Chiropractic Ass'n of New York, Inc. v. Hilleboe

• Decision Date: 01 July 1958
• Citation: 187 N.E.2d 756,237 N.Y.S.2d 289,12 N.Y.2d 109
• Parties: , 187 N.E.2d 756 CHIROPRACTIC ASSOCIATION OF NEW YORK, INC., et al., Appellants, v. Herman E. HILLEBOE, as Commissioner of Health of the State of New York, Respondent. . Dec. 31 1962. F. Walter Bliss, Albany, for appellants. Louis J. Lefkowitz, Atty. Gen. (Paxton Blair and Edward R. Murphy, Albany, of counsel), for respondent. Carl O. Olson, Albany, and James E. Bunker, for National Chiropractic Association, amicus curiae. VAN VOORHIS, Judge. The science of genetics dates from Gregor Mendel, the Austrian monk whose experiments were published in 1865 and came to the general attention of biologists in 1900. Not until the advent of nuclear warfare in 1945 did scientists or the public become aware of the hereditary effects of the exposure of the genital organs of the human body to nuclear fallout and other forms of ionizing radiation. The catastrophic effects of Hiroshima and Nagasaki brought this subject into the foreground of popular discussion, and, on the scientific side, the studies and experiments in the structure of the atom pointed toward physiological chemistry (and physics) leading prominent scientists to the conclusion that ionizing radiation causes changes in the male and female genital organs capable of producing deleterious effects upon future generations. The details of these interesting and important concepts and experiments are for scientists rather than judges and lawyers. It is sufficient for present purposes that the record discloses the existence of a substantial quantity of reliable scientific opinion that future generations may sustain absence of portions of the brain, absence of a finger or ear or other bodily members, defects in the neuro-muscular system, the circulatory system, the genito-urinary system, the gastro-intestinal system, the skin, or other deformities due to the effect of ionizing radiation, and that findings were made by the Referee and affirmed by the Appellate Division that taking X-ray pictures of the full spine, such as are co
• Court: New York Court of Appeals Court of Appeals

Page 289

237 N.Y.S.2d 289

12 N.Y.2d 109, 187 N.E.2d 756

CHIROPRACTIC ASSOCIATION OF NEW YORK, INC., et al., Appellants, v.Herman E. HILLEBOE, as Commissioner of Health of the State of New York, Respondent.

Court of Appeals of New York.

Dec. 31 1962.

F. Walter Bliss, Albany, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Paxton Blair and Edward R. Murphy, Albany, of counsel), for respondent.

Carl O. Olson, Albany, and James E. Bunker, for National Chiropractic Association, amicus curiae.

VAN VOORHIS, Judge.

The science of genetics dates from Gregor Mendel, the Austrian monk whose experiments were published in 1865 and came to the general attention of biologists in 1900.Not until the advent of nuclear warfare in 1945 did scientists or the public become aware of the hereditary effects of the exposure of the genital organs of the human body to nuclear fallout and other forms of ionizing radiation.The catastrophic effects of Hiroshima and Nagasaki brought this subject into the foreground of popular discussion, and, on the scientific side, the studies and experiments in the structure of the atom pointed toward physiological chemistry (and physics) leading prominent scientists to the conclusion that ionizing radiation causes changes in the male and female genital organs capable of producing deleterious effects upon future generations.The details of these interesting and important concepts and experiments are for scientists rather than judges and lawyers.It is sufficient for present purposes that the record discloses the existence of a substantial quantity of reliable scientific opinion that future generations may sustain absence of portions of the brain, absence of a finger or ear or other bodily members, defects in the neuro-muscular system, the circulatory system, the genito-urinary system, the gastro-intestinal system, the skin, or other deformities due to the effect of ionizing radiation, and that findings were made by the Referee and affirmed by the Appellate Division that taking X-ray pictures of the full spine, such as are commonly used by chiropractors, exposes the reproductive organs of the male or female patient to the direct, primary X-ray beam in quantity sufficient to damage the hereditary material of the individual from which the generations yet unborn are to come.The findings of this nature are based on testimony not only of the New York State Commissioner of Health, and the Deputy Commissioner, but also upon the testimony of the radiologist in chief of Johns Hopkins Hospital in Baltimore, Maryland, and a professor of biology who has specialized for more than three decades in genetics at Johns Hopkins University.Their testimony amply supports the explicit findings of the Referee and the Appellate Division that the effect of X-ray exposure to the reproductive life is deleterious, additive and cumulative.The bad effects, according to this testimony, vary according to the total of ionizing radiation to which the individual is subjected.

The expert testimony on which these findings are based is virtually uncontradicted.There is little in the record to reflect divergence of scientific opinion, but, assuming the existence of differences in views of scientists on the effects of radiation, it is at least a subject upon which informed geneticists may reasonably differ.It is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised.'The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense'(Williams v. Mayor of Baltimore, 289 U.S. 36, 42, 53 S.Ct. 431, 433, 77 L.Ed. 1015;Hadacheck v. Sebastian (City of Los Angeles), 239 U.S. 394, 413-414, 36 S.Ct. 143, 60 L.Ed. 848).

Confronted by the 'dangers of unnecessary uses of ionizing radiation' the State Commissioner of Health testified that his department concerned itself 'with every conceivable source of ionizing radiation.We are not interested in just chiropractors, doctors, hospitals or factories.We want to cut out every single bit of unnecessary radiation'.

These activities in the State Department of Health, the testimony indicates, commenced about 1954 and led, among other aspects, to studies in the use of X ray by chiropractors.The Commissioner testified that 'we weren't concerned very much about the training of how to take a picture', inasmuch as 'sixteen weeks of training is quite sufficient to train a person of average intelligence how to press buttons, how to position the patient, how to develop a film so that you can get a good X-ray film.'Neither did the Commissioner 'question the ability of any chiropractor who goes to school for four years to learn how to take an X-ray film' which the Commissioner stated could be learned in four weeks, if necessary.What did concern the Commissioner of Health and his department was how 'to cut down unnecessary ionizing radiation' and, in this context, to discover 'what contribution the chiropractors make to unnecessary radiation of the human body'.It was discovered to be customary for the average chiropractor, of whom there are about 2,500 in New York State, to take or have taken X rays of the full spinal column before administering to a patient for any kind of ailment.The record discloses, for example, that among the patients of two chiropractors who testified for plaintiffs 75% to 90% were X rayed as contrasted with less than 3% of the cases under medical supervision in Johns Hopkins Hospital.From date of this nature it was concluded that the benefits derived from this kind of exposure were out of proportion to the hereditary damage to be anticipated from the wholesale use of X ray in this field, by the same token whereby the use of fluoroscopes for shoe fitting had previously been forbidden and as subsequent action was taken by the New York City Board of Health to ban the sale of radium dial wrist watches.Limitations on the application of radiation to human beings, whether for their own protection or that of the unborn, is related to the protection of the public health under the police power on the same principle by which compulsory vaccination has been sustained in the public schools.(Matter of Viemeister v. White, 179 N.Y. 235, 72 N.E. 97, 98, 70 L.R.A. 796).The court there said per Vaan, J. (p. 238, 72 N.E. p. 98): 'When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.These principles are so well established as to require no discussion and we cite but a few out of many authorities relating to the subject (citing cases).'The court took note that the result reached was not to be nullified by the circumstance that 'some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox'(p. 239, 72 N.E. p. 98).A similar principle underlies all of the legislation and sanitary code enactments relating to preventing the spread of communicable diseases by measures pursued without regard to the consent of the individual concerned.

The enactment which is challenged by plaintiffs in this suit was added to the New York State Sanitary Code in 1957, effective July 1, 1958.It was added as regulation 19 to chapter XVI of the Sanitary Code on ionizing radiation first adopted in 1954.The relevant portions are as The relevant portions are as follows:

'Regulation 19.Limitations on application of radiation to humans.

'No person shall apply radiation to a human being unless such person is licensed or otherwise authorized to practice medicine, dentistry, podiatry or osteopathy under the provisions of the Education Law of the State of New York.Radiation shall be applied by a licensed or otherwise authorized person to only those parts of the human body specified in the law under which such person is licensed or authorized to diagnose and treat.

'This regulation shall not prohibit the use of radiation by a technician, nurse or other person, if such use is directed or ordered by a person licensed or authorized to practice medicine, dentistry, podiatry or osteopathy under the provisions of the Education Law of the State of New York.'(10 NYCRR, § 16.19).

Then follows a limitation on sales, leases or loans of X-ray or fluoroscopic equipment for use on human beings in implementation of the foregoing.

This regulation superseded a former regulation preventing the use of shoe-fitting fluoroscopes, which was expanded by present regulation 19 to include all other uses except those pertaining to the practice of medicine, dentistry, podiatry or osteopathy.The Sanitary Code is enacted by the New York State Public Health Council, under authority conferred by section 225 of the Public Health Law,Consol.Laws, c. 45, which, the Legislature provided, 'shall have the force and effect of law'.The Public Health Council consists of the State Commissioner of Health and eight members appointed by the Governor, of whom at least four are required to be physicians, and one a sanitary engineer (Public Health Law, § 220).When regulation 19 was added in 1957, the Public Health Council, besides the Commissioner, consisted of six physicians, a sanitary engineer and the president of a university.

The thrust of this regulation is clear.It prohibits the application of ionizing radiation to the human body through the use of fluoroscopes, X ray or otherwise, except by the direction of a doctor of medicine, dentist, podiatrist or osteopath, and for use in those fields.It does not prevent a chiropractor or any other person qualified to take X-ray pictures from doing so, provided that it is to be used in the fields of medicine, dentistry, podiatry or osteopathy if the X ray is ordered for use in his field by a...