Engel v. Gerstenfeld

Benedict, J. This action was brought to recover a balance alleged to be due on a contract for “ professional services.” Plaintiff testified that she had been engaged for three years in the business of the removal of superfluous hair from women’s faces by the use of an electric needle, and that her office was at 16 Court street, Brooklyn. She claims that on January 5,1917, the defendant called at her office, accompanied by one — 98 — Pearl Abrams, defendant’s niece, and that thereupon a contract was made between plaintiff and defendant whereby plaintiff was to give said Pearl Abrams treatments, for the removal of superfluous hair from her face, for three months, at $2.50 per hour, which defendant promised to pay. The treatments began on January 7, and continued on nearly every day until about July 13, 1917, each treatment occupying from one to four hours. At the end of the first three months defendant, in company with her niece, again called on the plaintiff, and, according to the plaintiff, paid $200 on account and arranged for three months’ further treatment, promising to pay the balance of $60 then owing when she paid for the second three months’ treatment. The plaintiff thereupon continued the treatment and has sued for the balance, due, viz., $223.75. Defendant’s story, which is corroborated by Miss Abrams, who was of full age at the time of the transaction, is that the contract was not made by her but was made between the plaintiff and Miss Abrams, and that the defendant never undertook to pay for the treatments and never did pay for any part of them, the $200 and $25 paid at another time having been paid by Miss Abrams herself. The question as to whether the defendant or the niece made the contract was a question of fact for the trial justice, who had the opportunity, which we have not, of seeing the witnesses, and I think his conclusion as to the facts was fully justified by the recorded evidence. Indeed, from a perusal of the record, I cannot see how any other conclusion could have been reached upon that part of the case. A more serious difficulty in sustaining the judgment is encountered, however, when we consider the defendant’s contention that the plaintiff, not being a licensed — 99 — and registered physician, in undertaking to treat Miss Abrams for the growth of hair on her face, violated article VIII of the Public Health Law regulating the practice of medicine. The practice of medicine is defined in the act as follows: “ A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.” Public Health Law (Laws of 1909, chap. 49), § 160, subd. 7. The growth of hair on Miss Abrams’ face when she went to plaintiff was a “ deformity ” or a “ physical condition,” for which she, or the defendant, desired the aid of the plaintiff in the treatment and cure; and plaintiff clearly held herself out to them as being able to treat it successfully, and did undertake to treat it with an instrument known as an electric needle. The plaintiff’s counsel argues that in order to constitute a violation of the statute there must be shown to have been a “ holding out ” by the party that he or she is practicing medicine. I assume that he is right in this contention and I think there was such evidence. On direct examination the plaintiff testified that the defendant was recommended to her by a personal friend of the plaintiff and asked whether the plaintiff would agree to undertake to work on her niece’s face, and that plaintiff said she would. Then the defendant asked about her work and her rates. On cross examination plaintiff testified that “ I told Mrs. Gerstenfeld that there will be a decided improvement at the end of three months.” And again she made the following answers: “ Q. You know the fact that she had — 100 — so much hair on her face is the result of a diseased condition of the skin? A. It is what most people call a disease. Q. And you undertook to cure a diseased condition of the skin so that the hair wouldn’t grow again? A. Why, certainly.” The statute plainly means that a person holds himself out as being able and willing to diagnose or treat any human disease or “ deformity ” or “ physical condition ” when he represents or states to a patient that he possesses the skill or ability requisite for the case. It is not essential that the “ holding out ” should be by way of public announcement. If there be a “ holding out ” of oneself as willing to undertake the treatment and able to administer it, then it follows that this constitutes the practice of medicine within the terms of the statute. The plaintiff also urges that the removal of hair from the face of a women by the use of an electric needle does not properly come within the category of the practice of medicine any more than the removal of hair from the face of a man by the use of a razor would; but the analogy is not correctly drawn. The plaintiff held herself out as being able to cure an abnormal or unusual condition of the skin — whether due to disease or not is immaterial — by the use of electricity in isuch a manner that the hair would not grow out again. In other words, she claimed to be able to destroy the roots of the hair so that it should not reappear upon the face of the patient. In order to accomplish this she had to perforate the skin with a needle charged with electric current. She might have used a razor upon the surface of the face, but that remedy would have afforded only temporary relief for the unusual and unfortunate condition. Had she pulled the hairs out they would have grown again if there was life in the root. It was the claim that her special form of — 101 — pathological treatment would produce lasting results by destroying that life that led the defendant to her and prompted her to agree to pay at the rate of two dollars and fifty cents for each hour’s attention. The skin is the covering of the whole body. It acts firstly, as a protective layer, secondly as a regulator of the temperature, thirdly as an excretory organ, and fourthly as a tactile and sensory organ in which nerves end. It varies in thickness over different parts of the body. Two main layers are recognized in the skin; the epidermis' or scarf skin, and the dermis or true skin. Owing to its formation it is liable to the same pathological conditions as other structures of the body; such for example as inflammations or the results of irritant poisons. Hair is an appendage of the skin. It grows at its roots from a hair follicle which is a tubular inpushing of the epidermis into the true skin or dermis, or, in the case of large hairs, deeper still into the superficial fascia. It is divided into an inner and outer root sheath, the former representing the more superficial layers of the epidermis, the latter the deeper layers. At the bottom of the follicle the hair énlarges to form the bulb, and into the lower part of this a vascular papilla projects from the true skin. The cells of the hair are derived from, and are continuous at the bulb with those of, the outer root sheath, and therefore with the deeper layers of the epidermis. See article on Skin in Encye. Brit. 11th edition. Anthropology has pointed out the obvious racial differentiation in the hair of different races of mankind. In most Caucasian races hair does not usually grow upon the faces of women, just as in the yellow races the men often have only rudimentary beards. When hair appears upon the face of a woman of the European races in noticeable quantity or strength it is — 102 — regarded as an abnormal and unfortunate physical condition amounting to a deformity, and much study has been employed in scientific attempts to ameliorate the unwelcome condition without danger to the individual. Among these is the use of an electrically heated needle, introduced under the epidermis and reaching the root of the hair so as to destroy its life. The process is obviously one requiring a knowledge of the structure and pathological condition of the skin and involving some, risk of scarifying the skin by the application of too great a degree of heat. This is shown by the plaintiff’s own testimony when she said: “ The hairs that I removed stayed out with the exception of a few that were entirely too heavy to be taken out with one application of the electric current; if I had used the amount of current required I would probably have scarred her face.” In so far as my research has disclosed, there has been no case precisely similar to the instant case decided by the courts of this state. Bouvier, speaking of surgery, says: “ The practice of surgery is limited to manual operations usually performed by surgical instruments or appliances.” Bouvier’s L. Diet. The use of an electrical needle would obviously come within this definition. It is a matter of common knowledge that in modem surgery frequent use is made of an electrically heated needle or wire for the purpose of treatment or cauterizing of the throat, nose and other parts of the body. Such a use by a person of inexperience would naturally be attended with some danger to the patient. In Davidson v. Bohlman, 37 Mo. App. 576, it was held under a statute prohibiting the practice of medicine without a license that it is not necessary that internal remedies be administered; they may be applied externally and they need not necessarily be substances — 103 — which may be seen or handled. Thus one giving electrical treatment is practicing medicine. The plaintiff urges that the treatment given by her does not come within the purview of the Public Health Law any more than would be the case if she employed what is known as massage; but it is obvious that the manipulation or rubbing or kneading of the surface of the body as used in massage is quite distinct from the treatment which the plaintiff gave. It is true that the General Term of the Supreme Court in the case of Smith v. Lane, 24 Hun, 632, held that the practice of massage was not prohibited by the statute then in force regulating the practice of medicine, and that it was merely a species of nursing; but the rule laid down in that case was strongly criticised in the case of People v. Allcutt, 117 App. Div. 546, where it was held that it was not necessary either to administer medicine or to use surgical instruments in order to come within the provisions of the Public Health Law. In the case of Territory v. Newman, 79 Pac. Rep. 706, 813, it was held by the Supreme Court of Hew Mexico, in a well-considered opinion, that even the method of treatment, employed in that case, which was known as ‘‘ magnetic healing,” given by a man who advertised himself as a “ drugless doctor,” came within the prohibition of the statute of that state. In the case of People v. John H. Woodbury Dermatological Institute, N. Y. L. J. Jan. 15, 1908, where the Court of Special Sessions of the city of Hew York held the defendants, a corporation and its president, guilty of advertising to practice medicine within the meaning of Laws of 1907, chapter 344, which contained in section 15 a definition of the practice of medicine similar to that in the present law, the record of the case on appeal shows that one of the deformities which the defendants advertised to cure was superflous hair. — 104 — The court, after citing this and some other advertising matter, said: “We do not need the statutory definition to determine that this is advertising ‘ to practice medicine/ by a nonregisteréd physician.” The conviction was affirmed by the Appellate Division (124 App. Div. 877) and by the Court of Appeals (192 N. Y. 454). The recent ease of People v. Cole, 219 N. Y. 98, is also authority for the proposition that the statuté applies to ‘ ‘ every means and method that could * * # be used or claimed to be used to relieve or cure disease and infirmity, ’ ’ unless such means or method is within the exceptions contained in section 173 of the Public Health Law. It is not contended that the plaintiff in the instant case is within any of these exceptions. The statute further provides that any person who shall practice medicine without license and registration or in violation of the provisions of the article shall be guilty of a misdemeanor. Pub. Health Law, § 174. The definition of the term “ practice of medicine ” contained in the statute and quoted above may be thought by ¡some persons to be highly artificial. It includes, and was designed to include, many things not popularly considered as medical practice. But the wisdom of the law, if it be constitutional (and its constitutionality is not attacked in this case), is a matter for the consideration of the legislature and not of the courts. Courts have no function in the matter of the wisdom of legislative enactments. Their duty is confined to the interpretation of the laws or, in proper cases, to the determination of their constitutionality. It may well be argued that four years of medical study, including a thorough knowledge of anatomy, materia medica, hygiene, etc., in all their branches, are not requisite to equip a person properly to remove superfluous hair alone. Yet it can hardly be contended that — 105 — persons engaging in that occupation should not be subject to some sort of regulation to insure proper skill and sanitation, such at least as the regulations affecting the practice of chiropody. Pub. Health Law, art. XIII. The legislature has seen fit to set a much higher standard, as I have attempted to show, and until the statute herein discussed is amended or abrogated the courts, have no discretion but to enforce it. As the plaintiff committed a misdemeanor in undertaking to treat the “ deformity ” or “ physical condition ’ ’ of the skin of Miss Abrams, she, the plaintiff, was not entitled to recover in this action. Fox v. Dixon, 34 N. Y. St. Repr. 710; Accetta v. Zupa, 54 App. Div. 33; and see note to that case in 8 N. Y. Anno. Cases, 190, in which there is a full discussion of the right to recover compensation in the absence of registration. See also Ottaway v. Lowden, 55 App. Div. 410. I advise that the judgment be reversed, with costs, and the action remanded to the court below with directions to dismiss the complaint.