Summary
In Holcomb v. Johnston, 213 Ga. 249 (98 S.E.2d 561) (1957), this Court upheld the constitutionality of the predecessor statute to OCQA § 43-11-17(a)(6) as against a due process challenge.
Summary of this case from Wrzesinski v. StateOpinion
19663.
ARGUED APRIL 9, 1957.
DECIDED MAY 14, 1957.
Injunction. Before Judge Frankum. Stephens Superior Court. February 8, 1957.
Ollie Mae Stowe, Smith Gross, H. A. Stephens, Jr., for plaintiff in error.
Paul Conaway, McClure Ramsay, contra.
The portion of Code (Ann.) § 84-701 (Ga. L. 1949, pp. 1161, 1162) defining persons who for a fee take impressions for and fit dental prosthetics, and who "make or repair appliances usable on teeth or as teeth, unless said appliances are ordered by and returned to a licensed dentist," as practicing dentistry, is not unconstitutional and void as violating the due-process clauses of the State and Federal Constitutions in preventing dental laboratories or technicians carrying on their lawful business because orders for the making, repairing, and manufacture of such dental appliances come from practicing dentists rather than by prescriptions from patients or otherwise.
ARGUED APRIL 9, 1957 — DECIDED MAY 14, 1957.
This case is one to enjoin the defendant from practicing dentistry and is brought in two counts, i. e., (1) for illegally practicing dentistry without a license, and (2) for unauthorized practice of dentistry constituting a public nuisance. The answer of the defendant, as amended, admits that he is not a licensed dentist, but is a dental laboratory technician having his own laboratory, but he alleges that the portion of Code (Ann.) § 84-701 (Ga. L. 1949, pp. 1161, 1162) defining the practice of dentistry as "All persons who shall charge a fee . . . who shall . . . take an impression thereof for the purpose of treating or operating upon the same [human tooth, teeth, gums or jaws], or who shall make or repair appliances usable on teeth or as teeth, unless said appliances are ordered by and returned to a licensed dentist," is violative of the due-process clauses of the State and Federal Constitutions and is void, since the defendant has the right to carry on his vocation of dental technician, and since under the law the licensed dentists taking impressions and ordering dentures or appliances usable as teeth send the prescriptions or orders therefore direct to the laboratory or technician of their choice, and the patients for whom such are prescribed do not have the free choice to select a laboratory or technician of their own, and the defendant would not be afforded the opportunity to conduct his business or vocation except upon the whim of licensed dentists.
The case came on for trial after the defendant was restrained. and it was stipulated: (1) the plaintiffs are licensed dentists, authorized to practice dentistry in this State; and (2) the defendant has prepared impressions for the purpose of making and repairing appliances usable as teeth, and he has made appliances usable as teeth which were not ordered or returned to a licensed dentist, and that he has charged and received a fee for such service. In addition, the evidence in substance showed the education of the defendant, his practical and theoretical training, and his qualifications as a dental laboratory technician; testimony by expert witnesses as to the science of dentures, the training required of student dentists on this subject, the education and training necessary for students to qualify to take the examination of the Georgia State Board of Dental Examiners for a license to practice dentistry, the importance of centric occlusion or "taking the bite" upon the general health of a person, the importance of the oral examination made by dentists in taking impressions and in fitting appliances to diagnose disease, discover pathological conditions, and prevent rough spots which would cause irritation, the need for correct adjustments to avoid irritation, prevent sore spots, impairment of speech, and change in the facial contours of the patients, especially in women; and that dental laboratory technicians are mere mechanics who know the fundamentals of the materials with which they work, but who confine their work to fabrication of the denture or appliance according to prescription or instructions of the dentist, having nothing whatever to do with the patient, usually never seeing the patient. The defendant admitted that he had made no oral examination of the patients' mouths, merely asking them if their gums were sore; that he would make an impression, and after making the denture would insert the appliance in their mouths, instructing them to return to the laboratory on a future day for adjustments if the denture did not fit or "bothered" the patient. Other testimony disclosed that some dentists make the dentures or appliances themselves, but the prescription or order for dentures or appliances is normally sent by the dentist to a dental laboratory or technician, the choice being made by the dentist and not the patient. The defendant further testified that he had no other way of making a living; that, since the restraining order he has received hardly any orders for dentures, appliances, or repairs from practicing dentists in the area from which he had previously received such orders.
After the evidence was in, counsel for the plaintiffs moved the court to direct the jury to return a verdict for them, and after argument thereon the court sustained the motion and directed a verdict in favor of the plaintiffs. A motion for new trial was duly made, which was later amended to add one special ground complaining of the direction of the verdict against the defendant, and after a hearing and argument thereon, the motion as amended was denied. The exception here is to that judgment.
The case as made by the pleadings, stipulations and evidence discloses the question to be one of law as to the right of the legislature to define the practice of dentistry in this State as is done in Code (Ann.) § 84-701 (Ga. L. 1949, pp. 1161, 1162). From all the evidence and the stipulations, it is clear that the defendant has violated the Code section thus defining the practice of dentistry, but he seeks immunity by attacking the portion of the act which prevents dental laboratory technicians taking impressions and fitting dentures and appliances usable on or as teeth not under the supervision of a licensed dentist as violating constitutional provisions allowing individuals the right to work. The words of the statute are "all persons who shall charge a fee . . . who shall take an impression thereof for the purpose of treating or operating upon the same [human tooth, teeth, gums or jaws], or who shall make or repair appliances usable on teeth or as teeth, unless said appliances are ordered by and returned to a licensed dentist," are practicing dentistry. In substance, the attack is that it violates due process in preventing these technicians from carrying on their vocation except at the whim of the licensed dentists of this State. If the act is not subject to the attack, then the court did not err in directing the verdict for the plaintiffs against the defendant.
There can be no doubt that the practice of dentistry is affected with the public interest, and to insure protection of the public health and welfare the profession of dentistry is a logical subject for regulation by the legislature. 11 Am. Jur. 1147-53, §§ 336-338. But the defendant here claims that the definition of the practice is too broad in scope and coverage, and by evidence attempts to show that the operations of taking an impression and fitting dentures and appliances in the mouth are purely mechanical, requiring no scientific training of the professional dentist. He then goes on to show that to allow the choice of dental laboratories to be in the dentists, and not the patients, will result in the control of such vocation being in the hands of the licensed dentists of this State. The expert testimony of the witnesses here clearly refutes the claim that the operations above require only mechanical knowledge. From the very beginning of the profession of dentistry those individuals practicing it have combined the knowledge of the skilled artisan with the healing hand of medicine, part mechanical and part scientific, to treat the peculiar ills of the body associated with the oral cavity known as the human mouth. So much so that the dental profession has been carved out of the broader medical field into its own. Only in our modern age has the "dental laboratory technician" been created by the dentist to assist him by allowing such artisans to do certain parts of the dentist's mechanical skills under his supervision, to release the doctor for the more important work of his profession of healing. The mere fact that the making and manufacture of these appliances are purely mechanical does not mean that the taking of the impression and the fitting of such prosthetic, as shown by the evidence, does not require the scientific knowledge of the professionally trained medical man in performing this function. Since it is necessary that a dentist take the impression and adjust the fitting after it is made, the regulation allowing such appliances to be "ordered by and returned to a licensed dentist" is not unreasonable. See 70 C. J. S. 840-842, § 10. While the legislature has seen fit to define another dental technician, the hygienist, and to allow those persons properly licensed to perform their duties "only under the supervision of a licensed dentist" (Code, Ann., § 84-728), it has not as yet seen fit to define the duties of the "dental laboratory technician," but has left such to the discretion of the licensed dentists who are responsible for the fitting of all prosthetics in the mouth.
The operations performed by this defendant in taking impressions and fitting dental prosthetics for a fee are clearly acts required to be performed by a licensed dentist, and the mere fact that the legislature holds these professional men accountable and responsible for such acts as a part of their profession in no way violates due process when others are only allowed to make or repair the appliances when "ordered by . . . a licensed dentist." Cooper v. Rollins, 152 Ga. 588 ( 110 S.E. 726, 20 A.L.R. 1105); Lamons v. Yarbrough, 206 Ga. 50 ( 55 S.E.2d 551). The portion of the act under constitutional attack does not offend the due-process clauses of the State and Federal Constitutions, and the court did not err in directing the verdict against the defendant and in denying the motion for new trial as amended.
Judgment affirmed. All the Justices concur.