Bittiker v. State Bd. of Registration for Healing Arts

• Decision Date: 14 June 1966
• Docket Number: No. 24459,24459
• Citation: 404 S.W.2d 402
• Parties: Virgil A. BITTIKER, D.O., Respondent, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Appellant.
• Court: Missouri Court of Appeals

Page 402

404 S.W.2d 402

Virgil A. BITTIKER, D.O., Respondent, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Appellant.

No. 24459.

Kansas City Court of Appeals, Missouri.

June 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., St. Louis, for appellant.

Reed Gentry, Rogers, Field & Gentry, Kansas City, William B. Waters, Hale, Coleberd, Kincaid & Waters, Conn Withers, Liberty, for respondent.

BLAIR, Judge.

Virgil A. Bittiker, an osteopathic physician, was charged by the State Board of Registration for the Healing Arts with 'soliciting patronage', in violation of Sec. 334.100, subsec. 1(9) V.A.M.S., 'through the Excelsior Medical Clinic, Incorporated', by means of advertisements 'placed by said corporation' in national magazines and, after hearings, he was declared guilty of all charges and his license to practice the healing arts was revoked. He filed his petition for review in the Circuit Court of Clay County (Chapter 536, V.A.M.S.) which 'reversed, set aside and held for naught' the findings and order of the board. The board appeals. We have jurisdiction. Gaddy v. State Board of Registration for Healing Arts, Mo., 394 S.W.2d 284.

Sec. 334.100, subsec. 3, provides that a physician 'whose license is revoked or suspended by the board shall have the right to have the proceedings reviewed as provided by law for the review of decisions, rules and regulations of administrative officers and bodies existing under the constitution and laws of this state.' The review required here is that ordered by Art. V, Sec. 22, Const. of 1945, V.A.M.S., as implemented by Sec. 536.140 V.A.M.S. Gaddy v. State Board of Registration for Healing Arts, Mo.App., 397 S.W.2d 347; State ex rel. St. Louis Public Service Co. v. Public Service Commission, 365 Mo. 1032, 291 S.W.2d 95. The circuit court had, in the first instance, as this court has, in this instance, the duty to determine, on the entire record, whether the board reasonably could have made the findings and issued the order we now review. Yet neither the circuit court nor this one has any authority to substitute its own judgment for the judgment of the board, if the board's findings and order are supported by substantial evidence, unless the action of the board is clearly contrary to the overwhelming weight of the evidence viewed in its entirety, together with all legitimate inferences which flow reasonably from that evidence in the light most favorable to the action of the board. Rush v. Swift & Co., Mo.App., 268 S.W.2d 589; Willens v. Personnel Board of Kansas City, Mo.App., 277 S.W.2d 665; Carroll Const. Co. v. Kansas City, Mo.App., 278 S.W.2d 817; Brown v. Anthony Mfg. Co., Mo., 311 S.W.2d 23.

The old doctrine that statutes regulating and disciplining physicians must be construed strictly against the board and liberally in favor of the physician under investigation has long since been repudiated. The '(P)owers conferred on boards of health', said the Supreme Court in 1928, 'to enable them effectually to perform their important functions in safeguarding the public health should receive a liberal construction. * * * While boards of this character cannot act arbitrarily, or without substantial evidence (State ex rel. v. Adcock, 206 Mo. 550, loc. cit. 558, 105 S.W. 270, 121 Am.St.Rep. 681), yet, when any act, requiring the exercise of judgment and the employment of discretion, is within the scope of the exercise of a reasonable discretion, it will not be interferred with.' State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635, 638. These statements were approved in State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, 950, with the observation that examining the 'object of our Medical Practice Act as a whole, we find it to be an exercise of inherent police power of the state in the protection of its people attempting to secure to the people the services of competent practitioners learned and skilled in the science of medicine, of good moral character and honorable and reputable in professional conduct.' Earlier decisions prescribing strict construction were disapproved and liberal construction was declared to be the rule. In Hughes v. State Board of Health, in 1942, 348 Mo. 1236, 1240, 159 S.W.2d 277, 279, the court noticed that, long prior to the decisions upholding strict construction, it had held that 'the medical practice act was enacted in the interest of society, State v. Hathaway, 115 Mo. 36, 21 S.W. 1081,' and declared that the primary purpose of a proceeding to revoke a physician's license is to safeguard the public health, not to punish the physician. Again the court declared that the old doctrine of strict construction was dead.

Statutes authorizing the board to regulate and discipline physicians are remedial statutes enacted in the interest of the public health and welfare and must be construed with a view to the suppression of the wrongs and the mischiefs undertaken to be remedied. State ex rel. Lentine v. State Board of Health, supra, 65 S.W.2d l.c. 950; 26 Mo.Digest., Stat., k181(1). Nontechnical words and phrases must be given their 'plain or ordinary and usual sense.' Sec. 1.090 V.A.M.S. Gaddy v. State Board of Registration of Healing Arts, Mo.App., 397 S.W.2d 347.

Sec. 334.100, subsec. 1(9), authorizes the board to revoke the license of any physician for: 'Soliciting patronage in person or by agents or representatives, or by any other means or manner, under his own name or under the name of another person or concern, actual or pretended.' Even strictly construed, as it must not be, it is difficult to imagine a prohibition more allinclusive and pervasive than this one. What the General Assembly obviously sought to prevent was 'soliciting' patronage, that is, patients, by physicians, by any means or in any manner, overt or covert, directly or indirectly, through his own personal contacts and efforts or by standing behind any other 'person or concern', 'actual or pretended', doing it for his benefit and with his approval and cooperation while he serves as the willing beneficiary. A sweeping prohibition was written by the General Assembly, one excluding all possible escape hatches the unethical physician might endeavor to employ.

The word 'soliciting' is not a word of technical meaning as it is employed in this statute, although it is urged on us that we should view it in that light. This we decline to do. Legal and standard dictionaries and court decisions from various jurisdictions are cited to us. One cited definition of the meaning of 'solicit', fairly illustrative of others cited, is to 'make petition to; to entreat; importune, as to solicit the king for relief; now often to approach with request or plea, as in selling, begging, etc.' Certainly the archaic first part of this definition does not portray the 'plain or ordinary and usual sense' of the word 'soliciting' in these modern days. Sec. 1.090 V.A.M.S. The latter part of the definition more nearly does. We have no hesitancy in declaring that all professional persons, legislators and men in the street would regard the word 'soliciting', in the context of this statute, as meaning to ask for or to request some thing or action in language which convinces that the asking or requesting is being done in earnest and that the solicitor wants results. Webster's International Dictionary gives, among other modern definitions, the meaning of the word 'solicit' as: 'To awake or excite action; to rouse a desire in; to summon; to appeal to; to invite; allure. To endeavor to obtain by asking or pleading. To urge the claims of; to advocate.' These common definitions express, in our view, the 'plain or ordinary and usual sense' of the word 'soliciting', as employed in the statute, and answer negatively beyond all argument, that it is a word of technical meaning.

Counsel for the licensee argue that physicians are permitted to 'advertise' by the terms of Sec. 334.047, subsec. (2) V.A.M.S. enacted simultaneously with Sec. 334.100, subsec. 1(9). Sec. 334.047, subsec. (2) declares: 'A licensee under this chapter shall, in any letter, business card, advertisement, prescription blank, sign, or public listing or display of any nature whatsoever, designate the degree to which he is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association or approved and accredited as reputable by the American Osteopathic Association.' (Emphasis supplied)

Counsel seem to take the view that the authority to advertise, condoned and limited by Sec. 334.047, subsec. (2), awards to physicians the right to advertise to accomplish almost any object they may desire. We reject this construction of the statute. The licensee's conduct cannot be weighed on this scale. By Senate Bill 50, Laws of Mo., 1959, the General Assembly repealed Chapters 334 and 337 RSMo 1959, as they then stood, and enacted a new code on the subject we are considering and on other related subjects. The code appears in full as Chapter 334, V.A.M.S., 1965 Cumulative Annual Pocket Parts. The sections we are considering constitute a part of the entire code. All were enacted at the same time. All are therefore in pari materia and they must be read and construed together. Effect must be given to all provisions. Apparent conflicts must be harmonized whenever possible. Mitchem v. Perry, Mo.App., 390 S.W.2d 600, Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721, 725.

Surely the General Assembly did not mean to denounce 'soliciting', by the all-inclusive and pervasive language of great strength and sweep it employed, and then, by means of Sec. 334.047, subsec. (2), authorizing circumspect and limited advertising, to annual its denunciation of 'soliciting' by allowing it to be done without hindrance as advertising. For us to adopt this construction would be to convict the General Assembly of intending the absurd, something we must...