Board of Osteopathic Examiners v. Board of Medical Examiners

• Decision Date: 18 November 1975
• Citation: 125 Cal.Rptr. 619,53 Cal.App.3d 78
• Court: California Court of Appeals Court of Appeals
• Parties: BOARD OF OSTEOPATHIC EXAMINERS et al., Plaintiffs and Respondents, v. BOARD OF MEDICAL EXAMINERS et al., Defendants and Appellants. Civ. 14902.

Page 619

125 Cal.Rptr. 619

53 Cal.App.3d 78

BOARD OF OSTEOPATHIC EXAMINERS et al., Plaintiffs and Respondents, v. BOARD OF MEDICAL EXAMINERS et al., Defendants and Appellants.

Civ. 14902.

Court of Appeal, Third District, California.

Nov. 18, 1975.

Hearing Denied Jan. 14, 1976.

Tobin & Gassner, Upland, for plaintiffs and respondents.

Evelle J. Younger, Atty. Gen., by Talmadge R. Jones and Joel Primes, Deputy Attys. Gen., Sacramento, for defendants and appellants.

PARAS, Associate Justice.

The State Board of Medical Examiners appeals from a summary judgment of the Sacramento Superior Court finding a 1973 statute null and void, and enjoining the Board from licensing any person to practice medicine pursuant to said statute.

The statute in question (Stats.1973, ch. 1132, p. 2316) has not been codified. ¹ For convenience, we shall refer to it by its Senate Bill number, 'SB 1358.' It was signed by the Governor on October 2, 1973, and became effective January 1, 1974. The issue on appeal is whether the Legislature had the power to enact it.

A brief historical review, although covered elsewhere (see D'Amico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716, 721--723, 86 Cal.Rptr. 245--hereinafter 'D'Amico I') is nonetheless appropriate here. The State Board of Medical Examiners (hereinafter 'Medical Board') was established in 1907, composed of nominees of the various allopathic, ² homeopathic, ³ osteopathic ⁴ and eclectic schools of medicine. Apparently under the 1907 Act, and certainly under the 1913 Act, osteopaths who could qualify were licensed to practice medicine and surgery.

However, by 1919, allopathic physicians had gained control of the Medical Board and it refused to examine any more graduates of osteopathic schools; it also withdrew its approval of the single osteopathic college in this state. The Medical Board's position was disapproved by the Court of Appeal in College of Osteopathic Physicians and Surgeons v. Board of Medical Examiners (1921) 53 Cal.App. 138, 139, 199 P. 1093, but tensions continued.

In 1922, the osteopaths succeeded in obtaining passage of an initiative measure which established an independent Board of Osteopathic Examiners (hereinafter 'Osteopathic Board'). ⁵ The result was that the Medical Board continued to issue the physician's and surgeon's certificate to graduates of medical schools with M.D. degrees, and the Osteopathic Board began to issue the identical physician's and surgeon's certificate to graduates of osteopathic schools with D.O. degrees, both under identical legislative standards of education and examination.

In 1961, the California Medical Association and the California Osteopathic Association signed an agreement which was intended to unify 'the separate organizations which have heretofore existed in parallel structure . . ..' (Osteopathic Physicians & Surgeons v. Cal. Medical Assn. (1964) 224 Cal.App.2d 378, 397, 36 Cal.Rptr. 641, 652.) For present purposes, it is sufficient to state that in general the agreement contemplated that all presently licensed D.O.s would become M.D.s subject to the jurisdiction of the Medical Board, in return for which no future D.O.s would be licensed in California, and the Osteopathic Board would ultimately cease to exist. In accordance with this agreement, the parties succeeded in obtaining passage of certain legislation.

First, section 2396 of Business and Professions Code was amended by the Legislature to provide that any licentiate of the Osteopathic Board who obtained a degree of 'M.D.' from a California Medical School before September 20, 1962, could elect to use the 'M.D.' designation, but thereafter his use of 'D.O.' would be unprofessional conduct. To implement this legislation, the agreement provided that arrangements be made for the College of Osteopathic Physicians and Surgeons to issue 'M.D.' degrees to 'doctors of Osteopathy presently licensed as physicians, and surgeons in the State of California,' and for the college to change its name to delete the word 'osteopathic.' (See Osteopathic Physicians & Surgeons v. Cal. Medical Assn., supra, p. 392, 36 Cal.Rptr. p. 649.) The osteopathic college, as a consequence, eventually became the University of California Medical School at Irvine.

Second, the initiative Osteopathic Act of 1962 (Stats. 1st Ex.Sess. 1962, ch. 48) was approved by the voters. This chapter amended the Osteopathic Act of 1922 to transfer licensing power over those converting from 'D.O.' to 'M.D.' to the Medical Board and to bar licensing of new osteopathic physicians and surgeons. Approximately 2,500 California, 'D.O.s' elected to become 'M.D.s' and changed their licensing board pursuant to these provisions; since 1962 they have continued to be under the jurisdiction of the Medical Board.

In 1968, however, Dr. Theodore D'Amico and seven other osteopaths with out-of-state D.O. degrees filed suit against the Medical Board seeking to be licensed as physicians and surgeons. In D'Amico I, we held that the 1962 Osteopathic Act did in fact eliminate the licensure of new osteopaths, and we remanded the case for a factual determination relating to the constitutionality of that elimination. On remand (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 23, 112 Cal.Rptr. 786, 802, 520 P.2d 10, 26--hereinafter D'Amico II), the Board of Medical Examiners stipulated '(1) that osteopathy, like allopathy, is a complete school of medicine and surgery whose practitioners successfully engage in the full range of activities commonly thought of as constituting medical science, including manipulation, treatment by drugs, operative surgery and physical therapy, and (2) that there exists in the state examining and licensing boards the technical capacity to screen osteopathic applicants for licensure, as allopathic applicants are now screened, so as to insure that the people of the state will be protected from incompetent and unqualified practitioners.'

Relying upon these admissions, the Supreme Court in D'Amico II stated: '(t)his showing in our view demonstrates beyond peradventure of a doubt that there exists no rational relationship between the protection of the public health and the exclusion from licensure of all medical practitioners who have received their training in an osteopathic rather than an allopathic college and hold D.O. rather than M.D. degrees.

'. . .om

'For the foregoing reasons we hold that the 1962 enactments, Insofar as they forbid the licensure of graduates of osteopathic college as physicians and surgeons in this state regardless of individual qualifications, deny to plaintiffs the equal protection of the laws guaranteed by our state and federal Constitutions and are therefore To that extent void and of no effect. Accordingly, as the trial court determined, plaintiffs are entitled to be considered for licensure, either as 'new' physicians and surgeons or on the basis of reciprocity, According to the provisions of the Osteopathic and Medical Practice Acts which were applicable immediately prior to the 1962 amendments.' (Emphasis added.) (D'Amico II, Supra, p. 24, 112 Cal.Rptr. p. 802, 520 P.2d p. 26.)

The Osteopathic Act which was applicable immediately prior to the 1962 amendments was the Osteopathic Act of 1922. And with the filing of the D'Amico II opinion, new osteopaths again began to be licensed by and came under the jurisdiction of the Osteopathic Board.

As is apparent from this chronology, D'Amico II had not been decided at the time that SB 1358 was passed. Dr. Stanley Mertes, an osteopath for whose benefit SB 1358 was passed, was practicing medicine on a federal enclave in California as an employee of the Department of the Navy. Faced with the closure of that federal facility, he had no way to become licensed in California to practice medicine. So while D'Amico and others sought to remedy the situation through the courts, Dr. Mertes pursued a legislative solution.

The trial court ruled SB 1358 null and void because the 1922 Osteopathic Act (considered by the trial court as the only applicable law on the subject after D'Amico II) precluded the Legislature from authorizing the Medical Board to exercise jurisdiction over graduates of osteopathic schools. There is no doubt that this is the effect of the 1922 Osteopathic Act. By its terms it states that the 'board of medical examiners of the State of California shall have no further jurisdiction, duties or functions with respect to graduates of osteopathic schools . . .' (Deering's Bus. & Prof.Code, Appendix II, § 2), and it was so held in Gamble v. Bd. of Osteopathic Examiners (1942) 21 Cal.2d 215, 130 P.2d 382, and Bartosh v. Bd. of Osteopathic Examiners (1947) 82 Cal.App.2d 486, 186 P.2d 984. It is equally clear that the 1922 Act can only be amended by another initiative measure, because it does not provide for amendment by the Legislature. (See Cal. Const. art. IV, § 24(c).) ⁶ Since SB 1358 was not an initiative measure, it was validly enacted only if the authority to amend granted to the Legislature by the 1962 Act ⁷ has survived D'Amico II's holding of unconstitutionality. Has it done so? Resolution of the question depends necessarily upon a determination of what, if anything, remains of the 1962 Act after the D'Amico II decision.

As we read the language of D'Amico II, considering it also in the context of that litigation, the Supreme Court did not rule the entire 1962 Act unconstitutional. In stating its holding as set out above, the court ruled that 'insofar as' the 1962 enactments forbid licensure of new osteopathic school graduates, such enactments are 'to that extent' void. The court was fully aware of the other provisions of the 1962 Act, including those which permitted the holders of D.O. degrees to elect to use the term M.D. and thereby to be regulated by the Board of Medical Examiners. Although this subject may not have been expressly argued before the Supreme Court, we do not lightly assume that the...