State v. Lydon

• Decision Date: 30 November 1932
• Docket Number: 23803.
• Parties: STATE v. LYDON.
• Court: Washington Supreme Court

16 P.2d 848

170 Wash. 354

STATE v. LYDON.

No. 23803.

Supreme Court of Washington

November 30, 1932

Department 2.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

John E Lydon was convicted of practicing medicine and surgery without a license, and he appeals.

Remanded with directions.

Hartman & Hartman, of Seattle, for appellant.

Robert M. Burgunder, William J. Wilkins, and Ben A. Maslan, all of Seattle, for the State.

STEINERT J.

This is an appeal from a judgment of conviction, and sentence, for the crime of practicing medicine and surgery without a license. A complaint, filed in the justice court in and for Seattle precinct, charged the defendant with unlawfully practicing, and holding himself out as practicing, medicine and surgery, in this: 'That he, the said defendant, John E. Lydon, did then and there treat and pretend to treat and heal one Jennie Neihuis, a human being, for disease and physical condition, to-wit: cancer of the breast by severing and penetrating the tissues of said Jennie Neihuis, a human being, by use of surgical instruments without having at the time of so doing a valid unrevoked certificate issued by the Board of State Medical Examiners of the State of Washington or by the State Director of Licenses of the State of Washington authorizing said defendant to practice medicine and surgery in the State of Washington.'

Upon conviction in the justice court, the defendant appealed to the superior court for King county where, upon a trial Before the court, a jury having been waived, he was again convicted and was sentenced to pay a fine of $500. The defendant now appeals to this court.

The facts, as shown by the evidence, and on which the complaint and conviction are predicated, are these: The appellant is a sanipractor. Sanipractic is a form of drugless healing defined and promulgated by the appellant. On August 12, 1930 Mrs. Jennie Neihuis, who was then suffering from cancer of the breast, in its advanced stage, consulted appellant, who, after an examination, pronounced it a serious case, but stated that he could effect a cure in three months. Mrs. Neihuis placed herself under the appellant's charge for treatment, and the appellant contracted to perform the necessary services. The course of treatment consisted largely of keeping the patient upon a liquid diet with frequent hot baths. It was the theory of the appellant that the general condition of the body should be improved as much as possible by aiding the eliminative processes and at the same time the cancer would be brought to a head, when it could be treated as boils are commonly treated; that is, by lancing. The passage of time and the treatment prescribed, however, did not produce the expected improvement. On the contrary, the patient grew worse, and, on November 30th or December 1st, she was in a desperate condition. On the latter date the appellant and his assistant made three or four calls upon the patient and finally, at about 5:30 o'clock in the afternoon, the appellant made preparations for an operation. After thoroughly sterilizing two lancets, he made an incision with one of them upon the patient's breast, to a length of about one and one-half inches and to a depth of about a half inch. From the incision thus made a great deal of blood and pus exuded. The appellant remain with the patient until about 7:15 o'clock. A 8 o'clock she was hurriedly taken to the City Hospital in Seattle as an emergency case, though not at the direction of the appellant. The next day the appellant phoned to the hospital regarding the patient and later called in person and examined her. At that time he suggested and offered to administer a further line of sanipractic treatment, but, not being a member of the regular school of physicians, he was not permitted to treat the patient. Mrs. Neihuis died January 4, 1931. At the trial the appellant testified that when he was first consulted by Mrs. Neihuis he specifically outlined the treatment to be given by him; that he fully explained to the patient the different stages that the recovery would go through; that after a period of suppuration, attended with great pain, the cancer would come to a head in the form of a boil, at which time means would be taken to drain and remove the poison which had thus became localized. He also testified that the treatment administered during the preliminary period had resulted in the acute condition which called for the operation.

Two major questions present themselves for our consideration and determination: (1) Under the statutes of this state, may a person who is licensed as a drugless healer practice surgery? and (2) Did the act or acts of the appellant constitute practicing surgery? A third question is directed to the legality of the sentence imposed.

The first question involves the interpretation of certain sections of chapter 134, p. 372, Session Laws of 1919 (Rem. Comp. Stat. § 10008 et seq.), which relates to the practice of medicine and surgery, and also involves the interpretation of certain sections of chapter 36, p. 64 (Rem. Comp. Stat. § 10112 et seq.) of the same session laws, which is the Drugless Healers' Act.

To get a proper perspective, however, it is well, first, to notice briefly the statutory law that covered these fields of science or art, prior to the acts in question. Section 6, c. 192, p. 679, Session Laws of 1909, Rem. & Bal. Codes and Statutes, § 8391, entitled 'An Act for the regulation of the practice of medicine and surgery, osteopathy, and other systems or modes of treating the sick or afflicted, * * *' provides as follows: 'Three forms of certificates shall be issued by said board under the seal thereof, and signed by the president and secretary: First, a certificate authorizing the holder thereof to practice medicine and surgery; second, a certificate authorizing the holder thereof to practice osteopathy; third, a certificate authorizing the holder thereof to practice any other system or mode of treating the sick or afflicted not referred to in this section.'

Under the statute just quoted, if it still obtained, the appellant would fall under the third classification of certificates, which authorized the holders thereof to practice any system or mode of treating the sick or afflicted other than that of medicine and surgery or osteopathy.

In State v. Bonham, 93 Wash. 489, 191 P. 377, L. R. A. 1917D, 996, the defendant, an osteopath, was convicted of the crime of practicing medicine and surgery without a license so to do, in that, having taken a case of tonsilitis for treatment, he subsequently administered an anesthetic and removed the tonsils by means of a snare and knife. In sustaining the conviction, this court held squarely that, under that statute, one licensed to practice osteopathy, as that system was then taught, could not practice surgery, and that the defendant's certificate did not authorize him to resort to the form of treatment followed by him. In its discussion of the case, the court pointed out that, since the passage of the 1909 statute, schools of osteopathy had extended their curricula, and that the more modern of them were teaching, in some degree, much that was being taught in the older schools of medicine; that even surgery was being recognized by them as the proper form of treatment in certain cases. These observations of the court are of interest, we think, because of the change in legislation that subsequently took place, and which we will now notice in some detail.

By 1919 various systems of the healing art had come into settled vogue and were being adopted and patronized with varying degrees of recognition by the public generally. The Legislature therefore in that year essayed to cover, and also to discriminate between, the various kinds or classifications of the healing art. Chapter 4, p. 4, Session Laws of 1919 (Rem. Comp. Stat. § 10056 et seq.), relates to osteopathy, and to osteopathy and surgery. Chapter 5, p. 18 (Rem. Comp. Stat. § 10098 et seq.), regulates the practice of chiropractic. Chapter 36, p. 64, governs the practice of drugless healing, which includes sanipractic, though not specifically named. Chapter 134 covers the general practice of medicine and surgery.

We will examine these various acts somewhat out of their chronological order.

The act relating to the general practice of medicine and surgery, chapter 134, supra, provides in section 3 (Rem. Comp. Stat. § 10008): 'Only one form of certificate shall be issued by the said board. * * * Such certificate shall be under the seal of the board and signed by the president and secretary, and shall authorize the holder thereof to practice medicine and surgery within this state. Upon compliance with the requirements of this act by an applicant for a license to practice medicine and surgery in this state, the board shall issue such certificate, authorizing the holder thereof to use drugs or what are known as medicinal preparations in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of discases, injuries, deformities, or other physical or mental conditions.' (Italics ours.)

Section 4 (Rem. Comp. Stat. § 10009) provides that applicants for certificates must attain a prescribed grade in an examination upon the following fundamental subjects: Anatomy, histology, gynecology, pathology, bacteriology, chemistry, toxicology, physiology, obstetrics, general diagnosis, hygiene, practice of medicine and surgery, and any other branches thereof that the board shall deem advisable.

Section 8 (Rem. Comp. Stat. § 10018) provides as follows: 'Any person who shall practice or attempt to practice, or hold himself out as practicing medicine and surgery in this...