Kansas State Board of Healing Arts v. Burwell

616 P.2d 1084, 5 Kan. App. 2d 357, 1980 Kan. App. LEXIS 306
CourtCourt of Appeals of Kansas
DecidedSeptember 12, 1980
DocketNo. 50,735
StatusPublished
Cited by3 cases

This text of 616 P.2d 1084 (Kansas State Board of Healing Arts v. Burwell) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kansas State Board of Healing Arts v. Burwell, 616 P.2d 1084, 5 Kan. App. 2d 357, 1980 Kan. App. LEXIS 306 (kanctapp 1980).

Opinion

Parks, J.:

This is an appeal from the district court’s judgment upholding the Kansas State Board of Healing Arts (Board) order revoking appellant’s license to practice chiropractic.

[358]*358This proceeding was initiated by the filing of a verified petition to the Board alleging that Danial Burwell, a licensed chiropractor, unlawfully invaded a field of practice for which he was not licensed. The acts allegedly exceeding the scope of his chiropractic license were the prescription and administration of intravenous injections of Laetrile.

The evidence presented to the Board included testimony by several people who witnessed Dr. Burwell inject intravenous doses of a substance Burwell said was vitamin B-17 or Laetrile. Donald and Judy Eidemiller testified that Robert Hopkins had a lung ailment diagnosed as cancer; that after receiving conventional treatment, Hopkins sought relief through Laetrile treatments; that Hopkins received intravenous injections from Bur-well or his nurse; and that Hopkins was billed for the administration of these services. Judy also testified that she retrieved two syringes which had been discarded by Burwell in order to determine whether Hopkins was receiving Laetrile. Subsequent testimony established that the syringes contained amygdalin (Laetrile). Three nurses who attended Mr. Hopkins also testified that they saw Burwell administer intravenous injections to him. Additionally, relatives of Estell Eugene Pike and Francis Edward Howe testified that they witnessed Dr. Burwell inject the two men intravenously with a substance they understood to be Laetrile. The Board also heard testimony from several chiropractors and a pharmacist concerning the scope of chiropractic practice and whether the phrase “medicine or drugs in materia medica” encompasses Laetrile.

The Board held that Dr. Burwell unlawfully invaded a field of practice for which he was not licensed by administering drugs or medicines to patients intravenously in violation of the Healing Arts Act (K.S.A. 65-2801 et seq.), and ordered revocation of his license to practice chiropractic. The district court reviewed the Board’s proceedings and held that they comported with due process requirements and were not fraudulently, arbitrarily, or capriciously carried out. The court also held that the Board’s action was within its authority and substantially supported by the evidence. Appellant appeals the district court’s determination to this court.

The scope of review in a license revocation proceeding was set forth in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶¶ 1, 2, 436 P.2d 828 (1968):

[359]*359“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.”

Appellant contends that the Board’s action was arbitrary and capricious, unsupported by the evidence and outside the scope of its authority. We turn to the latter point first and consider appellant’s argument that the revocation of his license was outside the power of the Board because the statute defining the scope of chiropractic is unconstitutionally vague.

The Board of Healing Arts is a statutory creation which has authority to license and regulate all practitioners of the healing arts in this state. K.S.A. 65-2801 et seq. The Board may after notice and hearing revoke, suspend or limit the license of a practitioner upon proof of one of the grounds specified in K.S.A. 1979 Supp. 65-2836. These grounds include “[u]nlawful invasion of the field of practice of any branch of the healing arts in which the licensee is not licensed to practice.” K.S.A. 1979 Supp. 65-2836(i). Furthermore, the scope of chiropractic as defined by K.S.A. 1979 Supp. 65-2871 specifically prohibits the prescription or administration of “medicine or drugs in materia medica” and the performance of any surgery or obstetrics. The threshold question for this court, then, is whether the treatment which Dr. Burwell was found to have employed as part of his practice was, as a matter of law, outside the lawful range of chiropractic.

A chiropractor may not administer or prescribe “medicine or drugs in materia medica.” K.S.A. 1979 Supp. 65-2871. Several of the witnesses believed that the term materia medica referred to a multivolumed listing of medicinal substances and their properties, but only one witness had seen a copy of the books. Another witness testified that he believed the term to be obsolete, and none knew of any drug listing which included Laetrile. Appellant contends that the inability of the witnesses to agree on a meaning of the phrase indicates that the inclusion of this phrase renders the statute unconstitutionally vague and unenforceable.

[360]*360When considering the validity of a statute, the court starts with a presumption of constitutionality; all doubts must be resolved in favor of validity of the statute, and before the statute may be stricken down it must clearly appear that the statute violates the constitution. State v. Norris, 226 Kan. 90, 92, 595 P.2d 1110 (1979). Moreover, to withstand a vagueness attack, a statute which may have criminal sanctions imposed as a result of its violation, must convey a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, Syl. ¶ 4, 612 P.2d 610 (1980). An individual who exceeds the scope of his healing arts license may be subject to criminal prosecution. K.S.A. 65-2858.

Therefore, we must determine the meaning of the prohibition against the chiropractor’s use of “medicine or drugs in materia medica.”

The confusion of the witnesses testifying before the Board regarding the meaning of materia medica is explained by the fact that a 19th century treatise entitled Materia Medica Pura included data on 61 drugs studied by the author, Samuel Hahnemann.

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Bluebook (online)
616 P.2d 1084, 5 Kan. App. 2d 357, 1980 Kan. App. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kansas-state-board-of-healing-arts-v-burwell-kanctapp-1980.