State ex rel. Medical Licensing Bd. of Indiana v. Stetina, 2-1084A297

• Citation: 477 N.E.2d 322
• Decision Date: 30 April 1985
• Docket Number: No. 2-1084A297,2-1084A297
• Parties: STATE of Indiana, ex rel. MEDICAL LICENSING BOARD OF INDIANA, Plaintiff- Appellant, v. Janice R. STETINA, Defendant-Appellee. * .
• Court: Court of Appeals of Indiana

Page 322

477 N.E.2d 322

STATE of Indiana, ex rel. MEDICAL LICENSING BOARD OF

INDIANA, Plaintiff- Appellant, v. Janice R. STETINA, Defendant-Appellee.

No. 2-1084A297 ^*.

Court of Appeals of Indiana,

First District.

April 30, 1985.

Linley E. Pearson, Atty. Gen. of Ind., John Emry, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

Janice R. Stetina, pro se.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

The State of Indiana, on behalf of the Medical Licensing Board of Indiana (State), sought to enjoin Janice R. Stetina (Stetina) from engaging in the unlicensed practice of medicine. From an adverse determination in the Marion Circuit Court, the State appeals. We reverse.

FACTS

Acting on a complaint filed with the Attorney General's Office, Patricia Alder (Alder) was assigned to investigate Stetina's activities. Alder, posing as an acquaintance of one of Stetina's patients, contacted Stetina. She complained of abdominal cramping, dry mouth, nervous tension, and stress. Stetina agreed to set up an appointment to examine Alder at a later date.

On March 29, 1984, Alder and William Smith (Smith), an Indiana State Police officer posing as Alder's husband, went to Stetina's home for the examination. Stetina first had Alder fill out two questionnaires. One sought general information. The second, entitled "Metabolic Classification Questionnaire," sought detailed information regarding Alder's physical and mental health. Its express purpose was to aid in determining what nutrients and supplements would best support Alder's metabolism. Stetina also examined Alder's eyes using an iridology chart. ¹ She told Alder From the information contained in the questionnaires filled out by Alder and the eye examination, Stetina was able to determine the causes of Alder's problems. She concluded that Alder's digestion was off, that she had a sugar problem, did not have enough Vitamin C or magnesium, tended to be anemic, and probably retained to much inorganic mineral sediment. Stetina was able to determine from her examination of Alder's eyes that she suffered from abdominal problems, back pain, poor circulation, and a stretched colon. She also suggested that Alder's abdominal cramps were caused by a slow electrical turnover which, when the pH changes, causes the body to neglect to throw off minerals.

she was looking for "clues" or "hints" because it was illegal for her to diagnose illness.

Armed with this information, Stetina proceeded to set out a course of treatment for Alder. First, she suggested that Alder submit to colonic irrigation. This procedure, which is very similar to an enema, is designed to flush out the inorganic mineral sediment which Alder had accumulated. Stetina informed Alder and Smith that she had performed over 300 colonic irigations on both adults and children. She also showed them the specially constructed room where these procedures were performed. Both Alder and Smith testified that the room appeared to have been well used. The charge for irigation was $20.00. Stetina also suggested that Alder add some things to her diet. Specifically, Stetina suggested that Alder ingest mineral water, amelade, 80% more raw food, progestine, calcium, food enzymes, and kelp. Alder and Smith declined, however, to undertake this course of treatment.

On May 23, 1984, the State filed its Verified Petition for Injunction and Motion for Temporary Restraining Order. The trial court granted the TRO during an ex parte hearing. It was subsequently served on Stetina. On May 29, 1984, the trial court held a hearing on the State's request for a preliminary injunction. Stetina, appearing without counsel, sought a continuance. The trial court granted her request after she consented to an extension of the TRO. On June 18, 1984, the trial court conducted a consolidated hearing on the State's petitions for preliminary and permanent injunctions. Following presentation of the State's case-in-chief, Stetina, again appearing without counsel, moved to dismiss the State's petitions. The trial court, however, denied her motion to dismiss. Consequently, she sought a second continuance in order to prepare her witnesses, which the trial court granted after she consented to a further extension of the TRO.

When the consolidated hearing resumed on July 23, 1984, the trial court declined to rule on a flurry of motions Stetina had filed with the court. Rather, it ruled that the State had failed to carry its burden of proof. Therefore, it dissolved the TRO and denied the State's petition for a permanent injunction. The State subsequently perfected this appeal.

ISSUES

We will address the following issues raised by the parties:

1. Whether the trial court erred when it dismissed the State's petition for an injunction following its case-in-chief.

2. Whether the trial court had jurisdiction to decide this case.

3. Whether the State was entitled to seek an injunction to prevent the continuing commission of a felony.

4. Whether Stetina was entitled to confront the complaining party.

5. Whether Stetina was entitled to the assistance of lay counsel.

6. Whether a pro se litigant is held to the same standards as a licensed attorney.

7. Whether any of the evidence obtained by the State during its investigation of Stetina was subject to exclusion.

DISCUSSION AND DECISION

Issue One

The State is appealing from an involuntary dismissal granted pursuant to Indiana Rules of Procedure, Trial Rule 41(B). ² Consequently, it is appealing from a negative judgment. Burras v. Canal Construction and Design Co. (1984), Ind.App., 470 N.E.2d 1362, 1368. Our standard of review in such cases is well settled. ³ We may not reweigh the evidence or judge the credibility of witnesses. Only where the evidence is without conflict and leads to a single conclusion different from that reached by the trial court will we reverse. Public Service Co. v. Gibbs (1984), Ind.App., 460 N.E.2d 992, 993, trans. denied; United Artists Theatre Circuit, Inc. v. Indiana Department of Revenue (1984), Ind.App., 459 N.E.2d 754, 756, trans. denied; Litzelswope v. Mitchell (1983), Ind.App., 451 N.E.2d 366, 369. Application of this standard to the facts in the record now before us requires reversal.

In order to prevail, the State was required to establish two elements. It had to show that Stetina was engaged in the practice of medicine and that she was not licensed to do so. ⁴ The uncontradicted evidence presented during the State's case-in-chief did in fact establish the existence of these elements.

Indiana Code section 25-22.5-1-1.1(a) (Burns 1982) defines the practice of medicine. It provides in pertinent part:

"(a) 'Practice of medicine or osteopathic medicine' means any one or a combination of the following:

"(1) Holding oneself out to the public as being engaged in the diagnosis, treatment, correction or prevention of any disease, ailment, defect, injury, infirmity, deformity, pain or other condition of human beings, or the suggestion, recommendation or prescription or administration of any form of treatment, without limitation, or the performing of any kind of surgical operation upon a human being, including tattooing, or the penetration of the skin or body orifice by any means, for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person;

"(2) The maintenance of an office or place of business for the reception, examination or treatment of persons suffering from disease, ailment, defect, injury, infirmity, deformity, pain or other conditions of body or mind; ..."

Stetina's activities clearly fell within this statutory definition. She diagnosed Alder's condition based on information she gathered from the questionnaires Alder filled out and from the iridology examination of Alder's eyes. ⁵ Then, based on this diagnosis, Stetina proceeded to prescribe a course of treatment for Alder which included the ingestion of various substances and a colonic irrigation procedure. ⁶ In addition, the evidence presented by the State revealed that Stetina used a portion of her home for the reception, diagnosis and treatment of patients. Consequently, we must conclude that the uncontradicted evidence presented during the State's case-in-chief established that Stetina was engaged in the practice of medicine as defined in Ind.Code Sec. 25-22.5-1-1.1(a).

Stetina argues that the State failed to establish that she was holding herself out to the public as being engaged in the practice of medicine as required by the statutory definition. Stetina asserts, without citation to any authority, that this element of the definition requires some form of public solicitation. She contends that she has never advertised her services in any form. Rather, she insists that she operates privately, dealing only with those who seek her out. Stetina's argument, however, misinterprets the introductory phrase of Ind.Code Sec. 25-22.5-1-1.1(a)(1). That provision is not meant to apply solely to those who advertise their willingness to engage in the type of activities it defines. Instead, it applies to all those individuals who are prepared to provide these services to the general public. Thus, Stetina, who was obviously willing to diagnose and treat Alder, a person she had not met before March 29, 1984, came within the definition of Ind.Code Sec. 25-22.5-1-1.1(a)(1) despite the fact that she never utilized formal means of advertising her services.

The State has also satisfied the second required element. The uncontradicted evidence presented during the hearing established that Stetina was not licensed by the State of Indiana to practice medicine in any form. In fact, Stetina admits that she is unlicensed. Therefore, the uncontradicted evidence established that Stetina was both engaged in the practice of medicine and unlicensed. Consequently, we must conclude that the trial court erred when it dismissed the State's petition for an injunction.

Although our...