Stribling v. Jolley

• Decision Date: 16 December 1952
• Docket Number: No. 28510,28510
• Parties: STRIBLING et al. v. JOLLEY et al.
• Court: Missouri Court of Appeals

Page 519

253 S.W.2d 519

241 Mo.App. 1123

STRIBLING et al. v. JOLLEY et al.

No. 28510.

St. Louis Court of Appeals, Missouri.

Dec. 16, 1952.

Rehearing Denied Jan. 16, 1953.

George P. Adams, Mexico, for plaintiffs-appellants.

Bradley & Noble, John H. Bradley, John W. Noble and Lawrence L. Bradley, Kennett, for defendants-appellants.

Roy D. Williams, Booneville, Waldo P. Edwards, Macon, Clay C. Rogers, George Schwegler, Jr., Carl E. Enggas and Walter A. Raymond, Kansas City, Rogers, Field & Gentry, Kansas City, Watson, Ess, Whittaker, Marshall & Enggas, Kansas City, of counsel, for defendants-respondents.

WOLFE, Commissioner.

This is an action for a declaratory judgment, brought by the trustees of the Audrain County Hospital. They adopted a rule excluding doctors of osteopathy from practicing in the hospital and they now seek to determine whether or not that rule is in violation of the laws of the State of Missouri. The State Medical Association, the Missouri Osteopathic Association, and the medicial and osteopathic physicians of Audrain County were joined as defendants.

The trial court held that the rule was illegal and further found that osteopathic physicians had a right under the laws of Missouri not only to use the hospital but to administer drugs and perform operative surgery with instruments.

An appeal was taken by the trustees of the hospital and the medical physicians defendants. They appealed the Supreme Court upon the theory that a constitutional question had been raised. It was held there that no constitutional question was properly in the case, and since that court, therefore, was without jurisdiction of the appeal, the cause was transferred to this court. Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885.

It appears from the evidence that osteopathic physicians had always been permitted to practice in and to take their patients to the public hospital in Audrain County up to the year 1940, at which time the rule excluding them from practicing in the hospital was passed by the board of trustees. Because of the rule the trustees were publicly criticised and a bond issue for increasing the hospital facilities was openly opposed. This prompted the trustees to bring the present action, to determine the legal force and effect of the statute relating to county hospitals, which is Section 205.300 RSMo 1949 V.A.M.S., and is as follows:

'1. In the management of such public hospital no discrimination shall be made against practitioners of any school of medicine recognized by the laws of Missouri, and all such legal practitioners shall have equal privileges in treating patients in said hospital.

'2. The patient shall have the absolute right to employ at his or her own expense his or her own physician, and when acting for any patient in such hospital the physician employed by such patient shall have exclusive charge of the care and treatment of such patient, and nurses therein shall as to such patient be subject to the directions of such physician; subject always to such general rules and regulations as shall be established by the board of trustees under the provisions of sections 205.160 to 205.340.'

As stated, the medical physicians were joined as a class and in their answer they alleged that the osteopathic physicians were engaged in the general practice of medicine and surgery and that such practice was contrary to the law. They sought to uphold the rule excluding osteopaths and asked that the court define 'the scope, limit and extent of the practice of osteopathy under the laws of Missouri'. The osteopathic physicians in their answer to the petition alleged that the rule passed was in violation of the laws of Missouri, and in answer to the answer of the medical physicians they stated 'that they did in 1940, and have, and will, administer antidotes, narcotics, emergency palliatives, opiates, anesthetics, and antiseptics, and did at such times perform operations with instruments'; and they deny that such practice is in violation of any law.

It will be seen that the petition had only to do with the right of the osteopathic physicians to practice their profession in the Audrain County Hospital, but the medical physicians sought to extend the scope of the case by their answer, requesting of the court a decree defining and limiting the general practice of osteopathy.

Much of the evidence was devoted to the issue that the defendants thus sought to engraft upon the plaintiffs' cause. Such evidence revealed that the school of medicine known as osteopathy had its origin in Missouri with the founding of the American School of Osteopathy in 1894. The corporate constitution of that school in part provided:

'The object of this Corporation is to establish a College of Osteopathy, the design of which is to improve our present system of Surgery Obstetrics and treatment of diseases generally and place the same on a more rational and scientific basis and to impart information to the medical profession and to grant and confer such honors and degrees as are usually granted and conferred by reputable Medical Colleges, to issue diplomas in testimony of the same to all students granduating from said School under the seal of the Corporation with the signature of each member of the faculty and of the President of the College.'

The college from its beginning taught as its principal precept that a perfectly adjusted body produced a plentiful supply of blood to all parts of it, and that when the body became sick or diseased it could generally be cured by manipulation that brought blood in sufficient quantity to the affected parts. In addition to an emphasis on anatomy and the manipulative therapy mentioned, the students were taught the use of drugs, obstetrics, and minor surgery.

The college enlarged upon its instruction as time passed and many of its graduates have for years unquestionably engaged in the practice of general surgery, the administration of drugs, and manipulation. At the present time nearly 21 per cent of the practicing physicians in Missouri are osteopaths, most of whom are in the rural areas where about one-third of all of the practitioners are osteopathic physicians. There are fifty-one osteopathic hospitals in the state with an estimated replacement value of $13,710,000.

The first statutory recognition of osteopathy was in 1897. At that time the statutes of Missouri, Mo.R.S.1889, Art. 1, Chap. 110, provided that the practice of medicine without a license was illegal, but the Act of 1897 excluded osteopathic physicians from the statute that regulated the practice of medicine. The exclusion has been carried down without material change to Section 337.010, RSMo 1949, V.A.M.S., which provides:

'The system, method or science of treating diseases of the human body, commonly known as osteopathy, and as taught and practiced by the American school of osteopathy of Kirksville, Missouri, is hereby declared not to be the practice of medicine and surgery within the meaning of sections 334.010 to 334.180 and not subject to the provisions of said chapter.'

In 1903, Laws of 1903, p. 248, a board of osteopathic examination was set up and the law creating it is the present Section 337.020 RSMo 1949, V.A.M.S. In the various enactments of this statute there were changes in the educational requirements of the applicants for a certificate to practice, and the act now differs from the original in that the applicants are examined upon the subject of surgery, whereas in the Act of 1903 the words 'minor surgery' were used. It should be noted that this law from its first enactment to the present date requires the person holding a certificate to practice shall record it in the same manner as graduates from any other 'school of medicine'. Another statute in which osteopathy is touched upon is the Narcotic Drug Act. Sections 195.010 to 195.210 RSMo 1949, V.A.M.S. This covers the use and sale of narcotic drugs and provides that they may be used in osteopathic hospitals.

It seems apparent from the statutes mentioned that the Legislature, when it passed the Act of 1897 excluding the practice of osteopathy from the medical practice act, considered osteopathy something other than the general practice of medicine and surgery as it was then known. It is also true that osteopathy was considered a thing sui generis when the Legislature passed the act creating the Board of Osteopathic Registration and Examination. Grainger v. Still, 187 Mo. 197, 85 S.W. 1114, 70 L.R.A. 49. Yet, as appellants concede, 'It is clear that the 1937 Narcotic Act assumes that osteopaths may use drugs'.

All of the foregoing stated facts leave us with a situation wherein the medical and osteopathic physicians (though differing in training and under different licensing and governing statutes) practice side by side and in many cases use all of the same methods of healing except that the osteopaths place greater reliance upon manipulation as an effective therapy.

By reason of this, a very understandable confusion exists in both schools as to whether or not there are legal limits to the practice of osteopathy beyond which its practitioners may not go. This is the third time that the aid of the courts has been sought to determine the question. Previous cases, doubtlessly intended to accomplish that result, were State v. Carlstrom, 224 Mo.App. 439, 28 S.W.2d 691, and State v. Reisman, 225 Mo.App. 637, 37 S.W.2d 675. These were both prosecutions against osteopaths in which they were charged with the illegal practice of medicine by having prescribed drugs. In both cases the defendants filed a plea in abatement in which they admitted prescribing drugs and averred that they were legally authorized to do so. In both cases the State demurred to this plea. The demurrer in effect admitted the truth of the allegations in the plea in abatement and thus left no issue for trial and the charges were dismissed without any decision by the courts on what constitutes the...