State v. Borah, Civil 3788

Citation76 P.2d 757,51 Ariz. 318
Decision Date28 February 1938
Docket NumberCivil 3788
PartiesSTATE OF ARIZONA, JOHN L. SULLIVAN, as Attorney General of the State of Arizona, and HARRY JOHNSON as County Attorney of Maricopa County, Arizona, Appellants, v. Dr. JAMES LORKIN BORAH, Appellee
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr John L. Sullivan, former Attorney General, Mr. Joe Conway Attorney General, Mr. Earl Anderson, Assistant Attorney General, Mr. Harry Johnson, former County Attorney, Mr. John W. Corbin, County Attorney, and Mr. Lin Orme, Jr., Assistant County Attorney, for Appellants.

Mr Henderson Stockton, Mr. Emmett R. Feighner and Mr. Eli Gorodezky, for Appellee.

OPINION

LOCKWOOD, J.

James L. Borah, hereinafter called plaintiff, brought suit in the superior court of Maricopa county against the state of Arizona and its Attorney General, and the county attorney of Maricopa county, in their official capacities, hereinafter called defendants, for a declaratory judgment, determining his rights as to certain matters relating to the practice of dentistry. Plaintiff alleged that he was duly admitted to practice dentistry within the state of Arizona upon the recommendation of the Arizona Board of Dental Examiners in the year 1915, and has ever since practiced his profession within this state; that in practice it is frequently necessary to give a patient a general anesthetic, and that he has heretofore employed a duly licensed physician and surgeon to administer it; that he now intends to employ a registered nurse who has taken a prescribed course of anesthesia at a hospital in good standing, to administer anesthetics in the practice of dentistry, under his direction and in his immediate presence; that a question has arisen as to whether such administration by a registered nurse of the character described, under his supervision, is permitted by the laws of Arizona; and that he desired an interpretation of the law governing such a situation. Judgment was rendered to the effect that the law of Arizona did not forbid the course of conduct which he intended to follow, and the defendants have appealed.

A determination of the question involved on the appeal requires a somewhat extensive review of the law regulating the practice of medicine and dentistry within the state of Arizona. The generic definition of the word "medicine" is "the science and art dealing with the prevention, cure or alleviation of disease," and it is in such sense that the word has always been construed by the layman, when used without some limiting phrases attached thereto. Webster's New International Dictionary. In the same way, the word "physician," when used in a like manner, is generally accepted as meaning "a person skilled in the art of healing." Webster's New International Dictionary. In the early stages of the science of medicine it was, as a rule, not divided into branches, and the physician treated every variety of ills to which the human body was subject. At common law the practice of medicine was open to all who desired to follow it in any of its branches, subject only to liability for damages in a case of lack of skill on the part of the practitioner, and to the right of government to proceed by quo warranto to prevent incompetents from following the business. Redmond v. State, 152 Miss. 54, 118 So. 360; Indiana State Board v. Davis, 69 Ind.App. 109, 121 N.E. 142. But this right is not and never was an absolute, unqualified, or vested right, but was always subordinate to the police power of the state in the protection of the public health. Lambert v. Yellowley, 272 U.S. 581, 47 S.Ct. 210, 71 L.Ed. 422, 49 A.L.R. 575. As was said in the case of People v. Witte, 315 Ill. 282, 146 N.E. 178, 180, 37 A.L.R. 672:

"The right of a citizen to practice medicine is subject to the paramount power of the state to impose such regulations, within the limitations of the Constitution, as may be required, to protect the people against ignorance, incapacity, deception or fraud in the practice of that profession."

In the proper exercise of the police power, therefore, the legislature may control and regulate the practice of medicine in all of its branches, subject only to the rule that these regulations must be reasonable and bear some relation to the end or object to be attained, which is to protect the public from being mistreated or misled by incompetent or unscrupulous practitioners. State v. Armstrong, 38 Idaho 493, 225 P. 491, 33 A.L.R. 835. It has, therefore, for many years been the custom of the legislative authority of the different states to regulate, to a greater or less extent, the practice of medicine. Most of the original acts dealt only with the general subject and the licensing of a physician under such act usually permitted him to treat any ill to which the human body was subject, from an ingrowing toenail to Asiatic cholera, from an aching tooth to an astigmatic eye, and many of our older citizens can remember when the general practitioner, especially in the more remote country districts, did at times exercise all these, as well as many other forms of the healing art. With the development of medical science, especially in modern times, it was realized that it was beyond the limits of the human brain to know thoroughly and completely every portion of medical science available, and physicians began to specialize in various branches of the profession. Probably the first division was between the physician proper, who specialized in the administration of drugs of various kinds, and the surgeon, who devoted his skill to operative relief. Dentistry and ophthalmology were among the next fields for specializing, and the list has now been extended almost ad infinitum. Legislative control of these various branches of the medical profession also began to specialize, and under the more modern medical acts, many examinations are provided which, if successfully passed, limit the applicant to the practice of some particular branch of medicine. But at all times, and no matter how the language of the acts changed, the ultimate purpose was the same, to wit, to protect the health of the public by excluding from the practice of medicine those who had not shown themselves competent therefor. In determining, therefore, whether or not a regulation of the practice of medicine in any of its branches is a reasonable one, and thus within the power of the legislature to enact, the test must always be whether or not it is reasonably necessary and appropriate for the protection of the public health.

The first codes of the territory of Arizona made no provisions for public regulation of the practice of medicine, and the various physicians of this territory followed their profession, subject only to the rules of the common law. The Code of 1901 was the first to contain an act regulating the medical profession. Title 53 of that Code is entitled "Practice of Medicine," and it divides the subject into two branches, medicine and dentistry. The definition of one who is engaged in the practice of medicine is in the following language:

"3530. (Sec. 5) Any person shall be regarded as practicing medicine who shall profess publicly to be a physician or who shall prescribe for the sick."

The term "dentistry" was not defined, and the portion of the title dealing with that subject, after providing for the examination of those wishing to practice dentistry, also said:

"3550. (Sec. 25) That nothing in this title shall be construed so as to interfere with the rights and privileges of resident physicians and surgeons in the discharge of their professional duties."

Apparently it was the opinion of the legislature that all physicians were capable of being dentists without examination, but that the reverse was not true, and one who wished to practice only dentistry must undergo a special examination therefor. The Code of 1913 recognized that medical science was progressing by leaps and bounds and that further specialization was necessary, for title 48 of that Code, which deals with "Regulation of professional pursuits," now provides for special examinations for the "practice of medicine dentistry, optometry, embalming and pharmacy." The definition of the "practice of medicine," paragraph 4738, is extremely lengthy and attempts to cover in detail every known form of dealing with human diseases and ills, but expressly excepts from such definition the practice of "dentistry, midwifery, or pharmacy, or in the usual business of opticians." "Dentists" are defined in the title as being those who "shall attempt to or shall perform an operation of any kind upon, or treat diseases or lesions of, or correct malposition of, the human teeth or jaws." Par. 4751. And licensed physicians are expressly authorized to engage in "extracting teeth in the practice of oral surgery or the treatment of diseases of the mouth." The Code was again revised in 1928, and chapter 58, section 2499 et seq., deals with many forms of professions and businesses besides that of the practice of medicine. The latter category has had added to the five branches thereof named in the Code of 1913 those of chiropractors and nurses, so that the legislature at that time apparently recognized seven forms of activity which were originally under the common law conceived as falling within the general practice of medicine. The definition of the practice of medicine, section 2555, contains all the elements found in the Code of 1913, although the language has been greatly simplified, and the exceptions made are, as in 1913,...

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    ...sense the word 'medicine' is 'the science and art dealing with the prevention, cure or alleviation of disease.' State v. Borah, 51 Ariz. 318, 76 P.2d 757, 758, 115 A.L.R. 254. In that the practice of medicine was open to all who desired to practice it in any of its branches, subject to liab......
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