Brinkley v. Hassig

• Decision Date: 07 April 1936
• Docket Number: No. 1344.,1344.
• Citation: 83 F.2d 351
• Parties: BRINKLEY v. HASSIG et al.
• Court: U.S. Court of Appeals — Tenth Circuit

83 F.2d 351 (1936)

BRINKLEY v. HASSIG et al.

No. 1344.

Circuit Court of Appeals, Tenth Circuit.

April 7, 1936.

James H. Harkless, of Kansas City, Mo., and James E. Smith, of Topeka, Kan. (John S. Dean, E. H. Hatcher, Frank H. McFarland, and Schuyler W. Jackson, all of Topeka, Kan., on the brief), for appellant.

William C. Ralston, Sp. Asst. Atty. Gen., and Ralph T. O'Neil, of Topeka, Kan. (Clarence V. Beck, Atty. Gen., John G. Egan, Asst. Atty. Gen., and John D. M. Hamilton and Barton E. Griffith, both of Topeka, Kan., on the brief), for appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

On September 17, 1930, the Kansas State Medical Board revoked the license of Dr. John R. Brinkley to practice medicine and surgery in the state of Kansas. On December 30, 1931, this action was brought to set aside and enjoin such order on the ground that it invaded rights guaranteed by the Federal Constitution. The trial court, after a long trial, dismissed the bill on its merits on July 15, 1935. This is an appeal from that order.

The Kansas statute, 1933 Supp. to R.S. 1923, 74 — 1001, establishes a board of medical registration and examination consisting of seven physicians in good standing. Id., 65 — 1001, provides in part:

"The board may refuse to grant a certificate to any person guilty of felony or gross immorality or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery, and may, after notice and hearing, revoke the certificate for like cause, or for malpractice or unprofessional conduct."

On April 28, 1930, a complaint based on eleven specific charges of fraud, immorality, and unprofessional conduct was filed before the board praying for the revocation of appellant's license. If any one of them is sufficient in law and supported by substantial evidence, it will sustain the order. One charge is that appellant performs a "compound operation" on patients for the purpose of curing impotency, high blood pressure, epilepsy, dementia praecox, and diseases of the prostate gland and kidneys; that he accomplishes these cures by transplanting animal or human glands into the patient; that the charge for goat glands is $750 and for human glands $5,000; that such operation is of no value to the patient.

Another charge is that he gives talks over the radio "for the purpose of enticing patients to his hospital and to induce persons to purchase medicines; that he diagnoses and prescribes for patients over the radio; that he gives prescriptions by numbers which have to be filled by and purchased at certain drug stores, from which he obtains a commission; * * * that such diagnosing and prescribing by radio are necessarily inaccurate and dangerous, carrying too great a hazard of error in misinterpretation of symptoms, inaccuracy of patients' statements of the location and character of complaints, the risk of misunderstanding the respondent's directions and confusion of numbers given of prescriptions, and lacking entirely in the information to be gained by the usual ordinary routine physical and laboratory examination of the patients, without doing which respondent is grossly negligent."

Appellant was given notice of the charges and of the hearing thereon. After motions to strike from the complaint and to make it more definite and certain were denied, an answer was filed; the issues so joined came on for hearing July 15, 1930. The hearing, with some adjournments, lasted until September 16 and included a session at which appellant performed the compound operation in the presence of the board. The evidence of hundreds of witnesses was received, much of it highly technical. Throughout appellant was represented by counsel who had acquired a comprehensive knowledge of the anatomy involved.

If we translate the medical terms used with reasonable accuracy, the first two phases of the compound operation are routine minor surgery; the first is injecting mercurochrome into the seminal vesicles, and the second is an ordinary vasectomy. The first is useful where there is infection and the second where sterility is desired. But, excepting appellant, the doctors testified that such phases could have no effect on the diseases for which appellant advertised the operation as a palliative.

The third phase was advertised by appellant in part as follows:

"Likewise we borrow the services of a branch artery, and this is delicately anastomosed down alongside the vas into the epididymis."

Many surgeons testified that this phase was a physical impossibility. However, it does appear that appellant did pick up a loose areolar or fascial tissue from the scrotum and implanted it in the testicle. So this argument turns on the meaning of the word "anastomosis" and is not important. The surgeons generally testified that the implantation made was useless.

The fourth phase is the transplantation of the testicle of a goat into the scrotum of a man. Many eminent surgeons testified that such transplantation could not be of the slightest benefit to the patient. Others, including the Drs. Mayo and Judd, testified that results so far attained in experimental gland transplantation have not met with sufficient success to justify adoption in clinical surgery. Appellant maintained its efficacy and brought onto the record the experiments of others along this line; more than four hundred patients testified they had been materially benefited by the operation and were more than satisfied.

There was also evidence that the operation was distinctly a minor one, performed under a local anaesthetic, and if it had been of value, should not cost more than $100. There was also evidence that, as performed, it was not aseptic.

The Legislature enacted that membership of this board should be confined to physicians and surgeons because they alone have the education and experience to determine such questions as are here presented. Does this record disclose no more than a conflict of opinion among reputable surgeons as to the technique of operative procedure, or as to when it is indicated? Or does it disclose that appellant was using his license to perpetrate a cruel hoax upon the public by exacting extravagant fees for a trivial and worthless operation? Did appellant endanger the health of his patients by seducing them into the belief that serious diseases could be cured by a surgical hocuspocus? Whether it is the one or the other is a question peculiarly for the decision of men skilled in anatomy. There is a great volume of evidence in this record to support the latter conclusion; and if such is the fact, the board would have been derelict if appellant's license had not been revoked. It is true, as counsel argue, that the great advances in medical science have come about by the courage of pioneers, whose efforts often met with ridicule from their professional brethren. It is true that doctors even yet disagree. It is also true that charlatans masquerading as doctors defraud the public to their own enrichment by promising to cure cancer with innocuous ointments, and thus endanger the lives of their patients by depriving them of sound medical advice. Between these two extremes there is a twilight zone where doubts might perplex. But unless we can say, from the record, that there is no doubt that this is a mere disagreement among doctors, the finding of the board is not open to our review. The Legislature has properly committed the vital question of the fitness of those who administer to the sick to a skilled board of medical men, and not to courts unlearned in the art. The proof here amply supports the conclusion that the compound operation is not an honest effort to relieve the suffering, but a scheme for appellant's unjust enrichment.

The proof as to the diagnosis of disease and prescriptions for its cure over the radio is too long to relate and is undisputed, there being an unchallenged stenographic report of some of the broadcasts. Enough to say that through regular broadcasts appellant diagnosed almost every ailment the human flesh is heir to; sometimes he told his patients to consult a doctor; much more often he prescribed remedies by numbers which could be obtained from drug stores throughout the middle west to whom he had furnished the prescriptions, and from whom he received a part of the price of some of the prescriptions. These diagnoses were made without an examination of the patient, and upon only such symptoms as the patient would give in a letter or telegram. One patient sent in an X-ray picture; appellant said, "I can't make much out of it"; nevertheless he diagnosed and prescribed. Another telegraphed she had a pain around her heart; he diagnosed it promptly as a kidney involvement and prescribed a diet and three prescriptions. Another wrote that he or she had a pain in the right side; appellant diagnosed it as "probably gall bladder" and prescribed one remedy "if you are a man" and another "if you are a lady." And so on and on.

One need not be skilled in medicine to understand the grave dangers to human life involved in diagnosis and prescription on such sketchy facts as are obtainable from a letter or a telegram; nor of the danger to thousands of others listening in who apply such advice to their own self-diagnosed diseases. It is no answer to suggest that the prescriptions are harmless in themselves; to prescribe bread pills to a diabetic whom insulin might save is to trifle with human life. The Court of Appeals of the District of Columbia passed upon the same question in KFKB Broadcasting Ass'n v. Federal Radio Commission, 60 App.D.C. 79, 47 F.(2d) 670, 672; in sustaining an order denying a renewal of the license of appellant's radio station, that court sustained the commission's finding that appellant's radio diagnosis "is inimical to the public health and safety, and for that reason is not in the public interest." The trial court aptly said:

"Those methods are...