The above acts of parliament, and,the decisions under them, show that the different departments of medical practice are carefully regulated in England. Nor has any question as to the constitutionality of these restrictions ever been raised. IN this country the legislation on the subject has been by no means harmonious. Sev eral States have failed to pass any statute on the subject; others have passed acts making the practice of medicine and surgery without a license or registration, a penal offense; other statutes making the receipt of fees dependent on satisfying the requirements of the act; while in New York, which had passed an act as early as 1787 on the subject, repealed all laws on the subject in 1844 and reenacted them in 1874; and Massachusetts, where the requirements of the act of 1817 were particularly strict, repealed all of these in 1833. The right of every person to pursue any lawful calling he may see fit, and to do so in his own way, not encroaching on the rights of others, is recognized in this country, subject to certain modifications; Cooley 745. gerous or offensive occupations as to locality, and not thereby grant a monopoly; Thus a State may impose restrictions on danSlaughter House Cases, 16 Wail. 36. It may require the possession of certain qualities to entitle men to pursue certain callings, such as the legal or medical profession, the apothecaries' trade and that of engineers, pilots, etc. This right rests on the police power of the State, while, for the purpose of revenue, it may impose tax on all following a certain calling. A license has been defined to be that which confers a privilege and makes the doing of something legal, which, if done without it, would be illegal; Savannah v. Charlton, 36 Ga. 460. A State has a right to derive a revenue from the imposition of what is sometimes called a license, upon all persons following a certain calling: Ward v. State of Maryland. 33 Md. s. c. 9. Am. Law Reg. N. S. 424; Licenses Tax Cases, 5 Wall. 462. Under their police power above mentioned, they have a right which under State v. Gayley. 5 Ch. 21; certain circumstances they may delegate, to impose restrictions as to age, sex, character and attainments upon all engaged in certain callings. As was said by Justice Bradley in Bradwell v. State. 16 Wall. 142: "In the nature of things it is not every citizen of every age, sex and condition that is qualified for every calling and position. It is the prerogative of the legislature to prescribe regulations founded on nature, reason and experience, for the due admission of qualified persons to professions and callings demanding special skill and confidence." This was an appeal by a woman from the decision of an Illinois court, refusing to permit her to become an attorney of that court. It was held not to be in violation of the Fifteenth Amendment to the Constitution of the United States. See also In re Taylor, 48 Md. 28. But where there was a clause in the Constitution providing that no person shall, on account of sex, be disqualified from entering on or pursuing any lawful business, vocation or profession, it was held in Maguire's case, 57 Cal. 604, that a city ordinance forbidding the employment of women as waiters in bar-rooms, &c., was unconstitutional. This power cannot usually be delegated: Savannah v. Charlton, supra; In re Quong Woo, 9 Pac, Coast L. J. 815; but the State may leave the assessment of it to the court: State v. Gazley, supra, in which case it was said the design of a license is to protect the community from the consequences of a want of professional qualifications. The constitutionality of these enactments is also insisted on by the cases cited in the opinion of the court and Ex parte Spinney, 10 Nev. 323. A brief review of the effect of the statutes which have been passed in the various States with regard to the medical profession upon those who have not complied with the requirements set forth, the position of physicians where there are no such statutes, or where the statutes have been repealed, and the exceptions made as to certain practitioners, will be of interest. This "By the common law of America a physician can sue for his fees in assumpsit. is evidenced by the States at several times having passed acts prohibiting physicians from maintaining action for their fees unless licensed:" (Ind.) 269; Downs v. Minchew 30 Ala. 86; Mooney v. Lloyd J. S. and R. 412. ploys one thus practicing, prima facie admits his qualifications: Judah v. McNamee 3 Blackb. Rich (S. C.) 129; Brown v. Mimms, 2 Mills (S. C.) 235, and where no statute on the subject has He who embeen passed, a physician, or one practicing as such, must conform to the course of pracCrane v. McLaw, 12 tice of the schol he adopts: Bowman v. Woods, 1 G. Gr. (Iowa) 441; Patten v. Wiggin, 51 Me. 594; 2 Am. Law Reg. (N. S.) 401. He is expected to display the ordinary skill of those in the profession: McCandless v. McWha, 22 Penn. St. 261; Reynolds v. Graves, 3 Wis. 416; Braunberger v. Cleis, 4 Am. Law Reg. (U.S.) 587; Patten v. Wiggin, supra. Where the statutes have been repealed, as in New York, it is held that any one may practice physic and prescribe, etc., and recover for his or her services, at the peril of being sued for malpractice, and punished for a misdemeanor, if convicted of gross ignorance, immoral conduct or malpractice: Rossi v. Maretzek, 4 E. D. Smith 1; White v. Carroll, 42 N. Y. 161; Bailey v. Mogg, 4 Denio, 60. See Hewitt v. Wilcox, 1 Met. 154, as to the Massachusetts act of 1817, and its repeal. Where the statute imposes a penalty upon practicing physicians, either for failure to obtain a license, to register or to file a certificate on removal, a party thus offending may be indicted: Hilliard v. State, 7 Tex. App. 69; State v. Goldman, 44 Texas, 107. And the State is not bound to prove that defendant practiced for a reward: State v. Hale, 15 Mo. 606. Proof that defendant attended a single case will be sufficient to support the indictment: Antle v. State, 6 Tex. App. 202. But it was held in Finch v. Gridley, 25 Wend. 470. that where the statute simply imposed a penalty, this would not of itself deprive him of a right to recover for his services: Bronson v. Hoffman, 7 Hun, 674. Where, too, the statute enacts that a license, registration or examination is a prerequisite to enable one to recover for medical services, it was held in Down v. Minchew, 30 Ala. 86, that the disability is purely statutory, and a Texas physician was permitted to recover in Alabama, there being no evidence that any license was required in Texas, while a physician who had completed his studies in Massachusetts and obtained a license to practice in New York, was held not entitled to recover for services rendered in Massachusetts: Spaulding v. Alford, 1 Pick. 33; Wright v. Lanckton, 19 Id. 288. A note given for medical services to one forbidden by statute to recover for such services, is void: Mays v. Williams, 27 Ala. 267. Due notice should be given of defendant's intention to avail himself of this defence: Jordan v. Brewin, 19 Ala. 238: Crane v. McClaw, supra. A person forbidden to charge for medical attendance may recover for drugs sold in the capacity of a druggist, although he includes services and drugs in his bill. Holland v. Adams, 21 Ala. 680. Plaintiff will be nonsuited if he does not prove his license, Adams v. Stewart, 5 Harring, 144; but it is said that a license is presumed unless the contrary is shown: Thompson v. Sayre, 1 Den. 175. If the absence of a license is shown, plaintiff must prove that he came within some of the exceptions to the act: Bower v. Smith, 8 Ga. 174. It has been held that the requirement of a license being repealed, plaintiff could not, by merely presenting a diploma, which was all that the repealing act required. recover for services rendered while the former act was in force: Richardson v. Dorman, 28 Ala. 679; while in Hewitt v. Wilcox, supra, it was said that the act of 1818 being repealed, plaintiff, an unlicensed practitioner, could recover for services rendered prior to the repeal, on the ground that the act only interfered with the remedy, not the right: Quarles v. Evans, 7 La. Ann. 544. In actions of slander, the repeal or absence of legislation as to medical requirements, will leave it to the proof of employment as a doctor, to show damage for words imputing want of skill in the profession; Crane v. McLaw; Brown v. Mimms and White v. Carroll, supra. By the Maine act (Rev. Stat. 1883), no person who has not received a degree at a public medical college in the United States or a license. &c., shall recover compensation. Under this act it was held that where plaintiff brought an action for an injury, he could offer in evidence a diploma from the Eclectic Medical College of Philadelphia, to show that he was a physician: Holmes v. Healde, 74 Me. 38; while under the exemption laws of Michigan simply practicing is prima facie evidence that one is a physician; Sutton v. Facey, 1 Mich. 243. The laws of New York of 1813, 2 R. L. 222, provide that no person should practice without a diploma under penalty of not collecting fees, except he administered only roots, barks or herbs, in the growth of the United States: Timmerman v. Morrison, 14 Johns. 369. Under this act a person who brought suit for botanical medicines, could not recover for his service as physician: Allcott v. Barber, 1 Wend. 526. Whether the laws which regulate the practice of physicians apply to those who attempt to effect a cure by means not sanctioned by any school of medicine. has been doubted. Thus in New York, the laws of 1874, ch. 436, R. S., which forbid the collection of fees by a physician or surgeon not holding a diploma, etc., do not apply to one undertaking to effect cures by manipulation, and one thus employed may recover a compensation agreed on although not a graduate: Smith v. Lane, 24 Hun, 632; while in Hewitt v. Charier, 16 Pick. 353, one who practiced bonesetting and reducing sprains by friction, was held to be within the act of 1818, which provides that no person practicing physic or surgery, shall be entitled to the benefit of law for the recovery of his fees unless licensed or a graduate. This case was approved in Bibber v. Simpson, 59 Me. 181, which was an action by a medical clairvoyant, where Appleton, J., in entering a nonsuit, remarked: "The services were medical. Whether plaintiff calls himself a medical clairvoyant (or a clearseeing physician, or a clairvoyant physician), matters assuredly very little; such services as plaintiff claims to have rendered purport to be and are to be deemed medical, and are within clear and obvious meaning of the act of 1871, which provides that no person, except one duly qualified, shall recover any compensation for medical or surgical services." Wood v. O'Kelley, 8 Cush. 406. An ingenious attempt was made in Thompson v. Staats, 15 Wend. 395, to escape the requirements of the law. The defendant offered to show that he was the assignee of a patent medicine, with the right to make, construct, use and vend to others, to be used, a certain improvement in the art of preparing and administering certain medicine. Nelson, J., decided that the letters patent were properly rejected, as they did not authorize defendant to practice physic and surgery within the regulation of the statute; Jordan v. Dayton, 4 Ch. 294. There is usually an exception made in the statutes in favor of those who have been in continuous practice for a definite period prior to the passage of the act. In Delaware, those practicing in 1820 are excepted; in Georgia, these practicing prior to 1847. In Illinois, Louisiana, Pennsylvania and Ohio, ten years, an in Kansas and Texas, five years practice are considered equivalent to a diploma. This was held to be constitutional and not to violate the Fourteenth Amendment in Ex parte Spinney, 10 Nev. 323. This provision received a curious construction from the majority of the court in Wert v. Clutter, 38 Ohio St. 347, where it was decided to mean ten years previous to the time the parties' right to practice is challenged: Bowers v. Smith, supra. It is no defence to a suit for malpractice that defendant was not licensed (Reynolds v. Graves, supra), unless, perhaps, where the patient knew of it before employing him: Musser v. Chase, 29 Obio St. 577. In some States, as in Alabama, Louisiana, Florida, Missouri, and partially in New Hampshire, midwives are excepted; in other States no mention is made of them. It might be an interesting question, in view of the above decisions, how far in the last mentioned States they would be subject to the penalty imposed. It is to be hoped that the various medical and health congresses will have an influence in rendering the laws in the several States more consistent with one another, so that the public may, in the language of Judge Moore, be guarded against quacks and empirics, without knowledge or skill fitting them to undertake the important and responsible duties which are necessarily devolved upon physicians, of whose qualifications and fitness for their discharge the general public are unable to judge: State v. Goldman, supra. [The existing laws regulating the practice of medicine in the various States and Territories will be found in the Section on Medical Education, Fifth Annual Report ILLINOIS STATE BOARD OF HEALTH. The only additions since the date of that publication have been the passage of laws in Indiana and Dakota.-J. H. R.) |