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Minnesota Law Review

1960

The Desirability of State Licensing of MedicalTechnologistsMinn. L. Rev. Editorial Board

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NoteThe Desirability of State Licensing of

Medical Technologists

Physicians today are trained to place great reliance uponthe results of laboratory tests performed by medical tech-nologists. Although this reliance places a great responsibil-ity on the profession of medical technology, the professionis presently regulated by a system of voluntary certificationwhich has not afforded adequate protection to the publichealth. The author of this Note explores the desirability ofstate licensing of medical technologists. He proposes adop-tion of a licensing statute which would establish rigoroustraining requirements for medical technologists and createa separate classification of clinical laboratory personnelwhose work is routine and subject to close supervision. Heconcludes that such a licensing statute would be practicableand would adequately protect the public by promoting ahigher standard of performance in the profession of medi-cal technology.

I. TH P R FESSION AND THE PRoBLEM

A medical technologist isa person who performs various laboratory tests and procedures on blood,blood serum, urine, sputum and other body contents or by-products, theresults of which tests and procedures are used or interpreted by licensedphysicians in making a diagnosis.1

The modem physician has neither the time nor the skill to performall of these laboratory determinations which contribute to a diagno-sis.2 Thus, the medical technologist is a most important and neces-sary associate in modem medicine.

The development of the profession of medical technology is ofcomparatively recent origin. The first clinical laboratory in Americawas established in 1895.3 In the early period of laboratory medicine,the pathologist performed his own laboratory tests. However, as thescope of laboratory medicine expanded and the pathologist becamerecognized as an important medical specialist, it became necessary

1. Hall, Medicolegal Responsibility of the Medical Technologist, 20 AmmmcANJouRNAL or MEDIcAL TECHNOLOGY 43 (1954).

2. Caughey, Auxiliary Personnel in Medical Practice, 48 AsmcA joumRAL orPuBc HEATH 1049 (Aug. 1958).

3. Alcuin, Medical Technology, 35 MINN. MEDIclaq 331 (April 1952).

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for him to train assistants to perform the simpler tests.4 Thus theprofession of medical technology was established about the time ofWorld War I. Today this young profession includes more than50,000 active members.0

The responsibility of the medical technologist in modem medicalpractice is enormous. Mississippi Baptist Hosp. v. Holmes7 provides agraphic illustration of this responsibility. There, defendant hospitalwas held liable for the death of a patient resulting from the negli-gence of a technologist. After correctly "typing" the blood of thepatient, the technologist inadvertently mislabeled under the pa-tient's name the blood type of another patient in the hospital. Thiswrong type of blood was given to the patient while she was under-going surgery. As a result, the patient's blood became agglutinated,the kidneys became blocked, and the patient died."

The modem physician is trained to place great reliance on the re-sults of laboratory tests performed by medical technologists.9 Uponthe skill and integrity of the medical technologist often depends theprompt and proper treatment of a patient 10 or, as in the Holmes case,the preservation of a life. In fact, "an erroneous [laboratory] report isworse than none, since it gives the physician a false direction, whichmight have been avoided if he depended only on clinical judgment.

Thus, there is an extreme danger to the public healthand welfare from unskilled and incompetent medical technologists.'

4. Hinman, The Education and Recognition of Technical Groups Associated WithMedicine, 59 TnE JouRNAL OF TmB A mmcAN DENTAL AssociAToN 147, 148-49(July 1959).

5. Id. at 149.6. Nugent, Medical Technology: Profession vs. Occupation, 23 A .tmcAN JOURNAL

OF MEDICAL TECHNOLOGY 289 (1957).7. 214 Miss. 906, 55 So. 2d 142 (1951).8. The opinion describes the change in the patient's condition caused by the

technologist's "inadvertency" in the following manner:[T]he blood transfusion was started the next morning at approximately 8:00o'clock while the patient was undergoing surgery, and was continued until she hadbeen given about 700 c.c. of blood, labeled as "Group 2", when it was dis-covered that her hands had turned to a blue color around the fingernails andthat her face disclosed a like discoloration, and both of which then turned toan ashen gray as her blood pressure dropped from 110 to 60, her pulse increasedfrom 120 to 130 and on to 150, and finally her pulse soon became almostimperceptible . . . thereupon another transfusion was begun by the use ofblood of her own type to counteract the very grave condition which her physi-cian believed had been produced by the original transfusion, and she thenrevived to some extent but later the condition of the patient grew worse untilshe died at approximately 10:30 or 11:00 o'clock on the following morning....

Id. at 919-20, 55 So. 2d at 146-47.9. Caughey, supra note 2, at 1049; Shively, The Significance and Evaluation of

Laboratory Data in Clinical Medicine, 47 INDLANA STATE MEDiaL AssoCIATIoNJOURNAL 982 (1954).

10. Nugent, supra note 6, at 289.11. Caughey, supra note 2, at 1049-50.12. Schwitalla, Duties and Privileges of Medical Technologists, 37 HosPrrAL

PROGPSS 51 (Feb. 1956).

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There is persuasive evidence that much incompetent work is pres-ently being performed in clinical laboratories and that this is due inlarge measure to poorly trained, inadequately supervised laboratoryworkers. This has been demonstrated through the use of surveyschecking the accuracy of work done in clinical laboratories. Probablythe best known of these surveys is the one conducted under the lead-ership of Doctors William P. Belk and F. William Sunderman inPennsylvania in 1947.1' Fifty-nine laboratories in Pennsylvania, NewJersey and Delaware agreed to perform some of the more commonchemical measurements on solutions which had been carefully pre-pared for analysis. Doctors Belk and Sunderman described the resultsof the survey in the following manner:

The scatter of the measurements and the degree of unreliability is sur-prising. The accuracy of the measurements is below any reasonablestandard. It will be noted that unsatisfactory results outnumbered thesatisfactory and that no laboratory had a perfect score.' 4

This survey was followed up with a questionnaire to the clinical path-ologists in Pennsylvania requesting their opinions of the causes of theinferior laboratory work indicated by the survey. In the opinion ofthe 106 pathologists replying to the questionnaire, the major factorcontributing to the incompetent work performed in clinical laborator-ies was "poorly trained" technologists.' 5

A similar study was conducted in Connecticut in 1948.16 The resultsof this survey were slightly better than the results of the Belk andSunderman study but were nevertheless considered extremely unsat-isfactory.17 The chairman of the group conducting the survey assertedthat inadequately trained and supervised technologists was one ofthe "more obvious major causes" contributing to the unsatisfactoryresults.' 8

While these surveys are now more than ten years old, there is no-thing to indicate that the standards of performance by medical tech-nologists have improved during this period; on the contrary, recentreports indicate that the general level of performance remains sub-

13. Belk & Sunderman, A Survey of the Accuracy of Chemical Analyses in ClinicalLaboratories, 17 AmncaNr JounNAL OF CLINrCAL PATHOLOGY 853 (1947).

14. Id. at 855-56.15. Id. at 861.16. Snavely & Golden, A Survey of the Accuracy of Certain Chemical Determina-

tions, 13 CoNNEcrlcuT STATE MEDxcAL JoUs.AL 190 (1949).17. The results obtained in this study indicate that the standards of clinicalchemistry in the majority of the hospitals surveyed leaves much to be desired.This inadequacy is even more striking when it is noted that the survey includedfairly large hospitals, most of which are directed by full time pathologists. Onecan only guess at the level of performance in most of the very small hospitalsemploying a part time director or in commercial laboratories with one or twounsupervised technicians.

Id. at 193.18. Id. at 193.

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standard. 9 Thus, it is reasonable to conclude that some form of regu-lation of medical technologists is necessary which will prevent theincompetent work which is presently being performed in clinicallaboratories and the dangerous consequences of that incompetency.

The purpose of this Note is to consider whether a licensing require-ment for medical technologists would be a desirable form of regula-tion for the protection of the public. It is well established that a state,under its police power, has the right to regulate any business, occupa-tion, trade or profession in order to protect the public health andwelfare.20 Therefore, clearly a state statute requiring medical technol-ogists to be licensed on the basis of education and supervision satisfiesconstitutional requirements. 21 Thus, the question whether or not alicensing statute should be enacted is primarily a policy questionwhich can be answered only after a comparison of the advantagesand disadvantages of a licensing requirement.

II. PRESENT REGULATON

Regulation of the young profession of medical technology has thusfar been generally voluntary. In 1928 the American Society of ClinicalPathologists (hereinafter referred to as ASCP) established the na-tional voluntary Registry of Medical Technologists.212 The Registry(ASCP), which is presently composed of six pathologists representingthe ASCP and three medical technologists representing the AmericanSociety of Medical Technologists, was established to "ensure com-petent, ethically-trained and ethically-minded personnel for medicaltechnology and to safeguard that profession." 28 Operating purely on avoluntary basis, the Registry (ASCP) grants certification as a "M.T.

19. See Adelson, Legal Responsibilities of Medical Technologists, 38 HosPrrALPROGRESS 136 (Sept. 1957).

20. Nebbia v. New York, 291 U.S. 502, 537 (1934).21. The power of a state to protect the public welfare authorizes it to exact a

certain degree of skill and learning in professions and pursuits which concern thepublic health and welfare. Graves v. Minnesota, 272 U.S. 425, 427-28 (1926); Dentv. West Virginia, 129 U.S. 114, 122 (1889).

The general power of the state to exact proper skill and learning of those whofollow pursuits involving the public health, safety and welfare, and to prescribeappropriate tests therefore, cannot at this day be questioned. It has been exer-cised from time immemorial, and has been sustained by repeated decisions ofthe courts.

People v. Griswold, 213 N.Y. 92, 96, 106 N.E. 929, 931 (1914).A licensing statute must, in addition, satisfy certain due process requirements

relating to provisions for a hearing, notice to interested parties, right to appeal theadministrative findings, and other similar provisions. See 1 & 3 DAvis, ADMIINcauRA-Trvn LAw TREATISE §§ 7.01-.20, 8.04-.05, 20.01-21.10 (1958). This problem con-cerns licensing statutes in general, however, and as such is beyond the scope ofthis Note.

22. Robins, The Medical Technologist and the Doctor, 170 TnE JouimAL or THAmEwcx MEDicAL AssocrAioN 626 (1959).

23. Alcuin, supra note 3, at 333.

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(ASCP)" to any applicant who satisfies certain educational require-ments and passes a nationally-conducted examination. The educa-tional requirements at present are two years of college work followinga prescribed curriculum emphasizing chemistry and biology, andtwelve months training in a School of Medical Technology approvedof by the Council on Medical Education and Hospitals of the Ameri-can Medical Association.24 On January 1, 1962, the educational re-quirements will be raised to three years of preparatory college andtwelve months training in an "approved" School of Medical Tech-nology.

25

The Registry (ASCP) and the educational requirements it has es-tablished are endorsed by the American Medical Association, theAmerican College of Surgeons, the American College of Physicians,the American Hospital Association and the Catholic Hospital Associa-tion.26 Today there are more than 20,000 active medical technologistson the roster of the Registry (ASCP), but this figure represents lessthan one half of the presently employed medical technologists.27

Opposition to the Registry (ASCP) and its activities by somegroups28 has led to the establishment of a large rival organization. In1940, a counterpart to the Registry (ASCP) appeared, known as theAmerican Medical Technologists (hereinafter referred to as AMT) .28Similarly operating on a voluntary basis, the AMT grants certificationas a "M.T." to any applicant who satisfies its educational requirementand passes an examination.30 The educational requirement is lowerthan that required by the Registry (ASCP), consisting of twelvemonths training in an "accredited" school- accreditation being byan organization affiliated with the AMT. 31 The AMT organization andcertification program are not approved by the American Medical As-sociation. 2

In addition to the medical technologists on the rosters of the Reg-istry (ASCP) and the AMT, there are a great number of medicaltechnologists who are not registered at all. Most of these are graduatesof the so-called "commercial" schools. These schools offer short

24. Hinman, supra note 4, at 149.25. ibid.26. Robins, supra note 22, at 626.27. Nugent, supra note 6, at 289.28. In 1935, representatives of the opposition groups said of the Registry (ASCP):

"The promised boycott in a few years of all technicians who fail to registerin the Registry of Technicians and subscribe to its requirements in order to workin a hospital approved by the AMA is a threat. This is a minority move tocoerce the technician and blind him so that he will not seek true standards."

Quoted by Alcuin, supra note 3, at 334.29. Id., at 334-35.30. ibid.31. See BuLL= oF THE CorEE oF MEnicAL TcENoLoY, mnmArous,

mnqx. 8.32. Alcuin, supra note 3, at 334-35.

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courses in medical technology- normally lasting only nine months- and they are unapproved by the American Medical Associationbecause of "the inadequate instruction given. . .."33

Apparently the duplication of certifying organizations in the pro-fession of medical technology has been a source of confusion for manyhospitals and physicians.8 As a result,in many areas the registered [(ASCP)] technologist, with an investment inyears of training and experience, is accorded no more respect or recom-pense than the casual laboratory worker. 35

It is fair to conclude that hospitals and physicians generally have notmade a sufficient differentiation in their hiring practices and salarylevels between medical technologists registered (ASCP) and thosenot so registered to justify the added years of training the ASCP-reg-istered technologist undergoes to satisfy the American Medical As-sociation endorsed requirements. 8

Furthermore, there is presently an extreme shortage of competentmedical technologists. 37 Consequently, many hospitals and physi-cians who are aware of the different qualifications of ASCP-regis-tered medical technologists and those not so registered, are compelled

33. Ikeda, The Future of Medical Technology, 12 AmaucA_ JoumALr oF MEDicALTECHNOLOGY 146, 153 (1946).

34. Alcuin, supra note 3, at 334. Shively, supra note 9, at 983.This confusion is not entirely unjustified. The following similarities exist between

the two certifying organizations: the professional organization for medical tech-nologists registered (ASCP) is known as the American Society of Medical Technolo-gists (ASMT), while the professional organization for medical technologists registered(AMT) is known as the American College of Medical Technologists (ACMT). TheRegistry (ASCP) requires graduation from an approved school and grants certifica-tion as a "M.T. (ASCP)," while the AMT requires graduation from an accreditedschool and grants certification as a "M.T." And finally, the official publication of theASMT is The American Journal of Medical Technology, while the official publicationof the ACMT is Journal of American Medical Technologists. Alcuin, supra note 3,at 335.

35. Nugent, supra note 6, at 291.36. Whitney, Current Status of the M.T. (ASCP) With Relationship to Wages and

Hours, Unionization, Licensure and Professional Recognition, 24 A mucAN JounwArLor MEDIcAL TEcHNoLoGLS'rs 157, 157-58 (1958).

Current employment practices in many clinical laboratories, making little or nodistinction between registered [(ASCP)] and unregistered personnel, have affectedmedical technology most adversely and made recruitment especially difficult.These effects on the profession, of course, are in addition to serious effects onthe quality of laboratory service available to the patient.

Nugent, Medical Technology in a Mid-Western State: Kansas, 1957--58, 25 A.misucAJounNAL OF MEDIcAL TECHNOLOGY 7 (1959).

In many cases . . . salary scales are illogical, with well trained, registeredtechnologists doing the same work, for the same pay, as graduates of sub-standard schools and laboratory assistants with only on-the-job training.

Why Laboratory Standards Are Substandard, 88 MODERN HosprrA. 51 (Feb.1957).

37. Montgomery, Medical Technology and Its Relation to Physiology andPathology, 154 THE JouRNAL OF TWE AMEucAN MEDICAL AssoCrIAroN 39, 41 (1954);Russell & Larson, Recruiting for Careers in Medical Technology, 30 HosPrrAr.s 37(Oct. 16, 1956).

[Vol. 44:11251130

to hire technologists with less training simply because there are nobetter qualified technologists available.38 Thus,

it is possible for a high school graduate to attend a course of severalmonths in a proprietary school for laboratory training and then secureemployment as a medical technologist. These people usually have inade-quate training and background for positions of responsibility and all toofrequently do not grasp the significance of many important details in aclinical laboratory.3 9

Therefore, it is reasonable to conclude that regulation by voluntarycertification has been unsuccessful.

Furthermore, despite optimistic statements by some authorities tothe contrary,40 it appears that the problem of substandard work bymedical technologists will become more serious, rather than im-prove. Since the end of World War II and continuing to the presenttime, a technological revolution has been occurring in the clinicallaboratory.41 "Only a few years ago the procedures performed bylaboratory workers in hospitals could be counted on the fingers ...Today hundreds of tests are performed routinely in pathology labo-ratories."42 Not only has the mushrooming growth of medical tech-nology created an unprecedented demand for additional medicaltechnologists, but it has also made additional training necessary inorder to adequately prepare the medical technologist to perform thecroutine procedures which have "increased in complexity with eachnew scientific advance .... , 43 Thus, the already alarming shortageof qualified medical technologists will undoubtedly become an evengreater problem in the future.44

In addition, it seems obvious thatif, after some years of training in college and in an approved school, atechnologist finds herself no better off than a colleague who has enteredthe field with no training, or at best a short stint in a commercial school. ... she is likely to feel that the investment in time, money and effort isunjustified. 45

38. Many doctors search in vain for a registered technologist. [sic] and sincethe work must be done, make a reluctant compromise, and hire individuals withsome knowledge of laboratory work to fill the jobs.

Nugent, supra note 6, at 291-92.39. Shively, supra note 9, at 983.40. See Hinman, supra note 4, at 149-50; Russell & Larson, supra note 37, at 38.41. Nugent, supra note 36, at 7.42. Why Laboratory Standards Are Substandard, 88 MoDmR HosPrrAL 51

(Feb. 1957).43. Nugent, supra note 36, at 7.Clinical laboratory work is now beyond mere repetitive mechanical manipula-tions. Experience has shown that without education, consistent quality of work,let alone advancement in technical skill and knowledge, is impossible.

Hovde, A Medical Technology Training Program Study, 23 AMmucaN JourNAL oFMEDxcAL TEcHNoLoGY 184, 187 (1957).

44. Russell & Larson, supra note 37, at 38.45. Why Hospital Standards Are Substandard, 88 MODERN HosPrrAL 51, 53

(Feb. 1957).

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Unless the high standards of training endorsed by the American Medi-cal Association 6 are universally required for employment as a medicaltechnologist, it is only natural that these standards will seldom besatisfied.47 Some change in the present system of voluntary regulationis necessary.

III. ARGUMENTS FOR A LICENSING REQUIREMENT FOR MEDICAL

TECHNOLOGISTS

The arguments in favor of a licensing requirement for medical tech-nologists can be classified under two general objectives: (1) protec-tion of the public and (2) protection of the profession. Protection ofthe public is, most certainly, the primary purpose of a licensing re-quirement. In fact, the arguments in favor of licensure because it willprotect the profession are also, incidentally, directed at protection ofthe public, since better working conditions will attract more compe-tent persons into the profession which, in turn, will raise the stand-ards of performance.

A. Protection of the PublicIt has been demonstrated that much incompetent work is presently

being performed in clinical laboratories by medical technologists,48

and it is perfectly clear that incompetent work by medical technolo-gists is a serious danger to the public health and welfare.49 By requir-ing an adequate amount of training and supervision, a licensingrequirement for medical technologists would protect the publichealth and welfare by improving the standard of laboratory work.Licensure is the only proposed method of raising the standard of per-formance in the profession of medical technology 50 which is compul-sory-that is, which will ensure the satisfaction of necessaryrequirements by all medical technologists.51

46. See text accompanying note 26 supra.47. Nugent, supra note 6, at 291.48. See text accompanying note 13 supra.49. See text acompanying note 12 supra.50. Other methods whichhave been suggested for raising the standard of perform-

ance in clinical laboratories by medical technologists include providing more oppor-tunities and facilities for training technologists, Nickerson, Problems in the Mainte-nance of Adequate Laboratory Staffs, 244 THE N-w ENGLAND JOURNAL OF MEDICINE207, 209 (1951); and recruiting greater numbers of highly capable young people intothe profession, Montgomery, supra note 87, at 42.

51. This fact has been admitted by ersons opposed to licensing:Frankly, I neither approve of nor allocate licensure of medical technologists bystates as a means of solving the problem. In all honesty, however, no otheradvocated plan offers positive control over inadequately trained laboratoryworkers.

ASMT Memorandum from ASMT Legislation Committee Chairman, Rodger Har-graves, to Members, ASMT Legislation Committee, and Chairmen, All State Legisla-tion Committees, March, 1959 [hereinafter cited as 1959 ASMT Memorandum].

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In addition, a licensing requirement would provide much-neededcontrol over Schools of Medical Technology.5 2 Schools would be com-pelled to meet certain minimum requirements in order to receive anapproved" status from the state licensing board. By ensunng a satis-

factory quality of training, licensure would further contribute to arise in the standard of performance by medical technologists. Thus,by requiring schools of medical technology as well as medical techno-logists to satisfy certain minimum requirements, a satisfactory licens-ing statute would afford adequate protection for the public.

B. Protection of the ProfessionThe present system of regulation has been very unsuccessful in

providing desirable working conditions for medical technologists.Salary levels in medical technology are extremely low in comparisonwith those in other occupations and professions.5 3 Clearly, a medicaltechnologist does not receive adequate compensation for the trainingit is necessary for him to receive in order to satisfactorily perform hisduties. In a recent survey of the opinions of medical technologists inKansas regarding licensing, the following comment, which is typicalof many of the replies, was received:

"In this area a reliable 16 year old can get 800 an hour for babysittingand housework. There is no incentive to spend 3 years' time and thousandsof dollars training for a job that will pay only $1.25 an hour." 54

It is obvious that the salary standards of medical technologists do notattract a sufficient number of persons of the intellectual caliber de-manded by current laboratory methods.5

Medical technologists are also frequently overworked. 6 Becausemany laboratories are understaffed, 57 the technologist often is re-quired to work extremely long hours at an insufficient salary rate."Laboratory personnel cannot apply highly technical skills requiredby modem laboratory science under such conditions." 5

In addition, the profession of medical technology has generally notreceived the public recognition due to a profession of its importance.5Although the situation has improved in recent years, this lack ofprofessional status has contributed enormously to the existing short-age of medical technologists.6"

52. Whitney, supra note 36, at 161.53. Id. at 157-58.54. Nugent, supra note 36, at 13.55. Snavely & Golden, supra note 16, at 193.56. Ibd.57. Belk & Sunderman, supra note 18, at 861.58. Snavely & Golden, supra note 16, at 193.59. Whitney, supra note 36, at 157.60. ibid.

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Also, medical technologists who voluntarily satisfy the minimumtraining requirements approved by the American Medical Associa-tion generally do not receive any more respect or compensation thantechnologists with less training.6 This situation is obviously detri-mental to the morale of well-trained medical technologists. 2

These employment conditions, along with the technological revo-lution presently occurring in the clinical laboratory, 3 have beenresponsible for the existing extreme shortage of medical technolo-gists.64 This shortage has aggravated the problems of the professionof medical technology still further by making it possible for largenumbers of incompetent and inadequately trained persons to secureemployment in clinical laboratories.65 This fact, in turn, has frus-trated efforts to improve the working conditions of medical technol-ogists.

The unsatisfactory employment conditions have influenced manywell-trained medical technologists to favor a licensing requirement.A recent survey of the opinions of medical technologists in Kansasregarding licensing 66 revealed some surprising statistics. Of the 266medical technologists expressing an opinion, 258 believed that someform of legal control over clinical laboratory personnel was desirableor necessary (with 149 checking "necessary"). Only eight of thoseresponding were opposed to any change in the present system ofvoluntary regulation.67 The respondents in favor of a licensing re-quirement indicated that they believed this would improve theirprofessional standing and raise their salary levels.6" The author ofthe report of this survey concluded,

The overwhelmingly favorable response to these questions regarding someform of legal control over clinical laboratory personnel would indicate thatKansas technologists are much more receptive to the idea of "licensurethan was generally realized.69

A licensing requirement would do much to improve the unsatisfac-tory working conditions in the profession of medical technology. Byrequiring all medical technologists to have an adequate amount of

61. Nugent, Medical Technology: Profession vs. Occupation, 23 A mancA Joua-NAL oF MEDIcAL TECHNOLOGY 289, 291 (1957). See note 36 supra.

62. Nugent, Medical Technology in a Mid-Western State: Kansas, 1957-58, 25AMEmcAN JoURNAL oF MEDIcAL TECHNOLOGY 7 (1959).

63. See text accompanying note 41 supra.64. Montgomery, supra note 37, at 42; Whitney, supra note 36, at 157.65. "Because of the shortage of trained medical technologists, many people are

carrying out laboratory tests who have not received adequate training for their job."Shively, The Significance and Evaluation of Laboratory Data in Clinical Medicine,47 INDiANA STATE MEDICAL AssoCrgTION JOURNAL 982, 982-83 (1954).

66. Nugent, supra note 62.67. Id. at 12.68. Ibid.69. Ibid.

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1960] NOTE 1135

training, a licensing statute would greatly aid the technologists intheir efforts to raise present salary levels. Furthermore, licensurewould secure to medical technologists a more professional status andwould encourage a unified organization-both of which would beinstrumental in improving the present employment conditions.70With improved working conditions, medical technology would at-tract many more highly capable persons into the profession. This, inturn, would benefit the public by raising the standards of perform-ance in clinical laboratories.

IV. ARGUME s AGAINST A LICENsING REQUnEMENT FOR MEDICAL

TFCHNOLOGISTS

In spite of the reasons in favor of licensure, only four states present-ly require medical technologists to be licensed.71 In addition, theAmerican Medical Association,72 the American Society of ClinicalPathologists (ASCP), 3 and the American Society of Medical Techno-logists (ASMT) 7

1 have all gone on record as being opposed to licen-sure of medical technologists. The following arguments have beenmade by these groups against a licensing requirement.

Because of the existing shortage of medical technologists a realisticlicensing statute would have to make some provision for licensing

70. An alternative method of improving the working conditions in the professionof medical technology is unionization. In some areas in the eastern section of theUnited States, medical technologists have been organized by a large internationalindustrial union. Interview with leaders of the American Society of Medical Tech-nologists (ASMT) in Minnesota, in February, 1960. Such unionization of medicaltechnologists has been considered extremely undesirable by leaders in the professionof medical technology. 1959 ASMT Memorandum. In a 1958 article, a well knownmedical technologist suggested that unionization is undesirable for the followingreasons: (1) the principles and practices of a union are incompatible with the codeof ethics of medical technologists; (2) the primary strength of a union is in thestrike weapon which is unavailable to medical technologists; (3) a union is pri-marily interested in the welfare of the union rather than the welfare of the individualmembers, which means a high dues requirement; and (4) it is dangerous to thepublic health and welfare to place the profession of medical technology under anobligation to a sponsoring organization which has no understanding of the profes-sion's responsibilities. Whitney, supra note 36, at 160. Therefore, an additional argu-ment in favor of a licensing requirement for medical technologists, in the opinion ofmany persons, is that it will deter unionization.

71. ALA. CODE tit. 46, §§ 151-67 (1940); CAL. Bus. & FPoF. CoDE §§ 1200-1322;FLA. STAT. §§ 483.01-.20 (1959); Hawaii Sess. Laws 1957, Act 316.

72. The House of Delegates of the American Medical Association adopted aresolution in December, 1958, encouraging the voluntary registration of para-medical personnel who assist physicians. At the same time it expressed oppositionto the extension of governmental licensure and governmental registration. How-ever, the House requested the committee on paramedical areas to expand itsstudy to include this phase of the problem.

Robins, The Medical Technologist and the Doctor, 170 THE jouuIAL orAmmrCAN MEDICAL AssoCmAfoN 626, 627 (1959).

73. Ikeda, supra note 33, at 153.74. Interview With Leaders of the ASMT in Minnesota, in February, 1960.

MINNESOTA LAW REVIEW

technologists already employed at the time of passage of the statute,even though they all have not satisfied the educational requirementsof the statute.75 Such a provision is known as a "Grandfather Clause."An argument has been made that licensure should not be adopted,because the "Grandfather Clause" would give equal legal recognitionto adequately and inadequately trained medical technologists alike.76This, it is argued, is a danger to the public health and welfare, in addi-tion to being unfair to the technologists who have voluntarily satisfiedthe American Medical Association approved training requirements. 77

The "Grandfather Clause" argument against a licensing require-ment is not persuasive. Such a clause clearly would not increase thedanger to the public from incompetent laboratory work existing priorto passage of the statute. At worst, it would merely preserve the statusquo. Furthermore, a well-drafted "Grandfather Clause" would con-tain some limitation in the form of a termination date after which nopreviously employed medical technologist would be able to availhimself of the benefits of the clause by application for a license.78Finally, any undesirable consequences of a "Grandfather Clause"would be only temporary. As time passes, the inadequately trainedtechnologists licensed by virtue of the clause would become increas-ingly more experienced and skilled, and, in any event, would event-ually be eliminated through retirement. The advantages of a licensingrequirement in protecting the public and protecting the professionwould clearly outweigh any temporary disadvantages caused by the"Grandfather Clause."

Another argument which has been made against licensure is that itwould greatly restrict the mobility of medical technologists. 79 At

75. See, e.g., FLA. STAT. § 483.13 (1) (1955):Any person, who on May 16, 1949, is actively engaged in the practice of

medical technology in the State of Florida, and who has been a resident ofthis state for six months immediately prior to making application, shall receivefrom the board a license as a medical technologist upon making an applicationunder oath in proper form as prescribed by the board, and paying a fee of tendollars; provided, however, that such application shall have been received by theboard prior to January 1, 1950.

Such provisions generally provide, as does the Florida statute above, for a limitedperiod during which the previously employed medical technologists may receive alicense without satisfying the statutory requirements. Section 483.13 (1) of theFlorida Statutes, quoted above, became ineffective on January 1, 1950, and wasrepealed by the 1957 legislature. Fla. Laws 1957, ch. 57-1, § 24, at 14.

76. [I]n one way these [licensing] acts always fail, and that is by the so-called"Grandfathers Clause" which in one way or another permits the recognition onan equivalent status of many workers who are obviously incompetent, and priorto the passage of the act have been unable to gain recognition.

Address by Lall G. Montgomery, M.D., presented to the Joint Committee to StudyParamedical Areas in Relation to Medicine, April 5, 1959.

77. See text accompanying note 26 supra.78. See note 75 supra.79. "Licensure . . . would restrict the mobility of medical technologists and

introduce difficulty in movement from state to state." Open letter by Mrs. Bernadine

1136 [Vol. 44:1125

present a technologist may move freely from state to state.80 Thismovement would be much more difficult in the event several morestates imposed licensing requirements for medical technologists.

The restriction of mobility argument against licensure is also notpersuasive, since there probably is not much movement of technolo-gists from state to state.81 Even if there were, because of the acuteshortage of qualified technologists, there would probably not be muchdifficulty in developing a program of reciprocity between states.2Thus, any disadvantage caused by a licensing requirement in restrict-ing movement between states is not likely to be substantial. Further-more, since the primary purpose of a licensing statute is to protectthe public, any resulting restriction of mobility would seem to be anegligible consideration.

Licensure has also been opposed with the argument that becausemedical technologists work so closely with pathologists and otherphysicians it is necessary that their regulation be by the medicalprofession rather than by outsiders . 3 Regulation within the medicalprofession, it is contended, is essential to the development of soundeducational requirements for an effective training program.84 In ad-dition, such internal regulation has the advantage of making thevarious branches of medicine aware of the peculiar problems faced bytheir associates8 5 A licensing requirement, on the other hand, "mightwell result in undesirably rigid controls exercised by people who arenot well-informed on the principles involved."86

This argument against a licensing requirement for medical technol-ogists is also subject to criticism since regulation through licensureneed not be by 'outsiders." A well-drafted licensing statute wouldprovide for administration of the licensure program by persons ac-quainted with the needs and problems of the profession of medicalPlebuch, President of the Association of Oregon Medical Technologists, urging defeatof a licensure bill before the Oregon legislature, March, 1959.

80. States which presently have a licensing requirement- Alabama, California,Florida and Hawaii - are exceptions.

81. This opinion was communicated to the author during an interview WithLeaders of the ASMT in Minnesota, in February, 1960.

82. ALA. CODE tit. 46, § 160 (1940) has such a reciprocal provision:Registered medical technicians from other states may be registered withoutexamination upon maldng application therefore, and upon furnishing evidencesatisfactory to the board that they possess the qualifications prescribed by thischapter, or the equivalent thereof, and upon payment of a registration fee often dollars.83. Robins, supra note 72, at 627.84. Hinman, The Education and Recognition of Technical Groups Associated With

Medicine, 59 Tm JoumnNA oF =u AmumcAN DmrrAL AssociATioN 147, 151 (July1959).

85. Robins, supra note 72, at 627.86. Open letter by Mrs. Bernadine Plebuch, President of the Association of Oregon

Medical Technologists, urging defeat of a licensure bill before the Oregon legis-lature, March, 1959.

1960] NOTE 1137

1188 MINNESOTA LAW REVIEW [Vol. 44:1125

technology.87 Furthermore, regulation within the medical professionhas not been successful in the past."" Concededly, this is due in largepart to the voluntary character of the regulation. But, even if thisregulation were compulsory, it is arguable that regulation by anothermedical group would not be adequate because, as one leading medicaltechnologist acknowledged,

no organization which must have the welfare of its own members as itsfirst duty can devote its time or resources solely to the problems of anancillary group. . . . [Clan we expect these medical groups to take onour responsibilities as well as their own, when their own are increasinglypressing? I think not.8 9

Another argument which has been advanced against licensure isthat it creates unnecessary expense and inconvenience for medicaltechnologists.90 There is a widely-shared opinion existing that stat-

87. The Alabama licensing statute is excellent in this regard:The board of medical technicians examiners for the State of Alabama shall

consist of five members who shall be appointed by the governor- three ofwhom shall be medical technicians of not less than five years' experience, one ofwhom shall be a physician, and one a physician-pathologist.

The Alabama association of medical technicians, through its executive com-mittee, shall submit to the governor a list containingthe names of two regularphysicians who are properly qualified as to training, licensure and ethical stand-ing, two physician-pathologists who are listed by the council on medical educa-tion and hospitals of the American medical association, and six medicaltechnicians who, in addition to two years' college instruction, shall have com-pleted a full internship in a school of training listed and approved by thecouncil on medical education and hospitals of the American medical association,or approved by the Alabama state board of censors; or who prior to the timeof appointment, had served on apprenticeship instruction of at least one yearunder a qualified physician-pathologist, and who shall have been engaged inmedical technology for not less than five years after completion of training;and the governor shall appoint the members of the board from the names onsaid list.

ALA. CODE tit. 46, §§ 151-52 (1940). The Florida licensing program is administeredby the board of examiners in the basic sciences, FLA. STAT. § 483.05 (1959); theHawaii licensing program is administered by the board of health, Hawaii Sess. Laws1957, Act 316; and the California licensing program is administered by the State

-Board of Public Health and the State Department of Public Health, CAL. Bus. &PRoF. CODE § 1202. Apparently the fact that the group administering the licensureprogram in the latter three states does not include any medical technologists has notbeen considered objectionable by the technologists subject to their licensing require-ments. The following statement has been made concerning the California statute:

The [California licensing] program as developed has been generally acceptedby the medical profession of the state as a notable contribution to the improve-ment of medical service. It is enthusiastically sponsored by the laboratorytechnicians.

Merrill, Eight Years" Experience in the Licensing of Clinical Laboratory Technicians,36 AMERICAN JOURNAL OF PUBLIC HEALTn 1185, 1142 (1946).

88. See section II supra.89. 1959 ASMT Memorandum.90. "The trouble and expense of licensure examinations and periodic registrations

represent nuisances to which we should not be subjected." Open letter by Mrs.Bernadine Plebuch, President of the Association of Oregon Medical Technologists,urging defeat of a licensure bill before the Oregon legislature, March, 1959.

utes requiring the licensure of medical technologists are enacted pri-marily for the purpose of raising revenue rather than for the protectionof the public health and welfare."1

This argument is clearly not persuasive. In view of the advantagesof a licensing requirement in protecting the public interest, the ex-pense and inconvenience which might be occasioned to medicaltechnologists are negligible considerations.92 Also the belief that theprimary purpose of such a licensing statute is always production ofrevenue is refuted by provisions such as section 167 of the Alabamastatute. After providing for the payment of salaries and expenses ofadministering the program out of the fees collected, the statute con-tinues:

Any funds remaining on hand after the payment of costs and expensesas in this chapter provided, may be used by the board for the purpose ofelevating the standards of schools of training for medical technicians,and of promoting the educational and professional standards of medicaltechnicians and of medical technology in this state.93

But, even if the primary motive of a legislature in enacting a reason-able licensing statute were production of revenue, this would not bea sufficient reason to oppose the statute if it afforded adequate protec-tion to the public health and welfare.

The argument has been made that the Code of Ethics of MedicalTechnologists greatly exceeds any possible legislative action in con-trolling unsatisfactory work by medical technologists.94 The pre-amble to the Code of Ethics of the Registry of Medical Technologistsstates:"I am aware that since the physician relies upon my work in the diagnosisand treatment of disease, even a trivial error may affect seriously thehealth or even the life of a patient. Every procedure, therefore, must becarried out with thoughtfulness and accuracy. Knowing these things Irecognize that my integrity and that of my profession must be pledged tothe absolute reliability of my work." 95

91. This opinion is reinforced by the manner in which the 1957 Hawaiian legis-lature enacted a licensing requirement for medical technologists. Hawaii Sess. Laws1957, Act 316. Apparently the legislature passed the statute solely as a revenue-raising measure during the closing minutes of the session, unaware that the issue wascontroversial. Letter From J. L. Tilden, M.D., to the College of American Patholo-gists, April 8, 1959, on file with the College of American Pathologists. In fact, thestatute's licensing requirement also applied to tattoo artists. Hawaii Sess. Laws 1957,Act 316.

92. The provisions of the Florida statute are typical. The inconvenience involvedis the necessity of passing an examination. FrA. STAT. § 483.09 (1959). The expenseinvolved is a ten dollar application fee and an annual renewal fee of five dollars.F". STAT. §§ 483.08, .17 (1959).

93. ALA. CODE tit. 46, § 167 (1940).94. Open letter by Mrs. Bernadine Plebuch, President of the Association of Oregon

Medical Technologists, urging defeat of a licensure bill before the Oregon legislature,March, 1959.

95. Quoted in Levinson, Medicolegal Problems of the Clinical Laboratory, 97ILLiNois MmDIcAL JourNAL 76, 77 (1950).

1960] NOTE 1139

MINNESOTA LAW REVIEW

Thus, it is argued, a licensing requirement should not be adoptedbecause it would not be as effective as the present form of regulationthrough the Code of Ethics.

This argument, too, lacks merit because the fact is that much in-competent work is presently being performed in clinical laboratoriesby medical technologists, notwithstanding the Code of Ethics 6

Also, it seems obvious that an unethical person will remain unethi-cal, whether licensed or certified. Regulation by a Code of Ethicsclearly has not been, and is not, sufficient to protect the publicinterest.

The primary reason for the wide-spread opposition to a licensingrequirement for medical technologists is a very realistic one, stem-ming from the present acute shortage of medical technologists.9T Alicensing statute which would impose requirements satisfactory tothe American Medical Association, the American Society of ClinicalPathologists and the American Society of Medical Technologistswould eliminate a large number of the potential medical technolo-gists at a time when an alarming shortage already exists, and at atime when a technological revolution in the clinical laboratory iscreating an unprecedented demand for more technologists. Forthis reason, these groups believe a legislature would be unwilling toenact a licensing statute imposing standards which, in their opinion,would adequately protect the public health and welfare.99 A licens-ing statute imposing less than adequate educational requirementswould destroy all of the efforts of these groups during the lastthirty years to improve the standards of performance in the profes-sion of medical technology.10 However, an answer to this argumentwould be a licensing statute which divides clinical laboratory per-sonnel into more than one classification.10

V. PiEsENT STATUS OF LicF-qsunn OF MEDIcAL TECHNOLOGSs

A change in the present system of voluntary regulation of medicaltechnologists appears to be necessary. 02 Although licensure appar-ently would provide a desirable form of regulation, 03 only four

96. See text accompanying note 13 supra.97. See text accompanying note 37 supra.98. See text accompanying note 41 supra.99. Address by La G. Montgomary, M.D., presented to the Joint Committee to

Study Paramedical Areas in Relation to Medicine, April 5, 1959.100. [A]Il of the efforts in the past years to maintain a high level of medicaleducation, with particular efforts to the training of medical technologists,would be lost by virtue of state licensing. ...

Levinson, supra note 95, at 79.101. See section VI infra.102. See section II supra.103. See section III supra.

1140 [Vol. 44:1125

1960] NOTE 1141

states presently have a licensing requirement for medical technolo-gists.'04 What is the explanation for this absence of licensure?

First, influential medical groups 105 have opposed licensing withvarious arguments which have been previously evaluated. 0 6 Second,medical technology is still a young profession. 07 Probably an insuf-ficient amount of time has passed for the public to become concernedabout the competence of medical technologists and aware of thedangers of incompetence. 08 Third, a great amount of distrust andjealousy has existed between the rival certifying organizations-the Registry (ASCP) and the Registry (AMT). 10 Each organiza-tion seems to believe that licensure will benefit its rival more thanitself, and, as a result, neither group appears to have given serious,impartial consideration to the merits of licensure."0 And fourth, itis reasonable to conclude that the pathologists have been motivated,to some extent, by selfish reasons in opposing licensure. Under thepresent system of regulation the American Society of ClinicalPathologists has a very great amount of control over the large profes-sion of medical technology."' For financial and other personal rea-sons, it is obvious that the pathologists do not want to relinquishthis control through licensure."2

104. ALA. CODE tit. 46, §§ 151-67 (1940); CAL. Bus. & PNoF. CODE §§ 1200-1322;FLA. STAT. §§ 483.01-.20 (1959); Hawaii Sess. Laws 1957, Act 316.

105. See text accompanying notes 72-74 supra.106. See section IV supra.107. See text accompanying note 5 supra.108. The profession of medical technology exploded to its present size and com-

plexity only luring the last fifteen years. See section I supra. Thus, the problem ofdanger to the public health and welfare from incompetent medical technologists is arelatively recent one.

109. This fact becomes apparent upon a reading of any article comparing the twoorgaiation written by a member of one of them. See, e.g., Alcuin, Medical Tech-nology, 35 MIEN. MEDmICINE 331 (April 1952). This fact was readily confirmed,Interview With Leaders of the ASMT in Minnesota, in Minneapolis, February 1960.

110. See, e.g., the following statement by a medical technologist registered(ASOP): "herefore, the American Medical Technologists always exert pressure fora state i/censure, since they lack recognition by the American Medical Association."Judd, Training of the Medical Technologist, 244 Tr NwE LADOUNLOMnnxcrN 206, 206-07 (1951).OF

111. See text accompanying notes 22-27 supra.112. See, e.g., the following statement by the Executive Secretary of the Oregon

State Medical Society:One great concern which the Society has had regarding the legal recognition ofparamedical groups, is that once such a group is licensed it eventually begins torequest a broadening of the scope of its activities and eventually might actuallybe licensed to practice in a certain limited field of medicine. This has been trueeven though the group originally seeking legal recognition has expressed all goodintentions of keeping the scope of its activities within the limits currentlyeffective at the time of the legislation enactment.

Letter From Roscoe E. Miller, Executive Secretary of the Oregon State MedicalSociety, to the College of American Pathologists, April 1959, on file with the Collegeof American Pathologists.

MINNESOTA LAW REVIEW [Vol. 44:1125

Existing StatutesNotwithstanding the opposition to licensure, four states have

enacted a licensing requirement for medical technologists. The firstlicensing statute was enacted in California in 1935."' This law codi-fied and made generally applicable a system of examination andcertification which had already been in operation in California on avoluntary basis for fifteen years." 4 The California licensing statuteis apparently enthusiastically supported by the medical profession inCalifornia," 5 and has been successful in improving the standard ofperformance by medical technologists." 6 The requirements forlicensure are somewhat higher than those endorsed by the AmericanMedical Association for certification.117 According to a report pub-

113. Cal. Stats. 1935, ch. 638, at 1782; currently CAL. Bus. & PROF. CODE §1200-1322.

114. Merrill & Chapman, The Clinical Laboratory Law and Its Meaning to PrivatePhysicians, 82 Car~aour M-nicn- 309 (1955).

115. Merrill, supra note 87, at 1142.116.

The application of the clinical laboratory law provides physicians a reason-able assurance that competence and reliability will prevail in clinical laboratoryoperation.

Merrill & Chapman, supra note 114, at 309.117. See Letter From E. F. Ducey, M.D., to the Editor of the BUL-LTIN OF THE

COLEE OF AMEmcAN PALoTHLOISS, Aug., 1958 [hereinafter cited as LetterFrom E. F. Ducey, M.D.].

The California licensing statute defines three classifications of clinical laboratorypersonnel: a clinical laboratory bioanalyst, a clinical laboratory technologist, and aclinical laboratory technologist trainee. CAL. Bus. & PROF. CoDE- §§ 1203-05. Therequirements for a clinical laboratory technologist's license are the passage of anexamination and one of the following:

(a) Completion of a regular four-year college or university curriculum inmedical or clinical laboratory technic with a degree of bachelor of arts orbachelor of science in a college or university approved by the department, thelast year of which course shall have been primarily clinical laboratory procedure;provided, however, that if the curriculum did not include practical clinicallaboratory work, six months as a clinical laboratory technologist trainee or theequivalent as determined by the department in a clinical laboratory approvedby the department shall be required; or(b) Graduation from a college or university maintaining standards equivalent,as determined by the department, to those institutions accredited by the WesternCollege Association, Northwest Association of Secondary and Higher Schools oran essentially equivalent accrediting agency, as determined by the department,with a degree of bachelor of arts or bachelor of science and a major in bac-teriology, biochemistry, or essentially equivalent subject or subjects as may bedetermined by the department plus one year as a clinical laboratory technologisttrainee or the equivalent as determined by the department in a clinical labora-tory approved by the department. One year of practical experience in a publichealth laboratory may be accepted if such experience or if university or collegecourses included practical work in clinical biochemistry and hematology;(c) A minimum of three years of experience as a clinical laboratory technologisttrainee or the equivalent as determined by the department doing clinical labora-tory work embracing the various fields of clinical laboratory activity in a clinicallaboratory approved by the department and 60 semester hours of equivalentquarter hours of university or college work in which are included the followingcourses, or essential equivalent as may be determined by the department: general

1142

1960] NOTE 1143

lished in 1955, sixty-seven per cent of all licensed technicians inCalifornia were college graduates, and eighty-nine per cent had hadat least some college education. 118 Consequently,

all of the second-class schools in this State have closed since passage ofthe present Act, because they could not meet the standards set up by theCalifornia State Licensing Board, and the inadequately educated ortrained technicians are not even eligible for admission to the (compulsory)examination and, hence, are unable to get a license.119

Alabama also adopted a licensing requirement for medical tech-nologists in 1937.120 This statute similarly imposes rigorous trainingrequirements as a prerequisite for licensure.'2' One authority hascommented,

the Alabama Act for medical technologists comes as close to the ideals setforth by the Council on Medical Education and Hospitals of the AmericanMedical Association, and the American Society of Clinical Pathologistsand the Registry of this Society, as any of the proposed statutory legisla-tion that I have had the opportunity to review. There is in this Act notonly the purpose of developing medical technologists of a very highstandard, registered by the State of Alabama, but a provision in the Actwhich calls for the training schools to meet the requirements of the afore-mentioned medical organizations.122

Florida enacted a statute requiring the licensing of medical tech-nologists in 1949.'2 The educational requirements of the Floridalaw also appear to afford satisfactory protection to the public healthand welfare. 24

inorganic chemistry- 8; quantitative analysis -8; basic biological science -8;bacteriology - 4. Additional college or university work which includes coursesin the fundamental sciences may be substituted for two of the three years ofexperience in the ratio of 80 semester hours or equivalent quarter hours for eachyear of experience. Time spent in a school approved by the department ...shall count as acceptable experience on a month for month basis.

CAL. Bus. & Pnor. CODE § 1261 (Supp. 1959).118. Merrill & Chapman, supra note 114, at 311.119. Letter From E. F. Ducey, M.D.120. Ala. Laws 1986-87 Extra Session, at 172; currently ALA. CODE tit. 46, §§

151-67 (1940).121. The prerequisites for licensure as a "medical technician" in Alabama are

passage of an examination and satisfaction of the minimum educational requirements.The minimum educational prerequisites shall be high school graduation or itsequivalent and one year of college scholastic and laboratory work with creditsin chemistry, bacteriology and biology . . . also . . . a full twelve monthsinstruction in an approved training school for medical technicians....

Ar.. CODE tit. 46, § 159 (1940). An "approved" school is one approved by eitherthe Council on Medical Education and Hospitals of the American Medical Associa-tion or the Board of Censors of the Medical Association of the State of Alabama.ALA. CODE tit. 46, § 166 (1940).

122. Levinson, supra note 95, at 80.123. Fla. Laws 1949, ch. 25069, at 142; currently FLA. STAT. §§ 488.01-.20

(1959).124. To receive a license as a medical technologist in Florida, an applicant must

be twenty-one years of age; pass an examination; and, in addition:Each such applicant must have completed at least two years of residence college

MINNESOTA LAW REVIEW

The most recent state to enact a licensing requirement for medicaltechnologists is Hawaii in 1957.125 Although, as noted previously, theHawaiian statute apparently was adopted principally for the produc-tion of revenue rather than for the protection of the public,12 in thestatute the Hawaiian legislature did delegate to the Board of Healththe power to

prescribe such rules or regulations as it deems necessary for the publichealth or safety respecting . . . the health, education, training, experi-ence, habits, qualifications or character of persons to whom [licenses topractice medical technology may be issued] .... 127

After several public hearings, the Board of Health adopted a set ofgoverning rules and regulations early in 1959. According to oneclose observer, the rules which were adopted maintained the higheducational standards approved by the American Medical Asso-ciation. 2 s

VI. A PROPOSAL

More efficient regulation of the profession of medical technologyseems a necessity, and licensure appears to be the most effectivemethod available. However, the American Medical Association, theAmerican Society of Clinical Pathologists and the American Societyof Medical Technologists are clearly correct in their opinions thatthe only satisfactory licensing statute is one which adequately pro-tects the public health and welfare.1 9 Any statute which prescribesless than adequate training requirements harms rather than helpsthe public interest, because it gives legal sanction to unsatisfactoryperformance in clinical laboratories. The problem thus is one ofdrafting a licensing statute which provides satisfactory protection tothe public health and welfare and still is practicable in view of theexisting shortage of competent medical technologists.

A reasonable solution to this problem would be a licensing statutewhich divides clinical laboratory personnel into two or more cate-gories. To be classified as a "medical technologist" one would berequired to satisfy rigorous educational requirements comparable to

work, consisting of a minimum of one-half the work acceptable for a bachelor'sdegree granted on the basis of a four year period of study, in a recognizedcollege or university approved by the board; and in addition each applicantmust be a graduate of an approved [by the board of examiners in the basicsciences] school for training medical technologists or must have received equiva-lent training during a continuous period of not less than two years in an estab-lished medical or clinical laboratory approved by the board.

FLA. STAT. § 483.08 (1959).125. Hawaii Sess. Laws 1957, Act 316.126. See note 91 supra.127. HAwArr REv. LAWS § 46-15 (1955); Hawaii Sess. Laws 1957, Act 316.128. Letter From J. L. Tilden, M.D., to the College of American Pathologists,

April 8, 1959, on file with the College of American Pathologists.129. See text accompanying note 100 supra.

[Vol. 44:11251144

those presently considered necessary by the medical profession."CIn addition, such a statute would establish a class of 'laboratorytechnicians" for which less training and more laboratory supervisionwould be required. These workers with less training would performcertain clinical laboratory procedures which could be classified assimple or routine-those which require only knowledge of themechanics of the procedure rather than an understanding of itsscientific basis. In performing these routine procedures the labora-tory technicians would be closely supervised by technologists withmore training and experience. Thus, such a statute would provideadequate protection for the public and yet be practicable underpresent circumstances.13

1

At least one writer has criticized such a system of classifyingtechnologists, arguing that no laboratory procedures should be con-sidered simple or routine. 32 "There is too much involved," it isargued, "to allow performance of these tests to deteriorate to themere pouring together of specimens and reagents and empiricallynoting results." '33 Nevertheless, there is reliable authority for theproposition that certain procedures are sufficiently simple androutine to be performed, under close supervision, by laboratorytechnicians with less training than that required for medical tech-nologists. 34

In apparent recognition of the desirability of classification ofclinical laboratory personnel, the General Extension Division of theUniversity of Minnesota, in cooperation with the College of MedicalScience, inaugurated in 1951 a course of study for medical laboratoryassistants. 3 This twelve-month course, which includes six months

130. See text accompanying note 26 supra.131. For an interesting and informative discussion of classification of clinical

laboratory workers, see Claussen, Some Ideas on Possibilities for Future Classifica-tion, Training and Standards of Medical Technologists, 22 AivmucAN JouR-AL oFCLIcAL PATHOLOGY 918 (1952).

132. Merrill & Chapman, supra note 114, at 313.133. Ibid.134.Studies have shown repeatedly that a considerable portion of the (MedicalTechnologist's) time is used for (simple routine laboratory procedures) whichmight be relegated to (Laboratory Aides).

Claussen, supra note 131, at 919. See Memorandum Regarding Licensure of ClinicalLaboratory Workers, Particularly of Clinical Chemists, Prepared by Harry P. Smith,M.D., Professor of Pathology, Columbia University, March 1, 1958, on file with theCollege of American Pathologists.

Such a system of reglation would not, however, be without difculties.The greatest problem . . . in establishing classifications, would be the control

of limitations of work within the classified groups, and the establishment of asalary system commensurate with the educational background and duties per-formed within the limits of the class or group.

Claussen, supra note 131, at 919.135. Hovde, A Medical Technology Training Program Study, 23 AmERICAN jobu-

NAL OF MEDICAL TrzHNOLOGY 184, 190 (1957).

19601 NOTE 1145

MINNESOTA LAW REVIEW

training on campus and six months experience in a clinical labora-tory, 3 6 "represents an attempt to provide satisfactory training forlaboratory workers at a sub-professional level. . . ." I3T The require-ments for admission to the course are graduation from high schoolwith college aptitude ratings of fifty or higher and completion of ahigh school chemistry course.138 After six years experience with thecourse, the following evaluation was made:

With careful selection of students, it is possible in 12 months to teach afew basic laboratory techniques, limited in scope, in such a way that thestudents can learn these procedures well and can do these tests compe-tently. The laboratory aides are employed in situations where they areable to make a real contribution to laboratory service by doing time-consuming "routine" tests, thereby allowing time for the medical technolo-gist to perform more exacting and demanding procedures.'39

Therefore, through the establishment of a special class of labora-tory technicians, similar to the graduates of the Minnesota coursefor medical laboratory assistants, a licensing statute would bepracticable and still adequately protect the public by insuring thatclinical laboratory tests are performed by persons with adequatetraining and supervision.

A diMcult question which must be decided in drafting a desirablelicensing statute is whether any medical technologists should beexcluded from coverage by the statute. In order to provide the mostsatisfactory protection for the public health and welfare, it wouldseem that all medical technologists should be required to satisfythe requirements for licensure. However, at least three of the fourstates which presently have a licensing requirement exclude fromcoverage technologists employed by a physician to perform labora-tory tests for his own patients.140 Although initially such an exclusionappears to be undesirable because of possible danger to the public,it may be justified by the circumstances surrounding the professionof medical technology. The existing shortage of competent medicaltechnologists '4 probably necessitates this exclusion in order tomake the licensing statute practicable. For example, a doctor prac-

136. BuLLEr, oF Tim UNivsrry oF MINNESOTA, Course in Medical Technology,1959-61.

137. Hovde, supra note 185, at 191.188. BuLir oF vne UNwEsrrY oF MmNESOTA, Course in Medical Technology,

1959-61. "College aptitude rating" is the average of the high school percentile rankand the college aptitude percentile rank.

139. Hovde, supra note 185, at 191.140. ALA. CODE tit. 46, § 158 (1940); CAL. Bus. & Pno. CODE § 1241; FLA. STAT.

§ 483.03 (1959). The Hawaiian licensing statute delegated to the Board of Healththe power to prescribe regulations governing the licensing of medical technologists.HAwAu REv. LAws § 46-15 (1955); Hawaii Sess. Laws 1957, Act 316. These regula-tions by the Hawaiian Board of Health could exclude from the licensure requirementtechnologists employed by a physician to perform laboratory tests for his own patients.

141. See text accompanying note 37 supra.

1146 [Vol. 44:112,5

ticing in a small rural community should not be denied the oppor-tunity of having modem laboratory tests performed for his patientssimply because he is unable to persuade a licensed medical tech-nologist to come to work for him. Furthermore, there is not as muchdanger to the public in the situation where a technologist isemployed by a physician to perform laboratory tests for his ownpatients as there is in the usual situation where many medical tech-nologists are employed in a clinical laboratory to perform tests forseveral physicians. In the former case, the physician is better ableto judge the competence of the medical technologist performing thelaboratory test; and, in fulfilling his moral as well as legal obligationto his patients, he will not rely on the results of the test in makinghis diagnosis unless he is satisfied that his technologist is competent.Therefore, it is reasonable to conclude that the exclusion fromcoverage by the statute of technologists employed by a physicianto perform laboratory tests for his own patients may be a necessaryconcession, as is the establishment of a special class of laboratorytechnicians, to make the licensing statute practicable, but a conces-sion which does not substantially endanger the public health andwelfare.1

42

VII. CONCLUSION

"[S]uccess in medical practice demands that clinical laboratorywork be done by well qualified technicians." 43 Regulation of theprofession of medical technology through licensure would greatlyimprove the standard of performance by medical technologists.Because of the existing shortage of competent medical technologists,however, a practicable licensing statute would probably have toestablish more than one classification of clinical laboratory person-nel. Such a multi-classification statute would be feasible and wouldafford adequate protection to the public health and welfare byrequiring a high degree of training for medical technologists andclose supervision over the prescribed activities of those laboratorytechnicians with a lesser amount of training.

142. Though not required to do so by statute, most physicians would certainlyendeavor to employ licensed technologists, if possible, as a matter of practice. InCalifornia, where the licensing statute exempts technologists performing tests for anindividual physician's patients only, it was recently observed:

In spite of this exemption, there is an increasing use by private physicians oflicensed technicians. As more such technicians become available, this practicewill no doubt become more eneral. Unless a physician has the time to performhis own laboratory tests, goodpractice dictates that he have a licensed technicianfor this work.

Merrill & Chapman, supra note 114, at 313.It should be noted that this exclusion need not be permanent. Should the present

shortage of qualified medical technologists cease to exist, as a result of a desirablelicensing statute, it would be possible to remove the exclusion and require all medicaltechnologists to be licensed.

143. Id. at 313.

19601 NOTE 1147