Opinion
No. 22486
Decided April 6, 1970.
Declaratory judgment action by State chiropractic Association to test correctness of construction of statute by Department of Health. Trial court adopted health department's construction that where one dies while under care of a chiropractor it is a "death occurring without medical attendance."
Affirmed.
1. PHYSICIANS AND SURGEONS — Courses of Study — Determinative — Scope — Practice — License — Negative. The courses of study of the several limited branches of the healing arts are not determinative of the scope of practice permitted under any given license.
2. Healing Arts — Doctor of Medicine — Doctor of Osteopathy. Supreme Court is of the opinion — after an examination of the sections relating to the healing arts — that the term "physician" relates solely to doctors of medicine and doctors of osteopathy.
3. HEALTH — Circumscription — Diseases — Nervous System — Examinations — Judgments — Completion — Death Certificate — Unqualified. One circumscribed in his practice to diseases involving the functioning of the nervous system is not legally qualified, regardless of educational qualifications, to make the examinations and judgments necessarily required to be able to complete the death certificate.
4. CONSTITUTIONAL LAW — Presumption — Constitutionality — Burden — Attackers. The presumption of constitutionality places the burden on the attackers to show its unconstitutionality beyond a reasonable doubt.
5. Chiropractors — Embarrassing — Information — Death — Certificate — Prohibition — Discrimination — Per Se — Negative. The fact, if such it be, that it is "embarrassing" to chiropractors not to be able to furnish the information required in the death certificate does not per se constitute discrimination of constitutional magnitude.
6. PHYSICIANS AND SURGEONS — Medicine — Osteopathy — Chiropodists — Dentists — Chiropractic — State — Limitation — Law Doctors of medicine, doctors of osteopathy, chiropodists, dentists, and doctors of chiropractic all practice their professions by grace of the state, and the scope of their practices is limited by law.
7. LICENSES — Limitation — Basic Difference — Legislature — Arbitrary — Negative. Where the limitation of authority to one class of licensee results from a basic difference in the scope of its authorized practice, it cannot be said that the legislature has acted arbitrarily.
8. Classification — Legislature — Distinctions — Unreal — Unconstitutional. When a classification adopted by the legislature pertaining to the granting of a license is not founded on real and substantial distinctions, then, in such case, it becomes unconstitutional.
Error to the District Court of the City and County of Denver, Honorable Merle R. Knous, Judge.
Charles Ginsberg, for plaintiffs in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, William Tucker, Assistant, Clifton A. Flowers, Special Assistant, for defendants in error.
Colorado Chiropractic Association, A Colorado nonprofit corporation, and Louis O. Gearhart, a licensed doctor of chiropractic, instituted proceedings in the district court for a declaratory judgment to test the correctness of the construction of C.R.S. 1963, 66-8-7, by the Colorado State Department of Health (the Department of Health).
The statute in question (66-8-7) provides:
"In case of any death occurring without medical attendance it shall be the duty of the undertaker or other person having knowledge of such death to notify the coroner immediately. The coroner shall notify the district attorney and then shall hold an investigation or inquest and make whatever inquiry he deems proper respecting the cause and manner of death. If either the coroner or the district attorney deems it advisable the coroner shall cause a post mortem examination to be made, by a licensed physician, on the body of the deceased to determine the cause of death. Any certificate of death made by a coroner shall be filed with the registrar and shall state his findings concerning the nature of the disease or the manner of death and, if from external causes, the certificate shall state whether in his opinion death was accidental, suicidal, or felonious. The coroner shall furnish such additional information as may be required by the state registrar."
The department of Health construed the statute to mean that where one dies while under the care of a chiropractor it is a "Death occurring without medical attendance." The trial court, in its judgment, adopted this construction.
In their complaint the plaintiffs asked (1) that the statute be so construed that a patient whose death occurs while attended by a chiropractor be deemed to have died with "medical attendance"; or, in the alternative, (2) that the statute be declared unconstitutional.
The constitutional issue is based on the allegation that the statute
"* * * is arbitrary, unnecessary and unreasonable, inflicting unnecessary and unreasonable restrictions upon the chiropractic profession, and is not in the interest of the public generally, is not beneficial to the public health, morals and safety, and does not promote the public welfare, and is unduly oppressive on individual citizens who are licensed chiropractors."
The issues as drawn require us to determine (1) whether a chiropractor may sign a death certificate; and (2), if we answer (1) in the negative, whether the statute in question is unconstitutional when tested by equal protection and due process provisions of the state and federal constitutions. Colo. Const. art. 2, § 25; Colo. Const. art. 5, § 25; Const. amend. XIV, § 1.
To gain an overview of the problems requires an examination of the several statutory provisions relating to chiropractors (Ch. 23), Physicians (ch. 91), and death certificates (ch. 66).
C.R.S. 1963, 66-8-6(1)(a). "The certificate of death shall contain the following items:
* * *
"(q) Statement of medical attendance on decedent, fact and time of death, including the time last seen alive.
"(r) Cause of death, including the primary and immediate causes, and contributory causes or complications, if any, and duration of each.
"(s) Signature address of physician of official making the medical certificate.
* * *
"(2) The personal and statistical particulars in subsections (1)(b) to (1)(n) of this section shall be authenticated by the signature of the informant, who may be any competent person acquainted with the facts.
* * *
"(4) The medical certificate shall be made and signed by the physician, if any, last in attendance on the deceased, who shall specify the time in attendance, the time he last saw deceased alive, and the hour of the day at which death occurred. He shall state the cause of death, so as to show the course of disease or sequence of causes resulting in death, giving the primary and immediate causes, and also the contributory causes, if any, and the duration of each. Indefinite and unsatisfactory returns, indicating only symptoms of disease or conditions resulting from disease, will not be held sufficient for issuing a burial or removal permit; any certificate containing only such terms as defined by the state registrar shall be returned to the physician for correction and definition. Causes of death, which may be the result of either disease or violence, shall be carefully defined; and, it from violence, its nature shall be stated, and whether probably accidental, suicidal, or homicidal.* * * " (Emphasis added.)
Chapter 91, article 1, C.R.S. 1963, known as the "Medical Practice Act," must be considered because it represents the basic law on the healing arts. C.R.S. 1963, 91-1-6 defines the term "practice of medicine." "Practice of medicine" is the closest term to "medical attendance" to be found in the chapters relating to the healing arts.
Under 91-1-6(1)(a), "practice of medicine" means, among other things,
"(b) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever;
"(c) Suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever;
* * *
"(e) Using the title M.D., D.O., doctor, surgeon, or any word or abbreviation to indicate or induce others to believe that one is engaged in the diagnoses or treatment of persons afflicted with disease, injury or defect of body or mind, except as otherwise expressly permitted by the laws of this state now or hereafter enacted relating to practice of any limited field of the healing arts; * * *."
However, an exception to the practice of medicine, as defined, is made for the practice of chiropractic, as well as other limited fields of the healing arts, under conditions and limitations specifically defined in the statutes.
The general assembly makes clear its intention to restrict the practice of those licensed to practice in a limited field of the healing arts in 91-1-6(3)(n). It provides that such licentiates,
"* * * shall confine themselves strictly to the field for which they are licensed and to the scope of their respective licenses,* * *."
The plaintiffs in error argue that because a chiropractor, just as a doctor of medicine or a doctor of osteopathy, since 1937 has been required to have a "certificate of ability in anatomy, physiology, chemistry, bacteriology, pathology" before he is permitted to take an examination for a license to practice chiropractic, he should be treated the same as doctors of medicine and doctors of osteopathy under the law, so far as supplying the medical history of his deceased patients in the death certificate is concerned.
The courses of study of the several limited branches of the healing arts are not determinative of the scope of practice permitted under any given license. The law provides that (C.R.S. 1963, 23-1-1[2]):
"It shall be unlawful for any person to practice or to offer to practice chiropractic in the state of Colorado, as defined in this article, * * *unless* * *duly licensed* * *, and anyone who holds himself out to the public as a doctor of chiropractic without qualifying for proper licensing under this article and without submitting to the regulations provided in this article, endangers thereby the public life, health, property, and welfare."
"Chiropractic" is defined in 23-1-2(1)
"* * * as that branch of the healing arts which is based on the premise that disease is attributable to the abnormal functioning of the human nervous system. It includes the diagnosing and analyzing of human ailments and seeks the elimination of the abnormal functioning of the human nervous system by the adjustment or manipulation, by hand, of the articulations and adjacent tissue of the human body, particularly the spinal column, and the usage as indicated of procedures which facilitate and made the adjustment or manipulation more effective, and the use of sanitary, hygenic, nutritional and physical remedial measures necessary to such practice."
Further evidence of the limited scope of the practice of chiropractic is found in C.R.S. 1963, 23-1-18, relating to the use of the title "Doctor of Chiropractic" or the letters "D.C." This section, in part, provides that
"* * * Such license shall not confer upon the licensee the right to practice surgery, obstetrics, or to prescribe, compound or administer drugs, or to administer anaesthetics. * * *"
In order to resolve the first question favorably to the plaintiffs in error, we must decide first that, under 66-8-6(4), a chiropractor is a "physician," and, secondly, that by the terms of his license he is qualified to "state the cause of death, so as to show the course of disease or sequence of cause resulting in death, giving the primary and immediate causes, and also the contributory causes, if any," particularly if the cause or causes are not solely related "to the abnormal functioning of the human nervous system."
An examination of many sections relating to the healing arts leads us to the inescapable conclusion that the term "physician" relates solely to doctors of medicine and doctors of osteopathy. State v. Fahey, 152 Minn. 220, 188 N.W. 260. The word "physician" does not appear in C.R.S. 1963, Chapter 23 the Chiropractic licensing act.
The requirements of 66-8-6(4) are such that it is equally inescapable that one circumscribed in his practice to diseases involving the functioning of the nervous system is not legally qualified, regardless of educational qualifications, to make the examinations and judgments necessarily required to be able to complete the death certificate. State v. Fahey, supra.
The remaining question is whether the limitation denies chiropractors "equal protection" or "due process." The presumption of constitutionality places the burden on the attackers to show its unconstitutionality beyond a reasonable doubt. People v. McKenzie, 169 Colo. 521, 458 P.2d 232; Mosko v. Dunbar, 135 Colo. 172, 309 P.2d 581; Gettman v. Board of Commissioners, 122 Colo. 185, 221 P.2d 363.
[5-8] The fact, if such it be, that it is "embarrassing" to chiropractors not to be able to furnish the information required to the death certificate does not per se constitute discrimination of constitutional magnitude. Doctors of medicine, doctors of osteopathy, chiropodists, dentists, and doctors of chiropractic all practice their professions by grace of the state. The scope of their practices is limited by law. Where the limitation of authority to one class of licensee results from a basic difference in the scope of its authorized practice, it cannot be said that the legislature has acted arbitrarily. Howe v. Smith, 203 Pa. Super. 212, 199 A.2d 521. It is only when the classification is not founded on real and substantial distinctions that it becomes unconstitutional.
The judgment is affirmed.
MR. JUSTICE DAY dissents.