his "private office."

We find it necessary to present an overview of the applicable statutes involved in this appeal.

Section 22-2-1, Code 1975, creates the State Board of Health. It provides that "the medical association of the state of Alabama, as constituted under the laws now in force or which hereafter may be in force, is the state board of health."

Section 22-2-2, Code 1975, provides for the authority and the jurisdiction of the Board. It includes general control over the enforcement of laws relating to public health and the adoption and promulgation of rules and regulations providing for control and enforcement.

Section 22-2-4 creates the State Committee of Public Health, which consists of twelve members of the board of censors of the medical association of the state of Alabama and four others. The State Committee of Public Health acts for the State Board of Health.

The legislature, in effect, has determined that the public health of the state of Alabama is to be regulated by physicians who are elected and appointed through various legislative schemes.

Simultaneously, the legislature has provided methods by which physicians determine their own qualifications and standards of practice. These are the provisions contained in §§ 34-24-50 through -84, and §§ 34-24-310 through -406, Code 1975.

Section 22-21-21, Code 1975, provides for the "Licensing of Hospitals, Nursing Homes and Other Health Care Institutions." It states:

"The purpose of this article is to promote the public health, safety and welfare by providing for the development, establishment and enforcement of standards for the treatment and care of individuals in institutions within the purview of this article and the establishment, construction, maintenance and operation of such institutions which ...


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