Thompson v. Texas State Bd. of Medical Examiners

• Decision Date: 27 July 1978
• Docket Number: No. 1146,1146
• Citation: 570 S.W.2d 123
• Court: Texas Court of Appeals
• Parties: Oliver H. THOMPSON, M. D., et al., Appellants, v. The TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellees.

Page 123

570 S.W.2d 123

Oliver H. THOMPSON, M. D., et al., Appellants, v. The TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellees.

No. 1146.

Court of Civil Appeals of Texas, Tyler.

July 27, 1978.

Rehearing Denied Aug. 31, 1978.

Harry Louis Zimmermann, Zimmermann, Driscoll & Baskett, Ennis E. Walden, Walden & Trice, James G. Vetter, Elliott, Meer, Vetter, Denton & Bates, Dallas, for appellants.

John L. Hill, Atty. Gen., Bill Campbell, David M. Kendall, R. Steve Bickerstaff, Jr., Asst. Attys. Gen., Austin, for appellees.

McKAY, Justice.

Appellants, Dr. Oliver H. Thompson and Dr. Raul Baptista Mascarenhas, appealed from orders of appellee, Texas State Board of Medical Examiners, revoking their licenses to practice medicine in this state. The Board stayed the orders and placed both doctors on probation for a ten-year period. On appeal the district court concluded the orders had reasonable support in substantial evidence. We affirm the judgment of the trial court.

The Board charged both doctors with violating Sections (12) and (15) of Article 4505, Tex.Rev.Civ.Stat.Ann., for permitting an unlicensed person to practice medicine in the State of Texas for the purpose of treating or offering to treat sick, injured or afflicted human beings in that they allowed unlicensed individuals to practice acupuncture in their respective offices. Article 4506, Tex.Rev.Civ.Stat.Ann., provides that the Board shall have the right to cancel or revoke the license of any practitioner of medicine for any cause for which the Board was authorized to refuse to admit persons to its examination, as provided in Article 4505. Article 4505 reads in pertinent part:

"The State Board of Medical Examiners may refuse to admit persons to its examinations, and to issue license to practice medicine to any person, for any of the following reasons:

"(12.) The impersonation of a licensed practitioner, or permitting, or allowing, another to use his license, or certificate to practice medicine in this State, for the purpose of treating, or offering to treat, sick, injured, or afflicted human beings.

"(15.) The aiding or abetting, directly or indirectly, the practice of medicine by any person not duly licensed to practice medicine by the Texas State Board of Medical Examiners."

Appellants answered that the complaint failed to set forth sufficient information to enable them to adequately prepare a defense, did not specify with particularity the nature of the alleged violation, and did not specify how acupuncture constitutes the practice of medicine by statute or regulation within the jurisdictional limits of the Board. Appellants further answered that acupuncture does not constitute the practice of medicine and that any attempt by the Board to include acupuncture within its jurisdiction is void as being overbroad and vague, since the statute fails to specify a proper standard of conduct and permits arbitrary and erratic enforcement.

Separate hearings for each appellant were held before the Board on October 2, 1975. On October 3, 1975, the Board issued separate orders cancelling appellants' licenses to practice medicine, but stayed the execution of such order and placed appellants on probation for ten years.

Appellants filed separate but identical petitions in district court, and the two causes were consolidated for trial. In substance, appellants alleged that the Board abused its discretion in failing to grant appellants a continuance in the administrative proceeding due to counsel's inability to prepare for such a unique proceeding on such short notice; that the Board failed to introduce the pertinent statute into evidence, failed to establish that acupuncture was included in the practice of medicine, and failed to give appellants due process and a fair hearing. They further alleged that the Board's order did not contain any findings of fact to support its conclusion and did not answer the constitutional issues raised by appellants. Appellants also alleged that a resolution promulgated and considered by the Board was not an effective rule or regulation of the Board and was without force and effect, or, in the alternative, was so vague that the same could not be interpreted in a rational manner and that acupuncture is a form of physiotherapy outside the definition of the practice of medicine contained in Article 4510a, Tex.Rev.Civ.Stat.Ann.

Appellants further alleged that the Board's action violated the fundamental rights of appellants as guaranteed by the First, Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 3 and 19 of the Constitution of the State of Texas in that such action violated the right of a physician to pursue his chosen profession free from unnecessary interferences, the physician's right to provide adequate medical treatment, and the right of patients to receive medical treatment of their choosing.

John T. Richter, an employee of the Board, conducted the investigation of appellants. On July 21, 1975, Richter, using the name B. L. Thomas, went to Dr. Thompson's office complaining of bursitis in his right shoulder. Dr. Thompson checked Richter's blood pressure and examined him using a stethoscope. Dr. Thompson then took Richter to an examining room and introduced him to Pechi Ping, an oriental female. She placed four needles in the right shoulder area and one needle beside the right small finger. Dr. Thompson was present at that time. Ping then manipulated the needles and she and Dr. Thompson left the room. She returned on three occasions to manipulate the needles. Dr. Thompson returned with her on two of these occasions. Ping then returned and removed the needles. Richter paid a receptionist for the treatment and left.

On July 22, 1975, Richter, alias Thomas, went to the office of Dr. Mascarenhas for treatment of bursitis in his right shoulder. Richter discussed his "ailment" with Dr. Mascarenhas who then led him to an examining room and left. A Dr. Hsu then entered the examining room, placed a bowl of needles on a table and departed. Hsu then returned and inserted four needles in the top of Richter's right shoulder and three in the lower portion of the shoulder and left the room. Dr. Mascarenhas checked on the patient momentarily during the treatment, asking if it hurt. After approximately fifty minutes Hsu removed the needles and Richter departed the premises after paying $50.00 to the receptionist.

Prior to the institution of this investigation, on December 2, 1974, the Board issued a policy statement in which acupuncture was included in the practice of medicine under the Texas Medical Practice Act. The Board also stated that "any person performing Acupuncture who is not a licensed physician . . . would be practicing medicine without a license . . . " and "a licensed physician may not delegate to any person not licensed to practice medicine in the State of Texas the authority to perform acupuncture."

On September 10, 1975, written charges under oath were filed with the Board charging appellants with violations of subdivisions (12) and (15) of Article 4505, Tex.Rev.Civ.Stat.Ann. Copies of the charges were served upon Dr. Thompson on September 10, 1975, and upon Dr. Mascarenhas on September 15, 1975. The charges gave notice that the Board would hold a hearing upon the complaint on October 2, 1975. At the hearing on October 2, 1975, both appellants moved for a continuance in order to have more time in which to adequately prepare a defense. The motions were denied by the Board.

On October 3, 1975, the Board entered separate orders cancelling appellants' licenses to practice medicine in the State of Texas, staying execution of the orders and placing appellants upon probation for a period of ten years, which orders are the subject of this appeal.

The cases were consolidated for trial in the court below. The judgment of the trial court affirmed the Board's order.

Appellants challenge the constitutionality of the Board's action and the trial court's findings and judgment as unnecessary and unreasonable governmental interference with the rights of appellants to practice medicine, as violative of their right of equal protection of the laws, and violative of a patient's right to free choice of medical treatment. ¹

The Board contends that the laws and regulations used need only have a reasonable relation to the object to be attained and that such laws be neither arbitrary nor capricious; the object to be attained is to protect the public from unlicensed, fraudulent and incompetent practitioners of medicine.

Appellants filed a reply to appellee's brief and therein for the first time on appeal asserted that the Board erroneously included acupuncture within the "practice of medicine." Art. 4510, Tex.Rev.Civ.Stat.Ann. In our opinion acupuncture is properly included within the practice of medicine. We are supported in this view by courts of other jurisdictions. Doskow v. Nyquist, 58 A.D.2d 725, 396 N.Y.S.2d 295 (1977); State v. Rich, 44 Ohio St.2d 195, 339 N.E.2d 630 (1975); State v. Won, 19 Or.App. 580, 528 P.2d 594 (1974); People v. Amber, 76 Misc.2d 267, 349 N.Y.S.2d 604 (1973); 72 A.L.R.3d 1257. ²

Appellants contend that their fundamental rights have been violated requiring the Board to show a "compelling state interest" in order to support its action. We disagree. Appellants rely upon Griswold v. Connecticut,381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), to support their position that fundamental rights are involved. However, the rights asserted by appellants have not been recognized as fundamental. Therefore, the State is not required to show a compelling state interest. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Shapiro v. Thompson, 394...