269 A.D. 588 | N.Y. App. Div. | 1945
Petitioner was duly licensed to practice dentistry in this State about twenty-six years ago. It has been charged against him, and the Dental Board whose findings have been approved by respondent, has found, (a) that from April, 1939, to about the end of October, 1942, he employed one Anderson, a layman, for the “ primary purpose ” of obtaining for him “ patients * * * for dental treatment ” and that he paid Anderson “ commissions ” on the fees collected from such patients; (b) that since about 1926 such conduct has been stated to be “ unethical ” in codes of ethics promulgated by the American Dental Association, the Dental Society of New York and the First District Dental Society which is the recognized subordinate of the latter body in the county of New York where petitioner maintained his practice; that petitioner was at no time a member of any of these bodies, and (c) that the respondent Board of Regents “ did not prior to or during the period * * *, i.e., 1939-1942, prescribe any canon or adopt any regulation banning the conduct alleged in the petition as unprofessional conduct, and further, that said Board of Regents did not and has not adopted any regulation declaring that such alleged conduct shall be ground for discipline under Section 1311 of the Education Law.” Petitioner’s, offense as charged and found to merit the suspension of his license, has been determined as “ unprofessional conduct.” Subdivision 2 of section 1311 of the Education Law, prescribes the “ cases ” in which disciplinary action is authorized. The first seven, there
The determination that petitioner’s conduct as charged and proven was professional misconduct, has been found to rest upon its having been denominated unethical in the codes of above-named dental societies. It has no other basis in the record or in law. Codified ideas of unethical conduct held by certain privately organized groups within the profession have been used to particularize the generality of the omnibus term, and to constitute a cause for disciplinary penalty, “ after the fact.”
Privately held notions as to the ethics of what petitioner did might well be various. The patients procured by the layman for petitioner’s services were seafaring men, temporarily lodged at the water front or on board their ships in dock.. In need of dental services, Scandinavian in race and language, their knowledge of surroundings and their preoccupations and general plight all were such, that their needed care and welfare would, it is easily inferable from the evidence, have been unattended to save for the activities of Anderson, the so-called “ runner.” He, a Scandinavian ex-sailor himself, sought them out and persuaded and conveyed them to a haven .of cure. Presumably this was greatly in aid of their comfort and health and as well in the interests of the masters of their ships whose agents, in referring the cases of seamen to petitioner, seem to have initiated a practice which developed -the conduct condemned. That Anderson should have been recompensed for his time, service and expense would seem to r$ise no question of ethics. But that the petitioner should have. done so from the fees of his service to these sufferers is the offense for which he has been penalized. There certainly was naught that was malum in se about it and, in such a case whether the act was professional misconduct would depend upon varying concepts as the meaning is interpreted from time to time and from man to man.
The phrase “ otherwise or in any other way guilty of unprofessional conduct,” under which the penalty in question was imposed, is otherwise undefined by. the statute or any rule or regulation made by any lawful supervising authority. The phrase itself establishes no standard by which the best disposed
The determination of the. Board of Regents and the order of the Commissioner of Education under review should be annulled.
All concur.
Determination and order annulled, with $50 costs and disbursements.