Marburg v. Cole

The petitioner in this proceeding, a licensed Austrian physician, has submitted to the appellants, the Commissioner of Education and the Board of Regents, an application for the indorsement of his Austrian license to practice medicine, without examination, pursuant to the power granted to them by the provisions of section 1259 of the. Education Law (Cons. Laws, ch. 16). The question presented for decision is whether the refusal by the appellants to indorse petitioner’s license is arbitrary, capricious or unreasonable so as to constitute an abuse of the discretion conferred upon appellants by the Legislature. This petition, brought pursuant to article 78 of the Civil Practice Act, requests that the court review the determi

The petitioner, Otto Marburg, was licensed to practice medicine by the Austrian government in 1899. Upon coming to this country as a refugee he made the aforesaid application for indorsement of his foreign license pursuant to what he claims is his right under section 1259 of the Education Law. He filed with the Board of Regents such documents as he could procure from abroad as to bis preliminary and professional qualifications but was unable, because of the unsettled conditions in Germany, to produce any certificate of maturity indicating his completion of a gymnasium course nor evidence of his attendance at medical school so as to furnish the Board with information concerning his scholastic standing. At the same time he also filed with appellants verified statements as to his practice and experience together with letters from six American doctors who recommended that his application be granted. He also filed proof that he has declared his intention to become an American citizen. While his application was pending, the Board accorded petitioner an opportunity to appear in person and by counsel before a committee of the Board. Subsequently the appellants held a meeting at which the application was denied under section 1259 upon the ground that the petitioner had not in their opinion reached a position of conceded eminence and authority in the medical profession. Thereafter, the petitioner filed a supplemental application, which application upon consideration by the Board was again denied for the same reason. This latter denial, at the instance of petitioner’s counsel, was amended after further consideration on the merits to read that the application was denied pursuant to section 1259 of the Education Law whereas it had formerly read that it was denied pursuant to section 51 of that law.

Thereafter petitioner-respondent instituted this proceeding. Special Term annulled the decision of appellants

Subject to the requirements and procedure set forth in detail by the Legislature, the administration of admittance to all professions which are regulated by license in this State, except the profession of the law, has been committed into the hands of the Board of Regents. As the late Judge John F. O’Brien has said in an opinion written for this court, the Board of Regents is the “ statutory guardian of the [Educational] policies of the State * * (Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358 , 363.)

In order to protect the health and provide for the welfare of the citizens of the State, the Legislature in the exercise of the police power of the State, has enacted laws requiring a certain standard of learning and training of those who undertake to preserve or repair the human body. Thus until he has been licensed by the proper authorities, no person has an absolute, unqualified or vested right to practice medicine or surgery. The methods by which such license may be obtained are clearly and concisely set forth by the Education Law and provide that licenses may be obtained by citizens of this State only after a rigorous course of study, and after the successful participation in a licensing examination designed to test their fitness. (Education Law, §§ 1256, 1257.) In the case of a person not a citizen of this State, the Education Law provides two methods by which he may be admitted to the practice of medicine besides the method pursued by petitioner. Thus section 51 of the Education Law provides that the Regents may indorse a license issued by a foreign State or country “ upon satisfactory effidence that the requirements for the issuance of such license were substantially the equivalent of

After providing the foregoing methods for licensing physicians and surgeons, the Legislature further provided in section 1259 that “ The commissioner of education may in his discretion on the approval of the board of regents indorse a license or diploma of a physician from another state, or country, provided the applicant has met all the preliminary and professional qualifications required for earning a license on examination in this state, has been in reputable practice for a period of ten years, and has reached a position of conceded eminence and authority in his profession.’ ’ (Italics added.) It is the interpretation of this provision by the Commissioner of Education and the Board of Regents that we are asked to review in the case at bar, since this is the method by which petitioner has sought to obtain entrance into the practice of medicine in the State of New York.

As bearing on the issue of whether the Commissioner of Education and the Board of Regents have acted arbitrarily and unreasonably in refusing this petitioner a license without calling upon him to take the ordinary medical licensing examination and placing him in the class of the four outstanding persons of conceded eminence to whom this honor has heretofore been accorded, it may not be amiss to call attention to the liberality with which the Legislature in New York State, and in turn, the Regents, have acted in granting medical licenses to non-citizens of this State. No State in the Union, and no foreign State or country has been as liberal in this respect as has the State of New York. On the other hand, only on exceedingly rare occasions are

In view of this liberal policy toward non-citizens under sections 51 and 1256, it was not arbitrary for the Commissioner of Education and the Board of Regents to adopt a standard of unique and outstanding service as an interpretation of the power conferred upon them by section 1259.

The statute under consideration expressly invests the Commissioner of Education and the Board of Regents with a very wide discretion, the due exercise of which the courts do not have the power to disturb. Nor do the courts have the power to substitute their judgment in place of the judgment of the properly delegated administrative officials. Thus in the absence of clear and convincing proof that the discretion of the Board of Regents has been exercised arbitrarily, unfairly or capriciously, the courts will not interfere. (M atter of Erlanger v. Regents of University of State of New York, 256 App. Div. 444 ; People ex rel. Harris v. Commissioners of Land Office, 149 N. Y. 26 ; People ex rel. Wooster v. Maher, 141 N. Y. 330 , 337; Matter of Levi v. Regents, 256 App. Div. 244 ; affd., 281 N. Y. 627 .)

Dr. Bela Schick, license indorsed in 1923, discoverer of the “ Schick Test for Determining Susceptibility to Diphtheria.”

Dr. Benjamin Philip Watson, license indorsed in 1927, full professor of gynecology and obstetrics at the University of Toronto, Canada, from 1912 to 1922, and called to a full professorship of gynecology and obstetrics by Columbia University Medical School and the directorship of Sloane Hospital for Women in 1926.

Dr. George Hoyt Whipple, license indorsed in 1935, recipient in 1934 of the Nobel Prize in Medicine and co-discoverer of the cause and cure for pernicious anemia.

Dr. Manfred Sakel, license indorsed in 1939, the originator of the so-called insulin shock treatment for dementia praecox or schizophrenia.

Since three out of four of these persons have received their high position in the medical world because of original discoveries which they have made in their respective fields of medicine, there is ample evidence in this record to sustain the contention urged by the appellants in the case at bar that in interpreting the broad discretion conferred upon them by the standard, “ a position of conceded eminence and authority in [the medical] profession,” they have adopted a rigid objective test that the eminence required by the statute is obtained only by an outstanding original contribution in some one field of medicine.

In the case at bar, after an oral hearing and after petitioner’s application had been before them for consideration upon three separate occasions, appellants have come to the determination that the eminence of this applicant does not satisfy the standard required by the statute as it has been interpreted by them in the past. It is this determination which we are asked to declare to be arbitrary, unfair and capricious upon this record. It is our opinion that such is not the case.

It is not claimed here by petitioner, nor does the record show, that this petitioner is responsible for any outstanding original contribution to any field of medicine. Thus, if the eminence of petitioner is in any way to satisfy the high degree of eminence which has been set as a prerequisite for the indorsement of a medical license, it must be shown that his eminence in the field of neurology is so great that it can be said to be arbitrary, unfair or capricious for appellants to have refused to make an exception to the general standard in his case.

A careful examination of the record in the case at bar reveals that such is not the case. The record shows that petitioner had an enviable record as the Director of the Neurological Institute at the University of Vienna from 1919 to 1938, that he was in active practice in Vienna from 1905 to 1938, and that he has published about two hundred scientific papers and books written in his native German tongue as well as being accorded membership in the American Neurological Society. Upon his enforced emigration to

Petitioner does not allege, nor is there any evidence to support a claim, that the standard which has been adopted by appellants is arbitrary or unreasonable. The law is well settled that it is not always necessary that license

In view of the liberality accorded by New York State to practitioners of other States pursuant to sections 51 and 1256 of the Education Law, as well as the numerous applications made by non-citizens to practice medicine in New York, the interpretation of the powers confided to them by the Legislature through the provisions of section 1259 is not unreasonable. (Cf. Matter of Levi v. Regents, 256 App. Div. 444 ; affd., 281 N. Y. 627 .) Thus in the case at bar, where the Board of Regents has interpreted the words “ conceded eminence and authority in his profession ” to mean an outstanding original contribution to a certain field of medicine or standing among the first few men of his profession, as evidenced by universal recognition and outstanding appointments to positions of high responsibility in the State, such interpretation cannot be said as a matter of law to be unreasonable or arbitrary.

The petitioner places great reliance upon this appeal upon two. letters which were written to him by the Director of the Division of Professional Education and the Associate Commissioner of Education respectively, as showing an inclination on the part of the Board of Regents to dismiss summarily his application. Neither of these letters shows

The concurring opinion of the Appellate Division referred to and characterized as “ dirty business ” what it describes as an attempt by the appellants to entrap the petitioner by sending a “ stool-pigeon ” to him for treatment. Such a charge against the authorities administering the Education Law of this State is without warrant in the record. It is the duty of the Executive Secretary of. Professional Conduct to investigate all and any charges which might be made, by any citizen against any person who is practicing medicine in this State. The report which is contained in the record is more naturally and more plausibly explained as a routine investigation under the Medical Practices Act than as an attempt to “ entrap ” the petitioner in a breach of professional ethics for the purpose of defeating this application as alleged by the petition and apparently believed by the Appellate Division.

Success in this proceeding, wherein the performance of an alleged official duty is sought to be enforced, requires of the petitioner that he establish a clear legal right to the remedy he has chosen. (Matter of Stracquadanio v. Dept. of Health, 285 N. Y. 93 , 95, 96.) From the language of section 1259, which informs the Commissioner of Education that he “ may in his discretion ” indorse a medical license upon the approval of the Board of Regents where the applicant “ has reached a position of conceded eminence and authority in his profession,” it appears that the power granted is more a power to confer a privilege and does not create an absolute right in an applicant. This is the interpretation which has been placed upon this power by the administrative officials. It follows that where the action of the appellants involved a refusal to exercise such dis

It follows that the orders should be reversed and the proceeding dismissed, without costs.

(dissenting). If petitioner had submitted to the Regents only letters from “ friends, former students and associates ” showing " that he had attained their respect and esteem as a medical teacher and practitioner,” he would of course have no case at all. What he did submit was evidence from a number of American physicians, each of unquestioned eminence, that he was “ the leading neuropathologist of Europe; ” that “ people flocked to Mm from every country in Europe; ” that Ms name was “ one of the most important in Europe; ” that there is "no greater figure in the medical world; ” that " almost every neurologist the world over had studied under him; ” that he has the " respect of the world-wide medical profession ” and is " unquestionably the most prominent of recent emigres,” and had been the teacher of most of the prominent neurologists of America. None of tins is disputed in any way whatever. The opimons of these physicians who thus certify to petitioner’s eminence are not assailed. Indeed, in view of the positions held by them in their profession, successful assault would be impossible. As against the sufficiency of tMs proof, defendants now assert that petitioner has failed to meet a standard, unrevealed till now, wMch limits the coverage of the words of the statute: " position of conceded eminence and authority in Ms profession ” to persons who have made original discoveries in the field of

The order should be affirmed.

Loughran, Rippey, Lewis and Conway, JJ., concur with Finch, J.; Desmond, J., dissents in opinion in which Lehman, Ch. J., concurs.

Orders reversed, etc.