Summary
defining acupuncture as "the insertion of needles beneath the skin to alleviate pain, infirmity, or disease"
Summary of this case from In re StockwellOpinion
No. 75-65
Decided December 24, 1975.
Physicians and surgeons — Unauthorized practice of medicine — Acupuncture — Constitutes practice of medicine — May not be used by licensed chiropractor — R.C. 4731.34 and 4731.41 construed.
1. The insertion of needles beneath the skin to alleviate pain, infirmity, or disease, commonly known as acupuncture, constitutes the practice of medicine within the meaning of R.C. 4731.34.
2. The provision of R.C. 4731.41 that "[n]o person shall practice medicine or surgery, or any of its branches without a certificate from the State Medical Board" applies to one who has a certificate for the practice of a limited branch of medicine or surgery and who practices medicine or surgery beyond the scope permitted by such limited certificate. (Paragraph one of the syllabus in State v. Winterich, 157 Ohio St. 414, followed.)
3. A limited certificate issued by the State Medical Board authorizing one to practice chiropractic medicine does not permit the use of acupuncture in the treatment of a patient.
APPEAL from the Court of Appeals for Stark County.
On March 19, 1973, an investigator for the Ohio State Medical Board was treated for a feigned bursitis ailment by Dr. Raymond Rich, appellee herein. The treatment primarily consisted of the insertion of small needles into the shoulder of the patient and is commonly known as acupuncture. On that date, appellee was not a licensed medical doctor in this state, but was licensed as a chiropractor.
On February 28, 1974, the board filed a complaint in the Massillon Municipal Court charging appellee with the unlawful practice of medicine or surgery without a certificate, in violation of R.C. 4731.41. The complaint alleged further that appellee's certificate to practice chiropractic therapy did not allow Dr. Rich to use acupuncture as a method of treatment.
On March 1, 1974, a jury found appellee guilty of practicing medicine without a license. The Court of Appeals reversed the conviction, finding that appellee's license, with respect to surgery, only prohibited major surgery, and that there was no evidence that he performed such surgery.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Michael F. Cush, prosecutor, for appellant.
Mr. Harry Schmuck, for appellee.
Appellee was convicted of violating R.C. 4731.41. Therefore, the threshold question in this appeal is whether the use of acupuncture in the treatment of a patient by a licensed chiropractor constitutes the practice of medicine within the meaning of R.C. 4731.34.
R.C. 4731.41 states, in part:
"No person shall practice medicine or surgery, or any of its branches without a certificate from the State Medical Board * * *."
The provisions of R.C. 4731.41 also apply to one who has a certificate for the practice of a limited branch of medicine and who practices medicine beyond the scope permitted by such limited certificate. State v. Winterich (1952), 157 Ohio St. 414, 105 N.E.2d 857.
As applicable to the facts herein, R.C. 4731.34 provides, in part:
"A person shall be regarded as practicing medicine * * * within the meaning of Sections 4731.01 to 4731.60, inclusive, of the Revised Code, * * * who * * * administers * * * for compensation of any kind, direct or indirect, [an] * * * application, operation, or treatment, of whatever nature, for the care or relief of a wound, fracture, or bodily injury, infirmity or disease * * *."
The above statutory language, except for minor changes, has long been part of the law of this state. See 94 Ohio Laws 200. When read in conjunction with R.C. 4731.41 ( supra, fn. 1), the statutes evidence the intent of the General Assembly to protect the public from the practice of medicine by unlicensed, and perhaps unqualified, practitioners. Thus, in Mirsa v. State Medical Board (1975), 42 Ohio St.2d 399, 329 N.E.2d 106, this court held that the practice of "plasmapheresis," by which a blood-donor center removes and specially processes blood plasma from a donor, constituted the practice of medicine within the meaning of R.C. 4731.34.
In the case at bar, appellee employed the technique of acupuncture to treat an alleged bursitis ailment. As commonly understood and as stated by appellee in his brief to this court, acupuncture consists of the insertion of needles to various nerves below the skin, thus stimulating reactions to alleviate pain and other conditions of ill health. According to appellee's testimony before the trial court, the needles are inserted approximately one-quarter inch to one inch beneath the skin, depending on the weight of the patient and the area of the body involved.
In view of the above, and our examination of the record, it is our conclusion that the insertion of needles beneath the skin to alleviate pain, infirmity, or disease, commonly known as acupuncture, constitutes the practice of medicine within the meaning of R.C. 4731.34.
Appellee contends, however, that his chiropractic license issued by the State Medical Board allows him to practice medicine in that limited field, and only prohibits his use of drugs or surgery in the treatment of patients. Therefore, he asserts that the board did not proscribe the use of acupuncture and, consequently, that he did not practice medicine beyond the scope of his license.
Appellee's limited practitioner's certificate states, in part:
"This certificate does not permit the holder to treat infectious, contagious, or venereal diseases, nor to prescribe or administer drugs or perform major surgery."
For purposes of this appeal, we will assume that the use of acupuncture in treatment is not a form of drugs or major surgery. Nevertheless, the fact that it was not prohibited verbatim by his certificate does not allow appellee to employ techniques that go beyond those rules and regulations promulgated by the State Medical Board which govern the scope of chiropractic medicine.
R.C. 4731.15 provides:
"The State Medical Board shall also examine and register persons desiring to practice any limited branch of medicine or surgery, and shall establish rules and regulations governing such limited practice. Such limited branches of medicine or surgery shall include chiropractic * * *."
Appellee's certificate explicitly informs the holder that he is subject to "* * * the rules and regulations established by the State Medical Board governing such practice."
Pursuant to the authority granted by R.C. 4731.15. the board has defined chiropractic as "the detecting and adjusting by hand only of vertebral subluxations." Rule MB-1-05(A). This definition supports the jury's finding herein, under the charge of the trial court, that a limited certificate issued by the State Medical Board authorizing one to practice chiropractic medicine does not permit the use of acupuncture in the treatment of a patient. Furthermore, the unambiguous language on the face of appellee's certificate gave him due and ample notice that he was prohibited from engaging in the specific practices contained in the certificate, and from violating pertinent medical board regulations. Moreover, the first paragraph of the syllabus in State v. Winterich (1952), 157 Ohio St. 414, rejects the proposition that a conviction for violating R.C. 4731.41 would be constitutionally defective under the circumstances of this case. We are not persuaded, at this time, that the Winterich conclusion should be overruled.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.
CELEBREZZE, J., dissents.