Texas State Board of Medical Examiners v. Koepsel

BARROW, Justice. This suit was brought by appellee, Koep-sel, by way of an appeal from an order of appellant, Texas State Board of Medical Examiners, cancelling appellee’s license to practice as a medical doctor in the State of Texas. Appellee presented a motion for summary judgment in the trial court, and it was stipulated by the parties that a transcript of the [653] testimony introduced on the hearing before the Board should be considered by the court for the purpose of the motion for summary judgment. The trial court granted the motion and rendered judgment revoking the order of the Board and declaring the medical license of appellee to be in full force and effect. This appeal is from that judgment. On motion for summary judgment, under Rule 166-A, Texas Rules of Civil Procedure, all evidence before the court, together with all inferences reasonably deducible therefrom, must be resolved against movant, and such judgment may only be granted where the evidence is such that if presented to a jury an instructed verdict would be proper. Hurley v. Knox, Tex.Civ.App., 244 S.W.2d 557; Statham v. City of Tyler, Tex.Civ.App., 257 S.W.2d 742. The charges brought by the Medical Board against the doctor are based upon testimony of five different women which we must assume to be true, to the effect that the doctor would cause these women patients to disrobe, or partially disrobe, and lie down on a table facing him, whereupon he would turn out the light and put the patient over to the edge of the table and against him, and while he was massaging the back of the patient he would rub his penis over various portions of the patient’s naked body and would move his body back and forth against the body of the patient. These charges were brought under the provisions of Sec. 4, Art. 4505, Vernon’s Ann.Civ.Stats., which reads as follows: “Grossly unprofessional or dishonorable conduct, [of] a character which in the opinion of the Board is likely to deceive or defraud the public.” The appellee contends here, as he did in the trial court, that while the conduct complained of was both unprofessional and dishonorable, it was not of that character which was likely to deceive and defraud the public. It is not contended by the Board of Medical Examiners that the treatment which the doctor was giving these ladies was other than proper. It was fully agreed that the treatments, that is, the back rubbing, were efficient and had therapeutic value, and it is not contended that the conduct complained of was any part of these treatments. Undoubtedly, the doctor’s improper conduct practiced upon the person of the particular patient constituted a fraud and deception perpetrated upon such patient, and it also comes within the meaning of gross unprofessional and dishonorable conduct. But, after a careful study of all authorities on the subject which we have been able to find, both in the State and other jurisdictions, we have concluded that such conduct does not come within the classification of fraud and deceit, nor the unprofessional and dishonorable conduct contemplated in Section 4 of Article 4505. As said by Judge Fly of this Court in Berry v. State, 135 S.W. 631, 634: “The terms ‘unprofessional’ or ‘dishonorable’ conduct used in the law of 1907 (now Article 4505) are qualified and modified by the language ‘of a character likely to deceive or defraud the public,’ to distinguish them from acts that are unprofessional or dishonorable under the code of ethics prescribed by the honorable profession of medicine that would not, directly at least, react to the disadvantage of the public, ⅜ ⅝ ijs w In the same opinion, in speaking of the kind of conduct denounced by this section, Judge Fly said: “It is similar and close akin to swindling, but all the essentials of swindling need not be proved, in order to justify a verdict of dishonorable or unprofessional conduct.” We think it is apparent that the kind of fraud and deception covered by this section has reference to quacks and charlatans who prey upon the credulous and unwary by representing themselves as possessing miraculous cures which do not in fact exist, knowing that such claims are false. We think it [654] is dear that this section does not and was not intended to cover immoral conduct of the practitioner, and that the exclusive remedy in such cases is provided by Section 2 of Art. 4505, requiring a conviction for offenses involving moral turpitude. Berry v. State, supra; Morse v. State Board of Medical Examiners, 57 Tex.Civ.App. 93, 122 S.W. 446; Waller v. State, Tex.Civ.App., 68 S.W.2d 601; Janeway v. State Board of Chiropractic Examiners, 33 Tenn.App. 280, 231 S.W.2d 584; Forman v. State Board of Health, 157 Ky. 123, 162 S.W. 796; Van Heukelom v. Nevada State Board of Chiropractic Examiners, 67 Nev. 649, 224 P.2d 313. The Board relies strongly on the case of Jacobi v. Texas State Board of Medical Examiners, Tex.Civ.App., 308 S.W.2d 261. Incidentally, this is the only case we have been able to find which involved a charge of immoral conduct. That case is readily distinguishable from the case we have here. In the Jacobi case the doctor was charged that he, while pretending to examine and/or treat each of seven patients, did manipulate his hands and fingers in and around her genital organs, all of which manipulation was of no value, either medically or otherwise to the patient, and all of which manipulation was unprofessional and dishonorable conduct of a character likely to deceive and/or defraud the public, and did in fact deceive and defraud the patient. The doctor’s claim was that he gave treatments which he designated as “pelvic massage.” There were three special issues submitted relating to each patient. The jury found, (1) that he did so manipulate his hands and fingers in such manner that such treatment was of no value to the patient, (2) that he did so for the purpose of deceiving and defrauding the patient by thus inducing her to believe that such manipulation was beneficial to her, either medically or to her health, (3) that such conduct was of a character likely to deceive and defraud the public by inducing the belief that the professional services being performed by him were beneficial, either medically or to the health, when in truth and in fact they were not, and were known by him not to be beneficial. Thus in the Jacobi case it is apparent that a fraudulent quack practice case was presented, whereas in the case here under consideration it was stipulated that the doctor was-actually giving treatments to the patients-which had therapeutic value and were efficacious and beneficial to the patients. The improper and immoral conduct was aside from and not pretended to be the treatment or a part thereof. Therefore, the conduct complained of is not sufficient, under Section 4 of Article 4505, to authorize the cancellation or revocation of appellee’s license to practice medicine, and the trial court properly granted the summary judgment. The judgment is affirmed.