Maceluch v. Wysong

• Citation: 680 F.2d 1062
• Decision Date: 21 July 1982
• Docket Number: No. 81-1364,81-1364
• Parties: Dr. John MACELUCH, et al., Plaintiffs-Appellants, v. Dr. Charley E. WYSONG, President of the Composite State Board of MedicalExaminers of Texas, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1062

680 F.2d 1062

Dr. John MACELUCH, et al., Plaintiffs-Appellants, v. Dr. Charley E. WYSONG, President of the Composite State

Board of MedicalExaminers of Texas, et al.,

Defendants-Appellees.

No. 81-1364.

United States Court of Appeals, Fifth Circuit.

July 21, 1982.

Jack Hill, David L. Sherwood, Dallas, Tex., for plaintiffs-appellants.

Mark White, Atty. Gen., Bill Campbell, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

John G. Campbell, F. Dennis Nelson, Chicago, Ill., for amicus curiae Amer. Osteopathic Asso.

David M. Davis, Austin, Tex., for amicus curiae Texas Osteopathic Med. Ass'n.

Donald P. Wilcox, Texas Medical Ass'n, Austin, Tex., for amicus curiae Texas Medical Ass'n.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.

PER CURIAM:

The judgment is affirmed on the basis of the district court's opinion. A copy of Judge Higginbotham's opinion is attached as an appendix to this opinion.

AFFIRMED.

                APPENDIX
                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF TEXAS
                                 DALLAS DIVISION
                DR. JOHN MACELUCH and         )
                DR. ROBERT GLICK,             )
                                              )
                               Plaintiffs,    )
                                              )
                V.                            )  CIVIL ACTION NO
                                              )  CA-3-77-1498-G
                TEXAS STATE BOARD OF          )
                MEDICAL EXAMINERS, et al.,    )
                                              )
                                Defendants.   )
                  ORDER
                

John Maceluch and Robert Glick are physicians licensed by the State of Texas who received degrees from a school that confers the degree "Doctor of Osteopathy" rather than the degree "Doctor of Medicine." They sue officers and various members of the Texas State Board of Medical Examiners ("Board"). Relying in part on the stipulated fact that "(t)here is no substantial difference between accredited medical schools irrespective of the terminology of the degree conferred, except that students attending medical schools conferring the degree 'Doctor of Osteopath' are required to take, and be examined in, several courses in manipulative therapy," plaintiffs ask this court to enjoin or declare unconstitutional the Texas licensing scheme which prevents them from using the designation "M.D." after their names on their letterhead and on other public listings of diverse nature. Plaintiffs allege that by forcing them to use the designation "D.O.," Texas subjects them to prejudice, antipathy and loss of earnings; that an "M.D." designation would more accurately identify their professional skills and practices. The parties have agreed to submit the case for decision on the basis of stipulations and the deposition testimony. ¹

In Texas, all licenses to practice medicine read the same, except that licensees with degrees from schools conferring the degree "Doctor of Medicine" have the initials "M.D." following their names and those with degrees from a school conferring the degree "Doctor of Osteopathy" have the initials "D.O." following their names. The requirements for licensure are identical: all Texas applicants must pass a uniform "Federation Licensing Examination" (FLEX).

Following established practice, the Board declined to issue plaintiffs licenses bearing the initials "M.D." because their diplomas read "Doctor of Osteopathy." Nevertheless, Maceluch and Glick utilize the initials "M.D." following their names in connection with their practice, in violation of Article 4590e. ²

Plaintiffs offer three grounds for granting relief. First, they assert that certain licensing statutes and related practices violate the equal protection clause, both facially and as applied, when plaintiffs are compared to those with M.D. Licenses, or when comparing plaintiffs to graduates of foreign medical schools who obtain M.D. Licenses. Second, they assert that the actions of defendants violate the Texas constitution. Third, they assert that defendants' actions violate the First Amendment, especially in light of the allegedly generic nature of the designation, "M.D."

The Court does not find any of these arguments persuasive, and grants judgment in favor of defendants, as urged by all amicus curiae, including not only the Texas Medical Association, but also the Texas Osteopathic Medical Association, and the American Osteopathic Association.

I.

The framework governing analysis of plaintiffs' equal protection claim was set forth in New Orleans v. Dukes, 427 U.S. 297 (96 S.Ct. 2513, 49 L.Ed.2d 511) (1976). There, the Supreme Court held:

When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations.... Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. Id. at 303 (96 S.Ct. at 2516).

See also Friedman v. Rogers, 440 U.S. 1, 17 (99 S.Ct. 887, 898, 59 L.Ed.2d 100) (1979). When fundamental rights or suspect classifications are involved, however, stricter judicial scrutiny is called for. Id. See also Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70-71 (99 S.Ct. 383, 389-390, 58 L.Ed.2d 292) (1979); Graham v. Richardson, 403 U.S. 365, 373-75 (91 S.Ct. 1848, 1852-53, 29 L.Ed.2d 534) (1971).

The rational relationship standard applies here. To begin, controlling the designation under which physicians may practice is a form of economic regulation. See, e.g. Vance v. Bradford (Bradley), 440 U.S. 93 (99 S.Ct. 939, 59 L.Ed.2d 171) (1978); Williamson v. Lee Optical Co., 348 U.S. 483 (75 S.Ct. 461, 99 L.Ed. 563) (1955). Further, the "right" to be admitted to a profession, including medicine, is not fundamental per se in the constitutional sense. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (96 S.Ct. 2562, 2566, 49 L.Ed.2d 520) (1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 16 (93 S.Ct. 1278, 1287, 36 L.Ed.2d 16) (1973); Schware v. Board of Bar Examiners, 358 (353) U.S. 232, 239 (77 S.Ct. 752, 756, 1 L.Ed.2d 796) (1957); Younger v. Colorado Bd. of Bar (Law) Examiners, 625 F.2d 372, 377 n.3 (10th Cir. 1980); Lombardi v. Tauro, 470 F.2d 798, 800 (1st Cir. 1972) cert. denied, 412 U.S. 919 (93 S.Ct. 2734, 37 L.Ed.2d 145) (1973); D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 113 (112) Cal.Rptr. 786, 798, 520 P.2d 10 (22) (Cal.1974). A fortiori, the "right" to use a particular professional designation is not fundamental. See, Bib'le v. Comm. of Bar Examiners (26 Cal.3d 548), 162 Cal.Rptr. 426, 430 (606 P.2d 733, 737) (Cal.1980).

Plaintiffs do not claim that the Constitution guarantees the right to use the "M.D." designation. ³ They argue instead that strict scrutiny should be applied when comparing plaintiffs with graduates from foreign medical schools. Plaintiffs allege foreign graduates, unlike D.O.'s, can obtain "M.D." designation despite the fact that they may not have received an M.D. degree initially. Plaintiffs contend this statutory classification is based solely on alienage, and therefore creates a 'suspect classification' ... (a) classification based on alienage is 'inherently suspect' and subject to close judicial scrutiny." Plaintiffs' Supplemental Argument and Authorities, at 4.

Assuming, arguendo, that D.O.'s who are citizens of the United States have standing to make this argument, and that a strict scrutiny standard applies, the argument nevertheless fails because the classifications are, beyond question, not based on alienage, but are based upon the locality of the education received. Substantial numbers of Americans attend medical schools abroad, just as some foreigners attend medical schools in the United States. There is no evidence in the record suggesting that foreign citizens who have attended medical schools abroad receive preferential licensing when compared with Americans who have attended medical schools abroad. ⁴

Plaintiffs first attack Texas' licensing scheme on grounds that it denies equal licensing treatment to persons similarly situated. They claim the provision requiring an applicant for an M.D. license to possess an M.D. degree is facially invalid because persons receiving D.O. degrees receive the same training and education as persons granted M.D. degrees. The parties have conceded that none of the evidence before the Court indicates that D.O.'s are more or less competent to practice the healing art.

According to the plaintiffs:

The study of "osteopathy" began in the nineteenth century as a unique approach to the healing art, using as its basic tenet the theory that the musculoskeletal system played an integral role in the overall health of human beings, and through a system of manipulative methodology, successful treatment could be achieved.

In the years since the inception of this theory, schools of osteopathy were founded relying upon this basic tenet, and shunning the use of surgery or drugs in health care.

Argument and Authorities, at 5. However, there is at present:

... no substantial difference between accredited medical schools irrespective of the terminology of the degree conferred except that students attending medical schools conferring the degree "Doctor of Osteopath" are required to take and be examined in several courses in manipulative therapy.

... Irrespective of the terminology of the degree conferred, all accredited medical schools have substantially the same curriculum and utilize the same texts.

Stipulations, at 2.

Yet, the Court finds there is a difference in the education received by D.O.'s and M.D.'s.

Physicians who have attended schools granting D.O. degrees, unlike those who attended schools...