State Bd. of Registration for the Healing Arts v. Giffen, 64132

Decision Date31 May 1983
Docket NumberNo. 64132,64132
Citation651 S.W.2d 475
PartiesSTATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Appellant, v. Lawrence E. GIFFEN, D.O., Respondent.
CourtMissouri Supreme Court

David Brydon, Stephen G. Newman, Jefferson City, for appellant.

Dale C. Doerhoff, Jefferson City, for respondent.


The question in this case is whether appellant's practice of licensing as doctors of medicine (M.D.'s) those foreign medical graduates whose medical degrees do not reasonably translate into that designation denies doctors of osteopathy (D.O.'s) their right to equal protection of the laws. For the reasons that follow, we hold that it does not.


Osteopathy is a theory of medicine. It differs from the more traditional concept of allopathic medicine in that it places a greater emphasis on the role that the structural harmony of the human body plays in the prevention and cure of disease. Underlying the theory of osteopathy are the principles that the body is an integrated whole in which no part functions independently; that because of a complex system of checks and balances the body tends to be self-regulating and self-healing in the face of stress and disease; that the neuromusculoskeletal system is important in the body's continuous effort to resist and overcome illness and disease; and that the forces of the nervous and circulatory systems must be properly integrated in order for all body organs and systems to function adequately. As originally envisioned, 1 "osteopathy was chiefly a drugless, nonsurgical therapy, with emphasis on physical manipulation." Oliver v. Morton, 361 F.Supp. 1262, 1264 (N.D.Ga.1973). The manipulative procedures were developed "to correct structural abnormalities and restore body harmony, on the theory that given structural normality, the body had its own resources to combat disease." 1 Lawyers' Medical Cyclopedia § 1.19, at 39 (3d ed. 1981).

Today the use of drugs and surgery has become "more and more [an] important part of osteopathic practice" so that the differences between osteopathic and allopathic schools of medicine are "minor." Oliver 361 F.Supp. at 1264. 2 That is not to imply, however, that the differences are insignificant. One important difference lies in the instruction given in manipulative theory and technique. The American Osteopathic Association, the sole accrediting authority for the fourteen schools of osteopathic medicine, 3 requires for accreditation that osteopathic schools provide within their curricula mandatory courses in osteopathic philosophy and concepts and in manipulative theory and treatment. Consequently, as the parties have stipulated, the "knowledge of manipulative therapy is available as a diagnostic and therapeutic [technique] for any osteopathic physician to apply." The same is not true for graduates of allopathic medical schools. Osteopathic manipulative theory and treatment are not taught at allopathic schools, although some allopathic schools now offer somewhat similar courses under the description of physical therapy or biomechanics.


Respondent received his D.O. degree from the Kirksville College of Osteopathy and Surgery, 4 a medical school approved and accredited by the American Osteopathic Association, in 1945. He does not hold an M.D. degree. 5 Respondent is licensed as a D.O. to practice medicine in Missouri, and he maintains an office in Jefferson City. For approximately four years before commencement of the present litigation, respondent, knowingly in violation of § 334.047(2), RSMo 1978, 6 used the designation "M.D.," rather than "D.O.," in the telephone directory, on his office door, and on his stationery, statements, prescription order blanks, and all other documents. In short, according to his own testimony, respondent universally represented himself to be an M.D. rather than a D.O.

Appellant is the state agency charged with "registering, licensing and supervising all physicians and surgeons" in Missouri. § 334.120, RSMo 1978; § 334.120(1), RSMo Supp. 1982. In 1979 appellant brought this action to enjoin respondent from using the M.D. designation and to compel him to use the D.O. designation for all purposes. In his answer respondent alleged as an affirmative defense that § 334.047 was unconstitutional as applied because appellant's policy of licensing as M.D.'s foreign medical graduates not granted that degree breached respondent's right to equal protection of the laws under U.S. Const. amend. XIV, § 1, and Mo. Const. art. I, § 2. Respondent also alleged that § 334.047 was unconstitutional because it constituted a special law prohibited by Mo. Const. art. III, § 40(28). In addition, respondent filed a counterclaim in which he reasserted his constitutional allegations and requested the trial court to enjoin appellant from licensing as M.D.'s those foreign medical graduates not entitled to use that designation by reason of their diplomas from medical schools approved and accredited by the American Medical Association.

The trial court ruled for appellant on its petition to enjoin respondent from using the designation "M.D." Respondent has not appealed that decision. The trial court ruled for respondent on his counterclaim, finding that appellant's licensure of foreign medical graduates whose degrees do not translate into "M.D." violates respondent's right to equal protection of the laws. It enjoined appellant from licensing as an M.D. any medical graduate whose diploma confers neither that degree nor one that "reasonably translates to 'M.D.' or 'Doctor of Medicine,' " and it ordered appellant to recall the M.D. licenses of those physicians not entitled to such and to issue them new licenses consistent with the terms of the decree. It is that portion of the ruling that has been appealed. The case was transferred prior to opinion by the Missouri Court of Appeals, Western District, on the jurisdictional ground that because respondent challenges the constitutionality of a state statute, the case is within the exclusive appellate jurisdiction of this Court. Id. art. V, § 3. We review the case as if it were on original appeal, Rule 83.09, and we reverse that portion of the judgment that has been appealed.


Respondent's equal protection complaint rests upon the fact that appellant allows use of the M.D. designation by foreign medical graduates who do not possess an M.D. degree but disallows its use by D.O.'s such as respondent who similarly do not possess an M.D. degree. 7 The record contains numerous exhibits, considerable testimony, and the stipulation of the parties regarding the educational qualifications of graduates of foreign and domestic allopathic medical schools vis-a-vis those of graduates of osteopathic medical schools. It is unnecessary to set forth that evidence here. Respondent has not appealed the trial court's ruling that he must designate himself a D.O. rather than an M.D. and therefore does not challenge the distinction between graduates of osteopathic schools and graduates of domestic allopathic schools that is codified in § 334.047(1)-(2). 8 He challenges only the practice of allowing foreign medical graduates to employ the M.D. designation. As regards foreign graduates it suffices to say that every physician licensed in Missouri must pass the same examination or one equivalent to it. 9 Respondent does not, and indeed could not, contend that appellant licenses as M.D.'s foreign medical graduates who have not demonstrated their competence to practice medicine. Respondent's claim is simply that it is unconstitutional to distinguish between similarly qualified graduates of osteopathic schools and foreign medical schools.


The first step in addressing respondent's equal protection claim is to determine whether the challenged classification "operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938). If the classification neither burdens a suspect class nor impinges upon a fundamental right, the only issue to be considered is whether the classification is rationally related to a legitimate state interest. Friedman v. Rogers, 440 U.S. 1, 17, 99 S.Ct. 887, 898, 59 L.Ed.2d 100 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976); State v. Bolder, 635 S.W.2d 673, 682 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983).

No fundamental right is at stake here. The Supreme Court has expressly declined to decide whether doctors have a constitutional right to practice medicine, Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873-74, 49 L.Ed.2d 826 (1976) (plurality), but it has said that in any event "there is no right to practice medicine which is not subordinate to the police power of the States," Lambert v. Yellowley, 272 U.S. 581, 597, 47 S.Ct. 210, 214, 71 L.Ed. 422 (1926). Similarly, this Court has said that "there can be no such thing as a vested right in the practice of medicine." State v. Davis, 194 Mo. 485, 501, 92 S.W. 484, 489 (1906). Any right there might be to practice medicine certainly does not fall within the high category of rights held to be fundamental, such as freedom of speech and freedom of the press, Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1983), freedom of religion, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), the right to vote, Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 1381-82, 12 L.Ed.2d 506 (1964), and the right to procreate, Skinner v. Oklahoma, 316 U.S. 535, 536, 62 S.Ct. 1110, 1111, 86 L.Ed. 1655 (1942). The practice of medicine therefore is...

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