CHAPTER II.

ACQUIREMENT OF LEGAL RIGHT TO PRACTISE MEDICINE AND SURGERY. _Now Generally Regulated by Statute._—In nearly all of the United States, as well as in England, France, Germany, and other civilized and intelligent communities, the legal right to practise the administration of drugs and medicines, or to perform operations in surgery for the purpose of curing diseases or injuries, has for many years been the object of statutory legislation. The necessity and propriety of regulating by law such practices is generally conceded. It is manifest to all that a person engaging in the practice of medicine or surgery as a profession is holding himself out to the world, and especially to his patients, as one qualified by education and experience to possess more than ordinary skill and ability to deal with the great problems of health and life. He professes to the world that he is competent and qualified to enter into the closest and most confidential relations with the sick and afflicted, and that he is a fit and proper person to be permitted freely, and at all hours and all seasons, to enter the homes, the family circle, and the private chamber of persons suffering from disease or injury. All this he professes and does upon his own account, and for his own profit. =Statutory Regulation of the Right to Practise, Constitutional.=—The exercise by the States of these statutory powers is upheld as a valid exercise of the “police power,” to protect the health of the community. When the constitutionality of such enactments has been questioned, it has been attacked upon the alleged ground that the statutes under question unjustly discriminated in favor of one class of citizens and against another class; and as depriving those already engaged in the practice of medicine or surgery of “their property without due process of law.” State _v._ Pennoyer, 18 Atl. Rep., 878; _ex parte_ Spinney, 10 Nev., 323; People _v._ Fulda, 52 Hun. (N. Y.), 65-67; Brown _v._ People, 11 Colo., 109. _Opinion of United States Supreme Court._—This subject has been carefully considered by the United States Supreme Court in a recent case, and the broad extent of the legislative powers of the States to regulate such matters clearly and fully declared. Dent _v._ West Va. (129 U. S., 114). The Court say—pp. 121 _et seq._—Mr. Justice Field delivering the opinion, in which all the other Justices concur: “The unconstitutionality asserted consists in its [the statutes] alleged conflict with the clause of the Fourteenth Amendment, which declares that no State shall deprive any person of life, liberty, or property, without due process of law; the denial to the defendant of the right to practise his profession, without the certificate required, constituting the deprivation of his vested right and estate in his profession, which he had previously acquired. “It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different States, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of the parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation. “Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society, may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practise in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance in its practice, but for the earnestness with which the plaintiff in error insists that, by being compelled to obtain the certificate required, and prevented from continuing in his practice without it, he is deprived of his right and estate in his profession without due process of law. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practise medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the State as competent to judge of his qualifications. As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms ‘due process of law’ a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden. They come to us from the law of England, from which country our jurisprudence is to a great extent derived, and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law. They were deemed to be equivalent to ‘the law of the land.’ In this country the requirement is intended to have a similar effect against legislative power, that is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property. Legislation must necessarily vary with the different objects upon which it is designed to operate. It is sufficient, for the purposes of this case, to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters: that is, by process or proceedings adapted to the nature of the case.” EARLY COMMON-LAW RULE CONCERNING SUITS BY PHYSICIANS. The common-law rule was that the physician could not sue and recover for his services, though he might for the medicines he furnished. The theory of the law followed the etiquette of his profession and forbade him from making a specific contract for pay for his services, and obliged him to receive what his patient chose to give him, which was called his “_honorarium_.” _The Early Common-Law Rule No Longer in Force._—As time went on this theory vanished from the law. For many years it has lost its place among the rules of professional etiquette. In its stead statutory provisions have been adopted which forbid a recovery for services performed by persons not legally authorized to practise. The right to contract with the patient or with those who employ the medical man, and his remedies to enforce such contracts, will be treated of hereafter. _Statutory Regulations in New York State._—Most of the States of the United States have enacted statutory regulations prescribing in one form or another the necessary qualifications which entitle a physician or surgeon to practise, and prescribing penalties for practising without having complied with such statutory requirements. In the State of New York such matters were regulated for the first time by statute in 1787. This was followed by a general enactment on the subject of the organization of county medical societies, and of State medical societies having boards of censors, to whom was committed the power to examine applicants for license to practise, and of issuing licenses (Laws of 1813, p. 94). This law remained in force, with certain modifications, until 1844, when all acts regulating the practice of medicine and surgery were repealed. A history of the statutory regulations in New York State up to the act of 1844 on this subject will be found in the case of Bailey _v._ Mogg, 4 Denio, 60.[154] At the time of the passage of the act of 1813, and for many years afterward, nearly all of the physicians in New York State practised in accordance with the theories and precepts of what is now called the regular or allopathic school of medicine. That act provided that the physicians in the respective counties of the State of New York should meet in the respective counties and organize county medical societies. As a consequence of the fact that the physicians of that day were chiefly of the allopathic school, they necessarily obtained the control of the county medical societies and State medical societies. Hence it became difficult, if not impossible, for physicians who wished to practise upon other theories and tenets than those obtaining in that school, to obtain licenses to do so. With the growth of the homœopathic school of medicine and the eclectic school of medicine, came applications to the legislature asking for those practising under those schools the same rights and privileges of organizing county and State societies as had been extended to physicians generally by the act of 1813; so that in 1857, by Chapter 384, the legislature of New York State enacted that the homœopathic physicians might meet in their respective counties and organize county medical societies, with boards of censors having the same powers and privileges which were granted by the act of 1813; and by other laws similar privileges were granted to the so-called eclectic school. After the passage of the act of 1844, down to about 1874, as hereinbefore stated, there was no limitation upon the right to practise medicine or surgery in this State. The inharmonious and injurious effect of such policy of the State becoming manifest, the legislature, by Chapter 436 of Laws of 1874, required all persons desiring to practise medicine or surgery to obtain a certificate as to their qualifications from the censors of some one of these medical societies. By the Laws of 1880, Chapter 513, additional and more extensive and particular provisions were made in reference to this matter, and all the physicians then practising were required, on or before the time limited in the act, to file with the county clerks of their respective counties their licenses to practise granted by the censors of their county medical societies, or a diploma of some chartered school of medicine; and those persons who desired to become licensed who were not in practice were likewise required to obtain similar licenses or certificates and file the same. A diploma of a chartered school or medical college was given the same effect as a license issued by the censors. _Recent Legislation in New York State._—The whole matter, however, of licensing physicians to practise has, in the State of New York, been recently regulated by Chapter 468, Laws of 1889, and 499 of 1890, which have reference to the qualifications of persons becoming medical students, and Chapter 507 of 1890, which gives to the Regents of the University of the State of New York power to select boards of examiners from persons nominated by each of the three State medical societies, viz., the New York State Medical Society, Homœopathic Medical Society, and Eclectic Medical Society. These boards prepare questions which are to be approved by the State Board of Regents; examinations are held in different parts of the State upon these questions, the examination papers are certified to that one of these boards of examiners which the student may elect, and that board in turn certifies whether or not the examination has been successfully undergone; and upon its certificate the Board of Regents licenses the student to practise, and his examination papers are filed in the office of the Board of Regents and become a matter of record. These provisions have been enlarged and modified slightly by various statutes since enacted. They are all now embodied in Chapter 601 of Laws of 1893. They will be found carefully synopsized below. _Penal Provisions in New York State._—The New York Penal Code, which went into effect in 1882, enacted that a person practising medicine or surgery, or pretending to be a physician or surgeon, without a license or a diploma from some chartered school, should be deemed guilty of a misdemeanor punishable by fine or imprisonment (Penal Code, Section 356); and the same statute, 357, made it a misdemeanor for a person, whether licensed or not, to practise medicine or surgery, or do any other act as a physician or surgeon, while intoxicated, by which the life of any person is endangered or his health seriously affected.[155] _Giving “Patented” Medicines No Exception._—At one time an attempt was made to claim, that under the patent laws of the United States a person had the right to administer patent medicines without being punishable for practising without a license, but this doctrine was repudiated by the courts. Thompson _v._ Staats, 15 Wend., 395; Jordan v. Overseers, etc., 4 Ohio, 295. _Courts may Compel Granting of License._—A person who is qualified and complies with reasonable rules of a licensing body, can compel such body to license him. This was held to be the law in the case of The People _ex rel._ Bartlett _v._ The Medical Society of the County of Erie, which is also an important authority in respect to a vexed question of medical ethics. It appeared in that case that under the general laws of New York in regard to the organization of medical societies, a medical society had refused to receive as a member a person otherwise qualified, because he had advertised in the public prints a certain cure, including a mechanical appliance used in treating throat troubles; it being forbidden by the code of ethics of the American Medical Association, which the County Medical Society had adopted as one of its by-laws, that a physician or surgeon should advertise. The Court of Appeals of the State of New York held that this constituted no defence to a proceeding instituted by such person to obtain a mandamus compelling the society to admit him to membership, if otherwise qualified.[156] It has also been decided that a medical society had no right to make a by-law establishing a fixed fee-bill, or tariff of charges, and providing for the expulsion of a member charging at a different rate than that prescribed. Such a by-law was declared unreasonable and void in the case of People _v._ Medical Society of Erie County, 24 Barb., 570. The effect of these decisions was, so far as they affect the validity of by-laws, attempted to be avoided in that State by Chapter 445 of Laws of 1866, by which it is expressly enacted that the county medical societies of the State of New York may make such rules and by-laws as they see fit, “not inconsistent with the laws of said State, and may enforce them by expulsion or other discipline.” It may be considered doubtful whether this legislation can accomplish its purpose in the case of the adoption of a by-law void as against public policy. =No Particular Schools Recognized by the Courts.=—The general trend of the decisions in all the States, whenever any questions in reference to schools of medicine have been before our courts, is to avoid recognizing any particular system or school. The theory of the New York courts upon this subject is well expressed by the liberal-minded and learned Judge Daly in the New York Court of Common Pleas, in the case of Corsi _v._ Maretzek, 4 E. D. Smith, 1-5. In that case it was claimed that a certificate of incapacity because of sickness, given by a “homœopathic” physician to an opera-singer, was not binding. It was argued that the employment of a “homœopathic” physician under the contract did not fulfil a provision thereof which required the event of the singer’s sickness to be certified to by “a doctor,” to be appointed by the director. The Court said: “The system pursued by the practitioner is immaterial. The law has nothing to do with particular systems. Their relative merit may 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. But the law does not, and cannot, supply any positive rules for the interpretation of medical science. It is not one of those certain or exact sciences in which truths become established and fixed, but is essentially progressive in its nature, enlarging with the growth of human experience, and subject to those changes and revolutions incident to any branch of human inquiry, the laws of which are not fully ascertained. The labors of the anatomist, the physiologist, and the chemist have contributed an immense storehouse of facts; but the manner in which this knowledge is to be applied in the treatment and cure of diseases has been, and will probably continue to be, open to diversity of opinion. No one system of practice has been uniformly followed, but physicians from the days of Hippocrates have been divided into opposing sects and schools. The sects of the dogmatists and the empirics divided the ancient world for centuries, until the rise of the methodics, who, in their turn, gave way to innumerable sects. Theories of practice, believed to be infallible in one age, have been utterly rejected in another. For thirteen centuries Europe yielded to the authority of Galen. He was implicitly followed—his practice strictly pursued. Everything that seemed to conflict with his precepts was rejected; and yet, in the revolutions of medical opinion, the works of this undoubtedly great man were publicly burned by Paracelsus and his disciples; and for centuries following, the medical world was divided between the Galenists and the chemists, until a complete ascendency over both was obtained by the sect of the Vitalists. This state of things has been occasioned by the circumstance that medical practitioners have often been more given to the formation of theories upon the nature of disease and the mode of its treatment, than to that careful observation and patient accumulation of facts, by which, in other sciences, the phenomena of nature have been unravelled. I am far from undervaluing the great benefits conferred upon mankind by the study of medicine, and have no wish to minister to any vulgar prejudice against a useful and learned profession, but it is not to be overlooked that, as an art, it has been characterized, in a greater degree, by fluctuations of opinion as to its principles and the mode of its practice, than, perhaps, any other pursuit. That it has been distinguished by the constant promulgation and explosion of theories, that it has alternated between the advancement of new doctrines and the revival of old ones, and that its professors in every age have been noted for the tenacity with which they have clung to opinions, and the unanimity with which they have resisted the introduction of valuable discoveries. They still continue to disagree in respect to the treatment of diseases as old as the human race; and at the present day, when great advances have been made in all departments of knowledge, a radical and fundamental difference divides the allopathist from the followers of Hahnemann, to say nothing of those who believe in the sovereign instrumentality of water. “In fact, nothing comparatively is known of the philosophy of disease. Its eradication or cure, where the result of human agency is, in the great majority of instances, attributable rather to the careful observation, judgment and experience of the particular practitioner, than to the application of general or established methods available to all. The popular axiom, that ‘doctors differ,’ is as true now as it ever was, and as long as it continues to be so, it is impossible for the law to recognize any class of practitioners, or the followers of any particular system or method of treatment, as exclusively entitled to be regarded as doctors. In adverting to the conflicting views and differences of opinion, that exist and have ever existed in the practice of the healing art, it is not to call in question the value of learned, skilful and experienced physicians, but merely to show the error of attempting, in the present state of medical science, to recognize, as matter of law, any one system of practice, or of declaring that the practitioner who follows a particular system is a doctor, and that one who pursues a different method is not.” And see also White _v._ Carroll, 42 N. Y., 161; Ordronaux’ “Jurisprudence of Medicine,” 27. This decision was prior to the statute of 1874 and the provisions of the Penal Code before noted. Since those statutes, it is a misdemeanor to practise except as permitted by the provisions of those statutes. IN NEW YORK AND ELSEWHERE PRACTITIONER WITHOUT LICENSE CANNOT SUE AND RECOVER FOR HIS FEES. Since the passage of the New York Act of 1844 (Laws of 1844, p. 406), there has been no precise statutory provision in that State prohibiting in terms persons who practise physic or surgery without a license, from suing to obtain a recovery for services performed. But this is of little consequence, for, as we have already stated, so practising has been declared to be a misdemeanor by the Penal Code of New York. It is a well-settled principle that when any act is declared by statute to be criminal, a contract calling for the performance of such an act is illegal and void. The early English authorities on this point are fully collated in Wheeler v. Russell (17 Metc., Mass., 258), and the later English and American cases may be found in “American and English Cyclopædia of Law,” title “Contracts,” Vol. III., p. 872 _et seq._; see also _id._, Vol. XVIII., p. 440. Further consideration of the validity of contracts for medical and surgical services will be had hereafter. A full synopsis of the statutes of the different States regulating the licensing of physicians and surgeons in force at the time this volume goes to press will be placed in another chapter. In a suit between a person who has performed medical and surgical services, and one who employed him, it is said that the person performing the services is presumed to have been licensed to do so.[157] If the State sues for a penalty, a different rule is claimed to prevail.[158] HOW MAY A DIPLOMA OR LICENSE BE PROVED IN A COURT OF LAW? It is evident from the foregoing considerations that in any proceedings to punish for practising without license or legal authority, and in actions to recover payment for professional services in the States and countries, where a license or diploma of a regularly chartered school or college is required by statute to entitle the person to practise, it may become important to establish—first, the legal authority to grant the license or diploma; and second, the genuineness of the license or diploma produced. It frequently happens that the diploma or license has been obtained in another State or country. Under the New York statutes, especially the laws of 1880 and 1890, it was made necessary to file a diploma. When it had been issued by a chartered school of another State it must be certified to by some lawfully incorporated medical college in this State, before being received for filing, or regarded by the law as conferring upon its possessor the right to practise in that State. As to the chief element of authenticity, namely, the legal incorporation or authority of the body or institution granting the diploma, it is clear that the act of incorporation itself would be the best evidence of the incorporation of the college or school, and a special act granting the power to license to a board of censors or other official body or board would have to be produced to show the right vested in that board or body to grant a license. In Georgia it has been held (Hunter _v._ Blount, 27 Ga., 76), that to prove a diploma given to a physician in another State, the existence of the college, and the fact of its being a chartered institution, must be shown by producing its act of incorporation. In Thornton’s case (8 Term Rep., 303; same case, 3 Esp., 4), it was held that the mere production in court of a diploma under the seal of one of the universities, is not of itself evidence to show that the person named in the diploma received the degree which the diploma specified. In another and later case, however, Simpson _v._ Dunmore (9 M. & W., 45; same case, 5 Jurist, 1012), it was held that it was unnecessary for the person producing a license from the Apothecaries’ Company (an incorporated body) to practise as an apothecary, the seal on which license was proved to be genuine, to give any additional evidence of his identity with the person named in the license. The reason for this doctrine is probably to be found in the well-known rule of evidence, that identity of both christian name and family name, is sufficient to raise a presumption of fact that the person bearing the name is the identical person so named in any written instrument. In Walmsley _v._ Abbott (1 K. & P., 309; same case, 5 D. & R., 62), proof of the signature of one of the examiners who signed a certificate of examination was held sufficient to warrant the acceptance of the certificate in evidence in the first instance. In another case the proof was that a person previously a stranger to the place went to a town which was the seat of a university, and was told that a certain building was the college, and that a certain person whom he saw there was the librarian, and that this librarian showed him what purported to be the seal of the university, and also a book which the librarian stated was the book of acts or records of the university, and the seal so shown him was compared with the seal of a certain diploma, the genuineness of which was in question, and a copy was made from the said book of acts, of an entry stating that the degree of M. D. had been conferred by the university upon a person bearing the same name as that in the diploma, and this proof was held a sufficient authentication of the diploma, and of the act or authority of the university conferring the degree. Collins case, 1 Addison & Ellis, 695; same case, 3 N. & M., 703.[159] _The Rule in Criminal Prosecutions._—We have seen above, that in a criminal prosecution the burden is on the defendant to produce and prove his license, but to warrant a conviction for practising without a license it must be shown that the accused actually _practised_. It is not enough to show that he is called by persons whom he attends personally, that is, for whom he prescribes, or to whom he gives medicine or whom he treats. There must be proof shown that he has done this on his own account or for his own profit. But proof of a single act connected with other circumstances, such as tend to show that he held himself out as a physician, is enough. Burham _v._ State, 116 Ind., 112; Hill _v._ Bodie, 2 Stew. and P. (Ala.), 56; Pedgrift _v._ Schiller, 8 C. B., N. S., 200 (same case, 6 Jurist, N. S., 1341). And if he simply practises “massage,” he does not fall within the acts against practising medicine, even though he pretends to accomplish as much good as could have been accomplished by a regular physician. Smith _v._ Lane, 24 Hun, N. Y., 632. But see also Leech _v._ Ripon, 12 Cent. L. J., 479; State _v._ Schultz, 11 Reporter, 701.[160] _Falsely Pretending to be a Licensed Practitioner Generally a Misdemeanor._—In some of the States, and in England, it is not only made a misdemeanor to practise without a license, but falsely pretending to be a licensed practitioner is made a misdemeanor. Such is the provision of the Penal Code of New York heretofore cited. In England such a statute has been somewhat strictly construed in the case of Carpenter _v._ Hamilton (37 Law Times Rep., 157). In that case it appeared that a person advertised himself as “John Hamilton, M.D.,” of the “Metropolitan Medical College of New York.” It further appeared that he was not registered as required by the law of England. In a prosecution against him for falsely pretending to be a licensed physician, the only proof of his practising being as just stated, an acquittal was sustained by a majority of the court, which held that it was a question of fact to be determined by a trial court whether or not what he did was _pretending_ to be a physician authorized to treat a patient. The Court intimated that the person simply pretended to be what he really was, namely, a doctor of medicine of the Metropolitan Medical College of New York. STATE AND LOCAL BOARDS OF HEALTH—POWERS GOVERNED BY SPECIAL STATUTES. In addition to the rules and regulations prescribed by the general statutes, modern sanitary science has developed so broadly throughout most of the civilized states and countries, that the different governments have established state boards of health, and in many instances local boards of health, the latter being limited in their authority and operation to specific municipal divisions, to which boards the government has committed the power to pass certain sanitary rules and regulations, which rules and regulations may have an important bearing upon and relation to the practice of medicine and surgery. The jurisdiction and powers of these boards are to be found in the special statutes creating them, and prescribing their powers and duties, and cannot be treated of extensively here. They will be considered further under the special subjects to which they relate. _Physicians Bound to Report Contagious Cases and Not Liable for Mistaken Report._—The duty to promptly report[161] to boards of health every case of contagious or infectious disease is manifest.