Ottaway v. . Lowden

| NY | Oct 7, 1902

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The question which divided the court below is a very close one indeed, involving the inquiry whether § 148, ch. 661, Laws of 1893, is retroactive in its operation. The statute provides, among other things, that "On receiving from a state board an official report that an applicant has successfully passed the examinations and is recommended for license, the regents shall issue to him, if in their judgment he is duly qualified therefor, a license to practice medicine. * * * If any person, whose registration is not legal because of some error, misunderstanding or unintentional omission, shall submit satisfactory proof that he had all requirements prescribed by law at the time of his imperfect registration and was entitled to be legally registered, he may, on unanimous recommendation of a state board of medical examiners receive from the regents under seal a certificate of the facts which may be registered by any county clerk and shall make valid the previous imperfectregistration."

The query is whether the effect of the registration of such a regents' certificate curing defects in an imperfect registration, validates the original registration from the date of its filing, or from the date of the filing of the later certificate. If the former be its legal effect, it wipes out all liability to prosecution for misdemeanors committed by one practicing during the time of imperfect registration, and renders legal the practitioner's contracts of employment. If the latter construction be the true one, his practice is legal only from the date of the filing of the later certificate, and he remains liable to be punished for such misdemeanors, for the statute provides that to practice without such registration as it calls for is to commit a misdemeanor.

The facts of this case, so far as we need consider them, are that plaintiff attempted to make registration as required by the statute and failed; but, assuming that he was correctly registered he proceeded with the practice of medicine, in the course of which he rendered services to defendant, to recover the value of which this action is brought. A short time thereafter he obtained from the regents a certificate which both the majority and minority opinions below assume, and correctly, as we think, made valid the previous imperfect registration.

We are persuaded that the statute operated to give life to the imperfect certificate from the date of its filing, and, hence, authorized the plaintiff to recover for all services rendered after its filing, and freed him from the various misdemeanors as well.

The object of the comprehensive statutes of which the section quoted from forms a part is not to provide a trap for the bonafide and competent physician who, through inadvertence or ill advice, fails to secure a perfect registration, but to shut out from the practice of medicine those whose lack of knowledge of the human body and ignorance touching methods of treatment render their attempts to make diagnosis and prescribe treatment a menace to society.

Not only is the standard very high for those who are admitted to the practice of the profession by the authorities of this state, but the statutes attempt to guard against any practicing in this state by unskillful and improper practitioners coming from sister states, and to that end it is required that if a practitioner holds a diploma issued to him by a medical school without the state he shall exhibit the same to the faculty of some medical school of this state with satisfactory evidence of his good moral character, and such other evidence of his qualifications as a physician or surgeon as said faculty may require, and if approved they shall indorse the diploma, which makes it the same as if issued by them. (§ 4, ch. 513, Laws of 1880.) And a later statute provided for such approval and indorsement by the regents on recommendation of a board of medical examiners of this state. (§ 2, ch. 647, Laws 1887.)

These acts and later ones (Ch. 500, Laws of 1890; ch. 661, Laws of 1893), amending the law in some respects, show throughout an intent on the part of the legislature to protect the people from imposition by the unlearned and unskillful who may nevertheless obtain from institutions in other states diplomas purporting to assure competency. To that end the certificate of the board of regents, based upon the unanimous recommendation of a board of medical examiners, is exacted, and the requirements of license and registration are insisted upon, and not for the purpose of bringing within the penalties of the statutes a physician coming from another state possessed of all the qualifications which the statutes require.

As experience teaches that mistakes are sometimes made in attempting to comply with statutes, especially by those whose training may be in other directions than the law, the legislature has undertaken to provide a method by which imperfect registration may be corrected by the same authorities who acted in the first instance; and as the object of the section authorizing the correction is only to make such corrections as are due to "some error, misunderstanding or unintentional omission," there is no good reason why the legislature should not provide that the correction shall operate as of the date when the "imperfect registration" took effect, thus wiping out the penalties which the statute imposed to better secure its enforcement. If such was not the intention of the legislature, a much shorter and differently worded section authorizing him to again take the steps which the statute required in the first instance would undoubtedly have been enacted. Instead of that, as we have seen from a reading of the section, the legislature seems to have provided for so correcting the imperfect registration as to give it the same effect as if it had been perfect in the first instance. It speaks as of the time when the imperfect registration was made, for it requires the applicant for correction to submit "satisfactory proof that he had all the requirements prescribed by law." When? Not at the time of the application for correction, but "at the time of his imperfect registration." And it requires him to show, not that he is now entitled to be legally registered, but that he was so entitled at the time of the filing of the imperfect registration. And then the portion of the section covering that subject concludes with the provision that upon this proof and upon receiving from the regents, under seal, a certificate of the facts, based upon the unanimous recommendation of the state board of medical examiners, which certificate may be registered by any county clerk, it "shall make valid the previous imperfect registration." This phrase, as it seems to us, when considered in connection with the general scheme of the statute, and the fact that all of the applicant's proofs must go to show that he was entitled to be registered at the time of his imperfect registration, means that that which was once imperfect and invalid shall become perfect and valid as of the beginning.

The judgment should be reversed and a new trial granted, with costs to abide the event.

O'BRIEN, BARTLETT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.

Judgment reversed, etc.