State Bd. of Medical Examiners v. Jordan

Citation92 Wash. 234,158 P. 982
Decision Date17 July 1916
Docket Number13044.
PartiesSTATE BOARD OF MEDICAL EXAMINERS v. JORDAN.
CourtUnited States State Supreme Court of Washington

Department 2. Appeal from Superior Court, King County; Walter M. French Judge.

Proceedings before the State Board of Medical Examiners for the revocation of the license of J. Eugene Jordan. From a judgment reversing its order revoking the license, the Board appeals. Reversed, with instructions.

Holcomb J., dissenting.

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

Walter S. Fulton and Dorr & Hadley, all of Seattle, for respondent.

BAUSMAN J.

The Medical Board appeals from the superior court's reversal of its order revoking the license of Jordan. The statutory provisions involved are section 8397 et seq., Rem. & Bal. Code, and more particularly that section which, defining unprofessional conduct, includes:

'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.' Section 8397 1/2.

The complaint alleged as follows:

'That the defendant is a licensed practitioner of medicine and surgery under the laws of the state of Washington; that he advertised his medical business in the Seattle Daily Times of Wednesday, October 1, 1913, and in sundry other editions of said Seattle Daily Times during the latter part of 1913 and the year 1914; that such advertising of his medical business was such as 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, in which respect defendant has been guilty of unprofessional conduct.'

The lower court confined the board to the named advertisement of October, excluded its numerous questions to Jordan as its witness, intended to bring out his ignorance of diseases that he advertised to cure, and at the same time permitted Jordan to show alleged specific cures. The advertisement which the court did admit is as follows:

'Bright's Disease Cured.
'Another Case of the So-Called Incurable Disease Completely Cured--This Did Not Happen in Central Africa, but Right Here in Seattle--Do You Know of Any Other Physician Who Can Do It?
'September 24, 1913.
'I was taken down with acute Bright's Disease last February and was not expected to recover. I became so dropsical that I could hardly move in bed. My condition became so desperate that the doctors in attendance held out no hope. Dr. J. Eugene Jordan was suggested as a last resort and as I had nothing to lose and everything to gain, I started to use his Glandular Remedies. I began to mend at once and in three months not a particle of albumen could be found where before it was loaded with it. I gained back the thirteen pounds that I had lost and my kidneys are as good as they were before.
'[Signed] Ad Goings.
'8016 Twelfth Avenue Northwest.
'The above testimonial, like the many others which have appeared in this journal, demonstrate the thoroughness and permanency of Dr. J. Eugene Jordan's cures of Tuberculosis, Asthma, Anaemia, Blindness, Bright's Disease, Ulceration of the Bones, Chronic Catarrh, Chronic Inflammation of the Bladder, Deafness from Paralysis of the Auditory Nerves, Diabetes, Prolapsus Uteri, Dropsy, Chronic Dyspepsia, Epilepsy, Epithelioma (skin cancers), Chronic Erysipelas, Chronic Gastralgia, Hard Lumps in Breast, Heart Disease (including Heart Leakage), Hip Diseases, Infantile Paralysis, Insanity, Jaundice, Rheumatism, Meningitis, Chronic Neuralgia, Paralysis, Locomotor Ataxia, Sciatica, Senile Gangrene, Spinal Curvature, Strabismus, St. Vitus' Dance, Ulcerationof Stomach or Bowels and most other so-called incurable St. Vitus' Dance, Ulceration of Stomach
'Dr. J. Eugene Jordan is a fully accredited physician under the laws of the state of Washington and is an ex professor of Chemistry and Toxicology of the Hahnemann College and Hospital of Chicago, Ill. He has practiced in Seattle continuously for the past 28 years.
'There being a number of Doctors Jordan in Seattle, it is well to bear in mind the full name and address of Doctor J. Eugene Jordan, 619 1/2 First Avenue, Seattle. Office hours, 9 a. m. to 8 p. m.; Sundays, from 2 p. m. to 6 p. m. Consultation free. Watch each Sunday Times for remarkable cures.'

The respondent to support the judgment argues, first, that the complaint is insufficient; second, that the statute is invalid; third, that the testimony by defendant's patients and himself showed that he had reasons for belief in his advertisements from a fair percentage of cures, and that no patient is shown to have been harmed. The appellant board combats all these positions, and claims at least a new trial because the court should have admitted the other advertisements as well as the rejected questions.

While we deem the lower court wrong in both the last-named particulars, we see no occasion for a mere new trial, because upon the record as it stands the case can be decided now. We will discuss it in the order of the contentions made by respondent.

1. This complaint was sufficient. The statute has wisely allowed defendant a first hearing before brothers in his own science. To say that such persons, unacquainted with the law, must conduct these examinations or invite them with legal nicety will not do. We so held even on misdemeanor for practicing without a license. State v. Greiner, 63 Wash. 46, 114 P. 897. The courts uphold the less technical practice. 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.

Defendant's rights were easily protected either by demand for particulars or by motion to make more definite. Moreover, eleven days before trial in the superior court, the board voluntarily furnished a list of all the publications.

The case was not criminal by its nature. The Legislature had an undoubted right to classify this proceeding, and it did so in section 8399, by providing that appeals from the board should stand for trial 'in all respects as ordinary civil actions, and like proceedings be had thereon.' In Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563, a statute was upheld which, even as to previously licensed practitioners, required examination or approval by the board, the defendant vainly contending that this retroactive proceeding of forfeiture was quasi criminal. It was also held that even the right of trial guaranteed in 'due process of law' does not involve the right of a judicial trial. See, also, Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002. In State v. Snook, 78 Wash. 671, 139 P. 764, we held disbarment proceedings to be noncriminal.

2. As to the constitutionality of these statutes, this court has frequently affirmed it from State v. Carey, 4 Wash. 424, 30 P. 729, down to State v. Pratt, 80 Wash. 96, 141 P. 318. Nearly every question has been met, including that of class legislation and of delegation of legislative authority.

Respondent presses, though, an uncertainty in the third subdivision of the section now involved. It furnishes, he says, no standard by which either board or court can determine what advertisement offends, in support of which he cites Matthews v. Murphy, 63 S.W. 785, 23 Ky. Law Rep. 750, 54 L. R. A. 415; Hewitt v. Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750; Czarra v. Medical Board, 25 App. D. C. 443. None of these cases, however, cover the present situation. The statutes were clearly less particular than ours. That of Kentucky provided that the board might revoke the practitioner's certificate if he were 'guilty of grossly unprofessional conduct of a character likely to deceive or defraud the public.' It is plain that here no acts whatever were specified and any offense from advertisement was debatable. Our own statute, far more specific, enumerates seven things that constitute unprofessional conduct. The one relating to advertisement cannot well be made more specific. To describe in express terms a faulty advertisement is practically to instruct the defendant how to evade it, and as to the limitless variations of language, symbols, and verbal or pictorial allurements, no human ingenuity could possibly anticipate and forestall them. The Supreme Court of Kentucky, in Forman v. Board, 157 Ky. 123, 162 S.W. 796,

has, moreover, clearly relaxed the severity of the earlier decision.

As to the California or Hewitt Case the court did find insufficient a clause against advertising, which was as follows: 'All advertising of medical business in which grossly improbable statements are made.'

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