Hitchcock v. Kloman

• Decision Date: 15 November 1950
• Docket Number: 29.
• Citation: 76 A.2d 582,196 Md. 351
• Parties: HITCHCOCK v. KLOMAN et al.
• Court: Maryland Court of Appeals

76 A.2d 582

196 Md. 351

HITCHCOCK v. KLOMAN et al.

No. 29.

Court of Appeals of Maryland.

November 15, 1950

Maurice Braverman, Baltimore, for appellant.

J. Edgar Harvey, Deputy Atty. Gen. (Hall Hammond, Atty. Gen. on the brief), for appellees.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.

COLLINS, Judge.

This is an appeal by Kenneth C. Hitchcock from a decree sustaining a demurrer to his amended bill of complaint, without leave to further amend, and dismissing this amended bill.

For the purpose of this case, this amended bill, filed against the Board of Medical Examiners for the State of Maryland, the Police Commissioner and State's Attorney of Baltimore City appellees, makes the following allegations. The appellant is a tax payer and citizen of the State of Maryland and by training and education a naturopath and holds licenses to practice naturopathy in the states of Florida, Connecticut and South Carolina. He has been practicing naturopathy in Baltimore since October, 1938, and has been advising diagnosing and treating for a consideration according to the principles of naturopathy, persons who are ill or persons who are seeking naturopathic advice, care and treatment. The practice of naturopathy, in which he is engaged, is a separate and distinct branch of the healing art and not the practice of medicine as regulated by the Medical Practice Act, as defined by Article 43, Section 139, of the Code. Naturopathy excludes drugs, vaccines, anti-toxins, serums, radio-activity, medicines and surgery in its treatment of diseases. It uses air, sunshine, light, heat, cold, climate, earths, water, electricity, vibrations, exercise, rest, manipulations, health foods, herbs, external applications, mental hygiene, and other enumerated principles.

The bill further alleges that the Attorney General of Maryland has rendered opinions that naturopathy is not recognized by the laws of this State and the persons practicing naturopathy, therefore, are violating the Medical Practice Act and are subject to criminal prosecution. The State Board of Medical Examiners, by reason of the opinions of the Attorney General, contend that naturopathy is a practice of medicine and surgery and, therefore, the appellees are preparing to prosecute the appellant herein for the unlawful practice of medicine and surgery. The appellant contends that he has a constitutional right to practice naturopathy and that any attempt to prosecute him for the unlawful practice of medicine while he practices naturopathy and no other healing art would be in contravention of his rights as a Maryland citizen under the Maryland Declaration of Rights and an attempt to deprive him of his liberty and property in violation of the 14th Amendment of the Constitution of the United States. He intends to continue the practice of naturopathy. The appellant and others practicing naturopathy in Maryland, on whose behalf this case is filed, are remediless in a court of law to protect their rights, to redress the grievances set forth in this suit and to avoid irreparable injury and criminal prosecution of the appellant. It is proper and necessary for theCourt to intervene and restrain the wrongs and redress the grievances here complained of.

Appellant asks for a declaratory decree that naturopathy is a separate and distinct branch of the healing arts and sciences and not included in the practice of medicine, as regulated by the Medical Practice Act. Code, Article 43, Section 116-144, inclusive. He also asks that the appellees be restrained from instituting criminal proceedings against the appellant and other naturopaths, for the unlawful practice of medicine, who are practicing naturopathy and not medicine or surgery.

Code, Article 43 Section 137, makes it a criminal offense for anyone to attempt to practice medicine or surgery in this State without being registered as a physician or surgeon. Code, Article 43, Section 139, provides in part: 'Any person shall be regarded as practicing medicine within the meaning of this sub-title * * * who shall for hire or for any gratuity or compensation, either directly or indirectly to him or her paid, undertake by any appliance, operation or treatment of whatever nature, to cure, heal or treat any bodily or mental ailment or supposed ailment of another; or who for any hire * * * shall undertake to treat, heal, cure, drive away or remove any physical or mental ailment, or supposed ailment of another, by mental or other...