State Bd. of Medical Examiners v. Macy

• Decision Date: 29 August 1916
• Docket Number: 13151.
• Citation: 92 Wash. 614,159 P. 801
• Parties: STATE BOARD OF MEDICAL EXAMINERS v. MACY.
• Court: Washington Supreme Court

159 P. 801

92 Wash. 614

STATE BOARD OF MEDICAL EXAMINERS v. MACY.

No. 13151.

Supreme Court of Washington

August 29, 1916

Department 2.Appeal from Superior Court, King County; R. B. Albertson and J. I. Ronald, Judges.

Proceeding before the State Board of Medical Examiners for revocation of license of M. C. Mach, and osteopath.From a judgment affirming decision of the Board revoking the license, Macy appeals.Affirmed.

Carl J. Smith, of Seattle, for appellant.

W. V Tanner, Atty. Gen., and Howard Waterman, Asst. Atty. Gen for respondent.

PARKER J.

This is an appeal from a judgment of the superior court for King county, affirming the decision of the state board of medical examiners, revoking the license of appellant, M. C. Macy, as a licensed osteopathic physician practicing his profession in Seattle.

It is first contended by counsel for appellant that the complaint filed against him, and upon which the action for the revocation of his license was tried before the state board of medical examiners, and thereafter upon appeal in the superior court, does not state facts constituting cause for the revocation of his license.There is nothing in the record before us indicating that the sufficiency of the complaint was in any manner challenged before the state board of medical examiners or in the superior court, so we conclude that its sufficiency is challenged in this court for the first time.This fact calls for a most liberal construction of its allegations looking to the sustaining of the judgment even if the proceedings should be regarded as purely judicial.Mosher v. Bruhn,15 Wash. 332, 46 P. 397;Walsh v. Meyer,40 Wash. 650, 82 P. 938;Johnson v. Ryan,62 Wash. 60, 112 P. 1114.

The complaint, after charging that appellant'advertised his medical business' in certain named newspapers in Seattle and Tacoma upon certain specified dates, charges:

'That such advertishing of his medical business was intended and has a tendency to deceive the public and impose upon credulous and ignorant persons and so be harmful and injurious to public morals or safety.That such advertisements consist in part in advertising of medicine or of means whereby the monthly periods of women can be regulated, or the menses re-established if suppressed.'

This quoted portion of the complaint follows in substance the language of subdivisions 3 and 4 of section 8397 1/2, Rem. & Bal.Code, defining unprofessional conduct for which the licenses of osteopaths and other physicians may be revoked by the state board of medical examiners.The argument is, in substance, that the complaint is defective in that it does not set out or describe with sufficient certainty the advertisements charged as the unprofessional conduct on the part of appellant.It might well be argued that this, in any event, would only entitle appellant to have the complaint against him made more specific and certain or that he be furnished a bill of particulars before trial, and that, having proceeded to trial before the state board of medical examiners without insisting upon this right it was waived.However that may be, when the case was pending upon appeal in the superior court, where, in accordance with section 8399, Rem. & Bal.Code, it was tried de novo, a stipulation was entered into between counsel upon both sides, before the trial in the superior court, that certain specified advertisements, copies thereof being made a part of the stipulation, which appeared upon their face to have been published by appellant in certain named Seattle and Tacoma newspapers, might be introduced in evidence upon the trial in the superior court, subject only to objections as to their 'competency and materiality.'The record before us renders it apparent that this stipulation served all the purposes of a bill of particulars, and advised appellant of the specific charge against him as much as any language of the complaint, standing alone, could possibly have done.It seems quite clear to us that he cannot now complain of the insufficiency of the complaint, and that in no event can the complaint be said to be so defective as to be insufficient to support the judgment.It seems to be well settled by the authorities that proceedings of this nature are not purely judicial, in the sense that they must be attended by the strict rules of pleading and procedure incident to actions at law.Meffert v. Packer, 66 Kan. 710, 72 P. 247, 1 L. R. A. (N. S.) 811;Munk v. Frink,81 Neb. 631, 116 N.W. 525, 17 L. R. A. (N. S.) 439;State Medical Board v. McCrary,95 Ark. 511, 130 S.W. 544, 30 L. R. A. (N. S.) 783, Ann. Cas. 1912A, 631;State v. State Board of Medical Examiners,34 Minn. 387, 26 N.W. 123.

Among the seven definitions of acts declared to constitute unprofessional conduct for which a practitioner's license may be revoked, found in section 8397 1/2, Rem. & Bal.Code, is the following:

'Third.All advertising of medical business which is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons, and so be harmful or injurious to public morals or safety.'

This portion of the statute, it is contended in appellant's behalf, is unconstitutional, in that it is so vague and uncertain as to leave the acts constituting unprofessional conduct, attempted to be so defined, subject to the mere personal opinion of the members of the state board of medical examiners before whom the question of the unprofessional conduct is to be tried, and furnishes no standard for the guidance of the board in determining what is unprofessional conduct so attempted to be defined by the statute.This contention touches a question with reference to which the courts are not in entire harmony, but we are constrained to adopt the view that this definition of unprofessional conduct is not void or unconstitutional because of its vagueness or uncertainty, in harmony with what we regard as the weight of authority and better reason, in view of the fact that this is not a criminal statute, enacted with any purpose of imposing penalties as such.

In State ex rel. Williams v. Purl,228 Mo. 1, 128 S.W. 196, there was involved the revocation of a license of a dentist by the state board of dental examiners upon the ground of unprofessional conduct in the publication of advertisements of his business.The statute invoked by the prosecution was assailed by defendant's counsel as being unconstitutional, in that it merely defined the alleged unprofessional conduct by the words 'fraud, deceit or misrepresentation in the practice of dentistry.'The statute was held constitutional, and not void for uncertainty. it seems plain to us that the third subdivision of section 8397 1/2, above quoted, is no less certain than these words under consideration by the Missouri court.The words of our statute, 'advertising * * * which is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons,' surely are no less certain as defining unprofessional conduct.

In State Medical Board v. McCrary,95 Ark. 511, 130 S.W. 544, 30 L. R. A. (N. S.) 783, Ann. Cas. 1912A, 631, the same conclusion was reached by the court, having under consideration alleged unprofessional conduct of a physician defined by the statute as 'publicly advertising special ability to treat and cure chronic and incurable diseases.'

In State v. State Medical Examining Board,32 Minn. 324, 20 N.W. 238, 50 Am. Rep. 575, andState v. State Board of Medical Examiners,34 Minn. 391, 26 N.W. 125, unprofessional conduct warranting the refusal to issue or to revoke a license, defined by the statute as 'unprofessional or dishonorable conduct,' was recognized as being constitutional.

In Berry v. State(Tex. Civ. App.)135 S.W. 631, the statutory words 'other grossly unprofessional or dishonorable conduct of a character likely to deceive or defraud the public,' following specified unprofessional acts, was held a sufficient statutory specification of conduct warranting revocation of licenses, and not void for uncertainty.In view of the element of deceit in our statutory definition of unprofessional conduct, the following observations of the Texas court in that case is of interest here:

'The terms 'unprofessional' or 'dishonorable' conduct, used in the law of 1907, are qualified and modified by the language 'of a character likely to deceive or defraud the public,' to distinguish them from acts that are unprofessional or dishonorable under the code of ethics prescribed by the honorable profession of medicine that would not, directly, at least, react to the disadvantage of the public, such as not advertising, of not entering into a consultation with an attending physician without his consent, and other acts that go to form and constitute the code of the honorable and upright practitioner of medicine.The law leaves the enforcement to the medical profession of its rules of eithics, and, however conducive they may be to creating and preserving the high standard of one of the most important and nonored professions in the world, takes no cognizance of them, and does not seek to enforce them, except in so far as their infraction may infringe upon the rights and welfare of the public.But when the unprofessional conduct of the member of the medical profession is of such a character as to deceive or defraud the public, then the law denounces such conduct, and strips the offender of the means which make it possible to impose upon the credulous and unwary.Such unprofessional conduct would necessarily be closely allied to crime, because it is defrauding the public, and yet it was never intended to confine such conduct to the kind or class of offense that is denounced by the Criminal Code of Texas.That is provided for in a different

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