State ex rel. Collet v. Scopel

• Decision Date: 08 September 1958
• Docket Number: No. 46212,No. 2,46212,2
• Citation: 316 S.W.2d 515
• Parties: STATE of Missouri ex rel. William A. COLLET, Prosecuting Attorney of Jackson County, Missouri, Plaintiff-Appellant, v. William SCOPEL, Defendant-Respondent
• Court: Missouri Supreme Court

Page 515

316 S.W.2d 515

STATE of Missouri ex rel. William A. COLLET, Prosecuting Attorney of Jackson County, Missouri, Plaintiff-Appellant, v. William SCOPEL, Defendant-Respondent.

No. 46212.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1958.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 13, 1958.

William A. Collet, Pros. Atty., in and for Jackson County, and Joe E. Burris, Kansas City, for appellant.

Thomas M. Howell, Kansas City, Byron O. Dye and Edwin H. White, Kansas City, of counsel, for respondent.

BARRETT, Commissioner.

This is a civil action in equity instituted on behalf of the State by the Prosecuting Attorney of Jackson County, acting in his official capacity [Section 56.060], ¹ to enjoin the unlicensed practice of medicine by defendant, William Scopel, on the ground that such practice is 'a continuing public nuisance detrimental to the public welfare and dangerous to the public health, contrary to and against the public policy of the State.' Upon this appeal by the State from the decree of the trial court dissolving the temporary restraining order theretofore issued and dismissing plaintiff's petition, the fact that the State is a party to the action [State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665] invokes our appellate jurisdiction under Article 5, Section 3, Mo.Const. of 1945, 2 V.A.M.S.

Defendant admittedly has neither sought nor obtained a license to practice medicine in this State [see Sections 334.010, 334.030 and 334.040, as amended Laws of 1951, p. 727], but his contention is 'that he is a naturopath and as such does not practice medicine and that his business is not subject to the licensing or control of any board or agency under the laws of Missouri.' Defendant's loose definition of naturopathy is 'a system of medicine that utilizes properties required by the body to bring about a natural reaction--that is as near as possible that we define ourselves.' (All emphasis herein is ours.) Illustrative of the statutory definitions of naturopathy, in those states in which that system of medicine has been recognized by legislative enactment, is the Florida definition in Section 462.01, F.S.A.: '* * * (T)he use and practice of psychological, mechanical and material health sciences to aid in purifying, cleansing and normalizing human tissues for the preservation or restoration of health, according to the fundamental principles of anatomy, physiology and applied psychology, as may be required. Naturopathic practice employs, among other agencies, phytotherapy, dietetics, psychotherapy, suggesto-therapy, hydrotherapy, zone therapy, bio-chemistry, external applications electrotherapy, mechanotherapy, mechanical and electrical appliances, hygiene, first aid, sanitation and heliotherapy * * *.' Although naturopathy is sometimes said to be a drugless system of healing, the South Carolian Naturopathic Physicians Association alleged, in an action for a declaratory judgment, 'that it is essential in the practice of their profession * * * to administer and prescribe such drugs' as opium and its derivatives, aminopyrine, barbiturates and penicillin [Dantzler v. Callison, 1955, 227 S.C. 317, 88 S.E.2d 64, 66], and licensed naturopaths in Florida stubbornly and successfully sought the right to prescribe narcotic drugs. State Dept. of Public Welfare v. Melser, Fla., 69 So.2d 347, 353; In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742. See also Perry v. Larson, 5 Cir., 104 F.2d 728.

Defendant in the case at bar operates at 1410 Central in Kansas City, Missouri, 'a school of naturopathic medicine' which he calls the American College of Naturopathic Medicine and Laboratory Technic. At the same address, defendant has 'my clinic' which, as he says, 'I must have' in connection with the 'school.' According to defendant, his 'institution is under the supervision of a medical director' and 'we have five doctors there all the time.' Neither the 'medical director' nor any of the 'five doctors' testified, but defendant identified the medical director as M. A. Elstein, M.D., 'an old gentleman' who 'spends most of the time there.' Defendant is 'part of the clinic' and maintains a large office there, with his name inscribed on the door as 'Dr. William Scopel, N.D., Dean Diagnosis.' His office furnishings include 'a standard examination table * * * used by all physicians' and a number of glass cases containing surgical instruments and what appear to be 'pills and other medicine.' One witness, a practical nurse, recognized in defendant's office specula for vaginal examinations and instruments for swabbing wounds and pulling sterile gauze from containers, and defendant readily admitted his use of a stethoscope and 'a cardiograph machine'--'I had the first one ever made.'

The insistence of defendant, whose practice obviously was not drugless, that 'everything that was prescribed from that clinic that required the prescription by a physician, it was so done by said physician' finds no independent support in the record. On the contrary, the evidence persuasively indicates that defendant, in fact, prescribed although he sometimes did so over the signature of his 'medical director.' After one female patient (gathering evidence for prosecution of this suit) had been examined by defendant, he gave her a prescription for phenobarbital bearing Elstein's signature. When cross-examined concerning this prescription (before the patient had testified or had been identified), defendant first said that 'I handed it to him (the patient), but it was written by the medical director; he was right there when I gave it,' then surmised 'I suppose he was,' and finally conceded 'I don't recollect.' When recalled to the stand after the patient had testified, defendant remembered that Elstein 'was in the next room and, at the time I could not take him before a patient, because he was unable to come * * * his urine and his odor was unpresentable,' so 'I took the finding of the diagnosis to Dr. Elstein, and he wrote this prescription which I handed to this woman, according to the diagnosis that I gave to him.'

When this same patient returned to defendant's office about ten days later, 'he asked me (the patient) some questions and took my blood pressure and listened to my heart and told me I was in perfect condition'; but, notwithstanding the patient's 'perfect condition,' defendant gave her a small box labeled 'Caroid and Bile Salts with Phenolphthalein'--'Physician's Sample,' which contained three brown tablets--'a laxative to take in the evening,' and a dark bottle filled with a liquid and bearing a label with the handwritten direction, '(1) teaspofull after meal.' Defendant said that the brown tablets actually were 'Feenamint, sent out by the company and everyone that comes into my clinic I give them one'; and, in response to the incredulous query, 'whether they need it or not,' defendant blandly assured his cross-examiner, 'yes, a good physic doesn't hurt anyone.' According to defendant, the bottle of liquid was 'merely a tonic made up of licorice and iron and stuff like that * * * more or less of a fruit substance,' which 'anybody can take * * * anytime' and which is beneficial 'in general for everything.' The patient paid defendant $5 on each visit.

Defendant recognized, as having 'been in my office,' a small bottle bearing the typewritten label 'Acetanalid--3 Grain' which, however, contained (so he said) 'pure aspirin.' He thought that he had given the bottle and its contents to a female patient from Independence, who 'come in with migraine headaches, and the way she acted and the line that she told me (defendant), I realized she was someone who a thousand times a year were sent to me, and I took the aspirin out of that bottle.' Defendant also identified on crossexamination an unsigned prescription blank on which he had written 'Permajute of Potassian Cristal.' Insisting that 'it is properly spelled,' he conceded that permanganate of potash crystals were intended, agreed that 'evidently I have given it to someone (unidentified in the record) a long time ago,' but could not say for what purpose he might have recommended the use of such crystals--'permanganate is used for a million and one things.'

Clarence E. Holt, a naturopath called as a witness for defendant, had occupied an office adjoining that of defendant. Holt bluntly stated that 'all naturopath doctors are specialists in the laws of nature to take care of any disease in the human body,' definitely asserted that naturopaths 'diagnose conditions of the human body and disease'--'that is part of naturopath,' and readily agreed that it likewise is 'part of naturopathy, certainly,' to prescribe treatment for any condition found. Then, in response to an inquiry whether 'you know of your own knowledge, by reason of your office association with him * * *, he (defendant) did do those things,' Holt answered, 'I have reason to think so.'

Among the exhibits, we find (1) defendant's 'main book,' a paper-bound pamphlet of fifty-four pages titled 'Scopel's Natural Antibody Theory,' written by defendant, 'Degrre N.D., M.D.--Dean of the American College of Natural Medicine and Laboratory Technic, Kansas City, Missouri,' and copyrighted, revised and reprinted in 1952, (2) an eight-page pamphlet bearing the same title, with an author's foreword by 'William Scopel, M.D.' and (3) a tenpage pamphlet of invective captioned 'It Happened To Me' which identifies the author as 'Dr. Wm. Scopel * * * Discoverer of Natural Immunization, Degree N.D., M.D., Registered to practice medicine in the State of Oklahoma,' and 'Dean of the American College, etc.' Defendant caused the first two pamphlets to be distributed 'to the people engaged in the field of healing ' and the last one 'to the public.'

It is clear that, for protection of the public health and welfare, the legislature is empowered to regulate the practice of medicine in such manner as it reasonably may...