O'Dell v. Ohio State Medical Bd.

• Decision Date: 06 February 1970
• Docket Number: No. 37590,37590
• Parties: , 51 O.O.2d 261 O'DELL v. OHIO STATE MEDICAL BOARD.
• Court: Ohio Court of Common Pleas

Page 138

22 Ohio Misc. 138

259 N.E.2d 167, 51 O.O.2d 261

O'DELL v. OHIO STATE MEDICAL BOARD.

No. 37590.

Court of Common Pleas of Ohio, Clermont County.

Feb. 6, 1970.

Syllabus by the Court

1. A person desiring to appeal from a ruling of the Ohio State Medical Board may do so in the county of his residence where his office of practice is outside the state of Ohio.

2. Chiropractic is a limited practice of medicine and surgery by statute and court decisions and factually.

3. Chiropractic is subject to control by the Ohio State Medical Board under the terms and conditions set out in Chapter

4731 of the Ohio Revised Code.

4. The Ohio State Legislature has full and complete power to prescribe the methods of licensing persons engaged in limited branches of medicine and surgery, including chiropractic.

5. The Legislature has the right to determine the membership of the Ohio State Medical Board and there is no obligation on the part of the Legislature to include representatives of the various branches of limited practice to be members of the Ohio State Medical Board.

6. An applicant is not denied any constitutional rights because of the refusal to grant him a license on the basis of reciprocity where the record clearly shows he does not have the preliminary educational requirements as are required by statute.

7. Each state of the union has a right to set up standards regarding the admission of persons to practice chiropractic in the state of Ohio on the basis of reciprocity and those requirements need not be identical with the residents of Ohio who actually take an examination under the supervision of the Ohio State Medical Board.

8. Reciprocity is a privilege and not a right and this state has a right to limit admission to practice in Ohio on the basis of reciprocity or if it so desires, to make no provision for admission on the basis of reciprocity.

9. The provision that before a person can be granted a license to practice chiropractic on the basis of reciprocity he must have two years college education or its equivalent is a reasonable and proper requirement.

10. The Ohio State Medical Board has a right to employ persons not physicians to investigate the educational requirements of applicants for licenses and provide that such person report his findings to the board.

11. The rulings of the Ohio State Medical Board denying a person a license will not be overruled provided those rulings do not violate some specific provision of the United States Constitution or the Constitution of the State of Ohio, and the court finds in this case, there has been no such violation.

Frank O. Walther and E. Allen Parker, Terrace Park, for appellant.

William J. Lee, Asst. Atty. Gen., for Ohio State Medical Board.

NICHOLS, Judge.

This matter is before the court for hearing on an appeal from the ruling of the Ohio State Medical Board, which in substance denied a license to the appellant on his contention that he was entitled to a license on his reciprocal rights. The matter has been before the court on two separate occasions: first, for a determination of whether or not Clermont County was the proper county to hear the appeal. The court has heretofore found that it was the proper county and the court does have jurisdiction. That was based upon the fact that the appellant was an actual bona fide resident of Clermont County, even though his office was situated in the state of Kentucky.

Later there was a hearing on the question of the right to introduce additional evidence, that evidence being primarily statements from the American Medical Association, question as to the membership of the State Medical Board in that association, all of which were proffered at the time of the hearing before the Medical Board and refused admission. The court on that hearing, likewise, ruled that the board was correct in not considering that evidence, did not permit it to be offered in the hearing. It again was proffered and is a part of the record.

A motion for reconsideration of the court's ruling on the question of the admissibility of evidence was filed and inasmuch as it is a rather fundamental problem in the determination of the case as a whole, it was decided that the question of admissibility of this evidence and a final determination of the appeal be determined at the same time and with the same briefs of both the appellant and the State Medical Board.

The primary basis of the court for disallowing this type of evidence is based upon the actual ruling of the Ohio Medical Board, which in substance held that the applicant did not have the actual two-year college work required as a minimum for applicants on the basis of reciprocity and while it gave him the opportunity to submit evidence in respect to this scholastic training which might be considered to be the equivalent to two years college training, the appellant either chose not to submit such evidence or was unable to do so, and has elected to file this appeal on the basis that this portion of the law violated certain of his constitutional rights.

The court, therefore, on the appeal considered that there was an actual rejection of the application for license on the ground that the applicant did not have required preliminary educational requirements which were required by statute and inasmuch as this is a statutory requirement and not a ruling or regulation of the Ohio Medical Board, the makeup of the board, so far as this case is concerned is immaterial. The court will consider the appeal on the basis that this provision of the law and other provisions of the law are or are not in contravention of the constitutional rights of the appellant.

The appellant bases his claim that his constitutional rights have been violated on three major grounds, and on several other grounds which the court feels are minor to the basic question involved, although the attorneys for the appellant may not feel that they are actually minor problems.

The first claim of the appellant is that a chiropractor does not treat a person for a disability and, therefore, as the court understands his contention (as made by his briefs) that he is subject to no regulation by the state of Ohio. His contention is simply that they do not diagnose; they do not treat; they merely make adjustments to the spine, thereby permitting the various nerves of the body to properly function, and properly functioning, the nerves themselves will cure any disability.

Their second contention, and the one most vigorously argued is that the Ohio State Medical Board is made up of seven medical doctors and one doctor of osteopathy, and where it contains no chiropractor that the board is inherently antagonistic to chiropractors and contend that they either should have representation on the medical board or have a separate board dealing solely with the practice of chiropractic.

Their third major contention is that they are discriminated against in the question of reciprocal licensing, and claim that if they are licensed in one state they should be automatically licensed in Ohio, and further claim that their educational requirements for admission on the basis of reciprocity, which requires under the law, a two year or equivalent college education while those taking the examination within the state are merely required to have a high school education and that they are claiming by this provision in the statute that they are denied equal protection under the provisions of the federal Constitution.

Their other contentions are that the board does not have a right to delegate to a lawyer the right to make investigations as to their preliminary educational requirements, that all hearings should be before the full board rather than one member of the board and that the statute, on its face, would require them to take a medical course in medicine and surgery rather than their specialty of chiropractic.

The court will give consideration to these contentions in the order stated which is not necessarily in the order of the claims in the brief of the appellant or of the State Medical Board.

It is the contention of the appellant that the practice of chiropractic is that if the nervous energy can flow uninterrupted to the control centers of the brain that the body, not the practitioner, would cure itself from whatever malady that may be involved.

In other words, they are claiming if the appellant in this case speaks for the group as a whole, that they are not engaged in the healing art, that that is solely a function of the body and they merely make adjustments in the spine and they do not diagnose a disease, but merely analyze the alignment of the various vertabra and, therefore, they are not practicing medicine or are not practicing a limited branch of medicine and, therefore, are not subject to any of the provisions of Section 4731.15, Revised Code, or any of the provisions of Chapter 4731.

The court feels that this is a fallacious argument, for several reasons: first, the Legislature itself states that the practice of medicine and surgery shall include chiropractic along with numerous other branches which are called limited branches of medicine and surgery; second, the courts of Ohio likewise held that chiropractic is a part of the healing arts covered by the law and likewise found the provisions of the State Medical Act constitutional and binding. See Nesmith v. State, 101 Ohio St. 158 at page 160, 128 N.E. 57; Williams v. Scudder, 102 Ohio St. 305, 131 N.E. 481; also Meeker v. Scudder, 17 Ohio App. 210.

In addition to the state of Ohio, courts holding that chiropractic is a part of the healing arts and subject to regulation by the state, this or similar holdings have been made in states. The court, without citing the specific cases, but for reference, states that they were obtained from Volume 7, Words and Phrases, under the general heading of 'Chiropractic,' at page 158. The following states made the following observation:

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