Crees v. California State Bd. of Medical Examiners

• Citation: 28 Cal.Rptr. 621,213 Cal.App.2d 195
• Parties: CREES, a nonprofit corporation, et al., Plaintiffs and Appellants, v. CALIFORNIA STATE BOARD OF MEDICAL EXAMINERS et al., Defendants and Respondents. Civ. 26230.
• Decision Date: 20 February 1963
• Court: California Court of Appeals

Page 621

28 Cal.Rptr. 621

213 Cal.App.2d 195

CREES, a nonprofit corporation, et al., Plaintiffs and Appellants, v. CALIFORNIA STATE BOARD OF MEDICAL EXAMINERS et al., Defendants and Respondents.

Civ. 26230.

District Court of Appeal, Second District, Division 2, California.

Feb. 20, 1963.

Rehearing Denied March 21, 1963.

Hearing Denied April 17, 1963.

[213 Cal.App.2d 200] Nathan Newby, Jr., Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Conrad Lee Klein, Deputy Atty.Gen., for respondents.

Behm & Callan, Anaheim, and George W. Kell, Monterey Park, amici curiae on behalf of appellants.

FIX, Presiding Justice.

This is an appeal by plaintiffs from a judgment in an action for a declaration of rights.

Plaintiffs are a California nonprofit corporation composed of practicing doctors of chiropractic and seven individual licentiates of the Chiropractic Board. They brought this action for declaratory and injunctive relief against defendants, who are the California State Board of Medical Examiners, five members of that Board, the California State Board of Chiropractic Examiners and two members of that Board. Plaintiffs sought to have certain rights, immunities and privileges, claimed by plaintiff doctors of chiropractic under the Medical Practice Act (Bus. and Prof.Code, §§ 2000-2490) and the Chiropractic Initiative Act (Bus. and Prof.Code, §§ 1000, 1000-1 to 1000-19, 1001), defined and declared. Plaintiffs also sought injunctions against the two defendant Boards to enjoin them from interfering with said asserted rights.

A joint pre-trial statement was prepared and signed by the parties. The pre-trial judge, who was also the trial judge, made a pre-trial conference order ¹ modifying the pre-trial statement and adopting portions of the pleadings. At the opening of the trial, stipulations were made: (1) That if called to testify the seven plaintiff Doctors of Chiropractic would each testify that each would in the practice of Chiropractic perform the acts and use the drugs and medicines mentioned in the plaintiffs' contentions in the pre-trial statement and would contend that the same was a part of Chiropractic; and (2) That if the investigator for the California State Medical Board Defendants made a motion for judgment on the pleadings which was denied. Defendants then moved for a declaration of rights and duties of the parties based upon (1) the allegations of the complaint; (2) the answer thereto; (3) the pre-trial order; and (4) the issues set forth in the pretrial order. Plaintiffs made several offers of proof involving proposed testimony primarily concerning practices in the science of chiropractic and present and past curricula at colleges of chiropractic. Defendant Board of Medical Examiners objected to the offers of proof on the grounds of immateriality and irrelevancy. The objection was sustained. The court then granted the motion of defendants for a declaration of rights and duties of the parties. The court made findings of fact and conclusions of law, and gave judgment for defendants. The pertinent portions of the judgment are:

were called on the witness stand, he would testify that if plaintiffs did perform such acts and [213 Cal.App.2d 201] use such drugs as set forth in plaintiffs' contentions in the pre-trial statement, he would, on behalf of the Board, investigate the same and ask the proper authorities for issuance of a criminal complaint based on such acts insofar as they would appear to violate the Medical Practice Act.

'IT IS ORDERED, ADJUDGED AND DECREED that the respective rights and duties of the parties are as follows:

'A. That an actual controversy exists between the plaintiffs and the defendants herein relating to their respective legal duties and rights.

'B. Section 2141 of the Business and Professions Code applies to plaintiff doctors of chiropractic and is not unconstitutional when applied to plaintiffs or any of them.

'C. Persons holding valid, unrevoked licenses from the Board of Chiropractic Examiners can be prosecuted under the State Medical Practice Act for violations thereof.

* * *

* * *

'E. Duly licensed chiropractors who do not hold themselves out as physicians and surgeons, but only as 'doctors of chiropractic' or 'D. C.' may, nevertheless, be in violation of the State Medical Practice Act.

'F. Licensed chiropractors are not authorized by their license to use any drugs or medicines in materia medica or the dangerous or hypnotic drugs mentioned in section 4211 of the Business and Professions Code or the narcotics referred to in section 11500 of the Health and Safety Code for: (1) diagnosis; (2) as an aid in the practice of chiropractic; (3) for emergencies; or (4) for clinical research.

'G. Licensed chiropractors are not authorized by their license to practice obstetrics or to sever the umbilical cord in any childbirth or to perform episiotomy.

'H. A duly licensed chiropractor may only practice or attempt to practice or hold himself out as practicing a system of treatment by manipulation of the joints of the human body by manipulation of anatomical displacements, articulation of the spinal column, including its vertebrae and cord, and he may use all necessary, mechanical, hygienic and sanitary measures incident to the care of the body in connection with said system of treatment, but not for the purpose of treatment, and not including measures as would constitute the practice of medicine, surgery, osteopathy, dentistry, or optometry, and without the use of any drug or medicine included in materia medica.

'A duly licensed chiropractor may make use of light, air, water, rest, heat, diet, exercise, massage and physical culture, but only in connection with and incident to the practice of chiropractic as hereinabove set forth.

'I. It is true chiropractic is not a static system of healing and that it may advance and change in technique, teaching, learning, and mode of treatment within the limits of chiropractic as set forth in paragraph H above. It may not advance into the fields of medicine, surgery, osteopathy, dentistry, or optometry.

'J. Plaintiffs have failed to state facts sufficient to constitute a cause of action for injunction against defendants.

'K. None of the plaintiffs are entitled to any injunctive relief against any of the defendants; defendants and their agents may proceed against plaintiffs in the event that plaintiffs exceed the scope of their respective licenses to practice chiropractic and violate the State Medical Practice Act.'

Since the questions involved in this case are of fundamental importance to the health and safety of the public as well as to the profession of chiropractic, this court has granted the request of the California Chiropractic Association, which represents itself as having a membership of 600 practitioners of chiropractic, to submit a brief as amicus curiae.

Plaintiffs contend on appeal that the trial court erred in (1) refusing to permit introduction of evidence by plaintiffs in support of their contentions and claims; (2) granting the motion of defendants for a declaration of rights and duties of the parties based on the pleadings and stipulations; (3) in making the declarations set forth in paragraphs B, C, E, F, G, H, J and K of the judgment, supra; and (4) failing to make a declaration as to the meaning of the term 'practice' as contained in the last part of section 7 of the Chiropractic Act (Bus. and Prof.Code, § 1000-7; Deering's Gen.Laws, Act 4811, § 7.) ²

In addition, the amicus curiae cites as alleged error the failure of the trial court to refer questions of the extent and scope of chiropractic to the California State Board of Chiropractic Examiners before taking further action in the proceedings below.

INTRODUCTION OF EVIDENCE

Plaintiffs base their contention that evidence concerning practices in the science of chiropractic and present and past curricula at colleges of chiropractic should have been heard by the trial court on section 1000-7 of the Business and Professions Code, which provides that a license issued by the Board of Chiropractic Examiners shall authorize the holder thereof 'to practice chiropractic in the State of California as taught in chiropractic schools or colleges * * *.' (Emphasis added.) They contend that to establish what is chiropractic, it is necessary, inter alia, to take extrinsic evidence as to what is and has been taught in chiropractic educational institutions, and the practices that have developed in the profession.

Their position, however, is not sustained by the prevailing authorities. Section 7 of the Chiropractic Act (Bus. and Prof.Code, § 1000-7) contains the only provision which undertakes either to define or describe chiropractic or to declare what is authorized by a license issue under the act. The authorization is in two parts: (1) 'to practice chiropractic * * * as taught in chiropractic schools or colleges'; and (2) 'to use all necessary mechanical, and hygienic and sanitary measures incident to the care of the body.'

The first part of this authorization, plaintiffs contend, authorizes the practice The position of the court in Fowler relative to the asserted right to practice whatever is taught in chiropractic educational institutions finds support in the case of In re Hartman, 10 Cal.App.2d 213, 51 P.2d 1104. At page 217, 51 P.2d at page 1106 the court says: 'While the section [section 7] contains the additional clause 'as taught in Chiropractic schools or colleges,' the entire section must be taken as a whole and it cannot be taken as authorizing a license to do anything and everything that might be taught in such a school. * * * It is not sufficient that a particular practice is taught in such a school. Under the terms of the statute it must meet the further test that it is a part of chiropractic, whatever that philosophy or method may be, and, further, that it shall not violate the provision which expressly forbids...