MacOmber v. State Board of Health

Parkhurst, J. The appellant was notified, by notice dated March 20, 1905, to appear before the state board of health on the 23d day of March, 1905, to show cause why his certificate to practice medicine in the State of Rhode Island should not be revoked, under chapter 165 of the General Laws; and on said 23d day of March said appellant did appear, and the said, board, after hearing evidence for and against the said appellant, on the charges preferred against him by the secretary of the said board, and hearing the arguments of counsel on his behalf, found that the said appellant was guilty of gross unprofessional conduct, and of conduct of a character likely to deceive and *4 defraud the public, and that in its opinion said appellant was an unfit person to practice medicine in this State, and that the certificate heretofore granted to said appellant to practice medicine in this State was thereby revoked; and so notified the appellant. From the decision of the said board the said appellant appealed to this court, under chapter 165, section 5 of the General Laws of this State. A careful examination of the testimony presented to us in this appeal does not, in our opinion, furnish sufficient ground upon which we can support the finding of the State Board of Health that the appellant was guilty of “ gross unprofessional conduct,” or of “ conduct of a character likely to deceive and defraud the public.” A number of advertisements from Providence papers relating to cures or alleged cures said to have been made by use of the “Electricure,” a device for which one David S. Frazer was agent in this State, are produced by the State board, upon a few of which appear the name of the appellant as “specialist, ” or as “physician in charge;” also certain circulars and advertisements purporting to explain the “Electricure” and exploiting in glowing terms its powers in the cure of numerous diseases. It is evidently the intention of the State board that this court shall infer, from the language of these various advertisements, that the statements therein contained are untrue, that the claims made are extravagant, and therefore likely to “deceive and defraud the public,” and that Dr. Macomber, the appellant, by allowing his name to appear upon some of them or by distributing some of them to his patients or to inquiring parties, has been guilty of conduct as above set forth. Unfortunately, however, the State board has not seen fit to offer any testimony to show that any one of the statements set forth is untrue in fact, or even that it is extravagant or misleading, or tending to “deceive” or “defraud the public." The evidence is submitted to this court as if the court were a body of medical experts fully qualified to pass upon all the numerous medical questions involved. It is hardly necessary to say that this court disclaims such qualification and can not *5 take judicial notice of such matters, but is bound to form its judgments in such matters solely upon evidence adduced before it. Again, with regard to the device known as the “ Electricure,” about which the State Board of Health seems to desire us to infer that it is a deception and a fraud; the board is satisfied to place before us the evidence of a single application of this device to a person not shown to have been suffering from any disease, and not shown to be of any expert capacity in the observation or investigation of devices of this character, and desires us to infer, from the apparently negative character of this single experiment, that the repeated application of this device, according to the directions given by its inventor, is of no value to the patient, and therefore is a fraud and tends to “deceive and defraud the public.” This evidence is purely negative, and does not assist the court in coming to any conclusion regarding the value or want of value of the device in question. As to the mechanical efficiency of the “Electricure,” whether or not it is capable of producing an electric current or “ thermal electricity,” it would have been very simple to have subjected the device to the examination of well-known electrical experts, under the conditions named in the circulars, and to have shown whether or not in fact any such electrical energy was produced; but the board has not seen fit to do this; the tests applied not having been made by persons qualifying as experts, and such tests as were applied appearing to be only partial and not in accordance with the conditions specified in the directions for use. The most cogent evidence to show that the appellant had been guilty of “gross unprofessional conduct and of conduct of a character likely to deceive and defraud the public” would have been evidence from some one or more persons that he or they had been actually deceived or defrauded, had been led into expense without adequate benefit, or had been told that they would be cured of any of the various diseases mentioned, and had taken the treatment without results, or with bad results; or that the statements made as to cures actually *6 effected were in fact untrue. The board has produced no evidence of this character; but on the contrary the appellant has produced seven witnesses of apparent respectability and intelligence, none of whom are in any wise discredited or impeached or contradicted, and all of whom testify to substantial relief or cure of serious disorders or disabilities. Dr. Macomber himself in his testimony shows that he did not in any instance attempt to “deceive” or "defraud” his patients by any extravagant claims, or promises, and that he did not demand pay from them unless they themselves were satisfied with the treatment and its results. On the whole case, while the board has succeeded in raising some considerable suspicion in our minds as to the matters in question, we are satisfied that the evidence is not sufficient to warrant the revocation of the appellant's certificate, in that it does not show that the appellant was guilty of such conduct as charged. The decision of the State Board of Health is overruled.