O'Neil v. State

• Decision Date: 12 December 1905
• Citation: 90 S.W. 627
• Parties: O'NEIL v. STATE.
• Court: Tennessee Supreme Court

90 S.W. 627

O'NEIL v. STATE.

Supreme Court of Tennessee.

December 12, 1905.

Error to Criminal Court, Hamilton County; M. M. Allison, Judge.

H. Gibson O'Neil was convicted of practicing medicine and surgery without a license, and brings error. Affirmed.

Pritchard & Sizer, for plaintiff in error. Attorney General Cates, Brown & Spurlock, and H. P. Fry, for the State.

McALISTER, J.

The plaintiff in error was convicted of practicing medicine and surgery in the county of Hamilton without having first procured a certificate of license from the state board of medical examiners, as required by chapter 78, Acts of the General Assembly of the state of Tennessee, entitled "An act to regulate the practice of medicine and surgery in the state of Tennessee, and to define and punish offenses committed in violation of this act," etc. Acts 1901, p. 115, c. 78.

The court thereupon assessed a fine of $25, together with the costs of the case, against the defendant, from which judgment he appealed, and has assigned errors.

The plaintiff in error relies on two assignments of error for a reversal of the judgment below, which are as follows: (1) That his professional business is not within the purview of the statute, for the reason that he is an optician within one of the two recognized definitions of that term, and is therefore expressly excepted from the operation of the statute. (2) Conceding that his business is comprehended by the statute, as applied to him, said statute is unconstitutional for two reasons: First. His method of practice is not such as it is within the power of the Legislature to regulate, restrict, or prohibit. Second. The regulation and requirements of the act, as applied to his methods of practice, are arbitrary and unjust, because his business does not require the qualifications prescribed by the statute for those undertaking to practice medicine and surgery.

The facts presented on the trial of the case in the court below are practically undisputed and embrace the following salient points: The plaintiff in error opened up an office in the city of Chattanooga, with all the arrangements necessary for the treatment of his patients. According to the testimony, the plaintiff in error would first subject his patients to a careful examination, including a microscopic test of a drop of blood taken from some part of the patient's body. He would then determine, from his diagnosis, the nature of the patient's ailment and whether or not it would require his treatment.

It is shown in the record that the method of treatment is practically uniform in all cases. "The patient is denuded of clothing and placed in a closed cabinet, and his body is thereupon subjected to the rays of two large electric arc lights, one being located in front of his body, and one at the back. This treatment is continued for about 30 minutes at each sitting, and then the patient, who is by this time in a profuse perspiration, is taken into another room and rubbed off, after which he goes about his business. In addition to this general treatment, a local application of the rays to the parts specially affected is made in some cases."

In addition to prescribing the light treatment as the means of treatment for his patients, the defendant gave medicines of various kinds, kept an account at a drug store where medicines were purchased, gave prescriptions in the form of orders on the store of R. J. Miller, advised several of his patients to take certain patent medicines as an auxiliary to his treatment, and was addressed and known as Dr. O'Neil.

The record shows that defendant was accustomed to make a uniform charge of $100 in each case, for the application of the light treatment, but made no charge for medicines prescribed; hence he claimed that prescriptions were no part of his treatment.

Defendant did not deny that he had held himself out to the world as professing to treat disease, and it was not denied that defendant was practicing his profession without having received a license from the state board of medical examiners.

The plaintiff in error denominated his treatment as "the functional ray treatment." The philosophy of his treatment, as formulated by his counsel, is that the green and yellow rays of the spectrum possess in a greater degree than the other rays the power of building up and strengthening the tissues of the body and stimulating inactive organs by acting directly on the blood. He claims that by the use of chemicals he manufactures a carbon, the burning of which produces a light in which the yellow and green rays predominate, and from which the violet and ultra-violet' rays, which are destructive to the tissues, are largely eliminated. "And it is a fact," continues the learned counsel, "well recognized among scientific men, that the application of such a light, in a certain class of diseases, and especially in some that cannot be reached by ordinary medical methods, is highly beneficial."

It is claimed that the defendant's method of treatment differs from that of the ordinary physician, in that it is a light treatment exclusively, and the other doctors in Chattanooga have never used any method of light treatment except the "Finsen or X-Rays, the violet, germ-destroyer rays."

The question then propounded on the record is whether these facts bring the defendant's business within the purview of chapter 78, p. 115, Acts 1901. The first section of that act provides that "no person shall practice medicine, in any of its departments, within this state, unless and until such person shall have obtained a certificate of license from the state board of medical examiners," created by the act. The eighteenth section imposes a fine of not less than $10 nor more than $25 on any person practicing medicine or surgery in the state without having complied with the requirements of the act. Section 19 is as follows: "That any person shall be regarded as practicing medicine within the meaning of this act, who shall treat, or profess to treat, operate on, or prescribe for any physical ailment, or any physical injury to, or deformity of another: Providing that nothing in this section shall be construed to apply to * * * veterinary surgeons, or osteopaths, not giving or using medicine in their practice, or to opticians, or to Christian scientists."

As already stated, the plaintiff in error claimed that his business came within the term "optician," specially excluded from the operation of the act. On this subject, the court charged the jury that `"an optician is a maker of optical instruments, and applies to a man that fits glasses to the eye."

The court then stated it was not necessary to charge the jury further on the question of "an optician, because the facts don't justify it."

The court further instructed the jury as follows: "If you find that this defendant opened an office in the city of Chattanooga, and that parties * * * went to him for consultation or advice, that he made an examination of them, * * * that he diagnosed their case, stated what was wrong with them, and then prescribed for and treated them — in other words, if he stated he could cure them with his `functional ray treatment,' and that he placed them in a cabinet, and turned lights on them, and incidentally prescribed medicine and treated them in this way for their ailments — then the court charges you, * * * that he would come within the purview of this statute, and would be guilty under the law."

After the delivery of the general charge, counsel for the defendant submitted four requests for additional instructions, all of which were declined by the court.

The substance of the first two requests was that if the recommendation and administration of laxative and other similar remedies, by defendant, was only occasional and incidental, and not a part of his regular course of treatment, and no charge was made therefor, this would not of itself constitute practicing medicine within the meaning of the statute.

The third request was as follows: "If the defendant's method of treatment is based entirely on the principles of the science of light, then he would be an optician, within one of the definitions of that term, and would be excepted from the operation of the statute."

The jury, after being in consultation for some time, returned into the room, and one of the jurors stated to the court "that some of their number would like to be instructed as to the meaning or construction of the words `practicing medicine.' They want to know whether putting a patient into this device and applying the light to him would be construed as practicing medicine within the purview of this statute." Thereupon the court instructed the jury that "if the defendant made an examination of his patients, taking blood from the ear, and making a microscopical examination of the blood, and pronouncing what was wrong with him, and then treated him, by putting him in the cabinet and turning the lights on him, and attempting to perfect a cure in that way, that that would be such treatment as comes within the purview of this statute."

The first contention on behalf of the defendant is that he is an optician within the proviso of the statute, and counsel cite the Standard Dictionary as showing two recognized definitions of the term "optician": (1) One who makes or deals in optical instruments or eye-glasses; (2) One who is versed in optics. The term "optics," as defined by the Standard Dictionary, is "the science that treats of light and vision, the organs of sight, chromatics, and all that is connected with the phenomena of sight. It includes: (1) Geometrical optics; (2) physical optics, embracing (a) the undulatory theory, and the effects explained by it, as polarization, refraction, and interference; and (b) electrooptics, treating of the mutual relations of light and eletricity; and (3) physiological optics, treating of such phenomena as depends on bodily function or brain action.

As already seen,...