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In re Guess

    Brief Fact Summary. The State Board of Medicine (Plaintiff) charged Dr. George Albert Guess (Defendant), a licensed medical doctor, for administering homeopathic treatments. The Plaintiff found the statute prohibited these practices and ultimately stayed the revocation of Defendant’s license if he discontinued these activities.  Defendant appealed the Plaintiff’s decision.

    Synopsis of Rule of Law. Actual harm to a patient is not required to be shown in order to revoke the privilege to practice medicine.

    Facts.  Dr. George Albert Guess (D) was a licensed physician who practiced family medicine and regularly treated his patients using homeopathic medical practices.  Behind homeopathy is the theory that large doses of a certain drug given to a healthy person will produce certain conditions which, when they are a spontaneous symptom of a disease, are relieved by small doses of the same drug.  The State Board of Medicine (Plaintiff) charged Defendant on the basis that homeopathy was not an acceptable and prevailing system of medical practice and was therefore prohibited by statute.  Defendant argued that homeopathy is a recognized system of practice in three or more other states and many foreign countries as well.  No evidence was shown that Defendant’s homeopathic treatment harmed even one patient, and there was anecdotal evidence that several patients experienced relief from Defendant’s homeopathic remedies when they had been unable to experience relief from allopathic medicine.  Plaintiff stayed the revocation of Defendant’s license to practice medicine on the condition that he not practice homeopathy, which Defendant appealed to the relevant trial court which reversed and vacated the decision of the Plaintiff.  Upon appeal by the Plaintiff, the intermediate appellate court rejected the reasoning of the trial court but affirmed the Plaintiff’s decision, which was then subject to another appeal.

    Issue. Is actual harm to a patient required to be shown in order to revoke the privilege to practice medicine?

    Held. (Mitchell, J.)  No.  Actual harm to a patient is not required to be shown in order to revoke the privilege to practice medicine.  The statute central to this case’s resolution provides in relevant part: (a) The Board shall have the power to deny, annul, suspend or revoke a license . . . issued by the Board to any person who has been found by the Board to have committed any of the following acts or conduct, or for any of the following reasons: . . . (6) Unprofessional conduct, including, but not limited to, any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, regardless of whether or not a patient is injured thereby . . . .
      The intermediate appellate court concluded that the legislature may properly act only to protect the public from harm in exercising the police power.  Therefore, in order to be a valid exercise of the police power, the intermediate appellate court reasoned that the statute must be interpreted as giving the Plaintiff authority to prohibit or punish a doctor’s action only when there is evidence that the action in question poses a danger of harm to the patient or the public.
      The intermediate appellate court erred in construing the statute to add a requirement that each specific practice prohibited by the statute must pose an actual threat of harm.  A basic constitutional principal introduces the analysis:  the General Assembly, in exercising the state’s police power, may legislate to protect the public health, safety and general welfare.  A statute will be upheld when challenged as being beyond the scope of the police power, as long as there is a rational relationship to such a legitimate public purpose.
      Protecting the health and safety of the public by regulation of the medical profession is obviously a legitimate public purpose.  It has been long recognized that state regulation of the medical profession is a legitimate exercise of the police power.  In the case of Dent v. West Virginia, 129 U.S. 114 (1889), “Few professions require more careful preparation by one who seeks to enter it than that of medicine . . . .  Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the required qualifications . . . .  The same reasons that control in imposing conditions, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough understanding is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected.”
      The provision of the statute in this case is reasonably relevant to the public health.  The legislature reasonably believed standards of “acceptable and prevailing” medical practice that are not conformed to by any practice inherently pose a general risk of endangerment to the public.  The statute is a valid exercise of the police power.  The statute in this case is a valid regulation which in general works to secure the public health, safety, and general welfare.  With permission, the legislature delegated to the Plaintiff certain regulatory functions related to the valid exercise of the police power.  However, there is no requirement that every action taken by the Plaintiff must specifically identify or address a particular injury or danger to any person or to the public.  As long as the Plaintiff’s action complies with the statute, it is enough that the statute is a valid exercise of the police power for the public health and general welfare.  Therefore, the intermediate appellate court erred by requiring a show of potential harm from certain practices of Defendant prior to action by the Board.
      The Plaintiff’s findings that lead to its decision were based on competent, material, and substantial evidence regarding what the state considers “acceptable and prevailing” standards of medical practice.  Nothing more was required.  Defendant’s evidence regarding the efficacy of homeopathy and its use outside the state was simply not relevant to the issue before the Plaintiff.  The Plaintiff properly complied with its statutory notice and hearing requirements, and its decision was sufficiently supported by evidence that was proven, competent, material and substantial.
      Some physicians value the homeopathic system of practice and others seem to consider homeopathy an outdated and ineffective system of practice.  While this conflict may be interesting, it simply is not relevant in this case due to the proven evidence and the Plaintiff’s findings and conclusion that homeopathy is not currently an “acceptable and prevailing” system of medical practice in the state.  Reversed and remanded.

    Discussion. The state medical board’s decision to offer licensing and regulate its practice is a reasonable exercise of state power.  The trial court’s focus was misplaced as the statute did not require a finding on whether or not any of Defendant’s patients suffered an actual harm.  The Defendant was not likely to win a battle regarding the controversy over the effectiveness of homeopathic treatments while continuing to engage in the practice.  Indeed, further appeals were unsuccessful.


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