The law in its relations to physicians

Front matter

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Contents

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Introduction 1

I. — The eight to practise medicine and surgery . 8

Chapter I. The Right To Practise Medicine And Surgery

No Eestrictions except by Statute. — The common law * of England did not recognize the inability of the public to discriminate for themselves between the qualified and the unqualified practitioners of medicine and surgery, and therefore imposed no restrictions upon the free exercise of the art of healing ; the necessity of such a restriction was, however, recognized at an early date, and in the third year of the reign of Henry VIII a law was enacted prohibiting any person from practising medicine or surgery in London, or within seven miles thereof, without first being examined, approved, and admitted by the Bishop of London or the Dean of Paul's, who should call to their aid four doctors of physic and, for surgery, other expert persons in that faculty. The statute further provided that no person should practise outside of London and a seven-mile radius thereof without being first examined and approved by the bishop of his .diocese, or his vicar-general, similarly assisted,

* For the distinction between common law and statute law, see Introduction, p. 2. 8 saving those practising under privileges conferred by the Universities of Cambridge or Oxford. Seven years later a charter was granted to the College of Physicians in London vesting in it the right of examining and admitting to practice formerly granted to the Bishop of London and Dean of Paul's.

Other laws relating to the subject were enacted from time to time, but, owing to their character, they were not applicable to the condition existing in the United States, and consequently never became law here.

Statutory Kestrictions in the United States. — In the United States the legislature of each State has authority to prescribe qualifications which must be possessed by those practising medicine and surgery within its borders, and it may be said without exception that the legislature of each State has exercised this right to a greater or less degree. An elaborate treatment at this point of the statutes of the several States would be inconsistent with the size and scope of this work, yet a brief resume will, it is thought, be of sufficient value to the practitioner to justify devoting to that purpose the necessary space.

General Classification of Eequirements. — The qualifications prescribed by the several States to entitle one to begin the practice of medicine and surgery within their respective jurisdictions may be generally classed under the four heads following :

I. The candidate must have a diploma from a medical college in good standing, the length of the course being specified in many States, and ordinarily being three or four years. In addition, he must pass a satisfactory examination before a board of examiners, the subjects to be covered by this examination being frequently specified.

This is the rule in Arizona, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois,.* Iowa, Louisiana, Maryland, Minnesota, Montana, New Hampshire, ISTew Jersey, New York, North Carolina,! Pennsylvania, South Carolina, arid Utah.

II. The candidate must pass a satisfactory examination as in the first class, but he is not required to have a diploma from a medical college. In some States of this class the time he shall have spent in the study of medicine is designated.

The following are the States within this class: Alabama, Arkansas, Maine, Massachusetts, Mississippi, North Dakota, Oregon, Tennessee, Texas, Virginia, Washington, and West Virginia.

* In Illinois graduates of legally chartered medical colleges of the State, in good standing, as may be determined by the State Board of Health, nay be granted certificates without examination. Laws 1899.

\ In North Carolina, a license or other satisfactory evidence of standing as a legally qualified practitioner of another State shall be accepted in lieu of a diploma as entitling the applicant to be examined. Laws 1809.

THE RIGHT TO PRACTISE MEDICIKE. H

III. The candidate may either present an acceptable diploma or, if he has no diploma, he may be examined as to his qualifications to practise medicine and surgery.

This is the method of admitting candidates in Colorado, Missouri, New Mexico, Ehode Island, Vermont, and Wisconsin.

IV. The applicant must hold a diploma issued by a proper medical college, which must be satisfactorily shown to belong to him.

This qualification is prescribed in California, Indiana,* Kansas, Kentucky, Michigan, Nebraska, Nevada, Ohio, Oklahoma Territory,! South Dakota, and Wyoming.

Indian Territory has a peculiar arrangement which in effect allows the Indians to follow their own customs in regard to doctors or medicine men of their own race, but in the Cherokee and Choctaw Nations provides for the examination of those not citizens of the nation who desire to settle therein to practise medicine. The law also requires the candidate to secure the indorsement of four or more citizens of the nation residing

* In Indiana, if the college issuing the diploma presented is not rec ognized as maintaining a suflSciently high standard of medical education, the applicant shall have the privilege of being examined as to his qualifications to practise medicine and surgery.

■f In Oklahoma Territory, the candidate may be admitted upon examination if he has been actually engaged in the practice of medicine not less than five years. 2 in the vicinity in which he desires to practise medicine.

There is no law protecting the residents of the Creek N"ation from incompetent practitioners.

Additional Kequirements. — In addition to the requirements classified under these four heads there are certain other requirements which are almost universally imposed — viz., that the candidate shall be twenty-one years of age, of good moral character, and have a good general education. In some States it is provided that he shall never have been convicted of a felony.*

Removal to Another State. — There seems to be very little disposition manifested in the statute laws of the various States to facilitate the moving of a regularly licensed physician from one State to another. Several of the States make special arrangements for licensing regularly qualified physicians of sister States who change their residence and practice to those States, but in each case satisfactory evidence is required of the same or a similar degree of proficiency as that established to entitle other candidates to practise within the particular State.

Proving Diploma. — Whenever a candidate is admitted to practise medicine and surgery by virtue of a diploma, it is usually necessary for him to submit the diploma to some board appointed for the purpose of

* A felony may be generally defined as an offense that is punishable by capital punishment or by being imprisoned in the State prison.

passing upon the qualifications of candidates, together with an afiBdavit that he is the .lawful possessor of such diploma, that he has attended the full course of study required for the degree, and that he is the person named in the diploma.

Issuing and Filing Certificate or license. — If upon examination of the papers submitted the board finds that the candidate has fulfilled the requirements of the law, they issue a certificate showing him to be entitled to practise medicine and surgery within that particular county or State. If the candidate is admitted upon examination, a like certificate is issued. In either case the law usually provides that this certificate shall be filed with some county officer in the county in which the physician resides and practises. The filing of this certificate with the county ofiieer designated is an essential part of the requirements, and a physician is not entitled to practise and receive the benefits thereof until his certificate is so filed. The law generally provides that in case a physician removes to some county other than that in which he first filed his certificate he shall file a properly authenticated copy of the certificate in the county to which he removes; this copy will ordinarily be furnished by the officer with whom the certificate is originally filed upon the payment of a small fee.*

* As to the physician's right to attend patients in other counties without first filing his certificate in such other counties, see p. 32.

Enforcement of the law. — In a very few States no penalty, is prescribed for a violation of the law, but in nearly all States the law is enforced by fines, usually with an alternative penalty of imprisonment, and sometimes by fine and imprisonment conjunctively. The amount of the fine and the duration of the imprisonment is largely discretionary with the court, certain limits being prescribed for his direction, fixing the minimum and maximum amount of fine to be imposed and designating the longest and shortest periods of imprisonment to which the offender shall be committed.* The smallest amount of fine fixed by any State is ten dollars, and the largest amount allowed to be imposed in any is five hundred dollars ; the extreme periods of imprisonment vary from ten days to one year. In a few States, however, the payment of the fine is enforced by imprisonment until paid.

Eecovery of Fee prohibited by Statute. — The statutes of several States expressly provide that any physician practising medicine unlawfully shall not be permitted to recover any fee or compensation for his services, f The right of the physician to recover for such

* In North Carolina the discretion of the court as to the period of time for which the offender shall be committed is unlimited.

f Such provision exists in Alabama, Georgia, Kansas, Kentucky Louisiana, Maryland, Michigan, Nebraska, North Carolina, Khode Island, Virginia, and Vermont.

services in States where there is no express prohibition of recovery has been the subject of judicial determination, and is fully treated in Chapter VI of this work.

Privileges to Non-resident Physicians. — ^While every phypician is, or at least ought to be, familiar with the statutes regulating the practice of medicine and surgery in his own State, it is also greatly to his interest to be informed upon the laws of the neighboring States, at least so far as they extend privileges to him as a legally qualified practitioner of a sister State.

Privilege of Attending Cases. — The States of Connecticut, District of Columbia, Indiana, Kentucky, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina,* Ohio, Pennsylvania, Ehode Island, and Wyoming accord to non-resident physicians and surgeons the privilege of practising within their . border, but they are not permitted in any case to maintain an office or have a place for meeting patients generally within such States. In several of these States f the non-resident physicians' visits are restricted to " a particular case." The exact mean-

* In North Carolina the privilege is expressly limited bo as not to permit physiciaas resident in a neighboring State to " regularly practise " in that State.

\ In Kentucky, Maine, Massachusetts, and Rhode Island, the visit is restricted to a " particular case " ; in Kentucky, to a " particular case or family " ; in the District of Columbia, such physicians are permitted to attend " specified cases."

ing of this restriction does not seem to have been judicially determined.

Before exercising the privilege in Mississippi the practitioner must procure a license from the State board of health, which license is granted to him without examination, and as a matter of right, upon his showing himself to be a legally qualified practitioner of another State. The privilege given by Indiana, New Hampshire, New York, Ohio, Pennsylvania, and Wyoming is restricted to physicians living " on the border of a neighboring State." The law of New Hampshire, however, permits non-resident physicians, irrespective of their place of residence, to attend their regular patients while sojourning in the State; it also allows landlords of summer hotels to employ physicians unlicensed in the State as hotel physicians to care for their guests or employees. New Jersey allows a physician of another State to take temporary charge of the practice of a physician of that State, a written request being first made to the State board of medical examiners.

Privilege of Consultation. — It is expressly provided that legally qualified physicians and surgeons from other States may meet in consultation with resident physicians in twenty-four States, to wit: Connecticut, Delaware, District of Columbia, Georgia, Idaho, Indiana, Louisiana, Maryland, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina,

North Dakota, Ohio, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. The law of Georgia restricts such consultation to "a special case," and expressly provides that a non-resident physician shall not be permitted to engage in a continuous practice or consultation in connection with a resident physician or surgeon.

It will be observed that not all of the States which allow non-residents to attend patients within their borders expressly give them the right to meet resident physicians in consultation ; but applying the general maxim of law. Major continet in se minorem, it may be stated generally that any non-resident physician having the right to enter a State to practise medicine has also the right to meet a resident physician there in consultation.

Judicial Construction of Statutes. — The statutory enactments of the various States have from time to time been construed by the courts of the respective States or of the United States ; but these decisions, being usually based upon the particular wording or meaning of the statute in question, are ordinarily of little interest outside of the State in which they are rendered. Some of these decisions, however, either involve a principle of extended application or construe statutes which exist so generally as to render them of sufficient value to justify an examination.

Constitutional Validity of Medical Acts. — The eonstitutional validity of the laws prescribing requirements for those practising medicine and surgery has been attacked in nearly every State in the Union upon the general grounds that :

They invade natural rights.

They interfere with vested rights.

They discriminate against persons engaged in the same business or profession, and deny them the equal protection of the law.

Or, they are ex post facto.

Our courts, both State and Federal, have, however, almost universally upheld the constitutionality of these acts, conceding them to be invalid only where they contained some specially objectionable feature.

The authority of the legislature to enact a law of the character of those under consideration is included in the police power of the State. The police power is very broad ; it has been judicially defined to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort and welfare of society. It extends to the protection of the lives, limbs, health, comfort, and convenience as well as the property of all persons within the State, and to accomplish this end persons and property are subjected to all kinds of restraints and burdens.*

* Lakeviow vs. Rose Hill Cemetery,. 70 111., 191. State vs. Noyes, 47 Me., 189.

That the practice of medicine and surgery is a vocation that very nearly concerns the comfort, health, and even life of nearly every person can not be questioned, and therefore a wholesome restraint upon those unprepared to exercise these important functions is clearly the right of the State and its duty as well.

Nearly every State makes special provisions for licensing those who had been engaged in the practice of medicine and surgery in that State for a certain length of time prior to the enactment of the law. The validity of such provisions is attacked on the ground that they create special privileges and allow those who have exercised the right for the prescribed time to continue its exercise without submitting to examination or presenting a diploma; while all who have not practised for such period are obliged to be specially examined as to their qualifications or present diplomas, or both. The answer to this attack is, that if in the wisdom of the legislature the experience gained in practising five or ten years, or any other period fixed upon, within the State is equivalent by way of preparation to the course prescribed for those about to undertake the practice of medicine and surgery, it shall be lawful and will be considered no discrimination to fix these two standards.

It has been observed heretofore that many States extend to non-resident physicians and surgeons the right of being called into the State in consultation, and sometimes the right to extend their practice into the State without being examined or licensed. This has also been attacked as being an unjust discrimination and contrary to the fourteenth amendment of the Federal Constitution. It will be found that such laws do not permit such non-resident physicians to have an ofiBce or place for meeting patients within the State, and that they usually impose further restrictions. It therefore can not be said that such non-resident physicians enjoy the same privileges and immunities as a duly licensed resident practitioner, and the law is therefore not subject to the objection urged. An Ohio court has upheld the constitutionality of the act, but based its reason for so doing on other grounds. In considering the question, the court said: "We discover nothing unreasonable in the regulations adopted by the statute in question for the admission of persons to the practice of medicine, nor any valid objection to the provision excepting therefrom physicians residents of other States. Physicians called in consultation are usually the most eminent and skillful that can be procured; and those residing on the border of an adjoining State, with a practice extending into this State, can include only those who have a legal standing and established practice in their own State, and which the law regards a suflicient evidence of their capacity and character to admit them to continue their practice here." * * Franco vs. State, 51 0. St., 1 ; 47 N. E. Kep , 1041.

Constitutional Objections to Particular Acts. — Certain features of those acts haye at times been found to be objectionable; as, for instance, a law which allowed certain privileges to a particular school of medicine, or which imposed certain burdens upon another school, would be unconstitutional.* A law punishing a duly qualified physician for what is styled "unprofessional conduct" in advertising himself as a specialist in certain diseases would be unconstitutional; for, while such conduct might be contrary to professional ethics, it would in no way be injurious to the public morals or a menace to the general welfare, f And so a law requiring all who had not practised four years in one place to procure and pay for a license, but exempted those who had practised for this period from such expense, would be unconstitutional because of the burden imposed upon one class and not upon alLJ

But against the main body of the statute law upon the subject, as it stands in the several States, there seems to be no valid constitutional objection which can be urged.

Doctor, Physician, and Surgeon Defined. — The meaning of the term doctor, or physician and surgeon, as used in the law, is not confined to any particular school or

* Gee Woo vs. State, 86 Neb., 241 ; 54 N. W. Rep., 613.

+ Exparte McNulty, 77 Cal., 164.

X State vs. Pennoyer, 65 N. H., 113 ; 18 Atl, Rep., 878.

schools, but is considered in the broad sense of one who professes the art of healing. Justice Daly, in a well-considered case, said : " The legal signification of the term doctor is simply a practitioner of physic. The system pursued by the practitioner is immaterial. The law has nothing to do with the merits of particular systems. Their relative merits must become the subject of inquiry when the skill or ability of a practitioner in any given case is to be passed upon as a matter of fact." *

The supreme court of Wisconsin, thirty years later, following the reasoning of this decision, held that a statute providing for the organization of a county medical society included as well the organization of homceopathists as of any other school, f

The question of whether one who "practises bonesetting and reducing sprains, swellings, and contractions of the sinews, by friction and fomentation," is a practitioner of medicine and surgery, was considered in the supreme court of Massachusetts in 1835. J The court was of the opinion that while such a practice does not amount to a general exercise of the functions of the science of either medicine or surgery, it forms an important part of the practice of surgery, and renders the practitioner amenable to the laws affecting the physi-

* Corai m. Maretzek, 4 E D. Smith, 1. t Eaynor vs. State, 62 Wis., 289. if Hewitt vs. Charier, 16 Pick, 353.

eian and surgeon; also one who gave electric treatment wasiheld to be engaged in the practice of mediciae and surgery. The court said : " It is quite unnecessary, we think, that, in order to practise medicine within the meaning of the statute, the practitioner should give internal remedies." * The services of a clairvoyant are within the meaning of the term "medical or surgical services." f

The law of Illinois, in force in 1887, provided that " no person shall practise medicine in any of its departments in this State without the qualifications required by this act." The question arose whether or not this included midwifery. The court was of the opinion that obstetrics was an important department of medicine, and that it was included within the terms of the statute.!

Moreover, the -supreme court of Nebraska, in a well-considered opinion rendered in 1894, held that a Christian Scientist, in the exercise of his practice, came within the statute which provides that any person shall be considered as practising medicine "who shall operate on, profess to heal, or prescribe for, or otherwise treat any physical or mental ailment of another." *

* Davidson vs. Bohlman, 37 Mo. App., 516, •f Bibber vs. Simpson, 59 Me., 181.

X People vs. Arendt, 60 111. App., 89.

* State vs. Buswell, 40 Neb., 158 ; 58 N. W. Eep., 728.

In a more recent ease, however, arising in Ehode Island, the court held that the term " practice of medicine," as used in their statutes, must be understood in the ordinary or popular sense of determining the physical condition of the patient and treating his disease or injury by the ordinary or material remedies, and that it could not be so construed as to include in its meaning the treatment of the Christian Scientist, which takes account neither of physical symptoms and conditions of the patient nor of the application of remedial substances.*

While several of these decisions were based upon the wording of particular statutes, it may be laid down as a general rule that the term doctor, physician, and surgeon, or practitioner of medicine and surgery, as legally used, is broad enough to include all those who profess and practise the art of healing in its several branches.!

Decision of Examining Board, when Conclusive. — The authority conferred upon the examining board is usually both ministerial and judicial in its character; by the law of most States the decisions of the board in refusing or in revoking licenses to practise are made subject to review on appeal to the circuit or district court. The law usually provides the manner of taking this ap-

* State vs. Mylod (R. I.), 40 Atl. Rep., 153. t Seepost, p. 39, et eeq.

THE EIGHT TO PRACTISE MEDICINE. 25

peal, but is sometimes silent upon the subject ; this failure, however, to provide for the manner of appealing does not affect the right to appeal. Whenever the law provides that the proceedings of the board may be reviewed upon appeal, it will be necessary for the party who is not satisfied with their decision to bring the matter before the court in the manner provided by the statute ; * but when the statute makes no provision whatever for an appeal from the decision of the board, his remedy is by mandamus. A writ of mandamus is a command issuing from a court of law in the name of the State directed to some inferior court, officer, or person, requiring him or them to do some particular thing therein specified. In theory, a writ of mandamus will issue only to compel the performance of a ministerial act, but will not review any judicial proceeding or interfere with the performance of a function requiring the exercise of judgment and discretion. Should, however, a board refuse to give a candidate a fair examination because of his views regarding any particular school of medicine, or should, when examined, refuse to pass him for a like reason, or refuse to accept his diploma for a similar reason, then mandamus would lie; but if, after giving him a fair examination, they determine that his knowledge of medicine is not sufficient to entitle him to practise, or if, after hearing

* State, Norcross vs. Board of Medical Examiners, 25 Pae. Rep., 440 ; 10 Mont., 162.

evidence against a legally qualified practitioner in the manner provided by law, they decide he has been guilty of an offense justifying the revocation of his certificate or license, such decisions are not subject to review under a writ of mandamus. In New Jersey the board has refused to register the applicant on the ground that his diploma was not issued by a reputable school or college of medicine and surgery. Undefr a writ of mandamus the court refused to consider the evidence as to whether the judgment of the board was correct, because the board had acted in a judicial capacity in arriving at this conclusion.*

In Missouri the supreme court, in considering practically the same facts, rendered the same decision; the judge, however, in delivering the opinion, said : " It is thought best to say this in conclusion, that, notwithstanding what has been said relative to the discretionary powers of the board of health, that Isic] according to the express terms of the provision in section 2, such discretionary power does not extend to discriminating against any particular school or system of medicine, and that, should such discrimination ever occur, the limits of discretionary power will have been parsed." f

Summing up, it may be stated generally that the

* State ex rel. Kirchgessner vs. Board of Health, etc., 22 Atl. Rep., 226.

f State ex rel. Granville vs. Gregory, 83 Mo., 123.

THE EIGHT TO PRACTISE MEDICINE. 27

action of the examining board is not final. If the statute gives the right of appeal, the court having jurisdiction will review the proceedings of the board, and by its judgment rectify errors, should any be found. And the right to review the grounds of refusal on appeal is not confined to cases of refusal for unprofessional and dishonorable conduct, but, where the statute provides for appeal in " all eases of the refusal of a certificate," the eoiirt may examine, or direct the examination, of a candidate as to his competency.* Where no right of appeal is given by statute, a writ of mandamus will lie to compel the board to do those things which the law makes it their duty to do, and even to rectify a manifest injustice resulting from an abuse of their discretionary powers, f

Illustrations. — It will be observed from the foregoing that it is the purpose of the law to guard against arbitrary and unjust or unfair conduct on the part of the examining board. A case arose in New Hampshire some years ago very aptly illustrating this. A candidate applied to the board for a license to practise medicine, surgery, and midwifery; he produced a diploma which fulfilled the requirements of the law, but the board refused to grant the license on the ground that he was

* State vs. District Court of First Judicial District, 48 Pac. R., 1104 (Mont.!.

'f Illiuois State Board of Deutal Examiners vs. People, 123 HI., 227 > 13 N. E. Rep., 201. 3 not worthy of public eonfidenee. The board has the power under the law of New Hampshire, "upon due notice and hearing, to reyoke any license granted by it, when improperly obtained, or when the holder has, by conviction of crime or for other cause, ceased to be worthy of public confidence." The court held that the board had no right to refuse the applicant a license solely upon the ground that he was "not worthy of public eonfidenee," without first giving him due notice and a fair hearing. If then facts were fairly proved by evidence adduced showing him to be unworthy of public confidence, the license would be properly refused.*

And so,' when the board established a rule that every medical college should by a certain date furnish the board with a list of its matriculates and the basis of their matriculation, and in the event that any college failed to comply with this request it should not be considered " in good standing," the court held that this rule could not be enforced against an applicant who had graduated from a college in good standing which had not complied with the rule, if it was shown that the college had no notice of the rule until after the date fixed, f

A Medical College can not Arbitrarily Refuse Examination.— ^While the following illustration is not strictly pertinent to the subject in consideration, it shows how

* Gage vs. Censors, 63 N. H., 92.

t State ex rcl. Johnson vs. Lutz, 136 Mo., 633 ; 38 S. W. Rep., 323.

the courts apply the policy above illustrated to protect students from the arbitrary action of medical colleges as well as applicants from the unjust discrimination of examining boards. A medical student who had paid his fees and fulfilled all of the other conditions entitling him to present himself for final examination, was informed by the secretary of the faculty that he would not be allowed to present himself for final examination, nor would he be granted a degree of doctor of medicine. Upon a writ of mandamus the matter was brought before the court and an order issued requiring the examination of the student. The opinion of the court is both interesting and instructive, and is therefore quoted from at length. " In answer to this application the respondent (the medical college) presents no ground whatever for its action, but insists that it has the right arbitrarily, without any cause, to refuse the relator (the student) his examination and degree. It seems to us clear that such a position can not for a moment be entertained. The circulars of the respondent indicate the terms upon which students will be received, and the rights which they were to acquire by reason of their compliance with the rules and regulations of the college in respect to qualifications, conduct, etc. When a student matriculates under such circumstances, it is a contract between the college and himself that, if he complies with the terms therein prescribed, he shall have the degree, which is the end to be obtained. This corporation can not take the money of the student, allow him to remain and waste his time (because it would be a waste of time if he can not get a degree) and then arbitrarily refuse, when he has completed his termi of study, to confer upon him that which they have promised — ^namely, the degree of doctor of medicine, which authorizes him to practise that so-called science. It may be true that this court will not review the discretion of the corporation in the refusal for any reason or cause to pernfit a student to be examined and receive a degree ; but where there is an absolute and arbitrary refusal there is no exercise of discretion. It is nothing but a willful violation of the duties which they have assumed. Such a proposition could never receive the sanction of a court in which even the semblance of justice was attempted to be administered." *