266 A.D. 629 | N.Y. App. Div. | 1943
This is a review under article 78 of the Civil Practice Act of a determination made by the Board of Regents, which was transferred to this court by the Albany Special Term (Foster, J.). The Regents decided that petitioner was guilty of fraud and-deceit in the practice of medicine through aiding the Body and Mind Foundation, a corporation, to practice medicine, and by aiding one Rudolph Rebold, not licensed to practice as a physician “ to hold himself out as a licensed physician and to use the title 1 M. D.’ ”. Rebold’s alleged practice was in connection with the work of the Foundation. Petitioner’s authority to practice medicine in this State was suspended for one year from the date of the service of the order and until he is reinstated by the Commissioner of Education. A corporation may not practice, and the Foundation has been convicted of so doing, and Rebold has been convicted of practicing without a license.
A recital of the origin of the Body and Mind Foundation is necessary to explain petitioner’s relation thereto. Dr. Guthrie, Rector of St. Mark’s-in-the-Bouwerie, discussed with Dr. Shipler (a Doctor of Divinity), editor in chief of the Churchman, the inaugurating -of a faith healing clinic in St. Marks. The latter advised that such a movement should be under the direction of a medical man, and recommended petitioner, who had been identified with the Emmanuel Movement connected with a church of the same name in Boston while he was a student in the Harvard Medical School. Several of his professors were interested in the work, which was of the same general character as that proposed by Dr. Guthrie. Up until early in 1934, the activity was called the “ Body and Soul Medical Clinic ” with headquarters at the church. Then, on advice of a reputable member of the Bar, a membership corporation was formed, taking the name “ Body and Mind Foundation, Inc.”. Prior to the incorporation, no charge had
The treatment and procedure at the Foundation are described by nine paid investigators, five by written reports. This court is well acquainted with most of the group through other cases presented. Testimony was also given by the father of a onetime patient now in the Rockland State Hospital for the Insane where she was committed after having been treated at the mental pavilion of the Bellevue Hospital; and by a patient, Helen Tabin, who had been treated by a reputable physician, according to her statement “ for a palpitation of' the heart and general nervousness, not outward nervousness but something inside that he really didn’t understand ”. This physician recommended the Foundation to Miss Tabin, who describes her conversation with Miss Dolin, a psychologist, who lectured and worked with the patients: “ Well, she used to ask me how I was, and I at the time didn’t want to dress very much, and she tried to get me to change my clothes,- and I -had scruples about wearing certain dresses cfcrtain days, and all that. And she tried to get me to change my mode of thinking. Then some other problems I asked her about and tried to get advice from her, and I always felt tired.” . .
She had a discussion with Dr. Cowles which she describes: “ On this one occasion before' I had gotten ill, I had' been góing out with some fellow, and, well, I was magnetized by his personality, and I felt I wanted to break awáy from him because he wasn’t the type of person I should have been out with. I didn’t like his character or anything about him. I don’t know whether it was dug alone to the fact that I was really attracted to hiin some way or other; I found I couldn’t break away from him very well. I told this to Dr. Cowles, on this occasion. He
She was called to the platform to address other patients at a time when she thought the treatments had helped her.
She describes her statement: “I told what was wrong with me, and I am not a nervous person, talking so people seemed to enjoy my lecture very much. * * * I told them how I had become ill, I worked very hard, and had gone to college at night, didn’t eat properly, broke down, and developed a palpitation of the heart, and from that developed all kinds of thoughts that I was going to drop dead, and from that time I developed other thoughts, and I thought then, I having gone there about six weeks, or something like that, at the time, so I had started to feel a lot better, I thought another couple of weeks I would be all well. But it didn’t work out that way.” So far as the record appears, this witness only paid twelve dollars for membership in the clinic where she listened to lectures, to piano playing, consulted with physicians and psychologists, until she left a dissatisfied patient at the end of about seven months. She testifies that she paid in all about one hundred dollars. The medication which the patients received, commonly called a cocktail, according to Dr. Parks, an inspector for the State Department of Social Welfare, and as testified to by petitioner’s witness Dr. Espejo, was a mixture of chloral hydrate, bromide, tincture of capsicum and tincture of digitalis. The proportions are described. It acted as a sedative. In addition Miss Tabin received a prescription from Dr. Espejo. It is not asserted that this was improper treatment for a neurasthenic. Also, there was physical manipulation of the nose and solar plexus region by one of the physicians who, at the same time, told the patient, in substance, to forget her troubles and think of pleasant things.
The license of a physician may be revoked, suspended or annulled when he is guilty “ of fraud or deceit in the practice of medicine ” (Education Law, § 1264, subd. 2). Several specifications made by the medical board were not approved, but the Regents did approve and find that petitioner was guilty of fraud and deceit in that he “ aided and abetted ” the Foundation to practice medicine and ££ one Rudolph Rebold, an unlicensed practitioner, to practice medicine at the Body and Mind Foundation, and aided and abetted the said Rudolph Rebold to hold himself out as a licensed physician and to use the title 1 M.D. ’ ”. Words used in a statute are to be understood in their ordinary import. Fraud and deceit have more than one meaning, dependent upon circumstances and the relations of the parties. A breach of duty irrespective of moral guilt which tends to injure public interest is a constructive fraud. The petitioner cites People v. Mangan [Horvatt] (237 App. Div. 289, affd. without opinion, 262 N. Y. 508). There the defendants were indicted and convicted for the violation of section 304 of the Penal Law, which provides in substance that a bank director ££ who makes a false entry in any * * * report or statement of such corporation with intent to deceive * * * any public officer ” required by law to examine the bank is guilty of a felony. This court held that gross negligence was not comparable with an intent to deceive. The report signed by the defendants contained false items, but not to their knowledge. There was no direct proof that they had knowledge of the falsity of the report made by them. The opinion states: ££ It falls far short of the requirements of evidence sufficient to show that the defendants were guilty of intent to deceive or that they were guilty of such failure to inform themselves as to permit the inference that they did know or were willfully ignorant and thus intended to deceive ” (p. 299).
The opinion cites the rule from Constant v. University of Rochester (133 N. Y. 640) that where evidence offered to establish a fraudulent intent is as consistent with innocence as with wrongdoing, the inference of innocence must be drawn. The Attorney-G-eneral cites Ultramares Corp. v. Touche (255 N. Y. 170), a civil case, brought against the defendants, a firm of public accountants employed by Stern & Co. to prepare a balance sheet as of the condition of its business at the end of a given year. The plaintiff loaned money to Stern & Co. in reliance upon the statement and certificate of the public accountants.
“ Fraud includes the pretense of knowledge when knowledge there is none ” (p. 179). .
“ Directors of corporations have been acquitted of liability for deceit though they have been la-x in investigation and negligent in speech. * * * This has not meant, to be sure, that negligence may. not be evidence from which a trier of the facts may draw an inference of fraud, * * * but merely that if that inference is rejected, or, in the light of all the circumstances, is found tó be unreasonable, negligence alone is not a substitute for fraud ” (p. 186).
“ Negligence or blindness even when not equivalent to fraud, is none the less, evidence to sustain an inference of fraud. At least this is so if the negligence is gross ” (pp. 190, 191).
The generál rationale of the Ultramares case is that a thoughtless slip, or blunder, or the failure to. detect a theft or forgery under a deceptive cover, is not tantamount to fraud. In Matter of Kasha v. Board of Regents (264 App. Div. 925) “ fraud and deceit ” under- the statute here involved were found by the Regents upon proof that one not licensed practiced in Kasha’s office, without evidence of the latter’s knowledge. This was confirmed by the Appellate Division (supra) but reversed by the Court of Appeals as matter of law and the charge dismissed (290 N. Y. 630).
A printed record of slightly more than 900 pages contains the story of petitioner’s life as painstakingly developed by the State of New York and certain medical societies, and as thoroughly answered by petitioner and his friends. To sustain the charges, it has been deemed necessary to establish the number of times he has been married; the details of a controversy with a street car conductor in Boston; his identification with the Emmanuel Church clinic and his relations with those of his professors who were interested therein; also with antagonistic professors and the Massachusetts examining-board ; his 15 unsuccessful attempts to pass the examination to become a physician in Massachusetts, and a fact more
Petitioner’s relations with county and city medical societies have not been cordial, and to their rules he is a nonconformist. Progress is not made by the orthodox, content to travel beaten paths. If it be true, according to the generally popular belief, that the most orthodox of physicians at times treat neurasthenics who enjoy poor health by administering bread pills and sweetened and slightly colored water, the underlying theory back of the Foundation is not different, but only an extension and enlargement thereof, "with the addition that Dr. Cowles sought to have the Foundation members do things, so that all their thoughts would not center on real or imagined ailments. Petitioner was told that the work of the clinic did not amount to the practice of medicine. There was no unjust or illegal enrichment. The proof does not show that petitioner was guilty even of constructive fraud in connection with the Foundation.
As to the Behold charges — letters were received in evidence written between 1937 and 1940 by five physicians other than petitioner, each showing that they believed Behold to be a regularly licensed physician; one by a physician connected with the Hospital for Buptured and Crippled, giving notice
The decision of the Board of Regents should be annulled and the charges dismissed, on the law.
All concur.
Decision annulled and the charges dismissed, on the law, with fifty dollars costs and disbursements.