New York State Osteopathic Society, Inc. v. Allen

31 A.D.2d 111, 295 N.Y.S.2d 536, 1968 N.Y. App. Div. LEXIS 2672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1968
• Status: Published

Opinions

Gabrielli, J.

This is an appeal from a judgment of the Supreme Court at Special Term, entered November 30, 1967 in Albany County, which granted petitioner’s application in a proceeding under article 78 of the CPLR, directing the respondents Commissioner of Education and Board of Regents (1) to cancel, revoke and rescind “ M.D.” inscriptions on the licenses of certain physicians and surgeons and (2) to order recipients of such “ M.D.” inscriptions to remit their licenses for such deletions.

The intervenors are 11 of the 47 physicians practicing in New York State, who graduated from the College of Osteopathic Physicians and Surgeons in Los Angeles, California (hereinafter referred to as COP&S) prior to 1962, where they had pursued an in-course academic program of study and instruction in osteopathic medicine, authorizing them to earn only the degree of Doctor of Osteopathy, being the only degree which the college was authorized to confer. Upon passing medical examinations in New York State they were issued licenses containing the inscription “ D.O.” pursuant to the mandate contained in subdivision 3 of section 6512 of the Education Law.

In 1962 following appropriate legislation COP&S was converted into a nonosteopathic medical school known as the California College of Medicine. Additionally, it was provided that thereafter the school would be empowered to grant only M.D. degrees and California-licensed physicians with licenses bearing D.O. inscriptions were required to choose whether to continue with such licenses or renounce the use of the inscription and receive, upon proper application, an M.D. degree, from the California College of Medicine. The intervenors thereafter submitted their California licenses to the newly named college and had their D.O. degrees changed to M.D., following which they submitted their New York licenses bearing D.O. inscriptions, along with their newly acquired M.D. diplomas to appellants and requested that an M.D. inscription be added to their licenses, and their names be entered in the registry of New York M.D.s. Complying with the request, their licenses were amended so that the applicant’s name was followed by the inscriptions “ D.O., M.D.”.

Petitioner-respondent, after an appropriate demand upon and refusal by the Commissioner and Board of Regents, commenced this proceeding for a judgment (a) directing them to cancel, revoke and rescind the M.D. inscriptions on licenses granted to those graduates of COP&S who subsequently were given the M.D. degree by the California College of Medicine, as well as (b) directing the return of the newly-amended licenses in order to delete the M.D. inscription, and (c) to restrain the Commissioner and Board of Regents from granting any similar M.D. inscriptions in the future.

Turning first to appellants’ contention that petitioner lacks standing to bring this proceeding, the stipulation of facts recognizes that the petitioner is the official spokesman for the osteopathic profession in New York, that it was organized by the members of that profession, with one of its avowed purposes, “ to promote, protect and subserve the best interests of the science and profession of osteopathy ’ ’; and it is further conceded that the petitioner has a vital interest in actions relating to the ‘ ‘ profession and the public in the area of health and welfare ’ ’. These stipulated facts further clearly demonstrate that if the action taken by the Commissioner and Board of Regents ‘'was wrongful and in excess and disregard of their statutory authorization, then such action involves matters of public concern and is unfair and discriminatory to members of the osteopathic profession ” and, further, that such action would mislead the public and be detrimental to the osteopathic profession in general. We cannot, therefore, agree that petitioner does not have standing to bring the proceeding (Matter of Kornbluth v. Rice, 250 App. Div. 654, 656, affd. 275 N. Y. 597).

Turning to the basic relief sought by the petitioner our attention is first drawn to those statutory enactments which would be declarative not only of the restrictions imposed upon appellants but also of the public policy of the State and, in search therefor, we note the provisions of subdivision 3 of section 6512 of the Education Law which directly apply to the intervenors (and others similarly situated) since they have prepared themselves in the science of osteopathic medicine, having graduated from a college of osteopathy, and which section states, in pertinent part, that: “ 3. Graduates of colleges of osteopathy registered by the New York state education department who pass the medical licensing examination of the state of New York shall be issued a license to practice medicine and surgery. A license so issued shall contain thereon, following the name of the licensee, the letters D.O.” (Emphasis added.) It is evident that the public policy of this State is to recognize a distinction between those who have pursued a course of study and have been trained in osteopathic medicine and those who have been trained in allopathic medicine; and in dealing with these distinctions, the court in Matter of Kurk v. Medical Soc. of County of Queens (24 A D 2d 897, 898, affd. 18 N Y 2d 928) said: “ The differing licenses serve to apprise the public of the differing training of the licensee ”.

We are mindful of the argument advanced by appellants regarding certain similarities of training between graduates of osteopathic and allopathic colleges but we must be further mindful of the restriction placed upon the licensing inscription specifically mandated by subdivision 3 of section 6512 of the Education Law, which obviously serves the purpose of permitting the public to correctly ascertain whether a particular physician was educated (and earned his degree) in osteopathic medicine or allopathic medicine; and based on the course of study pursued and degree conferred or the training received, licenses issued in New York mandated the inscription of D.O. only since section 6509 of the Education Law in part provides that: “ On receiving from the board an official report the h an applicant has successfully passed the examinations and is recommended for license, the department shall issue to him a license to practice according to the qualifications of the applicant.” (Emphasis added.) The “ qualifications of the applicant ” were predicated on the course of study and training in the field of osteopathy and, as stipulated, each of the intervenors “ received his preliminary and professional education and training only in osteopathic medicine ”.

Appellants urge that by leaving the D.O. inscriptions on the licenses of osteopaths who had received a retroactive degree of M.D. from the successor college to COP&S, they fulfilled compliance with subdivision 3 of section 6512 of the Education Law, but it is evident that their action in inserting the additional M.D. inscription would only serve to mislead and confuse, if not deceive, the public into believing that this physician had pursued in-course academic programs of study in both osteopathic and allopathic medicine. The express purpose of the quoted sections would be destroyed by the inescapable confusion created in the use of both inscriptions, upon the facts here presented. It is obvious that when the intervenors had successfully passed their licensing examinations, the Department of Education issued licenses based upon their preparation, study and training in osteopathy pursuant to section 6509 of the Education Law, and we find nothing in the record which would authorize the department to add an indicator to licenses of the intervenors to the effect they had been found qualified as M.D.s, despite the retroactive conferring of such a degree from the successor college to COP&S where they had originally earned a D.O. degree in the only science for which they had been prepared and trained in.

It is conceded that when intervenors ’ degrees were changed from “ D.O.” to “ M.D. ’ ’ by the merger agreement in California, there was no showing or evidence produced (and indeed no requirement) that they had pursued any further program of academic study in any area of the healing arts; nor, in fact, were they required to take examinations in any of the fields of medicine; and, to compound the problem when they submitted their M.D. degrees to appellants no new, additional or different qualifications or training were considered, save these newly-acquired degrees.

If we were to assume the correctness of the philosophy advanced in the minority opinion that the intervenors are entitled to the additional inscription because their academic training is similar to those who took in-course studies in allopathic medicine, then the discriminatory action of appellants is all the more glaringly apparent. While the minority stresses this approach, it is patenLy and unmistakably clear that only those osteopaths who received an M.D. degree retroactively from COM, or are California licensed, may have the additional inscription of '‘ M.D. ’ ’, while the many other (and by far the vast majority of) licensed osteopaths in New York who graduated with similar training from other accredited schools are not afforded this privilege.

In sum, if there were no distinction between the respective qualifications and if there were no need for informing the public of the differences, then the requirements and mandates contained in section 6509 and subdivision 3 of section 6512 of the Education Law would be completely meaningless.

We are at odds with that statement contained in the minority opinion that “ the degree today earned by a graduate from an osteopathic school apparently is the equivalent of that earned by an ‘ M.D.’ and merely indicates a specialty or additional training ’ ’, for the stipulated facts clearly state that any M.D. degree mentioned therein refers only to that granted by COM, and further that there is no claim that it “ is identical or equivalent with any M.D. degree granted by any other professional school ”.

In sustaining petitioner’s contentions we note that our conclusion has been shared by the determination in Mitchem v. Perry (390 S. W. 2d 600 [Mo.]), which, coincidentally, deals with the same colleges and degrees appearing in the instant case. We note, further, that appellants in no way challenge respondent’s contention that the medical licensing authorities in the States of Alabama, Colorado, Indiana, Mississippi, Missouri, New Jersey, Oklahoma, Oregon, Rhode Island and Texas have denied recognition to, and have declined to inscribe, the California College of Medicine “ M.D.” degree here in question.

Of more than passing interest, those physicians similarly situated as the interveners, but practicing in California, were, upon the changeover, compelled to make a choice whether to continue with the use of D.O. or change to M.D., to the exclusion óf D.O. The statutory scheme of licensing in New York cannot be interpreted to grant greater rights and privileges and, since they cannot be licensed as M.D., they must be relegated to the use of the D.O. inscription.

It appears that the petitioner had sought correction of the inscriptions for some time, most of which was consumed with negotiations and conferences with appellants, and thus no claim of laches can be upheld since the complained-of violations also constitute a continuing failure to obey the statutes (Matter of Cash v. Bates, 301 N. Y. 258; Southern Leasing Co. v. Ludwig, 217 N. Y. 100, 104; Matter of Meyer v. Commissioner of Public Safety, 39 Misc 2d 608).

We are unable to agree with appellants that there should be a dismissal of the proceeding because of the nonjoinder of necessary parties, to wit, all New York State holders of “ D.O., M.D.” licenses. The instant proceeding being in the nature of mandamus, it was not necessary to proceed against anyone except that body or those bodies whose determination is sought to be reviewed. In any event, the question having been raised for the first time on appeal it cannot now be considered (Jones v. Gould, 200 N. Y. 18; 10 Carmody-Wait 2d, New York Practice, § 70:300, pp. 563-564).

We must also reject the contention that the intervenors were entitled to the additional inscription under the full faith and credit clause of the Constitution for if we were to assume that an M.D. degree, even if obtained in the ordinary and usual manner, constitutes a license to practice medicine, it would still not be entitled to automatic recognition by virtue of this clause. (State v. Rosenkrans, 30 R. I. 374, affd. 225 U. S. 698.) Finally, appellants erroneously urge that they are being deprived of a property right in violation of the due process clause of the Constitution and will sustain economic loss. Distinctions made by the Education Law among differing medical practitioners have been held to be proper (Wasmuth v. Allen, 14 N Y 2d 391, app. dsmd. 379 U. S. 11) and should be here followed.

The action of the appellants obviated the clear intent of the quoted sections of the Education Law and constituted an arbitrary and discriminatory act which impels us to uphold the determination appealed from.

The judgment should be affirmed, with costs.