People v. Somme

Defendant was convicted by the Court of Special Sessions for a violation of section 153 of the Public Health Law in that on the 3d of April, 1906, in the county of Hew York, he did unlawfully, without having legally received a medical degree and without having received a license according to law which constituted at the time an authority to practice medicine under the laws of this State then in force, then and there assume and advertise the title of doctor and M. D. in such a manner as to convey the impression to one Katie Farenga that he, the said Joseph Somme, was then and there a legal practitioner of medicine.

The evidence showed that there was a sign in the defendant’s window, “ Dr Somme, Osteopath,” and on the bell “ Dr. J. Somme.” The complainant testified that she said to defendant : “ ‘ Are you Dr. Somme ? ’ He said, * Yes.’ ” She then described her condition to him, the defendant asked some questions and in reply to her query, “ Can you do anything for me % ” said, “ ‘ yes, I can perform an operation.’ I said, ‘ cannot you give me some medicine ? ’ He said, ‘ no, medicine will do no good.’ I told him I was afraid of an operation. He said, ‘ the only thing for you is a good scientific operation.’ ” The defendant handed her his card which read, “ Dr. Somme, 334 Central Park West, between 93d and 94th streets, Hew York. Hours 12-5 and by appointment.” She said, “ 1 How much do you charge for an operation ? ’ He said, ‘ I charge $50, but seeing you are not a rich woman I will charge you only $25.’ ” Upon another occasion she saw him and after a conversation left two dollars on deposit.

To another witness defendant said he was a specialist and wanted to perform an operation for twenty-five dollars and said the advertisement was his. The defendant testified in his own behalf: “ I attended a medical school in Indianapolis called the College of Mediciné and Midwifery; I am a graduate in medicine ; I attended the regular sessions there; I passed an oral and written examination; I received a diploma as doctor of medicine; I attended the final examination.” He admitted that he had seen the first witness upon two occasions. Section 153 of the Public Health Law (Laws of 1893, chap. 661, as amd. by Laws of 1895, chap. 398, and Laws of 1905, chap. 455) provides that: “ Any person who shall append the letters M. D. to his or her name (or shall assume or advertise the title of doctor or any title which shall show or tend to show that the person assuming or advertising the same is a practitioner of any of the branches of medicine) in such a manner as to convey the impression that he or she is a legal practitioner of medicine or of any of its branches without having legally received the medical degree or without having received a license which constituted at that time an authority to practice medicine under the laws of this State then in force, shall be guilty of a misdemeanor.”

It is established by the cases in this State that in a prosecution against one for practicing without a license the burden is on the defendant to show that he has been duly licensed or comes

“ The obligation rested upon him to prove either registration or license to practice, else he stood without any defense. The law casts this burden upon him. (People v. Rontey, 21 N. Y. St. Repr. 173 ; affd., 117 N. Y. 624 , on opinion below.) ” (Suffolk County v. Shaw, 21 App. Div. 146 , 150.)

It was admitted that the defendant possessed the diploma of a medical school in Indianapolis called the College of Medicine and Midwifery. He did not produce any other authority for the assumption and use of the title of doctor or M. D. The gravamen of the section of the statute under which he was prosecuted is that he should not assume or advertise that title in such a manner as to convey the impression that he was a legal practitioner of medicine. The evidence was sufficient as to the manner of the use. Putting up a sign, advertising as a specialist for all chronic, difficult diseases, discussing symptoms with a proposed patient, advising an operation and receiving money in part payment in advance therefor are facts establishing an invitation to the public to come to him for medical treatment, and clearly convey the impression that he was a legal practitioner of medicine or some of its branches.

The question involved in the case at bar is, what do the words “ without having legally received the medical degree ” mean ? The answer requires a careful examination of the Public Health Law. Section 140 of chapter 661 of the Laws of 1893 provides that “Ho person shall practice medicine after September first, eighteen hundred and ninety-one, unless previously registered and legally authorized, or unless licensed by the Regents and registered as required by this article.” Section 145 (as amd. by Laws of 1895, chap. 636; Laws of 1896. chap. Ill; Laws of 1901, chap. 646, and Laws of 1902, chap. 243) provides for the admission of candidates to examination for the license to practice medicine, and provides that the candidate must present

Section 148 provides that “ On receiving from a State Board ■ (that is, a board of medical examiners of the State of New York) 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.” Sections 149 and 150 provide for registration of the license in the county where the licensee intends to practice, before commencing practice.

Section 151 provides that “ Hereafter no person shall register any authority to practice medicine unless it has been issued or indorsed as a license by the Regents. No such registration shall be valid unless the authority registered constituted, at the time of registration, a license under the laws of the State then in force. No diploma or license conferred on a person not actually in attendance at the lectures, instruction and examinations of the school conferring the same, or not possessed, at the time of its conferment, of the requirements then demanded of medical students in this State as a condition of their being licensed so to practice, and no registration not in accordance with this article shall be lawful authority to practice medicine.”

This law is a codification of the previous laws bearing upon

This defendant is not within any of the three classes. His claim is that he has a degree of M. D. from an Indiana college. If it be conceded that the college was a legitimate institution with power to grant the degree, yet that degree is worthless as a license to practice medicine in Hew York and is worthless as a preliminary requirement to take the Regents’ examination for a license. By the legislation referred to a medical school diploma conferring the title M. D. does not serve as a license to practice medicine in Hew York. Its holder is required to pass the Regents’ examinations. He cannot be admitted to the examination unless he has received the degree from some institution approved by the Regents. If he succeeds in the Regents’ examination a Regents’ license is issued which is the sole authority to practice medicine and which must be registered in the county clerk’s office before beginning practice.

Therefore, when we consider that the statute prohibits the assumption or advertisement of the title of doctor in such a manner as to convey the impression that he or she is a legal practitioner of medicine, or of any of its branches, without having legally received the medical degree, the words “ without having legally received the medical degree ” are meaningless,

It is now the settled policy of the State to hedge admission into the learned professions with strict requirements in order to secure, so far as possible, competent services to patients and clients from physicians and lawyers, and the statutes in regard to admission to the bar, as well as to the practice of medicine, have, to some extent, gone hand in hand. Formerly the degree from the law school or the medical school in and of itself entitled the holder to admission to practice. Now in both professions it is merely a preliminary to examination. Light is thrown upon the legislative intent in the prohibitions in this statute of assumption and advertisement of the title M. D. or doctor by the cognate statute in reference to lawyers. Section 4 of chapter 165 of the Laws of 1898 (as amd. by Laws of 1899, chap. 225) provides that: “ On and after July first, eighteen hundred and ninety-nine, it shall be unlawful for any person to practice or appear as an attorney-at-law, * * * to hold himself out to the public as being entitled to practice law as aforesaid, or to assume to be an attorney or counsellor-at-law, or to assume, use or advertise the title of lawyer, or attorney and counsellor-at-law, or attorney-at-law, or counsellor-at-law, or attorney, or counsellor, or attorney and counsellor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law or in any manner to advertise that he either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this State.” The words “ in such manner as to convey the impression that he is a legal practitioner of law ” are similar to the words of the statute under consideration, “ In such a manner as to convey the impression that he or she is a legal practitioner of medicine.”

As said by the Court of Appeals in Ottaway v. Lowden ( 112 N. Y. 129 ), in reviewing the Public Health Law, “ these acts * * * 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 * *

I think this defendant comes within the spirit and the letter of the statute and that the judgment of conviction was proper.

The judgment appealed from should, therefore, be affirmed.

Patterson, P. J., McLaughlin and Lambert, JJ., concurred ; Ingraham, J., dissented.

The information alleges that the defendant “ without having legally received a medical degree and without having received a license according to law which constituted at the time an authority to practice medicine under the laws of this State then in force, did then and there assume and advertise the title of Doctor and M. D. in such a manner as to convey the impression to one Katie Farenga, that he, the said Joseph Somme, was then and there a legal practitioner of medicine, in that he, the said Joseph Somme, did then and there state to the said Katie

If this charge had been one of practicing medicine in violation of the Public Health Law, a different question would have been presented. As I read the section, however, the prohibition against a person assuming or advertising the title of doctor in such a manner as to convey the impression that, he or she is a legal practitioner of medicine only applies where the person has not legally received the medical degree or has not received a license which constituted at that time an authority to practice

A clear distinction between what is necessary to entitle a person to practice medicine and what justifies a person in assuming the title of doctor of medicine seems to me to have been entirely lost sight of in the prevailing opinion. There is nothing to justify the construction that a degree of doctor of medicine, in order to be legal, must have been issued by a medical school

Ror is there any analogy, between a person assuming the title of doctor of medicine and one claiming to be an attorney and counselor at law, for admission to practice law is an appointment to a public office, and no one is entitled to call himself an attorney and counselor at law unless he has been duly admitted to practice.

I think, therefore, this judgment should be reversed and a new trial ordered.

Judgment affirmed.

NOTE:—WHAT IS PRACTICING MEDICINE WITHIN STATUTE REGULATING PRACTICE.

NEW YORK STATUTE.

The practice of medicine in the state of ¡New York is defined in subdiv. 7, sect. 1, chap. 344, Laws 1907, repealing art. VIII of chap. 661, Laws 1893 and acts amendatory thereof, as follows: “ A person practices medicine within the meaning of this act, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deformity or physical condition, who shall offer or undertake, by any means or method, to diagnose, treat, operate, or prescribe for any human disease, pain, injury deformity, or physical condition.” And subdiv. 8 states that a “ physician means a practitioner of medicine.”

TREATMENT EOR ALCOHOL AND OPIUM HABITS.

A person who describes himself as a doctor and holds himself out to the public as competent to cure the opium habit, was held in Benham

And one who claims to be an expert in the treatment of alcoholism and who provides a remedy therefor, was held in Springer v. District of Columbia, 23 App. D. C. 59 , to be engaged in the practice of medicine within the meaning of such a statute.

ELECTRIC AND MAGNETIC TREATMENT.

Giving electric treatment was held in Davison v. Bohlman, 37 Mo. App. 576 , to be practicing medicine within the meaning of a statute requiring persons engaged in the practice of medicine and surgery, to file a copy of his or her diploma.

A magnetic healer who styles himself “ Professor ” and claims to be a healer of diseases, the treatment of which consists of rubbing the afflicted part, was held in Parks v. State, 159 Ind. 211 , to be within the terms of a statute requiring a license of those who announced to the public a readiness to cure diseases, or who affixed to their names the word “ Professor ” or any word tending to designate them as practitioners of medicine in any of its branches.

The Iowa statute providing that “ any person shall be held as practicing medicine, surgery or obstetrics, or to be a physician, within the meaning of the chapter, who shall publicly profess to be a physician surgeon, or obstetrician,' and assume the duties, or who shall make a practice of prescribing or of prescribing and furnishing medicine for the sick, or who shall publicly profess to cure or heal,” was construed in State v. Heath, 125 Iowa, 585 , to be applicable to one who professes to be a magnetic healer and cancer specialist.

USE OP APPARATUS.

One who recommends and offers for sale an instrument called an “ oxygenor,” which such person claims will generate oxygen and introduce it into the body as a cure for rheumatism, etc., was held in People v. Lehr, 196 Ill. 361 , Affirming 93 Ill. App. 505 , not to be engaged in the practice of medicine, within the meaning of a statute regulating the practice of medicine, nor is such statute applicable to one who treats or professes to treat, operate on or prescribe for any physical ailment or any physical injury to, or deformity of another. The court said that such a person by simply offering and recommending the instrument for sale, was practicing medicine within the meaning of the statute no more than is the druggist or pharmacist who sells and recommends surgical instruments, atomizers and innumerable other appliances used by the afflicted. °

The practice of obstetrics was held in State v. Welch, 129 N. C. 579 , to come within the meaning of a statute forbidding the practice of medicine without a license.

PROPRIETARY REMEDIES AND PATENT MEDICINES.

In State v. Van Doran, 109 N. C. 864 , the court said that an unlicensed person claiming to be a physician, and holding himself out to the world as such, cannot, after examining a patient who has asked his services, diagnosing the disease, fixing the ■ amount or price for which he will cure the patient and giving him a prescription, evade the law by proving that the medicine administered was a proprietary remedy prepared and sold by him.

The administration of patent medicine as the assignee of the patentee, was held in Thompson v. Statts, 15 Wend. 395 , to be no defense to one prosecuted for practicing physic without being authorized by law.

But the court in the Van Doran case further said that a vendor of patent medicine who does not pretend to diagnose diseases and determine which of his remedies is proper in a particular ease, cannot be regarded as a violator of the statute.

FAMILY REMEDIES.

The domestic administration of family remedies is expressly exempted in sect. 14, chap. 344, Laws of N. Y. 1907, from the provisions thereof with reference to the practice of medicine.

OSTEOPATHY.

A person who undertakes to cure diseases by manipulating the patient’s body by rubbing, kneading and pressing it, was held in Smith v. Lane, 24 Hun, 632 , not to come within the provisions of Chap. 436, Laws 1874, which declares it to be a misdemeanor for any person to practice medicine or surgery who is not authorized to do so by a license or diploma from some chartered school. With reference to the effect of this decision as an authority, see remarks by the court in People v. Allcutt, 117 App. Div. 546 , infra.

With reference to the practice of osteopathy in New York, see latter part of section 14, chapter 344 of the laws of 1907, which makes special provision on that subject.

Views similar to those expressed in the Smith case were held in Com. v. Thompson, 24 Pa. Co. Ct. 667 , State v. McKnight, 131 N. C. 717 ; Nelson. v. State Board of Health, 108 Ky. 769 .

The “ system of rubbing and kneading the body, commonly known as osteopathy ” was held in State v. Liffring, 61 Ohio St. 39 , not to be an “ agency,” within the meaning of 92 Ohio Laws, p. 44, which is an act to regulate the practice of medicine and which forbids the prescribing of any “drug or medicine or other agency” for the treatment of diseases, by a person who has not obtained from the board of medical registration and examination, a certificate of qualification.

And in State v. Herring, 70 N. J. L. 34 , Affirmed in 60 Atl. 1134 , mem., it was held that osteopathy did not fall within the purview of a statute making unlawful the applying of “ any drug, medicine or other agency or application ” by an unlicensed physician.

Nor is osteopathy the practice of medicine within the meaning of a statute providing “ that the practice of medicine shall mean to suggest, recommend, prescribe or direct, for the use of any person, any drug, medicine, appliance or agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound or fracture or other bodily injury or deformity, or the practice of obstetrics or midwifery after having received, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, profit or compensation.” Hayden v. State, 81 Miss. 291 .

On the other hand, it was held in Little v. State, 60 Neb. 749 , that one who practices what is known as osteopathy, without obtaining a certificate from the state board of health, is a practitioner of medicine within the meaning of the Nebraska statute, which by its terms, is applicable to any person who shall operate on, profess to heal or prescribe for or otherwise treat any physical ailment of another. A similar decision was rendered in State v. Gravett, 65 Ohio St. 289 .

And in Illinois, it is held that an osteopath is amenable to a statute providing that any person shall be regarded as practicing medicine, who shall treat, operate on or prescribe for any physical ailment of another. Eastman v. People, 71 Ill. App. 236 ; Jones v. People, 84 Ill. App. 453 .

And in Bragg v. State, 134 Ala. 165 , the court construed the practice of osteopathy to be the practice of medicine within the meaning of

The term “ practicing medicine ” used in § 153 of the Public Health Law, as amended by Laws of 1895, Chap. 398, providing that “ 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,” was construed in People v. Allcutt, 117 App. Div. 546 , as not consisting of the mere administration of drugs or the use of surgical instruments, and therefore one not licensed to practice, who advertises himself as a doctor practicing mechano-neural therapy, who receives patients, diagnoses their cases and prescribes for them, and who declares that he has power to “ cure all diseases that any physician can cure without drugs, and also diseases that they cannot cure with drugs,” and who receives compensation for advice and, treatment, violates the statute although he administers no medicine. Appellant in this case relied upon Smith v. Lane, 24 Hun, 632 , supra, in which a contrary decision was reached. That case was an action brought to recover the price agreed to be paid for treatment consisting entirely of manipulation with the hands, and the evidence was to the effect that the plaintiff was employed to perform such services for a specified consideration, and that he had performed the services as agreed. The referee dismissed the complaint because it appeared that the plaintiff was not a graduate of any medical school and had no license permitting him to practice either medicine or surgery. It should be observed that the Smith case was a private action between the parties to a contract for services and that the people were not represented as in the case of People v. Allcutt, supra. The court in the Alleutt case refused to follow the doctrine of the Smith case. With reference to the recent statutory provisions as to the practice of osteopathy, attention is directed to the latter part of section 14, chapter 344, of the laws of 1907.

The case of People v. Somme, 21 N. Y. Crim. Rep. 226, is another authority along the same line.

CHRISTIAN SCIENCE.

One who treats diseases and injuries by methods known as “ Christian Science,” was held in State v. Buswell, 40 Neb. 158 , to be engaged in practicing medicine within the meaning of a statute providing that any person shall be regarded as practicing medicine who shall operate on, profess to heal, or prescribe for or otherwise treat any physical or mental ailment of another.

And in State v. Marble, 72 Ohio St. 21 , it is held that the giving

The Christian Science method of healing diseases which is based on the theory that all diseases, even those of a contagious character, are mere beliefs and not real facts, was held in First Church of Christ, Scientist, 205 Pa. 543 , as contrary to the general policy of the law of Pennsylvania relative to the existence and treatment of diseases.

But in Rhode Island, it was held that the practice of Christian Science, consisting of prayer for divine assistance, encouragement and direction of the thoughts of the patient without recommending or administering any drug or medicine, or giving him any course of physical treatment, was not a violation of a statute prohibiting the practice of medicine or surgery in any of its branches without a certificate from the state board of health. State v. Mylod, 20 R. I. 632 .

And in Kansas City v. Baird, 92 Mo. App. 204 , it was held that a Christian Scientist, believing that disease is an illusion of the mind and not a reality, and teaching the sick this theory of disease, was not a physician within the Missouri statute.

The term “medical attendance” was defined in People v. Pierson, 176 N. Y. 201 , as meaning attendance by a person who, under Chap. 513, Laws 1880, is a regularly licensed physician, and does not include that of a layman who, because of his religious belief that prayer for divine aid was the proper remedy for sickness, neglects to furnish proper medical attendance to his minor adopted child who is dangerously ill.

FEES.

The fact that an unlicensed person has prescribed any drug, medicine or other agency for disease for a fee, was held in State v. Oredson, 96 Minn. 509 , to be one kind of evidence of guilt, but not the exclusive substance of the offense.

And in State v. Welch, 129 N. C. 579 , it was held that an indictment for practicing medicine without a license need not charge that it was done for a fee or reward.

SERVICE IN EMERGENCY.

But gratuitous service in case of emergency, cannot be regarded as

Assistance may be rendered in case of an emergency without making one amenable to a statute regulating the practice of medicine. But the mere fact that a sick person has been given up by physicians as incurable, does not create such a case of emergency as will authorize an unlicensed person to render gratuitous medical attendance. People v. Lee Wah, 91 Cal. 80 .

By the express provisions of New York Laws of 1907, chapter 344, section 14, those who furnish medical asistance in cases of emergency .are exempted from the provisions of the act with reference to the practice of medicine.

EMPLOYMENT OP LICENSED PHYSICIANS.

The fact that an unlicensed person employed licensed physicians to take immediate charge of patients he was treating for alcoholism, was held in Springer v. District of Columbia, 23 App. D. C. 59 , not to exempt him for the provisions of the statute, where the only discretion exercised by such physicians was in the frequency of the doses and with reference to any complications that might arise.