4 Ga. App. 293 | Ga. Ct. App. | 1908
Lead Opinion
The plaintiff in error was arrested on a warrant sworn out by the defendant in error, charging him with practicing medicine. without a license, in violation of the statutes of this State. On a preliminary investigation he was discharged, and thereupon he brought suit against the defendant in error for malicious prosecution and false imprisonment. In the petition he alleges, that at the time of his arrest and incarceration in the common jail he was engaged in the “profession of healing diseases without the use of medicine, commonly and better known as a magic healer;” that he “heals the sick without the use of medicine in any form or manner whatever, by placing his hands upon that portion of the body that is affected by pain; that this gift or magic power is given him direct from the Lord;” that he made no charge for his services, but accepted such compensation as the gratitude of his patients induced them to voluntarily offer; and that as a result of his arrest and prosecution for practicing medicine with
The direct question for determination is, whether the plaintiff, under the facts set out in his petition, was engaged in the practice of medicine as defined by the statutes of this State. He insists that his practice is neither within the letter nor the spirit of the law. By virtue of its police power, the State has enacted legislation to protect the public against unfit and incompetent practitioners of medicine, and to prevent the hurtful results of malpractice. A construction of this legislation will determine the issue made by the record. Section 1477 of the Political Code prescribes who shall be authorized to practice medicine in this State. The practicing physician is required to have “a diploma from an incorporated medical college, medical school, or university,” or shall be one who has been “in active practice of medicine since the year 1866,” after having attended “one or more full terms at a regularly chartered medical college,” “or who was by law authorizeed to practice medicine in 1866, or shall have been licensed by the medical board.” It is further provided, that the Governor of the State shall appoint three separate boards of medical examiners, each board to consist of five members selected from the three schools or systems of medicine designated by the statute, to wit, the “regular” or allopathic school, the homeopathic, and the eclectic school. Persons who desire to practice medicine and who are graduates of any incorporated medical college, school, or university requiring the designated course of study, are to be examined by one of these boards, the graduate of a particular school to be examined by the board composed of practitioners of that' school.
In construing these statutes,-it is apparent that the law of this State recognizes only three systems or schools of medicine, — the “regular,” the homeopathic, and the eclectic schools. It is impossible for one who desires to practice any other system to do so in this State as a practitioner of medicine, because, under the law, he can not procure a license. In other words, the law only proposes to grant a license to practice medicine to the allopath, the homeopath, or the eclectic. It is true, the statute provides that '“if the applicant desires to practice a system not represented by any of the” three boards, “he may elect for himself the board before which he will appear for examination” (§1486); but this is a barren privilege, for none of the three boards can or will examine any applicant except one who has a diploma from a regular medical college, or who proposes to practice one of the three systems. For instance, none of the boards will recognize a diploma of an osteopath, issued by an osteopathic school, because such school is not a regular school, and none of the boards would be competent to examine the osteopathic applicant on the system that he had studied, and the applicant would not be competent to pass.
But it is said that §1478 of the Political Code, supra, undertakes to define the practice of medicine, and that this definition embraces the particular practice of the plaintiff in error. He expressly disclaims the use of medicine in any form whatever, in his treatment of diseases, and therefore he must be excluded from the specific words of the definition, because he did not suggest, recommend, prescribe, or direct the use of any drug or medicine, appliance, or apparatus. According to his statement his method consisted simply in laying his hands on the sick at the point or place of pain or disease, and the healing which followed was by a direct divine agency. Do the words in the statutory definition above given, “or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the ■mind or bodj^,” embrace an agency.of this character? It may be conceded that the words “material or not material” are sufficiently broad to include at least every human or natural agency. But was it intended by the legislature to denominate as a medical agency, whether material or not material, an agency claimed to be supernatural? It is true that faith on the part of the sick is a potent influence in all treatment of disease; but can it be said that faith is an agency? Are the sick who may be cured by magnetism, mesmerism, or hypnotism cured by any medical agency; or is an answer to prayer such an agency, and the person who pras practicing medicine? We can not believe that the legislature intended to include in the practice of medicine what may be called psycho-therapeutics, or any form of the treatment of the sick which makes faith the curative agency. But the words “other agency,” “material or not material,” should be construed in obedience to the maxim “no§citur a sociis,” and the meaning of the
Going back to the question now under consideration we deduce the following proposition: that the practice of medicine, defined by the code, supra, is limited to prescribing or administering some drug or medicinal substance, or those means and methods of treatment for prevention of disease taught in medical colleges and practiced by medical practitioners; that the purpose of the act regulating the practice of medicine was to protect the public against ignorance and incompetency, by forbidding those who were not educated and instructed as to the nature and effect of drugs and medicine, and for what diseases they could be administered, from treating the sick by such medical remedial agencies; that
In the view herewith presented we are strengthened by the decisions of courts of last resort in this country construing similar statutes. Osteopathy, a system of treating disease without the use of medicine in any form (which has made great advances in recent years, and, if the testimony of many intelligent men and women is to be believed, has worked many cures) has been frequently held not to be included in the term “practice of medicine or surgery,” .and, therefore, not included in the statute regulating the practice of medicine and surgery. The earliest case on the subject is that of Smith v. Lane, 24 Hun, 632, in which the Supreme Court of New York held that the practice of osteopathy was not included in the statute which declared it .to be a misdemeanor for any person to practice medicine or surgery .who was not authorized to do so by a license or diploma from some chartered medical school, State board of medical examiners, or medical society. This decision was based upon the idea that under the statute of New York no one would be issued a license to practice medicine unless he had a diploma from a regular medical college, the court giving to the words “practicing medicine” their usual, ordinary, and popular significance, and
We admit that there are some decisions that hold the contrary; but we believe that the better rule, and one more in consonance with reason and in harmony with the republican character of our institutions, is, that all statutes for the regulation of the practice of medicine can be sustained only on the ground that they are necessary to protect the public against quack medical practitioners and impostors who prescribe drugs and medicines in treating diseases, and that these statutes are not directéd against or intended to include those who eschew the practice of medicine altogether, but advance some new theory, such as osteopathy, for the alleviation of pain and the curing of the sick, or those who heal or pre
We therefore hold, that under the allegations of the petition, "the plaintiff in error was not engaged in the practice of medicine, and therefore was not violating, the law regulating such practice in this' State. But we do not think that the plaintiff in error was entitled to recover damages for malicious prosecution from the physi
Judgment affirmed.
Concurrence Opinion
I concur, but my concurrence is really a dissent from the views so ably propounded by Chief Judge Hill in his opinion. I think that the petition shows that the plaintiff, at the time of his arrest, was violating our statute against the illegal practice of medicine. Certainly he was not practicing medicine in the ordinary and popular meaning of' that expression; but the framers of our statute were not content with that meaning and gave the phrase a new and enlarged definition. According to §1478 of the Political Code, “the words ‘practice medicine’ shall mean, to suggest, recommend, prescribe or direct, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or other bodily injury or any deformity, after having received or with intent of receiving therefor, either directly or indirectly, any tonus, gift, or compensation.” If the definition had omitted the words italicised, then the word “agency,” under the rule of construction denoted by the phrase noscitur a sociis, would be held to mean some agency of the same nature as drugs, medicines, and appliances, all of which are material agencies; but with the palpable purpose of forbidding any such con
I can not agree to the proposition that the object of this statute is only to forbid quacks from pretending to be regular physicians when they .are not so. The right of the legislature to say by what systems and by what classes of persons diseases shall be treated springs from the police power, of which the health and safety of the people are wards. Just as the legislature may prescribe how plumbing shall be done, of what materials and by what class of persons (Felton v. Atlanta, ante, 183, 61 S. E. 27), and may thereby exclude other methods, which may in fact be just as efficient though not believed by the law to be so, and may prohibit from working in this profession men who are just as competent as the recognized and licensed plumbers, but who have not in the statutory method proved themselves to be so, so it may limit the methods by which diseases are to be treated and may exclude every one from attempting to heal them who does not prove himself competent according to the method which the law itself believes to be the fairest and most expedient for testing his competency. I was about to draw a parallelism between the “magic healer” method of dealing with the problem of sanitary sewerage and that same method of dealing with disease, but the very statement of the first proposition would be too nonsensical and ridiculous to be judicial. The law -is as much interested in protecting the lowly of intellect from the superstitious handling of disease as in protecting them from the preten
It may be that the statute which the law-making power has seen wise to enact excludes from the right to undertake the healing of the people some rvhose methods are rational, and who therefore ought not to be excluded; osteopathy may be an efficient system for the cure and palliation of fleshly ills, — indeed, I think it probably is; there may be other systems equally good, but now forbidden ; if so, the legislature should authorize them; but so long as that branch of the government to which this question is addressed says they are noxious to the public health, I feel that we, as judges, should hold them to be unlawful. My idea is that if any person, not having complied with the requirements of the statute, shall “suggest,' recommend, prescribe or direct, for the use of any person any . . agency, whether material or not material for the cure, relief, or palliation of any ailment or disease of the mind or body, . . after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation,” he is guilty of a misdemeanor; and that the plaintiff, who confesses in his petition that “his profession is and was at the time of his arrest . . that of healing diseases, without the use of medicine, commonly and better known as a ‘magic healer,’ ” and that at that time he had a “lucrative practice” in several comities, conclusively shows that probable cause existed for his arrest for a
I thoroughly agree with the Chief Judge in the opinion that irrespective of the question whether the plaintiff was violating the statute, he set out no cause of action. He bases his right to damages on the breaking up of his business. If he had any divine power and was selling it — a proposition absolutely absurd to the present-day mind — he was guilty of the common-law offense of simony; and while common-law crimes are not punishable as such, they are usually, civilly speaking, so unlawful even now, under our adoption of the common law, that they can not afford the basis of a cause of action in favor of the perpetrator. If he was taking money and professing to heal, and did not heal, he was a cheat and swindler. If he used material agencies and healed, he violated the statute regulating the practice of medicine. In any view his cause of action arose from an unlawful act, and he can not recover. Robertson v. Porter, 1 Ga. App. 223 (57 S. E. 993).