Copyright
American Medical Association. Bureau of Legal Medi.

A digest of the case law on the statutory regulation of the practice of medicine online

. (page 12 of 69)
Online LibraryAmerican Medical Association. Bureau of Legal MediA digest of the case law on the statutory regulation of the practice of medicine → online text (page 12 of 69)
Font size
QR-code for this ebook


that the courts have missed the point. For as was said in People v.
Gordon and in Collins v. Texas, the osteopath in professing the greater
skill must for that very reason be differentiated and distinguished



26. State v. Lawson (Del.), 65 Atl. 593.

27. Jones v. People (Colo.), 127 Pac. 125.

28. 117 App. Div. 546, 102 N. Y. Supp. 678.



103

from a mere nurse or masseur. And further, it is apprehended that
the osteopath would not care to have his profession reduced to the
level of those callings. As a consequence, the cases in which osteopathy
is considered negatively may be disregarded and it may be taken as
the law that osteopathy is the practice of medicine, excepting, of
course, those states in which by specific definition the practice of
osteopathy may be excepted.

§ 47. — Christian Science
christian science is the practice of medicine
Nebraska, 1896.

It may be conceded that perfect toleration of religious sentiment
and the enjoyment of liberty in all religious matters is of paramount
importance. The exercise of the art of healing for a compensation,
whether exacted as a fee or extended as a gratuity, cannot be classed
as an act of worship. Neither is it the performance of a religious
duty. The object of a medical practice act is to protect the afflicted
from the pretensions of the ignorant and avaricious, and its provi-
sions are not limited to those who follow the beaten paths and estab-
lished usages. If such a person has treated any physical or mental
ailment of another, then neither the pretense of religious worship nor
the performance of any other duty should have excepted him from
the punishment which an infraction of the statute would seem to
involve. Hence, instructions that for a conviction such a person must
be found guilty of "practicing medicine, surgery and obstetrics" as
generally or usually understood, are erroneous. 29

Ohio, 1905.

Christian Science is the practice of medicine in that treating persons
for a fee for the purpose of curing or healing their physical and
mental ailments is so defined under the statute. The language of the
statute would seem to imply that the legislature intended to bring
within its meaning every person, who, for a fee, prescribed or recom-
mended a cure for disease, even though the cure was to come not from
such person himself but through his intercedence from God. In
praying for the recovery of a patient a Christian Scientist is giving a
treatment to cure patients of disease, and the patient pays therefor.
He is thus practicing healing or curing disease. 30

New York, ipn.

The Christian Scientist brings himself within the meaning of the
statute, which says, "a person practices medicine within the meaning

29. State v. Bus well, 40 Neb. 158.

30. State v. Marble, 72 Ohio St. 21.



104

of this article, except as hereinafter stated, in holding himself out as
being able to diagnose, treat, operate, or prescribe for any human
disease, pain, injury, deformity or physical condition, and who shall
either offer or undertake by any means or method to diagnose, treat,
operate or prescribe for any human disease, pain, injury, deformity or
physical condition." Nor would a Christian Scientist be protected by
the constitutional provision which permits the free exercise and enjoy-
ment of religious profession and worship without discrimination or
preference. For the constitution further provides that liberty of con-
science should not be so construed as to excuse acts of licentiousness or
justify practice inconsistent with the peace or safety of the state. 31

For the Christian Scientist although claiming to derive his power
of healing from the Supreme Being, is clearly within the meaning of
the New York statute, professing to heal and cure physical and mental
ailments. And when the law says that this cannot be done without
a license, a religious belief is no excuse for the unlawful act, for no
person under the guise of the principles and tenets of any church may
violate the law of the land. The Christian Scientist has the right to
believe that he can heal by prayers, but if he carries that belief into
practice for hire and solicits patients by advertisements, then he exceeds
his rights as an individual under the law and comes directly within the
prohibition contained in Article 3 of the Constitution of the State of
New York. He must subordinate his belief to the rights of the com-
munity and of the state as an entity, where the free exercise of such
belief either impairs or endangers the health of the people, or tends
to place their health in jeopardy so that the safety of the state will
be affected. 32

Colorado, 1912.

A person claiming to be a member of a corporation entitled "The
Divine Scientific Healing Mission" is practicing medicine, inasmuch
as he attempts to treat and heal the sick for pay. The statute lays
hands on commercial healing as a money-making occupation, business
or profession, regardless of the method of treatment or curative agency
employed. As a protection to the public health, the statute requires
those engaged in the business of curing the sick to possess certain
qualifications. One form of examination is required of all sorts of



31. New York Public Health Law, Sec. 173.
New York Constitution, Art. 1, Sec. 3.

32. People v. Cole, City Magistrate's Court of the City of New York, First

Division, Second District, Feb. 11, 1911; aff'd People v. Cole (N. Y.).
148 N. Y. Supp. 708.
People v. Pierson (N. Y.), 68 N. E. 243.



105

healers. All must be examined in the fundamentals before they can
be licensed to follow the business of curing the sick. In the eye of the
statute, methods of treatment meet on a level as curative agencies in
healing human ills. There is no discrimination, partiality or monopoly.
As a protection to the public health the state fixes the standard of
competency and makes the right to engage in the business dependent
on the possession of certain knowledge. Nor is this any interference
with a free exercise of religious worship. Herein the defendant was
engaged in a business venture, not a religious exercise. The com-
mercial practice of healing by prayer followed as a money-making
venture or occupation is the practice of medicine within the plain
meaning of the statute, and such occupations must be so held for the
preservation and promotion of the health, safety and morals of the
people. 33

CHRISTIAN SCIENCE NOT THE PRACTICE OF MEDICINE

Rhode Island, 1898.

Christian Science is not the practice of medicine under the general
laws of Rhode Island, Ch. 165, in that prayer alone is used by these
persons and no attempt is made to cure by physical means. The
healer is simply desirous of turning the patient's thoughts to God and
toward the attainment of physical perfection. In this, there is no
attempt to practice medicine or surgery, or to diagnose cases or
prescribe any drug or medicine. And further, such a healer makes
no claim to know anything about disease. The fact that such a person
hands out a card, advertising himself as a doctor, and giving office
hours, is to be disregarded. Prayer, for those suffering from disease,
or words of encouragement, or the teaching that disease will disappear
and physical perfection be attained as a result of prayer, cannot be
taken as in any sense constituting the practice of medicine. The object
of such a statute is to protect the public from incompetent persons
and not from theories. The statute is not to compel persons suffering
from disease to resort to remedies, but is designed to secure for those
desiring remedies, competent physicians to prepare and administer
such remedies. 34

SUMMARY

The clear preponderance of authority is here to the effect that
Christian Science is the practice of medicine, on the basis that medi-
cal practice acts are to be construed to maintain the public health,
which the unrestrained practice of Christian Science would seem to



33. Smith v. People (Colo.), 117 Pac. 612.

34. State v. Mylod, 20 R. I. 643.



106

tend to endanger. This point the court in State v. Mylod failed to
consider. For although the Christian Scientist may be entitled to
religious freedom, nevertheless allowing him too much liberty in the
exercise of his beliefs is to endanger the public health which medical
practice acts are primarily designed to promote and maintain. Again
the court is too much given to the narrow construction of the law
from the point of view that such an act is a penal statute. As has
been seen, a statute designed to promote the general welfare and the,
like can in no sense be considered penal. Nor can the fact that the
statute is creating an offense, not known to common law, be taken
into consideration as against the plain fact that medical practice acts
in general are to protect the people from ignorant and designing per-
sons, who claim to be able to cure them of their ills, and also to
protect the people against themselves, who, when ill, are ready to give
ear to any one who claims to help them. State v. Mylod, supra, has
in effect been much modified, it would seem, by Swarts v. Siveny,
(R. I.) 85 Atl. 33 (infra 40).

§ 48. — Chiropractic

chiropractic the practice of medicine
Iowa, io io.

An indictment charged a defendant with wrongfully, unlawfully
and publicly professing to be a doctor, and assuming the duties of that
profession, and then wrongfully, falsely, unlawfully and publicly pro-
fessing to cure and heal diseases by means of a certain system known
as chiropractic. The evidence showed that the defendant treated for
a consideration and professed to cure and heal diverse diseases, that
he neither gave nor prescribed medicine, and that his system consisted
in hand manipulation and electric vibrations. These acts were taken
as showing that he was engaged in the practice of medicine. The
system by which one professes to heal is immaterial. The point is
that under these laws no one can undertake to treat and heal human
ailments without first giving evidence of one's ability to follow such
a profession. 35

Iowa, ipn.

It has been contended that the operation of medical practice acts
should be limited to those professing, or undertaking, to practice medi-
cine or surgery. But a state may determine what acts constitute the
practice of medicine as a physician and may impose conditions on

35. State v. Miller (Iowa), 124 N. W. 167.



107

the exercise of that privilege. Thus the Iowa law may be taken as
including those who without medicine or the practice of surgery pub-
licly profess to cure and heal, and plainly such language would cover
chiropractors. A person who published a series of articles in a news-
paper denominated "talks with a chiropractor," in which he directed
public attention to the so-called chiropractic system of healing to the
shortcomings of the medical profession and especially to himself as a
member of that school, and also who undertook to heal a number of
persons, and who in doing so first required them to strip the back
to the skin and lie on the table in order that he might examine the
spinal column with his hands and by sudden pressure restore the
vertebrae out of place to their normal position, is manifestly not only
publicly professing to cure and heal, but is undertaking so to do. 30

Kansas, ipu.

Chiropractic is the practice of medicine under a law simply pro-
fessing to regulate the practice of medicine, surgery and osteopathy.
One who without registration, examination or attempting to procure
a license, endeavors for pay to practice chiropractic by pretending to
adjust the spine of one afflicted with bodily infirmities, and who adver-
tises to treat for pay, by chiropractic spinal adjustment, persons thus
afflicted, would be guilty and liable under the law. Webster's New
International Dictionary defines this system as "chiropractic is a system
of work that treats disease by manipulation of the spinal column." The
chiropractor claims that the only treatment, so-called, which he uses
is not a treatment, but merely an adjustment of the vertebrae which
restores the vertebrae and the nerves to their normal position and thus
removes the cause of the disease. In this he is not practicing surgery
or medicine, and does not use any manipulations whatever other than
the adjustment of vertebrae. But under such language as is used in the
Kansas law of 1908 it may well be said that one whose vertebrae are
partially displaced, causing impairment of nerve function, is one
afflicted with bodily infirmities, and that one who restores the functions
of the nerve on which maladjusted vertebrae had formerly pressed
is treating or attempting to treat such afflicted person. Manifestly,
it is the object of the legislature to protect the ignorant from impo-
sition in the healing art. It may very well be that a close construc-
tion of the language in this law would not bring a chiropractic within
the meaning thereof as a physician or surgeon, but that his system
would more nearly resemble osteopathy. However, medicine and sur-
gery with which the defendant was charged as attempting to practice



36. State v. Corwin (Iowa), 131 N. W. 659.



108

is by common use and adjudged meaning taken as covering a wide
portion of the domain of healing, and should be held to cover the
case of one who not claiming to be a physician and surgeon really
practices osteopathy under another guise, without having even the
qualifications of the osteopath. 37

Missouri, ipu.

The practice of medicine is not confined to the administration of
drugs, nor is surgery limited to the knife. When a physician advises
his patient to travel for his health he is practicing medicine. Broadly
speaking, one is practicing medicine when he visits his patient, examines
him, determines the nature of the disease and prescribes the remedy
he deems appropriate. When a practitioner makes such an examina-
tion of his patients as he regards sufficient to indicate to him the cause
of the trouble, and to indicate its proper treatment, he has diagnosed
the case. Hence a practitioner although he does not claim to treat his
patients, but merely to adjust them, is practicing medicine. It makes
no difference that the practice may be harmless, or that cure may be
seemingly effected thereby if such practitioner is unlicensed. Hence
one who practices what he calls the science of chiropractic is prac-
ticing medicine within the meaning of the law. 38

Iowa, 1913.

Persons professing to be chiropractors, who maintain offices, and
who hold themselves out to treat and do actually treat patients for
disease for the purpose of healing them are practicing medicine within
the meaning of the law. 39

Rhode Island, 1913.

A chiropractor who professes to adjust the spinal column for the
purpose of removing the cause of a person's physical disability is
guilty under the ordinary acceptation and the popular meaning of the
term "practice of medicine." The practice of medicine does not wholly
depend on the administration of drugs. It is a matter of common
knowledge that the use of drugs by physicians of medicine has materi-
ally decreased, especially during the last twenty or more years, and that
not infrequently a medical practitioner limits his efforts to effect a
cure by simply regulating the diet, advising exercise or prescribing
a change of scene or climate. Hence a practitioner in undertaking



37. State v. Johnson (Kan.), 114 Pac. 390.

See also: State v. Peters, 87 Kan. 265, 123 Pac. 751; State v. Cotner, 87
Kan. 864, 127 Pac. 1; Green v. Hodges (Kan.), 138 Pac. 605.

38. State v. Smith, 233 Mo. 242.

39. State v. Zechman (Iowa), 138 N. W. 387.



109

by his system or method of treatment to cure or alleviate disease or
pain, and who advertised his ability to so treat human disease, and who
has been compensated for giving such treatment, was practicing medi-
cine within the meaning of the law. 40

CHIROPRACTIC NOT THE PRACTICE OF MEDICINE

Arkansas, 191 2.

Under a statute which defines the practice of medicine as "pre-
scribing or directing for the use of any person or persons any drug
or medicine or other agency for the treatment of disease" a chiro-
practor is not practicing medicine in that he is not using drugs or
medicine within the meaning of the act, nor does his system come
under "other agencies" because the formal rule of noscitur a sociis
compels the meaning of the general term "other agency" to be limited
to the meaning of the specific terms "drug or medicine" preceding it,
and can only include agencies of the like nature as those designated
by said words. This rule of construction does not deprive the term
"other agency" so used of all meaning, but only limits its meaning
to agencies of the like nature and quality as those designated by the
particular words. This statute was not intended to include the practice
of osteopathy, which chiropractors more nearly resemble than it does
the practice of medicine, for the legislature passed an act regulating
that practice, which expressly declared that it is not included within
the practice of medicine. Hence the chiropractor is not amenable to
the law, and he may pursue his profession without complying therewith
to the extent of obtaining a license. 41

SUMMARY

It would seem almost unnecessary to comment on the somewhat
anomalous case of State v. Gallagher. The court therein was con-
strained to follow the doctrine of nocitur a sociis, which has been
explained in Chapter 2. Obviously, the chiropractor is as much within
the meaning of medical practice acts in general as is the osteopath or
the Christian Scientist. A fallacious conception of the words drug
or medicine cannot be invoked to except him from the intent of the
legislature. The general welfare of the people compels such interpre-
tation of these laws as will effectually control the exercise of the
medical profession and limit it to those who are and who have shown
themselves to be competent to treat mental and physical ailments.



40. Swarts v. Siveny (R. I.), 85 Atl. 33.

41. State v. Gallagher (Ark.), 143 S. W. 98.

Ex parte Greenall, 153 Cal., 767, 96 Pac. 804.



110

Chiropractors, as evidence adduced in court would seem to show, do not
as a general rule sufficiently prepare themselves to pose as persons
able and fitted to practice the art and science of healing. Members
of this school should, therefore, be held amenable to the laws and if
possessed of the proper qualificationns should be licensed and per-
mitted to use their system. Doubtless such a scheme would soon
develop the limitations of chiropractic and bring about its gradual
elimination. Chiropractic must be taken as the practice of medicine
to conserve the public health, and can be so held under any law without
express language to the contrary.

S 49. — Magnetic Healing
Michigan, 1888.

A person who advertises himself as a doctor and magnetic healer ;
who attempts to treat the sick and does do so, and who signs death
certificates and the like is practicing medicine within the meaning of
the law. Evidence tending to prove these facts, if submitted to the
jury under proper instructions, would be sufficient whereon to find a
defendant guilty. Nor would there be any error in letting such a
case go to the jury. 42

Indiana, 1902.

A person held himself out as a magnetic healer, advertised himself
as such and styled himself "Professor." He was not a graduate of
any school of medicine and had no license to practice the profession.
He diagnosed his cases entirely by the nerves, and in the treatment
thereof used no drugs or surgery. His system of working, in so far
as there was anything manual about it, consisted in holding the affected
parts and in rubbing them. He received as a fee $1.00 for each
of such treatments. A court would not be called upon to determine
whether all of these acts might properly be denominated the practice
of medicine. Given a fairly relevant use of the term "practice of
medicine" as is found in the Indiana law, it would only be necessary
to determine whether such a practitioner has brought himself within
such statutory definition. Hence under the Indiana law it may be
concluded that a person so practicing was engaged in the practice of
medicine, since he held himself out as a magnetic healer, and his
method was at least in part a method that medical practitioners some-
times employ. 43



42. People v. Phippen, 70 Mich. 6.

43. Parks v. State, 159 Ind. 211.

Indiana Medical Practice Act, Sess. L. 1897 as amended 1905.



Ill

Iozva, 1905.

Magnetic treatment is the practice of medicine under a law which
makes the public profession of an ability to heal evidentiary of a
violation of a law. Hence a person who uses that system, and who
advertises his ability to cure a variety of ailments, all without a cer-
tificate from the State Board of Health, is practicing medicine in
violation of the law. 44

Iowa, 1908.

A person who advertises himself as a magnetic healer, giving treat-
ments by rubbing and kneading the body, and using other osteopathic
manipulations, is practicing medicine and is liable under the penalty
if he has failed to secure a certificate by law prescribed. 43

§ 50. — Suggestive Therapeutics
Indiana, ipio.

A defendant claimed to be a graduate of an institute of suggestive
therapeutics. In his advertisements he appended the letters "D.S.T."
to his name. The evidence showed that he held himself out and
advertised to the public by signs in his office, and by insertions in
local newspapers, that he was a doctor and that he was capable and
competent of successfully treating all forms of chronic diseases. He
notified all persons that he was not only a doctor but that as such
he was a specialist in the treatment of chronic diseases. He further
advised people that he was capable of curing many diseases mentioned
in his advertisements without administering drugs or using surgery,
and that there were but few of the many diseases which did not yield
to his drugless treatment. Acts of this nature constitute the practice
of medicine whether or no drugs are administered or surgery
employed. 46

New York, iqii.

A defendant had an office where he received his patients and gave
them treatments for their physical ailments. He received compensa-
tion for such treatments, but neither prescribed nor administered drugs,
nor did he use any surgical operation. His treatment consisted only
of the laying on of hands and of mental suggestion. He advertised
himself as a Doctor of Suggestive Therapeutics. Such facts were
deemed sufficient whereon to base a charge of practicing medicine



44. State v. Heath, 195 Iowa 585.

45. People v. Trenner, 144 Iowa 275.

State v. Miller, 138 Iowa 28, 115 N. W. 493.

46. Witty v. State (Ind.), 90 N. E. 627.



112

without a license, in that in claiming the ability to treat patients for
physical ills a person asserts himself to be one with special training
and skill, thereby securing his patronage. Inasmuch, therefore, as
the defendant held himself out to the public as one capable of treat-
ing and curing human diseases, together with the facts that he did
usually treat patients and receive pay for such treatment, he was guilty
of practicing medicine under the law without a license. 47

§ 51. — Mid wives and Obstetricians
Massachusetts, 18/8.

In a suit sounding in tort and brought by plaintiff's next friend
against defendant, a midwife, for negligently delivering said plaintiff,
thereby causing a loss of sight, it was held that defendant was not
liable in the premises. This was on the ground that it was not defen-
dant's duty as a midwife to treat diseases of infants' eyes at birth
because defendant practiced only as a midwife. Such practice does
not constitute the practice of medicine under the law. Defendant had
asserted an ability to effect a cure. But such assertion would not make
her chargeable for a failure to use that special degree of skill and
care for which only the medical profession per se may properly be
held liable. A physician must apply the skill and learning which belong
to his profession ; but a midwife who without special qualifications
volunteers to attend the sick and if such offer is accepted, can at most
be required only to exercise that skill and diligence which is usually
bestowed by persons of like qualifications under like circumstances.
The defendant was not practicing medicine nor was she assuming to
do so, and hence was not liable for the alleged negligence. 48

Illinois, 1895.

From the evidence adduced it appeared that defendant held her-
self out as a midwife and practiced in that capacity. Under the law,



Online LibraryAmerican Medical Association. Bureau of Legal MediA digest of the case law on the statutory regulation of the practice of medicine → online text (page 12 of 69)