Stammer v. Board of Regents of the University , 287 N.Y. 359 ( 1942 )

The Board of Regents is the agency designated by the Legislature to supervise the licensing of physicians in this State. (Education Law, § 51.) When the Board suspended for one year the license granted to the respondent, after a hearing held pursuant to section 1265 of the Education Law, its action was in the exercise of an administrative discretion. (Education Law, §§ 1264, subd. 2 [d], 1265 and 1266.) Accordingly, in the present proceeding under article 78 of the Civil Practice Act, we are to determine whether the record discloses circumstances which left any possible scope for the reasonable exercise of that discretion in the manner which led to the Board's order of suspension. (Matter of Durr v. Paragon Trading Corp., 270 N.Y. 464, 469;Matter of Stracquadanio v. Dept. of Health, 285 N.Y. 93, 96.) In pursuing the inquiry I have in mind the ruling by this court that "The regulation of the practice of medicine is undertaken by the State not for the protection of the physicians themselves, but for the protection and welfare of the people. ``The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud.'" (People ex rel. Bennett v. Laman, 277 N.Y. 368,374, 375; Dent v. West Virginia, 129 U.S. 114, 122.)

The respondent was suspended by the Board of Regents which sustained a finding by its Medical Committee on Grievances that he was guilty of the charge made under section 1264, subdivision 2(d), of the Education Law that he "* * * offered, undertook or agreed to cure or treat disease by a secret method, procedure, treatment or medicine * * *."

In October, 1938, a woman — to whom I shall refer as "the patient" — was attending a clinic at Queens General Hospital for treatment of a facial growth which had been diagnosed as a cancer. In the course of such treatments she was induced by persons not connected with the hospital to consult a man who was introduced to her as "Doctor Blakeney" and who, concededly, was not licensed to practice medicine. Noting that the patient's face was bandaged, Blakeney told her he would not remove the bandage unless a doctor was present. He did, however, make a superficial examination of the afflicted portion of the patient's face after which, it is said, he advised her that "he positively could cure it." He stated that the treatment would involve the application every three hours of a salve which would loosen the roots of the diseased mass and would separate it from the normal tissue. There is also testimony that when one of the persons present in the room suggested to Blakeney, "If you have this cure don't you think you are in duty bound to give it to the Medical Society?" Blakeney replied, "No, not as long as I live, and when I die I will take it to my grave."

Three years prior to that time Blakeney had told his friend Doctor Stammer — the respondent upon this appeal — that he had a salve which had been "left to him by a relation" which was used in the treatment of cancer. Blakeney had never used the salve himself although there is proof that he exhibited photographs of persons upon whom the salve had been used.

On October 7, 1938, the respondent went to the patient's home accompanied by Blakeney. After examining the patient the respondent said: "Before I touch this case I want to know whether you are going to continue with the clinic." Upon receiving her assurance that she would not return to the clinic, the respondent stated: "Once I start the case I want you to be through with Queens General Hospital for good unless my treatment fails." Meantime the respondent had been told by the patient's daughter-in-law that the patient would die within three weeks. When questioned upon the hearing what he said to the daughter-in-law the respondent replied: "I didn't tell her anything except that I have a formula or a salve that is used for skin cancer. * * * I told her I was willing to use it, to try it out, I had never used it before, if it worked it would be all right, but I never used it previously, we will try it, there is nothing to lose, she is going to die in three weeks and if it benefited, well and good."

The first treatment, when the salve was applied by the respondent, was on the following day, October 8, 1938, and thereafter, in accord with directions given by the respondent, fresh applications of the salve were made every three hours for seventy-two hours. On January 5, 1939, word came to the respondent from the patient that "the tumor mass had fallen out." Since that time healing has taken place and there remains only a scar at the point where formerly there existed the growth diagnosed as a cancer.

The respondent admits that when he started to treat the patient by applying the salve he was not sure of its merit. The record shows that aside from being told by Blakeney that a relative had "left it to him" the respondent had no personal knowledge concerning the salve except that it was a "brownish color." Five pounds of the salve — which was contained in jars which bore no labels — were used in treating the patient, all of which was supplied by Blakeney who prepared it at a place and under conditions unknown to the respondent. Although the respondent admits that Blakeney knew nothing about skin cancer, the respondent applied the salve to the diseased mass upon the patient's face without consultation with a chemist, a pharmacist or another doctor to determine by analysis whether the salve contained ingredients which had therapeutic value and were appropriate for the treatment of cancer. In that connection the respondent stated that before he started the treatments, the only "clinical experiment" made by him was when "I tried it on myself," his comment at the hearing being, "As long as it didn't injure healthy skin it certainly had no ill effect on unhealthy skin."

Blakeney did inform the respondent that the salve contained four ingredients apportioned as follows: zinc sulphate, five per cent; a Chinese spice known as galanga, twenty per cent; sanguinaria, fifty per cent and lanolin, twenty-five per cent. The respondent knew nothing about the ingredients except that zinc sulphate "is used in the treatment of cancer, as an escharotic." As to the use, in the treatment of cancer, of a Chinese spice known as galanga — which according to the formula, composed twenty per cent of the salve — he had never heard of it. In short, except for the statement made to him by Blakeney — who was not proved to have expert knowledge — the record fails to show that the respondent had any information as to the curative properties of the ingredients, except the zinc sulphate, and he denied knowledge whether in the preparation of the salve Blakeney had adhered exactly to the proportions stated in the formula.

I have referred to Blakeney's statement that he would not divulge the formula during his lifetime. It appears however, as we have seen, that he did inform the respondent of the formula, and that he prepared and furnished to the respondent the salve which was applied in the treatments given to the patient. The respondent concedes that at the time he started to treat the patient it was his intention to keep secret the salve until he proved its value. When asked upon the hearing before the Medical Grievance Committee the direct question whether he and Blakeney considered the formula a secret between themselves, his answer was: "I don't know whether it was a secret or not. I wouldn't say yes and I wouldn't say no." There is no evidence that Blakeney, now deceased, ever divulged the formula except to the respondent. As to whether the respondent himself kept the formula as a secret, I find that when the respondent was asked upon the hearing, "Have you divulged that formula to anybody except the Medical Grievance Committee to date?" he replied, "I didn't divulge it to anybody except the Committee."

I construe subdivision 2 (d) of section 1264 of the Education Law as authorizing disciplinary action by the Board of Regents whenever, under procedure prescribed by section 1265, it is determined that a physician (1) "* * * offered, undertook or agreed to cure or treat disease by a secret method, procedure, treatment or medicine * * *;" or (2) that he "* * * offered, undertook or agreed * * * that he can treat, operate and prescribe for any human condition by a method, means or procedure which he refuses to divulge upon demand to the committee on grievances," or (3) "that he has advertised for patronage by means of handbills * * *," etc.

In my opinion the facts before us constitute evidence that the respondent "* * * undertook * * * to * * * treat disease by a secret * * * medicine * * *" — within the provisions of section 1264, subdivision 2(d), supra. That evidence affords a basis sufficient for the disciplinary action taken by the Board of Regents which is the subject of the respondent's challenge in this proceeding.

If, as I believe, there is in the record at hand evidence which warrants the exercise by the Board of Regents of administrative discretion within the field defined by the statutes cited, the purpose of the Legislature has been accomplished in this instance. "Those seeking medical attention have no means of estimating the skill and ability of the physician, and must depend upon the State to permit only those qualified to engage in that profession." (People ex rel. Bennett v. Laman, supra, p. 375.)

I vote for a reversal of the order of the Appellate Division and the reinstatement of the disciplinary order of the Board of Regents.

LEHMAN, Ch. J., LOUGHRAN, FINCH and DESMOND, JJ., concur with RIPPEY, J.; LEWIS, J., dissents in opinion, in which CONWAY, J., concurs.

Order affirmed.