Brandwein v. California Bd. of Osteopathic Examiners

• Decision Date: 24 June 1983
• Docket Number: No. 81-5343,81-5343
• Citation: 708 F.2d 1466
• Parties: Dr. Theodore S. BRANDWEIN, Plaintiff-Appellant, v. The CALIFORNIA BOARD OF OSTEOPATHIC EXAMINERS; The California Board of Medical Quality Assurance; The California Department of Consumer Affairs; and Edwin L. Miller, District Attorney for the County of San Diego, State of California, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1466

708 F.2d 1466

Dr. Theodore S. BRANDWEIN, Plaintiff-Appellant, v. The CALIFORNIA BOARD OF OSTEOPATHIC EXAMINERS; The California Board of Medical Quality Assurance; The California Department of Consumer Affairs; and Edwin L Miller, District Attorney for the County of San Diego, State of California, Defendants-Appellees.

No. 81-5343.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 3, 1982.

Decided June 24, 1983.

Dr. Theodore S. Brandwein, plaintiff-appellant, pro se.

M. Gayle Askren, Deputy Atty. Gen., Greer D. Knopf, San Diego, Cal., Alexander R. Tobin, Upland, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before SNEED, POOLE, and BOOCHEVER, Circuit Judges.

POOLE, Circuit Judge:

Plaintiff-appellant Dr. Theodore S. Brandwein is a physician holding the degree of Doctor of Osteopathy (D.O.). Brandwein challenges the constitutionality of California Law, under which a D.O. may not hold himself out as a Doctor of Medicine (M.D.). He alleges that the law violates the First Amendment and the Equal Protection Clause of the federal constitution. Following the dismissal of these and pendant state claims in district court, Brandwein appeals.

Background

1. Allopathy and Osteopathy

An understanding of Brandwein's constitutional claims requires some explanation of the development of osteopathy and the state's attempt to regulate it. Allopathy, as originally understood, was a system of treating disease based on inducing an opposite reaction in the body. Steadman, Medical Dictionary 45 (1976). It has gradually become associated with the type of medicine taught in medical schools awarding a Doctor of Medicine (M.D.) degree. Osteopathy is a school of medicine founded by Dr. Andrew Taylor Still in the late 19th century. It is based on the principal that the body contains its own defense mechanisms against disease and that, through the process of physical manipulation of skeletal and muscular tissues, it may be brought back to health. Steadman, supra, at 1004.

While in its early development osteopathy was primarily a drugless, non-surgical form of medical treatment, it has since moved much closer to the allopathic school of medical practice. Oliver v. Morton, 361 F.Supp. 1262, 1264 (N.D.Ga.1973). At the present time the differences between the schools of osteopathy and allopathy are minor; often the same basic curricula and texts are used. Id. Osteopaths are admitted to internships and residencies approved by the American Medical Association (A.M.A.), and local medical associations are allowed to accept osteopaths as members and such osteopaths are then eligible for membership in the A.M.A. Id. California law now provides that "holders of M.D. degrees and D.O. degrees shall be accorded equal professional status and privileges as licensed physicians and surgeons." Cal.Bus. & Prof.Code Sec. 2453 (West 1974 & Supp.1983) (hereinafter "Medical Practice Act").

2. Regulation by the State

Prior to 1922, the California State Board of Medical Examiners (hereinafter "Medical Board") was responsible for the licensing and supervision of osteopathic as well as allopathic physicians. Because of continuing tensions between the members of the two groups, the osteopaths sought the creation of an independent Board of Osteopathic Examiners (hereinafter "Osteopathic Board"). In 1922, they succeeded in obtaining passage of an initiative measure which established such a board, with the result that the Medical Board continued to issue licenses to physicians holding an M.D. degree, and the Osteopathic Board began to issue the same license to holders of D.O. degrees, both under identical legislative standards of education and examination. Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal.App.3d 78, 81, 125 Cal.Rptr. 619, 621 (Cal.Ct.App.1975).

As the two practices become more similar, hostility between them lessened. In 1961, the California Medical Association and the California Osteopathic Association signed an agreement to unify the two organizations. Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal.App.3d at 81-82, 125 Cal.Rptr. at 621. The agreement provided that arrangements would be made to provide existing osteopaths in California with an M.D. degree. They would then have become subject to the jurisdiction of the Medical Board. At the same time, the Osteopathic Board was to be stripped of its power to license any new osteopaths. The parties agreed to jointly sponsor legislation to achieve these ends.

As part of the agreement, the sole school of osteopathy in California, the College of Osteopathic Physicians and Surgeons, was converted to a medical school, and is presently known as the University of California Medical School at Irvine. It was then arranged for this new medical school to issue M.D. degrees to those doctors of osteopathy presently licensed to practice in California. See Osteopathic Physicians & Surgeons v. Cal. Medical Assn., 224 Cal.App.2d 378, 392, 36 Cal.Rptr. 641, 649 (Cal.Ct.App.1964). The state legislature then amended Sec. 2275 of the Medical Practice Act to permit licensees of the Osteopathic Board holding an M.D. degree issued prior to September 30, 1962 to use the term M.D. Approximately 2,500 osteopaths employed this one-time opportunity to become M.D.s. Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal.App.3d at 83, 125 Cal.Rptr. at 622. Finally, the two organizations were successful in gaining the passage of an initiative by the voters entitled the Osteopathic Act of 1962. This Act placed the newly-created M.D.s under the jurisdiction of the Medical Board and barred licensing of new osteopaths in the state. See Osteopathic Act of 1962, Stats. 1st Ex.Sess.1962, ch. 48.

Then, in 1974, this framework of cooperation collapsed when the California Supreme Court declared the 1962 Act unconstitutional. In D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (Cal.1974), the state Supreme Court held that the 1962 initiative Act's prohibition of future licensing of osteopaths violated the Equal Protection Clause of both the federal and state constitutions, because the state could not demonstrate a rational relation to a legitimate governmental objective. D'Amico v. Board of Medical Examiners, 11 Cal.3d 24, 112 Cal.Rptr. at 803, 520 P.2d 10. Following the D'Amico decision, the Osteopathic Board resumed granting licenses to osteopaths under its original authority granted by the 1922 Act, and the two Boards, the Medical Board and the Osteopathic Board, resumed their traditional practice of separate jurisdiction and authority over their licensees.

3. Claims raised by Dr. Brandwein

Dr. Brandwein received a D.O. degree from the Kansas City College of Osteopathic Medicine. In 1975 he was licensed as a physician and surgeon by the Osteopathic Board pursuant to Sec. 2450 of the Medical Practice Act. Brandwein then apparently began representing himself as an M.D., even though he had not received that degree from a medical school. In 1979 the District Attorney's Office for the County of San Diego charged Dr. Brandwein with misrepresenting himself as an M.D. in violation of Sec. 2054 of the Medical Practice Act. The charges were later dropped.

Shortly afterwards, Dr. Brandwein brought this action against the appellees. Brandwein essentially raised three claims: (1) that the existing state regulatory scheme, which prevents him from using the title "M.D.," violates his right to free expression under the First Amendment; (2) that the California Medical Practice Act is in violation of the Equal Protection Clause because it permits graduates of foreign medical schools and osteopaths who participated in the 1961-62 merger between the medical and osteopathic professions to use the title "M.D." in California, while denying him the same privilege; and (3) that the regulations promulgated by the Osteopathic Board at Title 16, Secs. 1606, 1695 of the California Administrative Code (which requires osteopaths to display the term "D.O." outside their offices and provides for continuing education courses for osteopaths), violate the California Administrative Procedure Act because they are in excess of the powers committed to the Osteopathic Board.

I. The First Amendment Claim

Dr. Brandwein asserts that the state regulatory scheme violates the First Amendment because he is forced to identify himself by the title "D.O.," which is associated with a particular philosophy of medical practice. Instead, Dr. Brandwein claims that his personal philosophy of medicine is best reflected by the title "M.D." and that he should be able to express himself by using that term. The district court rejected Dr. Brandwein's claim, holding that "the state simply intends every person engaged in some professional activity to properly represent himself in his true capacity and by an appropriate title."

Notwithstanding Dr. Brandwein's attempt to characterize the degrees as terms of medical philosophy, the M.D. and D.O. titles are degrees conferred by academic institutions; and the use of the title M.D. or D.O. constitutes a representation to the public concerning the particular educational qualifications of the holder. We note also that to the extent Dr. Brandwein is correct in that such a degree identifies its holder with a particular school of medical thought, that association arises because the individual chose to attend that school.

Because the use of a degree is in effect a representation to the public concerning the holders academic training and qualifications, one which the public may rely on in selecting a physician, it is closer to a form of commercial speech than a philosophical statement. See In Re Primus, 436 U.S. 412, 438 n. 32, 98 S.Ct. 1893, 1908 n. 32, 56 L.Ed.2d 417 (1978); Central Hudson Gas v. Public Service Commission of New York, 447 U.S. 557,...