Opinion
No. 33039.
March 14, 1938.
1. PHYSICIANS AND SURGEONS.
Under statute defining practice of medicine, "medicine" need not be a drug used in pharmacopoeia or used by druggist and physicians, so long as it is healing agency, and claimed to be, and sold for profit, or with the expectation of receiving a profit (Code 1930, section 1099, as amended by Laws 1932, chapter 279).
2. PHYSICIANS AND SURGEONS.
Under statute defining practice of medicine as the suggestion, recommendation, prescription, or direction for use of any person, any drug, medicine, appliance, or other agency, for cure of disease for compensation, a needle used for application of electricity to diseased tonsils was an "appliance or other agency" within the statute (Code 1930, section 5858).
3. PHYSICIANS AND SURGEONS.
In prosecution for practicing medicine without a license, whether liquid used by chiropractor on patient's throat preparatory to inserting needle for application of electricity to tonsil, which was sore enough to contain a pus formation, was a medicine or anaesthetic instead of mineral water was for the jury (Code 1930, section 5858, and section 1099, as amended by Laws 1932, chapter 279).
4. PHYSICIANS AND SURGEONS.
"Chiropractic" is a system of healing which treats disease by manipulation of the spinal column, the term "chiro" being derived from the Greek word "Xeip," meaning hand, and the term "practic" from the Greek word "IIpaktik[]," meaning practical science or practice of science by hand.
5. PHYSICIANS AND SURGEONS.
The "practice of surgery" is confined to manual operations usually performed by surgical instruments or appliances as distinguished from the "practice of medicine," which includes the use of medicine and drugs for the purpose of either curing, mitigating, or alleviating bodily diseases (Code 1930, section 5858).
6. PHYSICIANS AND SURGEONS.
A "physician" is one legally qualified and engaged in the general practice of medicine as distinguished from one likewise skilled in the art of healing who specializes in surgery, though a surgeon is also a physician, and a physician may practice surgery (Code 1930, section 5858).
7. Physicians and Surgeons.
Under statutes, the practice of "electrotherapy," which is the use of different forms of electric machines for therapeutic purposes and which is regarded as pertaining to field of surgical and and medical science and not as a distinct science, may not lawfully be engaged in without a license as a physician and surgeon (Code 1930, section 5858, and section 1099, as amended by Laws 1932, chapter 279).
8. PHYSICIANS AND SURGEONS.
A chiropractor licensed by the state is not authorized to engage in the use of any methods pertaining to the practice of medicine and surgery (Code 1930, section 5858, and section 1099, as amended by Laws 1932, chapter 279).
9. PHYSICIANS AND SURGEONS.
In prosecution of a chiropractor for practicing medicine without a license, evidence that chiropractor was taught, as part of the course of study of chiropractic, methods adopted by him in treating patient's tonsil with an electric needle, was properly excluded, since the sole issue was whether treatment constituted the practice of medicine and surgery as defined by statute and decisions (Code 1930, section 5858, and section 1099, as amended by Laws 1932, chapter 279).
10. PHYSICIANS AND SURGEONS.
Under statute, a chiropractor not licensed as a physician or surgeon, who for a fee, attempted to remove by use of needle through which electricity was applied patient's tonsil, was guilty of unlawfully practicing medicine as a physician without a license (Code 1930, section 5858, and section 1099, as amended by Laws 1932, chapter 279).
APPEAL from the circuit court of Jones county. HON.W.J. PACK, Judge.
Jeff Collins, of Laurel, for appellant.
The statute that defines the practice of medicine is Section 5858, Code of 1930. The said statute undertakes to define allopathy, or the practice of the regular physicians and surgeons. The statute was so construed in Haydon v. State, 33 So. 653, holding that osteopathy does not invade the field of medicine. And further holding that "The world needs and may demand that nothing good or wholesome from its use and enjoyment." We showed without dispute that we not only did not invade the field of medicine and it was admitted that physicians and surgeons did not use any method akin to appellant's method, or the method used by electro-therophy, but that we had a painless, bloodless, dangerless, medicineless, hospitalless, expenseless and genuine method of removing the tonsils, which is both "good and wholesome." Therefore, when one sees the physician and surgeon with his countless knives and hooks and needles and anaesthetics and strings and white aprons, and hears the screams and moans and sees the blood and the quivering flesh, and hears the gagging and spuing and the crying, and then pays the doctors and the nurses and the hospitals, and maybe pass over in the round, he can say with a hearty "amen" to what Judge Terrell said in the Hayden case, supra, that the world "even demands that nothing good or wholesome from its use and enjoyment" be denied to the person who is contemplating a tonsil taking out.
The trial court in this case refused to allow the appellant to prove that the treatment was one wholly within the field of chiropractic. We offered the school catalog and a page therein showing the method used by this appellant, but the court refused to let it go to the jury. We earnestly submit that this testimony was material and relevant and it was error in the trial court to refuse to allow it to go to the jury.
The court also refused to admit the testimony of many witnesses, as shown by the record, to the effect that they had received similar treatment from this appellant, that it was drugless, painless and effective, yet much was made of the use of the word "quack" by the Hon. District Attorney before the jury. We submit it was error in the court to rule out this line of testimony, which was duly offered but on objection of the State was ruled out by the court.
The court refused the instruction asked by the appellant that it was not unlawful to practice chiropractic in Mississippi. It was error to refuse this instruction.
Our court has held that it is not unlawful to practice chiropractic in Mississippi.
Kress v. Sharp, 126 So. 650.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Appellant was not licensed to practice medicine, but had paid for and procured license authorizing him to practice as a chiropractor.
Section 5858 of the Mississippi Code of 1930 defines the practice of medicine.
In Redmond v. State, 152 Miss. 54, 118 So. 360, the court construed this definition of the practice of medicine. The opinion of the court states that: "The statute was intended to guarantee suitable persons for the practice of this art of healing and dispensing of medicines and drugs and to insure that they had sufficient knowledge of drugs and disease to make them useful rather than dangerous to people."
In the case at bar appellant made his examination of Welch's tonsils and his diagnosis indicated that they should be removed and by agreement with Welch he undertook to remove them. In the removal process he immediately used an agency to prevent bleeding.
In the case at bar appellant was not only prescribing the medicine but was making application of it himself. He was using, not merely recommending, an appliance for the cure or relief of the diseased tonsils. As such, we submit he was practicing medicine within the purview of the statute and not having been licensed to so practice, the evidence clearly demonstrates his guilt of the offense charged.
Appellant complains of the refusal of certain instructions. We submit that whether or not it is lawful or unlawful under the law of Mississippi to practice as a chiropractor has nothing to do with this case where one is charged with practicing medicine without a license.
The appellant, who is licensed to engage in the practice of chiropractics in this State, which is generally defined to be a philosophy, science, and art dealing with the adjustment of the articulations of the spinal column by hand for the correction of the cause of disease and other bodily ailments, was tried and convicted in the circuit court of Jones county for unlawfully practicing medicine as a physician without first having been examined and having obtained a license therefor, as required by law. From this conviction, sentence, and judgment of the court, he prosecutes this appeal.
The indictment specifically charged that the accused treated by the application of medicine, and attempted to remove by operation with instruments, the tonsils of Allison Welsh, a human being, for which he received a fee, without being examined and licensed so to do.
Section 1099 of the Code of 1930, as amended by chapter 279 of the Laws of 1932, makes it unlawful to practice as a physician or surgeon under such circumstances.
Section 5858 of the Code of 1930 defines the practice of medicine as follows: "The practice of medicine shall mean to suggest, recommend, prescribe, or direct for the use of any person, any drug, medicine, appliance, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, . . . after having received, or with the intent of receiving therefor . . . any . . . compensation."
The license issued under the laws of our State to a physician entitles the recipient thereof to practice as a physician or surgeon, the two being recognized as members of the same profession — that of practicing medicine.
The proof on the part of the State disclosed that on the occasion complained of the appellant examined the patient's tonsils, found that they contained pus, recommended that they should be removed, and treated the cavity of his mouth with a liquid which had the effect of benumbing or deadening the walls of the mouth and his tongue; that the appellant told him at the time that this liquid was an anaesthetic; and that he then inserted into the diseased tonsil a pronged needle and applied electric current in treating the same as a means of removing them; and charged and received a fee of $35 for the several treatments administered in this manner.
The testimony of the appellant denied that the liquid was a medicine or anaesthetic, and claimed that the liquid was "Nature's Aid" put out by Pat James, and which is labeled as a natural nonpoisonous germicidal antiseptic and recommended on the label as good for indigestion, ptomaine poison, cuts, etc. A bottle of this remedy was introduced in evidence, and, when the patient tasted it at the trial, he denied that it was the same liquid applied to his mouth by the appellant. There was no denial by appellant that he used the pronged needle in treating the tonsils and applied the electric treatment.
In the case of Redmond v. State, 152 Miss. 54, 118 So. 360, 365, it is said that "under the statute, the medicine need not be a drug, if it is a medicine; that is, it need not be any standard drug used in the pharmacopoeia, or used by druggists and physicians, so long as it is a healing agency, and claimed to be, and sold for profit, or with the expectation of receiving a profit." The liquid in question was not sold for a profit, or otherwise, by the appellant in the case at bar; neither was it suggested, recommended, or prescribed by him for the cure of the diseased tonsils, but rather for the palliation of the ailment during the process of its treatment by the insertion of the needle and application of electricity, as an appliance, or other agency, within the meaning of section 5858 of the Code of 1930, hereinabove quoted from.
The conflict in the evidence as to whether the liquid used was a medicine or anaesthetic instead of mineral water was resolved by the jury against the appellant, and the probability or improbability of undertaking to insert a needle in a tonsil sore enough to contain a pus formation and apply an electric current thereto without using an anaesthetic was peculiarly a question for the jury.
Recurring now to the question of whether the facts found by the verdict of the jury constitute the practice of medicine or surgery, we find that chiropractic is defined in the new Century Dictionary as a "system of healing which treats disease by manipulation of the spinal column." The term "chiro" is derived from the Greek word "Xeip," meaning hand, and the term "practice" from the Greek word "IIpaktik" meaning practical science, or, in other words, the practice of a science by hand. Surgery is defined in the law dictionaries as being limited to manual operations, usually performed by surgical instruments or appliances, Ballentine's Law Dictionary, p. 1256; Nelson v. State Board of Health, 108 Ky. 769, 57 S.W. 501, 50 L.R.A. 383, as distinguished from the practice of medicine which includes the use of medicine and drugs for the purpose of either curing, mitigating or alleviating bodily diseases. A physician is defined in the standard dictionaries as one legally qualified and engaged in the general practice of medicine as distinguished from one likewise skilled in the art of healing who specializes in surgery, that is to say, surgeons are also physicians, and physicians may practice surgery. But the treatment of disease by the use of surgical instruments and other appliances, as distinguished from treatment by hand, as well as the use of medicine or drugs (except where permission is granted to dentists to use an anaesthesia), and treatment by means of electricity, known as electrotherapy, are methods commonly adopted by physicians and surgeons, as taught in their institutions, established by their highest authorities in the field of surgical and medical science, and, by general acceptation, regarded as pertaining peculiarly to these professions.
Electrotherapy is defined in medical jurisprudence as the use of different forms of electric machines for therapeutic purposes, and before an electrotherapist can follow his profession he must obtain, at least in some states, a license authorizing him to practice in that particular field. This practice has not been recognized in our state as a distinct science, separate and apart from the field of medicine or surgery; and, since the use of electrical appliances for the treatment of disease is ordinarily regarded as pertaining to these particular fields, it is not lawful to engage in the practice of these methods without being licensed as a physician and surgeon.
In Herzog's Medical Jurisprudence, section 112, page 89, it is said that limited practitioners are authorized under the laws of some states, and that they are limited to the practice of one or more branches of medicine, or some special system for treating disease, and in which are chiropractors, osteopaths, electrotherapists, and others, the practice of chiropractics and electrotherapy being recognized as separate and distinct arts or sciences. Each practitioner is required, by law, to practice his profession according to the established practice of his own particular field, as recognized under the laws of his own state.
Appellant was authorized to practice chiropractics under his license issued to him by this State, but not to engage in the use of any methods pertaining to the practice of medicine and surgery. In the case of State Board of Medical Examiners of New Jersey v. O'Neill, 143 A. 814, 6 N.J. Misc. 1075, it was held that an osteopath was guilty of practicing medicine when he used electrical appliances. It was held in the case of State Board of Medical Examiners v. DeBaun, 147 A. 744, 7 N.J. Misc. 1040, by the Supreme Court of New Jersey, that a licensed chiropractor using electrical instruments was guilty of practicing medicine and surgery, and was not practicing chiropractics when using such appliances.
From these views that we have expressed in this opinion, it follows that there was no error in the refusal of the instructions complained of, or the exclusion of the evidence offered by the appellant attempting to show that the National School of Chiropractics, which he attended, taught as a part of the course of study the use of the methods adopted by him in treating the patient in question. The sole issue upon the trial was whether his treatment constituted the practice of medicine and surgery as defined in our statute, and in the decisions of the courts.
The case of Hayden v. State, 81 Miss. 291, 33 So. 653, 95 Am. St. Rep. 471, is so dissimilar to this case on the facts that it cannot be considered authority for appellant's contention. We have many chiropractors practicing their art or science by hand, in this State, according to its laws and the definition and true meaning of that term, and who are enjoying the respect and confidence of the public in their efforts to administer to human illness in their particular line of endeavor; and practically all of them are content not to depart from their own profession of treating disease by the manipulation of the spinal column by hand, or at least not to invade the field of medicine and surgery.
The judgment and sentence of the court below must be affirmed.
Affirmed.