People v. Rogers

• Decision Date: 19 March 2002
• Docket Number: Docket No. 228929.
• Citation: 249 Mich. App. 77,641 N.W.2d 595
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rebecca Yevette ROGERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

641 N.W.2d 595

249 Mich. App. 77

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rebecca Yevette ROGERS, Defendant-Appellee.

Docket No. 228929.

Court of Appeals of Michigan.

Submitted May 7, 2001, at Detroit.

Decided December 28, 2001, at 9:10 a.m.

Released for Publication March 19, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.

Hertz, Schram & Saretsky, P.C. (by Walter J. Piszczatowski and Michael J. Rex), Bloomfield Hills, for the defendant.

Before: WHITE, P.J., and MARK J. CAVANAGH and TALBOT, JJ.

WHITE, P.J.

The prosecution appeals as of right the circuit court's order granting defendant's motion to quash informations charging her with five counts of practicing a health profession without a license, M.C.L. § 333.16294. The circuit court concluded that the statutory definition of "practice of medicine," M.C.L. § 333.17001(1)(d), was facially overbroad and reached a substantial amount of constitutionally protected speech. We reverse and remand.

I

Testimony at the preliminary examination included that of Sue Wrubel, who took her then eighteen-month-old son, Shane, to see defendant on November 3, 1999, on a friend's recommendation. A medical doctor had recommended to Wrubel that Shane get tubes in his ears and Wrubel was interested in a nonsurgical solution to Shane's ear problems. Wrubel understood defendant was an alternative practitioner.

Defendant's office was located in the basement of her home in Berkley. Defendant came in and hooked Shane to a machine. Wrubel could not recall if defendant told her the name of the machine because Shane was upset and crying. Shane remained in Wrubel's lap after he was connected to the machine and, after Shane had calmed down, Wrubel and defendant talked about Shane's ear problems and defendant's qualifications.

Wrubel testified that defendant told her that she was a medical doctor and had obtained the highest degree of natural doctoring. Wrubel did not examine the many certificates lining defendant's walls, but was impressed by them and interpreted them to mean that defendant was demonstrating how qualified she was. Wrubel did not recall defendant explaining that she was a naturopathic medical doctor, but admitted defendant may have told her this. Wrubel admitted that she assumed that defendant was a natural doctor as opposed to a medical doctor. Wrubel did not recall defendant explaining about the different meridians of the body, about biofeedback, or about electromagnetics. Defendant tried to answer Wrubel's questions and to be helpful.

Once the machine finished, defendant told Wrubel that Shane had a tapeworm, a bacteria that was probably causing his earaches, and a brain aneurysm. Wrubel was surprised by this news because she believed Shane was just experiencing earaches and thought that the machine was reading her because Shane was sitting on her lap. At Wrubel's request, defendant hooked her up to the machine. Wrubel looked at the computer screen and observed a column of diseases or conditions next to a column of numbers, but the screen did not indicate if the condition or disease was present. When the machine finished, defendant informed Wrubel that she had breast cancer, ovarian cancer, and a brain aneurysm, which was not unusual because aneurysms are generally hereditary. Wrubel was shocked to learn that she had cancer. Although Wrubel agreed that defendant told her that her and Shane's problems existed on a molecular level, Wrubel did not know what this meant. Wrubel looked up the definition of molecular when she went home, and she determined it meant " minuscule."

Wrubel purchased remedies from defendant, because defendant told her the remedies would cure her cancer and Shane's ailments. Wrubel paid over $500 for the visit and for the remedies, did not recall signing a consent form at defendant's office, and did not ask if defendant accepted insurance or otherwise inquire about payment at the time she made the appointment. Wrubel admitted that defendant did not force her to purchase the remedies and that she wanted to follow the program suggested by defendant. Although Wrubel did not take any of the remedies, she did give them to Shane.

After Wrubel told her husband about the visit to defendant, he called defendant and asked for a refund. Defendant agreed to refund the purchase price for any unopened remedies. After unsuccessfully attempting to get a full refund, Wrubel's husband contacted the state for assistance in getting a refund and to determine if defendant was a doctor.

Kimberley Wiegand also testified during the preliminary examination. She stated that she went to her first appointment with defendant on December 20, 1999. Wiegand had been diagnosed as having symptoms of multiple sclerosis (MS) for nine years. Wiegand's symptoms first became evident when she began tripping, and ultimately, the entire right side of her body became numb and she required a leg brace. Since she had been diagnosed, Wiegand had seen a number of neurologists and received no treatment because she was told there was no cure for MS.

A friend recommended that Wiegand see defendant and made it clear that defendant was an alternative practitioner. Wiegand was interested in seeing defendant because defendant was not another neurologist, and Wiegand hoped that defendant could offer her something different than what had been offered by traditional medicine. When Wiegand called to make the first appointment, she believed that the receptionist told her the visit would not be covered by insurance, and Wiegand did not expect insurance to cover her visit to defendant because she knew the treatment focused on vitamins and different remedies. Wiegand's husband accompanied her on her visits to defendant's office because she required assistance walking.

In Wiegand's opinion, visiting defendant's office was unlike a visit to a typical doctor's office because there were comfortable chairs, no medical instruments or equipment, she was not required to remove her clothes, and her medical history was not taken. Defendant's assistant hooked Wiegand up to a machine by attachments secured with Velcro to her ankles, middle fingers, wrists, and head. Wiegand was hooked up to the machine for approximately forty minutes, during which time defendant came downstairs and talked with her. Defendant told Wiegand that she had been a nurse at a hospital cancer ward and was an M.D., which Wiegand interpreted to mean medical doctor. Defendant also gave Wiegand a business card and pointed out the M.D. on the card. Wiegand was shown defendant's business card at the preliminary examination, and she admitted the card stated that defendant was an "N.M.D." Wiegand did not know what the N represented, but she recalled defendant telling her she was a naturopathic practitioner. Wiegand also specifically recalled that defendant told her that she was an M.D. and not an N.M.D. Wiegand believed that defendant was a doctor on the basis of defendant's representations that she had been a nurse and was an M.D. Although Wiegand was looking for something different than traditional medicine and the naturopathic or homeopathic aspect of defendant's treatment interested her, she was also impressed that defendant had been a nurse and was an M.D. According to Wiegand, defendant talked a lot, responded helpfully to her questions, and appeared to be trying to educate her.

Defendant informed Wiegand that she did not have MS, but had a bacteria in her body. Defendant told Wiegand that her numbers were high and she needed to bring the numbers down. Wiegand was excited to learn that she did not have MS and to find someone who could help her. Defendant informed Wiegand that if she took all the remedies suggested by defendant, it would take one month for every year that Wiegand had been diagnosed as having MS to clear up the bacteria causing Wiegand's problems. Wiegand could not recall the specific terms defendant used in explaining how the remedies would affect her body and just recalled that she was supposed to be "one hundred percent" in nine months, meaning that she would no longer have to wear a leg brace and the bacteria would be gone. Defendant also told Wiegand to jump on a trampoline and to lymphasize with a massager in order to unblock her lymph nodes. Wiegand jumped on a trampoline by holding onto her husband and lymphasized faithfully every day with a massager. Wiegand purchased the remedies from defendant, which defendant had in her office, and paid approximately $550 for this first visit and the remedies.

On January 18, 2000, Wiegand had a second appointment with defendant. Wiegand was again hooked up to the machine and defendant examined Wiegand's numbers and told Wiegand that five of her ailments, including a gall stone, inflamed appendix, inflamed small intestine, and inflamed large intestine, had been cured and that she was doing better in a number of areas. After examining the numbers on the machine, defendant prescribed a few different things, took a couple of things away, and ultimately added four more remedies.

Wiegand explained that defendant had told her that she should start noticing some small improvements or progress within a week, and Wiegand was concerned because a month had passed since her first appointment and she had noticed no improvement. Defendant reiterated that it would take one month for each of the nine years that Wiegand had been diagnosed with MS for her to heal. Again, defendant thoroughly answered Wiegand's questions, did not appear to be withholding information, and appeared willing to spend a lot of time with Wiegand.

Wiegand paid approximately $1,265 for the two appointments and treatment and went to defendant's house in between the two appointments to procure additional remedies....