People v. Ellis, 147 N.Y.S. 681

147 N.Y.S. 681 | N.Y. App. Div. | 1914

Putnam, J.:

Appellant has been convicted of the misdemeanor of practicing medicine within this State without any license or registration. (Public Health Law [Consol. Laws, chap. 45; Laws of 1909, chap. 49], § 160, subd. 7; Id. § 174.) ' Mr. Ellis claims to be a chiropractor, or doctor of chiropractics, having graduated from an institution at Davenport, la., known as Davenport University of Chiropractics, in June, 1912. In July following, without having any further examination or receiving any license in this State, he began practice in Brooklyn. He has a sign with regular office hours, and as a witness he admitted having treated about 200 persons for ailments of the stomach, chest or spine, also for nervousness, hysteria, and diseases coming from pressure on the nerves. The prosecution proved by a witness whom appellant had treated that appellant first examined her ankle, pronounced the arch as having fallen, massaged the foot and advised a different shoe. On a further visit he manipulated the patient’s spine, which, speaking as a spinologist, he pronounced out of alignment in several places. He said he could restore it, but it probably would not stay the first time. He further gave the opinion that the nerves leading to the ankle might he impinged so as to cut off the circulation.

Early statutes regulating physicians used the expression “practice physic or surgery ” (Laws of 1872, chap. 746; Laws of 1880, chap. 513; Laws of 1887, chap. 647, as amd. by Laws of 1890, chap. 500). The present broadened definition of the practice of medicine appears in chapter 344 of the Laws of 1907. “Medicine,” according to the new Standard Dictionary, is “The healing art; the science of the preservation of health and of treating disease for the purpose of cure.”

In view of the large increase of those who attempt remedies without drugs or instruments, legislatures in this and other States have found it necessary to deal with all who assume to treat or prescribe for physical ailments. Such regulations are within the State’s police power. (Collins v. Texas, 223 U. S. 288.) By our present statute, one practicing medicine is comprehensively defined as a person “who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.” (Public Health Law, § 160, subd. 7.)

Appellant’s office sign, his circular and professional card, as well as his own frank admissions as a witness, all show that he holds himself out as able to diagnose, treat and prescribe for pain, disease and injury. Rubbing and pressure on the human joints are old therapeutic agents. When accompanied by such attempts at diagnosis as the statement that a patient’s pains in the ankle were from the spine having come out of alignment through displaced vertebrae, appellant’s acts come within the statutory definition of the practice of medicine.

He, therefore, was guilty of the misdemeanor of practicing medicine without a license or being registered under the Public Health Law. (Public Health Law, § 174; Ottaway v. Lowden, 172 N. Y. 129; People v. Allcutt, 117 App. Div. 546; affd., 189 N. Y. 517; People v. Somme, 120 App. Div. 20; 190 N. Y. 541; People v. Mulford, 140 App. Div. 716; affd., 202 N. Y. 624.)

Like decisions in other States are State v. Smith (233 Mo. 242; 33 L. R. A. [N. S.] 179); Bragg v. State (134 Ala. 165); State v. Johnson (84 Kan. 411).

The information which charged practicing medicine without lawful authority between certain dates, and in particular upon five days which it specified, was sufficient. The different acts going to establish the unlawful practice need not be more particularly set forth in the information, as they simply made up one continuous offense. (People v. Firth, 157 App. Div. 492. See, also, People v. Silver, 158 App. Div. 217.)

No error appearing in the record, the conviction should be affirmed.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment of conviction of the Court of Special Sessions affirmed.