State ex rel. Medical Licensing Bd. of Indiana v. Brady

• Decision Date: 28 April 1986
• Docket Number: No. 1-985A223,1-985A223
• Citation: 492 N.E.2d 34
• Parties: STATE of Indiana and State of Indiana ex rel. MEDICAL LICENSING BOARD of INDIANA, Plaintiffs-Appellants, v. Kevin BRADY, individually and doing business as All American Tattoo, an unincorporated Indiana business, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 34

492 N.E.2d 34

STATE of Indiana and State of Indiana ex rel. MEDICAL

LICENSING BOARD of INDIANA, Plaintiffs-Appellants, v. Kevin BRADY, individually and doing business as All American

Tattoo, an unincorporated Indiana business,

Defendant-Appellee.

No. 1-985A223.

Court of Appeals of Indiana,

First District.

April 28, 1986.

Linley E. Pearson, Atty. Gen., Janet A. McSharar, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiffs-appellants.

RATLIFF, Judge.

STATEMENT OF THE CASE

The State of Indiana and the Medical Licensing Board of Indiana (referred to collectively as the Board) appeal from an order of the Monroe Circuit Court denying the Board's Verified Petition for Injunction and granting appellee's request for an injunction against the Board. We reverse.

FACTS

The essential facts are not in dispute. Kevin Brady (Brady) is a tattoo artist who owned and operated the All American Tattoo Studio in Bloomington, Indiana. Sometime in late 1984, Brady began advertising his services touting himself as the "Tattoer of the Stars." As the Board's brief investigation revealed, Brady's advertising campaign was successful.

On March 20, 1985, the Board filed a Verified Petition for Injunction alleging that, by tattooing individuals, Brady was engaged in the unlawful practice of medicine or osteopathic medicine in violation of Indiana Code section 25-22.5-8-1. Brady subsequently answered admitting that he was engaged in tattooing and that he was not licensed to practice medicine in the State of Indiana. He averred, however, that tattooing was not the practice of medicine. In addition, Brady sought, under 42 U.S.C. Sec. 1983, to enjoin the Board from enforcing Indiana Code section 25-22.5-1-1.1 so as to prohibit tattooing as an art form, claiming that such action was a violation of his First Amendment rights.

On June 4, 1985, the trial court entered specific findings of fact and conclusions of law. Interpreting the statutory definition of the "practice of medicine" contained in I.C. 25-22.5-1-1.1, the trial court concluded that tattooing, as an art form, was not the practice of medicine. Consequently, it denied the Board's petition and granted Brady's. The Board then perfected this appeal.

ISSUES

This appeal presents two issues for our review.

1. Whether the statutory definition of the practice of medicine encompasses the tattooing of individuals solely for artistic purposes.

2. Whether a statutory prohibition against the unlicensed tattooing of individuals constitutes an unconstitutional infringement on First Amendment rights

when such tattooing is done solely for artistic purposes.

DISCUSSION AND DECISION

At the outset, we note that Brady has failed to file an appellate brief with this court. Therefore, even though the Board is appealing from a negative judgment, see State ex rel. Medical Licensing Bd. v. Stetina (1985), Ind.App., 477 N.E.2d 322, 326, trans. denied; Burras v. Canal Construction and Design Co. (1984), Ind.App., 470 N.E.2d 1362, 1368, we will reverse if it succeeds in making a prima facie showing of error. S.M.V. v. Littlepage (1983), Ind.App., 443 N.E.2d 103, 105, trans. denied. This the Board has done.

Issue One

The present version of the Indiana Medical Practice Act provides the Board with two options to combat the unlawful practice of medicine. It may either institute a criminal prosecution pursuant to Indiana Code section 25-22.5-8-2, ¹ or seek an injunctive remedy under Indiana Code section 25-22.5-8-4. ² Stetina, at 328; Dean v. State ex rel. Board of Medical Registration and Examination (1954), 233 Ind. 25, 30, 116 N.E.2d 503, 506. In this case, the Board chose to file a verified petition for an injunction prohibiting Brady from engaging in tattooing in the future.

The Board was required to establish only two elements in order to prevail on its petition. It had to demonstrate that, by tattooing individuals, Brady was engaged in the practice of medicine and that he was not licensed to do so. Stetina, at 326; Dean, at 29-30, 116 N.E.2d at 505-06, quoting State ex rel. Bowers v. Moser (1944), 222 Ind. 354, 358-59, 53 N.E.2d 893, 894 (interpreting prior statutory provision). ³ Brady admitted that he did not possess a license to practice medicine. Thus, we must determine whether tattooing constitutes the practice of medicine.

The state has, through the legislature, broad powers to regulate in this area. This authority stems directly from the state's police power. Ice v. State ex rel. Indiana State Board of Dental Examiners (1959), 240 Ind. 82, 84-85, 161 N.E.2d 171, 172; Dean, at 30, 116 N.E.2d at 506. As a necessary incidence to this power, the state has the authority, through appropriate legislation, to define what conduct will constitute the practice of medicine. Dean, at 31, 116 N.E.2d at 506. Furthermore, the legislature's judgment as to what the practice of medicine entails will not be disturbed by the judiciary absent some constitutional infirmity. See Ice, at 85, 161 N.E.2d at 173.

The General Assembly has defined the practice of medicine quite specifically. Indiana Code section 25-22.5-1-1.1 (Burns 1982), the provision in effect at the time this cause of action arose, states in relevant 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;" (Emphasis added)

Ind. Code Sec. 25-22.5-1-1.1(a)(1) (Burns 1982). ⁴ The trial court properly concluded that this provision is ambiguous to some extent. Apparently, the trial court agreed with Brady's arguments and concluded that the phrase "for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person" modified the entire paragraph and not just "the penetration of the skin or body orifice by any means" as the Board had argued. The trial court held, therefore, that:

"A practical construction of the statute in question is that the legislature of this state intended that any person engaging in the procedure of tattooing as a medical procedure, or medical operation, be licensed to do so, and that such licensing not be required by those who practice tattooing as an art form at the request of their customers."

Record at 194. We believe, however, that the interpretation argued by the Board, which would define all tattooing, regardless of the purpose, to constitute the practice of medicine, to be the appropriate one.

When construing a statutory provision, this court follows certain well known maxims. We will examine the act as a whole rather than concentrating exclusively on isolated phrases. Gebhard v. State (1985), Ind.App., 484 N.E.2d 45, 47; Daugherty v. State (1984), Ind.App., 466 N.E.2d 46, 52, trans. denied. The words employed by the legislature will be given their ordinary and usual meanings unless a contrary result is demanded by the statute itself. Herbert v. State (1985), Ind.App., 484 N.E.2d 68, 70; Gebhard, at 47. We will also presume that the legislature intended to have its enactments interpreted and applied in a logical manner consistent with the statute's underlying goals. Detterline v. Bonaventura (1984), Ind.App., 465 N.E.2d 215, 218, trans. denied. Our ultimate goal, however, is to ascertain and then give effect to the legislature's intent. Herbert, at 70; Gebhard, at 47; Daugherty, at 52; Detterline, at 218; Brook v. State (1983), Ind.App., 448 N.E.2d 1249, 1251.

Indiana Code section 25-22.5-1-1.1(a)(1) (Burns 1982), properly interpreted, defines all tattooing, for whatever purpose, as the practice of medicine. This interpretation is supported by several analyses.

First, if the phrase "for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person" were intended to modify the entire paragraph, as Brady argued below, it would be redundant and, in some aspects, clearly nonsensical. The phrase certainly modifies "the penetration of the skin or body orifice." Without such a restriction, the scope of this definitional provision would indeed be wide ranging. However, it cannot be argued seriously that the phrase applies to modify any other section of the provision except for "surgical operation." ⁵ Thus, we concentrate our discussion on that aspect of the statute.

Surgery has been variously defined as:

"a branch of medicine that is concerned with diseases and conditions requiring or amenable to operative or manual procedures."

Webster's Third New International Dictionary 2301 (1976).

"... that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries."

Black's Law Dictionary 1293 (5th ed. 1979).

"The branch of medicine that is concerned with therapy of diseases or injuries by operation or manipulation."

Stedman's Medical Dictionary 1370 (4th ed. 1976).

"The branch of medicine dealing with diseases requiring operative procedure, including manipulation."

Blakiston's New Gould Medical Dictionary 1009 (1st ed. 1950). Therefore, if "surgical operation" is ascribed its usual and ordinary meaning, application of the modifying phrase would result in an obvious redundancy. This, the legislature certainly would not have intended. Under our statute, then, "any kind of surgical operation" will constitute the practice of medicine. Furthermore, since all tattooing, for...