102 N.Y.S. 678 | N.Y. App. Div. | 1907
The evidence tended to establish, that in the window of the defendant’s residence was exhibited a. sign, “ Dr. E. Burton Allcutt, Mechano Neural Therapy;” that on the bell outside the door was the name “Dr. Allcuttthat in the office building on Twenty-second street in which the defendant had' :an office there appeared upon the directory in the hall, “ Dr. E. Burton Allcutt; ” that he had and distributed a card reading, “ Phone 3192 Riverside, Dr. E. Burton Allcutt, Mechano Neural Therapy, 2J East 22rid Street,
The defendant in his own behalf testified that he practiced the art of mechano neural therapy and that he was a graduate of the college of Mechano Neural Therapy of Atlantic City, N. J., having received, its diploma'on the 1st of November, 1902. It was con-, ceded that the College of Mechano Neural Therapy was not recognized by the Regents of the State of New York and that a diploma of that institution will not give 1 the right to practice nor to an admittance to an examination to determine the fitness of such a person to "practice medicine, and that defendant was not registered as a physician in the county of New York. The defendant testified : “ I started into the practice of this profession on the lltli of November, 1902, at the present address. I have practiced ever since in the city of New York and elsewhere;” that prior to his attendance at said college he had been practicing massage,-and was a graduate of the Mills Training School, attached to Bellevue Hospital, and had engaged in his profession as a nurse; that the statement of the complaining witness was substantially correct; that he had not studied medicine, except from the standpoint of a .nurse; that mechano neural therapy means mechanical nerve treatment, a gentle pressure on all parts of the body; that the-whole theory of this science is that disease comes from the lack of blood circulation, and that the treatment proceeds upon the theory of assisting the circulation back into the normal condition.
The contention of the appellant is that, conceding all the facts proved, he was not guilty of the crime charged, inasmuch as he was not practicing medicine within the meaning of the. statute, in that he neither gave nor applied drugs or medicines nor used surgical instruments. Section 153 of the Public Health Law (Laws of 1893, chap. 661, as amd. by Laws of 1895, chap. 398) provides as follows: “ Any person who, not being then lawfully authorized to practice medicine within this State and so registered according to law, shall practice medicine within this State without lawful registration * * * shall be guilty of a misdemeanor.”
To confine the definition of the- words “ practice medicine ” to the mere administration of drugs or the use of surgical instruments would be to eliminate the very cornerstone of successful medical practice, namely, the diagnosis. It*would rule out of the profession those great physicians whose work is confined to consultation, the diagnosticians, who leave to others the details of practice. Section 140 of the Public Health Law provides that “ no person shall practice medicine * * * unless licensed by the Regents and registered,” and section 146 of said statute (as amd. by Laws of 1901, chap. 646), provides that the Regents’ examinations must be • made up of “ suitable questions for thorough examinations in anatomy, physiology and hygiene, chemistry, surgery, obstetrics, pathology and diagnosis, and therapeutics, including practice and materia medica.” Diagnosis would, therefore, seem to be an integral part of both the study and practice of medicine, so recognized by the law as well as common sense. The correct determination of what the trouble is must be the first step for the cure thereof. It is a well-known fact that the disease popularly known as consumption may, if discovered in time, be arrested, if not entirely eradicated from the system, by open air treatment in the proper climate, and that in such cases use of drugs has been practically given up. Would the physician, in such a case, who, by his skill, discovered the incipient disease, advised the open air treatment and- refrained from administering" drugs not be practicing medicine ? It may be difficult, by a precise definition, to draw the line between where nursing ends and the practice of medicine begins, and the court should not attempt, in
The appellant relies upon the case of Smith v. Lane (24 Hun, 632, decided by the General Term in May, 1881).' That case was an action brought to recover the, price which,- it was alleged, the defendant agreed to pay the plaintiff for the treatment of himself and his wife for certain bodily disabilities. It consisted entirely of manipulation with the hands; it was performed by rubbing, kneading and pressure. The evidence given by the plaintiff was to the effect that he was employed by the defendant to perform these ■ services for a--specific consideration, and that he had performed them-until the amount due to him was the sum of $149. The referee dismissed the complaint because it appeared that the plaintiff was not a graduate 'of any.medical school and liad-no license permitting him to practice . either medicine or surgery. Mr. Justice Daniels, in writing for a. reversal of this judgment, said : “ The act did not in terms prohibit -any person- from following an occupation of this description, and without some prohibition, it would seem- to be as -lawful as' any other in which one person might render services at the request of and for the benefit of another. * * * The practice of medicine is a pursuit very-generally known and understood, and so also is that of surgery. The former includes the application and use of medicines and drugs for the purpose of curing, mitigating or alleviating bodily,diseases, while the functions of the latter are limited to manual operations usually performed by surgical instruments or appliances. .* * "x" What he did in no just sense either constituted the practice of medicine or surgery. He neither gave nor applied drugs or medicine -nor used surgical instruments. He was outside, of the limits'of both professions, and neither one of the schools or-societies mentioned in the act had jurisdiction over him;or could have intervened to- authorize, restrict or prevent him in-the occupation lie was engaged in following. While his services may have afforded no benefit to the persons' receiving them, he was not prohibited from performing them by anything in
We do not consider the remarks of the learned judge, above quoted, as being an exhaustive or exclusive definition of the term “ practice of medicine.” In the same volume' in which Smith v. Lane was reported appears the case of Grattan v. Metropolitan Life Ins. Co. (24 Hun, 43), where the question of the admissibility of the evidence of a physician under section 834 of the Code of Civil Procedure Avas tinder consideration. " The physician did not prescribe, but took-a sufficient diagnosis to enable him to prescribe. His evidence having been admitted over objection* Leabeed, P.- J., in writing for reversal, said : “ The defendant insists that there was " no. relation • Of physician and patient * "x" * because Grattan did not consult him as to a prescription and the doctor did not prescribe. But the day has passed when it was thought that a physician's advice was of no use unless he ordered a dose of medicine. * * * Hext, the defendant insists that the doctor did not act in' a professional capacity because he gave no prescription and no advice. But"it is plain enough that there are cases where a physician on examining a patient, sees that medicine will do no good, and that there is ho advice to give, except just what the doctor gave to Grattan to make the best of the present, because he would not remain .here very long.”
The appellant cites five cases in other States as in harmony with Smith v. Lane (supra). State v. Lyffring (61 Ohio St. 39) was under the peculiar language of the statutory definition which was held to require the use of drugs in order to constitute, the practice of medicine. There was subsequently an amendment of the Ohio statute, and the subsequent cases of State v. Gravett (65 Ohio St. 289) and State v. Marble (72 id. 21) were decided the other way. State v. Herring (70 N. J. L. 34) was also decided upon the wording of the statute. Nelson v. State Board of Health (108 Ky. 769; 57 S. W. Rep. 501) and State v. McKnight (131 N. C. 717) are not entitled, to be considered authorities in this jurisdiction, inasmuch as they proceed upon the proposition 'that in those States it would be unconstitutional for the Legislature to limit the right to practice
As opposed to the cases following Smith v. Lane, the courts of Massachusetts, Maine, Michigan, Iowa; Missouri, Colorado, Hebraska, Illinois, Ohio, Alabama, Indiana; Hew Mexico, South Dakota and-Tennessee refuse to restrict the “ practice of medicine” to the administration of drugs or-the use of surgical instruments.
In Bragg v. State (134 Ala. 165), decided’at the Hóvember term, 1901, upon- the provisions of'the Civil Code of that State (§§ 3261-3266) and of the Criminal Code (§ 5333), in effect identical in language with the provisions o.f the statutes of this State, the court in a most exhaustive and instructive opinion declared that both the man who used and the man who did not use drugs were yet engaged in the art of healing and curing human diseases; that the purpose of the " medical law was to protect the public against charlatanism,, ignorance and quackery, and that it was not the legislative intent to restrict the examination of- those desiring to practice medicine to that class of' the profession who may prescribe drugs. In that. case and in the note to O’Neill v. State (3 L. R. A. [N. S.] 762; 115 Tenn. 427) may be found collected the. cases in the several States as indicated supra, which did not follow the definition of practice of ' ' medicine 'as limited and restricted in Smith v. Lane.
We are of the opinion, from the general (current of the authó'rh - ties throughout the country and from examination of the history and growth of' our own public health statutes, that we should not apply the rule as claimed to have been laid down in Smith v.
The judgment of conviction should, therefore, be affirmed.
Patterson, P. J., Ingraham, Latjghli-n and Scott, JJ., concurred.
Judgment affirmed. Order filed.