Palmer v. O'Hara

Opinion by Mr. Justice Jones, The broad question on this appeal is whether the issuance by a licensed osteopath or osteopathic physician of a certificate committing a mentally ill person to a hospital for mental diseases for care and treatment constitutes an unauthorized practice of medicine. More specifically, is a duly licensed osteopath a “qualified physician” within the definition of Sec. 103 of the Mental Health Act of 1923 so as to be entitled (under Sec. 302 of the same Act) to certify persons for commitment as mentally ill and in need of treatment and care in a hospital for mental diseases? The answer is to be found in the proper interpretation and application of the legislative intent of relevant Acts of Assembly, particularly, *215 the Act of March 19, 1909, P. L. 46, 63 PS § 261 et seq., which prescribes the qualifications and requirements for the licensure of osteopathic physicians, and the Medical Practice Act of June 3, 1911, P. L. 639, 63 PS § 401 et seq. which provides for the licensing of physicians for the “practice of medicine”. It may help to a strict interpretation of the pure question of legislative intent thus involved to make plain at the outset that the problem is in no way concerned with the relative merit 'of the services performed by practitioners of the healing art according to the “school of medicine” on the one hand and the “school of osteopathy” on the other. The present inquiry is simply as to the. manner and extent that the legislature has, to date, empowered, regulated and controlled the practitioners of the above-named schools of dealing with respect to the practice of medicine in this State; for, as we shall see, it is only practitioners, so accredited, who are “qualified physicians” within the meaning and for the purposes of the Mental Health Act of 1923. The individual plaintiffs, C. L. Palmer, John J. Sweeney and Park A. Deckard, are graduate doctors of medicine duly licensed under the Medical Practice Act of 1911 to practice medicine in Pennsylvania. For themselves personally and as members of the Medical Society of the State of Pennsylvania, a corporation, as well as on behalf of the corporate Medical Society, they seek by this suit in equity to enjoin the Secretary of Welfare of the Commonwealth from authorizing or permitting the entry or admission of mental patients to State, semi-State or licensed hospitals for mental diseases, under the Mental Health Act of 1923, upon certificates of osteopathic physicians licensed under the Act of 1909 to practice osteopathy but not licensed under the Medical Practice Act of 1911, and, further, to enjoin C. Wayne McClintock and P. Frank Miller, Jr., osteopaths duly licensed under the Osteopathic Act of 1909, from practicing medicine in any manner whatsoever. The defend *216 ants separately filed responsive answers which expressly admitted the material averments of the bill of complaint. The questions of law raised therebn were argued to the court below on the bill and answers. The learned chancellor held (and on exceptions to his decree nisi the court en banc confirmed) that osteopaths, by virtue of their due licensure, are authorized to practice medicine in this State and (otherwise fulfilling the requirements of the Mental Health Act) are “qualified physicians” within the meaning of that Act to the end that they may competently issue certificates for the commitment of mentally ill persons to appropriate institutions for care and treatment. The decree nisi, dismissing the bill of complaint, was made final and this appeal by the plaintiffs followed. Under Sec. 302 of the Mental Health Act of July 11, 1923, P. L. 998, 50 PS § 42, as amended, one of the requirements for the cbmmitment of a mentally ill person to a hospital for mental diseases is a “. . . certificate of two qualified physicians that said person is mentally ill and is in need of treatment and care in a hospital for mental diseases”. 1 The term, “Qualified physician”, as used in the Act, is specifically defined by Sec. 103 as “. . . a physician who . . . has been licensed to practice medicine in this State . . .”. 2 Have osteopaths been so *217 licensed within the meaning of the statute? That is the basic question. A study of the pertinent legislative enactments and court decisions clearly reveals that lieensures of physicians for the practice of medicine and for the practice of osteopathy as originally established and ordained by the legislature and as continued down to the present day rest upon two separate, distinct and independent systems and are still separately regulated. In Commonwealth v. Dailey, 75 Pa. Superior Ct. 510, where it was unsuccessfully contended that “The practice of osteopathy is the practice of medicine”, Judge Trexler for the Superior Court said (p. 514) that “There is the clear distinction drawn in the various acts, between the practice of medicine, and the practice of osteopathy”. The earliest Act passed to regulate the practice of medicine in this State was the Act of April 12, 1875, P. L. 51, which prescribed the standard qualifications required of practitioners 'of medicine and surgery. This Act was successively amended by the Act of March 24, 1877, P. L. 42, the Act of June 8,1881, P. L. 72, and the Act of May 18,1893, P. L. 94. The latest of the amendatory Acts, just mentioned, established and defined the powers and duties of a Medical Council and three State Boards of Medical Examiners, provided for the examination and licensing of practitioners of medicine and surgery and further regulated the practice bf medicine and surgery. The ensuing decisional law is of historical pertinency. In the year 1901 President Judge Wilson, of the Court of Quarter Sessions of Beaver County, held in an exhaustive and well-considered opinion that the practice of osteopathy was not the practice of medicine or surgery within the intent bf the legislature and that the practice of osteopathy was wholly outside the provisions of the *218 Medical Practice Act of 1893: see Commonwealth v. Pierce, 10 Pa. Dist. Rpts. 335, 337. A year earlier (1900) President Judge Criswell, of the Court of Quarter Sessions of Venango County, under , a similar view of the intent and scope of the Act of 1893, had directed a jury’s acquittal of a person, charged with a violation of the Medical Practice Act of 1893, whose “. . . method of treatment [was] simply that of manipulation of the parts [i. e., osteopathy]”: Commonwealth v. Thompson, 10 Pa. Dist. Rpts. 634, 635. Plainly enough, therefore, the practice of osteopathy was directly ruled not to be the “practice of medicine”; and there was no court decision in this State to the contrary. With practice of the healing art according to the school bf osteopathy so excluded from the regulation and benefits of the Medical Practice Act of 1893, it was in 1909 that the statute, prescribing the qualifications and requirements for licensure as an osteopath, was enacted: see Act of March 19, 1909, cit. supra. And, the fundamental provisions of that Act continue in force to this day as the basis of the authority for the licensing and regulation of practitioners of osteopathy. That the legislature did not intend by the Osteopathic Act of 1909 to empower, then or later, persons licensed thereunder to “practice medicine” is evident from the provisions of that Act as originally passed or later amended. By Sec. 11 it is provided that “Every license to practice as an osteopathic physician . . . shall authorize the holder thereof to practice osteopathy in all its branches, ... as the same is herein defined, and taught and practiced in the legally incorporated, reputable colleges of osteopathy; . . . Any use or practice by osteopathic physicians of the agencies or means hereinafter named . . . shall hot be construed the practice of medicine .. .”. Further, the Act provides that “The word ‘osteopathy,’ as used in this act, means a complete and independent scientific system for the preservation of health and the relief and cure of bodily disorders . . And, still fur *219 tlier, Sec. 13 of the Act concludes with the injunction “That nothing contained in this act shall be construed as affecting the so-called practice !of medicine”. Thus, did the legislature in the Osteopathic Act of 1909 plainly indicate its positive intent that those licensed thereunder as physicians were not authorized to “practice medicine” as that term had been judicially recognized and was then statutorily employed. Two years later, the Medical Practice Act of 1911, cit. supra, which, in effect, was a codification of existing statutory law relative to the practice of medicine and has ever since prescribed the qualifications and furnished the basis for the licensure of physicians for the practice of medicine, was enacted. Thenceforth, as that Act expressly declares, it was intended to “furnish a complete and exclusive system in itself so far as relates to the right to practice medicine and surgery in the Commonwealth of Pennsylvania”: see Section 14- Section 13 prescribes that “The provisions of this act shall not apply either directly or indirectly, by intent or purpose, to affect the practice of . . . osteopathy”. This was designedly done to preclude any suggestion that the “practice of osteopathy” was the “practice of medicine” just as the “practice of pharmacy” and the “practice of dentistry” had been similarly excluded by the same Section (13) of the Act. Here, again, the legislature affirmatively evidenced its manifest p'olicy and intent that the licensure of osteopaths or osteopathic physicians should not carry with it the right to practice medicine as authorized by the Medical Practice Act of 1911. With the statutory law, relative to the practice of medicine and the practice of osteopathy, thus developed in this State, there arose in 1921 the case of Commonwealth v. Dailey, cit. supra. There, an osteopathic physician, duly licensed under the Act of 1909, was convicted on an indictment charging him with “practicing medicine without a certificate issued by the Bureau of Medical Education and Licensure, and without having been reg *220 istered under tlie [Medical Practice] Act of June 11, 1911, P. L. 639”. In due course judgment of sentence was passed on the verdict of guilt. On the defendant’s appeal to the Superior Court, the question, as presented by the appellant was “whether an osteopathic physician duly licensed by the Osteopathic [State] Board ... is entitled under the law to engage in the general practice of medicine?”. In answering that question in the negative and in affirming the judgment, the Superior Court pertinently quoted with approval from the opinion of the trial judge on the motion for new trial, in part, as follows: “ ‘Osteopaths are empowered to diagnose and treat diseases by employing osteopathy. Their privileges are not affected by the acts relating to the practice of medicine; but the right to practice medicine is not conferred upon those licensed under the Act of 1909, and its supplements, relating to osteopathy; and the fact that materia medica, therapeutics and other branches taught in medical schools are also imparted at the osteopathic college cannot extend the right of osteopaths to practice medicine’ ”. Within two years bf the foregoing clear and unmistakable judicial pronouncement with reference to the relative rights and privileges attending licensure respectively under the Acts of 1909 and 1911, the legislature passed the Mental Health Act of 1923. Therein, as already stated, a “Qualified physician” is specifically defined as “. . . a physician who . . . has been licensed to practice medicine in this State . . .”. What else could the legislature have possibly meant in the Act of 1923 than that an osteopath or osteopathic physician is not qualified to certify a mentally ill person for commitment to a mental hospital? And, that Act has never yet been amended in material regard. Such must have been the legislature’s understanding of its cognate statutes in the premises when it came to enact the Statutory Construction Act of May 28, 1937, P. L. 1019,46 PS § 501 et seq. In that Act there is clearly *221 evidenced an intent that an already existing distinction between the practice of medicine and the practice of osteopathy was meant to be continued. Thus, Sec. 101 (the definition clause) declares that an “Ostebpath” is “an individual licensed under the laws of this Commonwealth to practice osteopathy” and that a “Physician” is “an individual licensed under the laws of this Commonwealth to engage in the practice of medicine and surgery in any or all of its branches”. It so happens, however, that, by Act of August 6, 1941, P. L. 903 (63 PS § 401), the legislature amended Sec. 1 of the Medical Practice Act bf 1911 by adding thereto two paragraphs 3 whose effect was so to enlarge the field of “medicine and surgery” as to automatically constitute “osteopathy” a branch of the practice of medicine. Prom that, the learned court below concluded that “. . . 'one designated a physician and licensed [under the Act of 1909] to diagnose and treat all types and conditions of diseases, albeit by osteopathic methods, is nevertheless licensed to practice a healing art and thus licensed to practice medicine”. That deduction is not only a non sequitur but also an obvious anachr'onism. The question here is what the legislature meant in 1923 by the phrase, “licensed to practice medicine in this State”, as used in the Mental Health Act of that year to designate physicians qualified under that Act to commit mentally ill persons to hospitals for care and treatment. The Act of 1941 is in no sense an amendment of the Mental Health Act bf 1923; nor was it intended to *222 be. Indeed, the latter Act’s definition of a “Qualified physician” has never been amended since it first became a part of the law. For like reason, the distinction between the “practice of medicine” and the “general practice of medicine” which the learned court below drew from the 1941 amendment of the Medical Practice Act is of no present pertinency. Even if it should be held that, under the 1941 amendment, “osteopathy” is now a branch bf “medicine”, the crucial question would remain as to who were “licensed to practice medicine” upon the passage of the Mental Health Act in 1923. And, the inescapable answer is that osteopaths were not so licensed, no more than were dentists or pharmacists whose licensure and regulation, just as in the case of the osteopaths, is by virtue of respective independent statutes and not by the determinative Medical Practice Act. The increased and increasing use of materia medica and therapeutics by osteopaths or osteopathic physicians and their continued encroachment upon the field of medicine by the expansion of their theories, studies and practices must not be allowed to 'obscure the sole question in this case as to the meaning of a “qualified physician” under the Mental Health Act of 1923 or to influence the answer. In ascribed support of their claim that an osteopath is qualified to act as a committing physician under the Mental Health Act, the appellees point to the fact that there is in this State an Osteopathic Hospital for “mental health patients . . . under the supervision of the Department of Welfare” and “licensed” by the Commonwealth. The obvious and appropriate answer is that only a further Act of Assembly, and not a voluntarily established hospital, can be the legally efficient means of bringing osteopaths within the sc'ope of “qualified physicians” as contemplated and defined by the Mental Health Act of 1923. The issuance of a license for the particular hospital is readily understandable when it is borne in mind that the Department of Welfare of the *223 Commonwealth, in reliance upon opinions of the Attorney General, has been treating osteopathic physicians and their institutions as if osteopaths were duly licensed under the Medical Practice Act of 1911 to practice medicine. With those opinions, we manifestly do not accord. Yet, the fact is that it is those very opinions upon which the appellees fundamentally base their present contention. We are unaware, however, of any instance where opinions of executive or administrative officers have been considered binding upon the judiciary when called upon to decide a justiciable controversy. Nor is the fact that osteopaths have been permitted by various statutes to perform certain functions which, historically, have attached to the practice of medicine (e. g., the signing of death certificates) of any materiality to the present question. The legislative grant to certain groups of the privilege of performing specific medical services does not carry with it a right to the unrestricted privilege tof practicing medicine as defined by the Medical Practice Act of 1911. Similarly, the ruling in the case of Commonwealth v. Cohen, 142 Pa. Superior Ct. 199, 15 A. 2d 730 (1940), that osteopaths are qualified physicians within the meaning of the Anti-Narcotic Act of July 11, 1917, P. L. 758, 35 PS § 854, furnishes no support for the decision of the court below in this case. The question in the Cohen case involved the interpretation of a different statute, enacted for a different purpose than what we have here for consideration. Incidentally, the Anti-Narcotic Act, cit. supra, Avas amended by the Act of April 12, 1945, P. L. 225, so as to give to “The word ‘physician’ as used in this act” the definition originally ascribed to it by the Superior Court in Commonwealth v. Cohen, supra. On the other hand, the term “Qualified physician”, as used in the Mental Health Act of 1923, has never yet been legislatively altered. To the contrary, at the 1947 session of the General Assembly, a bill was introduced in the Senate (No. 595) to amend Sec. 412 of “The Administrative Code of *224 1929” with a view to bringing the school of osteopathy within the jurisdiction bf the State Board of Medical Education and Licensure by adding to the State Board a member chosen from the Pennsylvania Osteopathic Association. A companion bill (No. 594), introduced in the Senate at the same time, was designed to amend the Medical Practice Act of 1911 so as to put the practice of osteopathy and osteopathic surgery under the Medical Practice Act and thereby include the licensure of osteopathic physicians and surgeons under that Act. Neither bill ever emerged from committee. Knowledge of the current state of the cognate law, on the part of the protagonists of the above-mentioned measures, cbuld hardly have been evidenced more plainly; nor could the legislature’s continued opposition to any change therein have been indicated in the circumstances more effectively. We fail to perceive wherein the appellees can find any support in the cases which they cite, such as Commonwealth v. Seibert, 262 Pa. 345, 105 A. 507 (1918), Long et al. v. Metzger et al., 301 Pa. 449, 152 A. 572 (1930), and Commonwealth v. Mollier, 122 Pa. Superior Ct. 373, 186 A. 757 (1936). On the basis of the statement in the Seibert case, supra, at p. 350, that “the legislative meaning of the . . . word [medicine], when used in the expression ‘practice of medicine,’ covers and embraces everything that by common understanding is included in the term healing art”, the present osteopathic appellees contend that they “practice medicine” and are therefore “Qualified physicians” under the Mental Health Act. It would be difficult to imagine a more specious argument. What this court actually did in the Seibert case was to affirm the Superior Court’s affirmance of the conviction of the defendant (a neuropath) upon an indictment which charged him with the unlawful practice of medicine and surgery “without having first received a certificate of licensure” under the Medical Practice Act of 1911. The fact that the defendant was practicing medicine unlaw *225 fully did not make him an authorized practitioner of medicine as that term is defined in the Seibert case but quite the opposite. Long et al. v. Metzger et al., supra, was a suit in equity by chiropractors against members of the State Board of Medical Education whereby the plaintiffs sought to have the Medical Practice Act of 1911 declared to be in derogation of their constitutional rights and void against such practitioners of chiropractic and, further, to enjoin the defendants from enforcing certain regulations. As the opinion states, the bill alleged, inter alia, that “the State Board of Medical Education was about to start criminal proceedings against the plaintiffs”. The lower court dismissed the bill and this Court affirmed the decree, thereby impliedly ruling that the plaintiffs’ threatened conduct would be a violation of the Medical Practice Act of 1911. Speaking for this Court in the Long case, Mr. Justice Schaffer repeated the hereinabove quoted portion from Commonwealth v. Seibert and held that chiropractic is “comprehended in the term ‘practice of medicine’ ”. By no permissible reasoning can that conclusion be taken to have endowed the defeated plaintiffs with a license to practice medicine under the Act of 1911. In fact, Mr. Justice Schaffer quoted with approval from the Superior Court in Commonwealth v. Jobe, 91 Pa. Superior Ct. 110, 113, to the effect that “Specialists in, or advocates of, any particular branch or division of medicine or surgery, by whatever newly coined word it may be known, should know by this time that the declared policy of our laws regulating medicine and surgery is that no person shall engage in the practice of that profession in the Commonwealth without complying with the statutory requirements as to professional qualifications and that efforts to evade those requirements are engaged in at their peril”. That observation is not without its pertinency in the present instance. *226 In Commonwealth v. Mollier, supra, “The defendant [a chiropractor] was convicted [in the Court of Quarter-Sessions of Montgomery County] of practicing medicine, or surgery, without a license in violation of the Act of June 3, 1911, P. L. 639 [the Medical Practice Act], and its supplements”. In sustaining the conviction, President Judge Knight quoted the statement in Long v. Metzger, supra, that “Chiropractic ... is, however, comprehended in the term ‘practice bf medicine’ . . .”. But, here again, such practice of medicine as a chiropractor performs is not the “practice of medicine” for which licenses are issued under the Act of 1911. The Superior Court affirmed per curiam on the opinion of the learned trial judge and, in so doing, again took occasion to caution that “Persons who desire to practice any branch of the healing art of medicine within this State, even though it does not embrace the administration of drugs, should, by this time, be able to understand that they cannot lawfully enter up'on or engage in such practice until they have complied with the requirements of our statutes on the subject”. The patent fallacy in the appellees’ principal contention, which their brief appraises as “so significant that the appellants . . . could not overcome it”, affords a comparative gauge of the want of merit in the appellees’ case. Sec. 12 of the Osteopathic Act of 1909, which requires bsteopathic physicians to observe and be subject to “all State and municipal regulations relating to the control of contagious diseases, the reporting and certifying of births and deaths, and all matters pertaining to public health . . .”, was amended by the Act of July 11, 1923, P. L. 998, so as to provide that osteopathic physicians and surgeons should act in such regard “the same as physicians bf other schools”. The section was still further amended by Sec. 4 of the Act of June 5,1937, P. L. 1649, so as to provide that such reports “shall be accepted ... by the officers, boards, bureaus, or departments of the State ... to whom the same are made, *227 with the same force and effect as reports or certificates issued by physicians of other schools . . .”. And, s'o, the appellees, mistaking positive mandatory regulations of the professional conduct of practitioners of the healing art according to the school of 'osteopathy for a dispensation of the professional rights and privileges attaching to a physician licensed under the Medical Practice Act, argue that, since the above cited 1923 and 1937 amendments of the Osteopathic Act of 1909, they have been “Qualified physicians” within the meaning of the Mental Health Act although the cited amendments neither purported to nor did they amend the Mental Health Act in the slightest particular. In final analysis, what the appellees urge us t'o do would be to formulate legislative policy rather than to interpret already expressed legislative intent. To that end, the appellees have included in their brief the result of extended research as to the etymology, derivation and meaning of the word “medicine” and how eminent lexicographers and other learned authorities have defined its meaning from time to time. But, it is hot within our province arbitrarily to fasten upon the legislature a new nomenclature. Our duty is to interpret the presently germane statutes according to the usual and ordinary meaning of their plain and unmistakable words and terms. Equity’s jurisdiction under the Act of June 16,1836, P. L. 784, 17 PS § 41, as amended, to restrain the Secretary of Welfare for the Commonwealth from condoning and encouraging the practice of medicine by persons not licensed under the Medical Practice Act of 1911, as in the instant case, is neither questioned nor open to question. The jurisdiction is invokable on the complaint of a duly licensed member of the profession unlawfully so invaded: Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 534, 135 A. 237. And, that is so notwithstanding a penal remedy is provided for the redress *228 of the offense: see Neill v. Gimbel Brothers, Inc., 330 Pa. 213, 217-221,199 A. 178; Childs v. Smeltzer, 315 Pa. 9, 16, 171 A. 883; Martin v. Baldy, 249 Pa. 253, 259, 94 A. 1091. However, inasmuch as the individual defendants are duly licensed to practice osteopathy in this State and their only act of unauthorized practice of medicine, according to the pleadings, was their certification on September 6, 1945, of a mentally ill person for commitment to a State Hospital, for which action they had color of authority under a formal opinion (No. 526) of the Department of Justice, issued August 28,1945, we deem it proper that the bill be dismissed as t)o those defendants, leaving any future violation by them of the Mental Health Act or the Medical Practice Act for redress through appropriate remedy. The restraint to be laid upon the Secretary of Welfare will be based on our interpretation that osteopaths or osteopathic physicians are hot “licensed to practice medicine in this State” within the intent of the Mental Health Act of 1923. That will give the plaintiffs relief adequate to the facts of record in this case to which they are entitled. The decree is reversed at the costs of the Commonwealth and the cause remanded with directions to the court below to enjoin the Secretary of Welfare in the manner specified in paragraphs 1(a), (b) and (c) of the prayer ¡of the complaint, and to dismiss, with their costs, as to the individual defendants. Footnotes [1] The paragraph of See. 302 of the Mental Health Act from which the quotation is taken reads as follows: “Section 302. Whenever it shall appear that any person is mentally ill, or in such condition as to be benefited by or need such care as is required by persons mentally ill, the superintendent of any hospital for mental diseases may receive and detain such person, on the written application of any relative or friend, or the legal guardian of such person or any other responsible citizen, and on the certificate of two qualified physicians that said person is mentally ill and is in need of treatment and care in a hospital for mental diseases.” [2] The definition of a “Qualified physician” in full, as contained in Sec. 103 of the Mental Health Act, is as follows: “ ‘Qualified physician’ shall mean a physician who has been resident in this State for at least three years, has been licensed to practice medicine in this *217 State, and has been in the actual practice of medicine for at least three years or has had at least one year’s experience as physician in a hospital for mental patients.” [3] The presently material paragraphs of the 1941 amendment of the Medical Practice Act of 1911 are: “(c) The term ‘medicine and surgery’ as used in this act shall mean the art and science having for their object the cure of diseases of, and the preservation of the health of, man, including all practice of the healing art with or without drugs, except healing by spiritual means or prayer. “(d) The term ‘healing art’ as used in this act shall mean the science of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body.”