Board of Medical Quality Assurance v. Andrews

• Decision Date: 29 June 1989
• Docket Number: No. H003366,H003366
• Citation: 211 Cal.App.3d 1346,260 Cal.Rptr. 113
• Court: California Court of Appeals Court of Appeals
• Parties: BOARD OF MEDICAL QUALITY ASSURANCE, Plaintiff and Respondent, v. Arthur ANDREWS, et al., Defendants and Appellants.

Page 113

260 Cal.Rptr. 113

211 Cal.App.3d 1346

BOARD OF MEDICAL QUALITY ASSURANCE, Plaintiff and Respondent, v. Arthur ANDREWS, et al., Defendants and Appellants.

No. H003366.

Court of Appeal, Sixth District, California.

June 29, 1989.

Review Denied Sept. 28, 1989.

Norman Lariviere, Lariviere & Dickerson, San Jose, for defendants and appellants

John K. Van de Kamp, Atty. Gen., Richard Arnold, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

CAPACCIOLI, Associate Justice.

Appellants, the Religious School of Natural Hygiene (RSNH) and its president and first minister, Arthur Andrews, appeal a permanent injunction granted to respondent the Board of Medical Quality Assurance (Board) pursuant to Business and Professions Code section 125.5 ¹ forbidding appellants

                from engaging in conduct which the court found constituted unlawful practice of medicine, within the meaning of sections 2052 and 2053 of the Medical Practice Act.  Appellants contend that their practices are exempt from the regulations of the Medical Practice Act under section 2063 of that Act, citing a decision of another court of appeal.  (Northrup v. Superior Court (1987) 192 Cal.App.3d 276, 237 Cal.Rptr. 255.)   They also argue that the injunction infringes their rights to free exercise of religion (U.S. Const., 1st Amend.) and their rights of privacy under California law;  that an injunction was not warranted since the Board did not demonstrate the possibility of future conduct of the type enjoined but showed only past incidents;  and finally that the court abused [211 Cal.App.3d 1349] its discretion in awarding costs to the Board ( § 125.5(c)) because the proved investigative costs were not entirely related to the petition before the trial court.  None of these contentions have merit and the judgment will be affirmed, although in reaching this result we must disagree with the Northrup decision in its construction of section 2063
                

THE STATUTE

The exemption statute upon which appellants rely, section 2063, reads as follows: "Nothing in this chapter [the Medical Practices Act] shall be construed so as to discriminate against any particular school of medicine or surgery, school or college of podiatric medicine, or any other treatment, nor shall it regulate, prohibit, or apply to any kind of treatment by prayer, nor interfere in any way with the practice of religion." (Emphasis is added and indicates the clause of the statute upon which appellants rely.)

RECORD

Board initiated this proceeding September 12, 1986, by a petition requesting a temporary restraining order and a permanent injunction pursuant to section 125.5 and sections 2052 and 2053. The petition alleged that appellants (hereafter collectively "RSNH") were engaging in the unlawful practice of medicine without a license and that their conduct had injured named individuals.

Board's evidence included an advertisement for RSNH from a periodical. This advertisement did not mention religion. It was entitled "The California Health Sanctuary" and claimed to offer supervised fasting, natural diet, rest, and instruction in natural hygiene.

Also offered was a document published by the Religious School of Natural Hygiene entitled "The Major Tenets--Heed My Words." This document stated that the Religious School of Natural Hygiene is a healing church which operates the California Health Sanctuary near Hollister, California, for those "who seek health restoration, knowledge of health maintenance and experience in healthful living." This document described the philosophy of the RSNH. Among other things it stated that prayer, rest and fasting, along with the laying on of hands are activities which permit God's healing power to be implemented. It also recommended consumption of raw foods or foods in their natural state.

A card given to members of the RSNH states that the practices of this organization preclude use of drugs, medicines, vaccinations, blood transfusions, x-rays "and all other such practices." The RSNH encourages prayer and fasting, often for long periods of time, as instruments to promote healing and eliminate disease. It further recommends organic and uncooked foods.

Board further presented evidence of practices of RSNH which included promulgating a doctrine that many physical conditions can be cured by undergoing supervised periods of fasting; persuading certain individuals to participate in such fasts, under supervision of appellant Andrews, who received compensation; advising some persons to stop taking medications prescribed by a physician; and performing diagnostic procedures such as physical examinations with a stethoscope, taking blood pressures and pulses, feeling parts of the body, examining the mouth and eyes, and in one case attempting to remove a colonic For example, Sproule consulted Andrews for a case of hypoglycemia. She fasted, under Andrews' supervision, for 55 days. During the fast Andrews checked her blood pressure, eyes, mouth and other things. After the 30th day she began to vomit without relief. After the 38th day she lost full consciousness and became too weak to walk. Her urine became the color of iodine. Andrews told her the fast would end when the urine became a lighter color. She relied on Andrews to tell her the proper time to end the fast. At the end of the fast she was hospitalized and could not read, write, walk or talk. She is still unable to walk unaided and for the most part is restricted to a wheel chair. She suffers mental difficulties which she did not have before the starvation treatment.

blockage by hand. Specifically, Board presented declarations and testimonial evidence of five individuals who had fasted under Andrews' supervision and who claimed to have been injured, as well as evidence concerning another individual who had died immediately after undergoing a lengthy supervised fast. Each of the surviving witnesses claimed severe and persistent physical injury as a result of a prolonged fast. Also, each of these witnesses claims to have consulted Andrews in order to correct a physical ailment, not for religious or spiritual purposes.

Nettle came to Andrews to lose weight. Andrews said he was a healer and held himself out as having special skill and knowledge to treat obesity by supervised fasting. She paid him to supervise her fasts, which he did for payment. She fasted as much as 30 days at a stretch, receiving only water. During these fasts she had such symptoms as multiple vomiting without relief, irregular menstruation, bloody urine, and amnesia, and lost the ability to work and developed great mental confusion. When she was delirious Andrews said things to her concerning religion. She was at the Health Sanctuary for 10 months and lost 160 pounds. To the present day she suffers adverse physical and mental symptoms which her doctors attribute to the starvation.

David and Roberta Pressman, husband and wife, fasted together at the Health Sanctuary under Andrews' supervision. David Pressman came to Andrews to correct a variety of physical symptoms including a prolapsed mitral heart valve, fatty tumors in his limbs, and a toenail fungus. Other than these problems and being nearsighted he had no diseases or impairments. When he came to RSNH Andrews took his medical history, listened to his heart, took his pulse and blood pressure, felt his forehead, and checked him generally. He was then placed on a water-only diet for 46 days. Andrews supervised the fast. He took Pressman's pulse and blood pressure daily and felt his forehead and smelt his breath. He said the breath smelled bad but this was a good sign and showed bodily toxins were being eliminated. During the fast Pressman suffered from dry mouth, extreme weakness, nausea, constipation, insomnia, and freezing at night. At the end of the fast he had severe double vision and was not strong enough to stand. After he regained strength he consulted medical specialists and was told he had loss of neurological function and enervation of the eyes caused by vitamin starvation, specifically thiamine deprivation. He has persistent double vision still. He paid Andrews $5400 for supervising the fasts of himself and his wife.

His wife Roberta testified she came to Andrews for symptoms such as acne, menstrual disfunction, hemorrhoids, constipation, and allergies. She took medication for the acne and menstrual pain. Andrews told her to discontinue the medication and undergo a water-only fast to cure her conditions. He also told her that almost all human ailments are caused by toxins within the body and that during a fast with rest, the body does not have to perform its normal functions and has extra energy to rid itself of these toxins. He claimed to have extensive training in human anatomy, health, and medicine, and to have studied fasting on his own and with a Dr. Herbert M. Shelton. Accordingly, she underwent a fast which lasted 46 days. The adverse symptoms she suffered are similar to those of her husband including Ted Mauk came to the RSNH after having been given a barium enema at Kaiser Hospital, South San Francisco, and being told he needed surgery. Andrews said he could help him without surgery and that Mauk did not have cancer because he had seen cancer patients and they were all skinny; Mauk was not skinny enough to have cancer. Mauk was placed on a water diet for four weeks. When he resumed eating his former symptoms of colon problems recurred. Andrews then took him to an osteopath who gave him a high colonic irrigation, but the pain persisted. Andrews also tried, unsuccessfully, to remove a blockage manually by hand from Mauk's colon. Finally Andrews took him to Kaiser Hospital where he underwent a colostomy. He has since had three operations because of cancer of the colon.

                extreme weakness, nausea, constipation, insomnia, and freezing at night.  About the 28th day she began vomiting and toward the end vomited almost continuously.  Andrews said this was a good sign

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