Aitchison v. State

• Decision Date: 25 May 1954
• Docket Number: No. 137,137
• Citation: 105 A.2d 495,204 Md. 538
• Parties: AITCHISON v. STATE.
• Court: Maryland Court of Appeals

Page 538

204 Md. 538

105 A.2d 495

AITCHISON v. STATE.

No. 137.

Court of Appeals of Maryland.

May 25, 1954

David Aitchison, in pro. per.

W. Giles Parker, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Walter

W. Dawson, State's Atty., Montgomery County, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

David Aitchison, a resident of Takoma Park, has appealed here from his conviction by the Circuit Court for Montgomery County for unlawfully practicing medicine in violation of the State Medical Practice Act. Code 1951, art. 43, secs. 117-147.

By direction of that Act, there are now in Maryland two Boards of Medical Examiners authorized to issue licenses for the practice of medicine and surgery. The members of one Board are appointed by the Medical and Chirurgical Faculty of Maryland, the members of the other by the Maryland State Homeopathic Medical Society. Sec. 118; Board of Medical Examiners v. Steward, Md., 102 A.2d 248.

The Act provides that every license to practice medicine and surgery shall be subscribed by the president and the secretary of the Board of Medical Examiners before whom the applicant has passed, and shall have affixed to it the seal of the Medical and Chirurgical Faculty or the Homeopathic Medical Society. Any person receiving a license from either Board shall file it with the Clerk of the Circuit Court, and it shall be the duty of the Clerk to register his name and the name of the president of the Board signing the license. Any person practicing medicine or surgery in this State without having obtained a license from one of these Boards shall be guilty of a misdemeanor, and shall be fined not less than $50 nor more than $200 for each offense. No person shall practice medicine or surgery unless he shall be registered as a physician or surgeon, and any person who shall practice without being registered shall be guilty of a misdemeanor, and shall be fined not less than $10 nor more than $200 for each offense. Secs. 126, 127, 128, 131, 136.

The first count of the indictment charged that appellant had practiced medicine without having registered his authority with the Clerk of the Circuit Court for Montgomery County.

The second count charged that he practiced medicine by treating the physical ailment of a person whose name was unknown to the grand jury.

The third count charged that, without having registered with the Clerk, he practiced medicine by treating a physical ailment of Nathan Booth.

The fourth count charged that, without having obtained a license, he practiced medicine by appending the words 'Dr.,' 'Doctor,' and 'M. D.,' with intent to imply that he was engaged in the practice of medicine.

The fifth count charged that, without having obtained a license from one of the Boards of Medical Examiners, he practiced medicine by treating a physical ailment of one whose name was unknown to the grand jury.

The State abandoned the third count, and the case was then tried before a jury. Dr. Lewis P. Gundry, president of the State Board of Medical Examiners, testified that appellant was not licensed to practice medicine and surgery in the State of Maryland.

Clayton K. Watkins, Clerk of the Circuit Court, testified that defendant's name had not been registered in the Clerk's office from certification by either Board of Medical Examiners, but there was recorded in his office a certificate from the Board of Naturopathic Examiners that he was qualified to practice as a naturopathic physician. That certificate, dated February 1, 1940, reads as follows:

This is to certify that Dr. David Aitchison has shown this Board a diploma granted by a legally chartered school of Naturopathy approved by this Board and has passed the examination required to this Board and is hereby declared to be fully competent and qualified to practice the Healing Art as a Naturopathic Physician, and in recognition of these attainments and qualifications is recommended for registration to practice Naturopathy in any jurisdiction recognizing the authority of this Board by law, ordinance or otherwise.'

The State then produced a witness who testified that appellant had treated him for a blood clot at the base of his brain, and had given him some medicine, and that he had paid appellant for his services.

The jury found appellant guilty on the four counts of the indictment. The Court thereupon fined him $200 on the second count and $200 on the fifth count, and suspended sentence on the first and fourth counts.

Appellant made no denial of the charge that he had been practicing medicine in Montgomery County since August 7, 1949. But he strenuously contended that the law of Maryland does not require him to have a license from either of the Boards of Medical Examiners. He claimed that he is not an allopathic physician, but a naturopathic physician; that allopathic medicine and naturopathic medicine are separate and distinct schools; and that the Legislature never intended to include the practice of naturopathic medicine within the scope of the Medical Practice Act. He asserted that, while there were no naturopathic physicians in Maryland at the time of the enactment of the original Act, naturopathic physicians have been practicing in this State for about thirty years. He argued that under the common law naturopaths have the right to practice their profession, and their practice is regulated by the Board of Naturopathic Examiners, which has been empowered to issue certificates to those who were qualified to practice.

The State filed a motion to dismiss the appeal on the ground that appellant did not print the testimony in the appendix to his brief, as required by Rule 39 of the Rules of the Court of Appeals, which directs that the appendix to the appellant's brief shall contain 'such parts of the record as he desires the Court to read.' However, the Attorney General did not press the motion, but supplied the testimony in the appendix to the State's brief. Since the question raised by the appeal is one of law, rather than of fact, and is one of great public importance, we will not dismiss the appeal.

The question has been seriously debated for some years. It was presented to this Court by the Maryland Naturopathic Association more than five years ago. That Association had brought a suit against the members of the State Board of Medical Examiners to obtain a judicial decree declaring that naturopathy is not included within the provisions of the Medical Practice Act regulating the practice of medicine. The Association alleged that naturopathy is a system of healing which does not use drugs or surgery to cure disease, but instead makes use of the healing properties of such natural agencies as air, sunshine, water, light, heat, electricity, exercise, rest, massage, health foods, vitamins, minerals, special food preparations, herbs, external applications, baths, sweats, and irrigations, in conjunction with the application of the scientific principles of mental hygiene, health education, physical culture, manipulation, corrective gymnastics, dietetics, hygiene and sanitation. This Court declined to render an opinion on the question because the Association itself could not practice naturopathy, and it had no property rights which could be affected by the acts alleged to have been committed by the defendants, and therefore it had no right to maintain the suit for the declaratory decree. Maryland Naturopathic Ass'n v. Kloman, 191 Md. 626, 62 A.2d 538.

At common law the practice of medicine was open to all persons who desired to follow it in any of its branches, subject only to liability for damages in case of lack of skill on the part of the practitioner, and to the right of the government to proceed by quo warranto to prevent incompetents from following the profession. It is also an accepted doctrine that the right to practice medicine is a valuable right of property within the meaning of the Fourteenth Amendment of the Federal Constitution guaranteeing due process of law. People v. Love, 298 Ill. 304, 131 N.E. 809, 16 A.L.R. 703.

However, no person has an absolute vested right to practice medicine, but only a conditional right which is subordinate to the police power of the State to protect and preserve the public health. Reetz v. People of State of Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563. The State, in the performance of its duty to protect and preserve the public health, has the power, within constitutional limitations, to regulate the practice of medicine by those who engage therein. This regulatory power is justified by the fact that the practice of medicine requires special knowledge, training, skill and care, that health and life are committed to the physician's care, and that patients ordinarily lack the knowledge and ability to judge his qualifications.

The original Act creating a system for the regulation of the practice of medicine and surgery in Maryland was adopted by the Legislature in 1888. That Act permitted three classes of persons to practice medicine: (1) those who were graduates of a medical college, (2) those who passed an examination given by the State Board of Health, and (3) those who had been practicing medicine in Maryland for ten years. Laws 1888, ch. 429.

The Act of 1888 defined a practitioner of medicine as follows: 'That any person shall be regarded as practicing medicine within the meaning of this act who shall profess publicly to be a physician and prescribe for the sick, or who shall append to his name the letters M. D.; but nothing in this act shall be construed to prohibit students from prescribing under the supervision of preceptors, or to prohibit gratuitous services in cases of emergency; and this act shall not apply to commissioned surgeons in the United States army, navy or marine hospital service, nor shall it apply to physicians or surgeons not resident in this state, who...