Norville v. MISS. STATE MEDICAL ASS'N

364 So. 2d 1084
CourtMississippi Supreme Court
DecidedJuly 26, 1978
Docket50371
StatusPublished
Cited by5 cases

This text of 364 So. 2d 1084 (Norville v. MISS. STATE MEDICAL ASS'N) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norville v. MISS. STATE MEDICAL ASS'N, 364 So. 2d 1084 (Mich. 1978).

Opinion

364 So.2d 1084 (1978)

L. Alfred NORVILLE, Jr.
v.
Mississippi State Medical Association.

No. 50371.

Supreme Court of Mississippi.

July 26, 1978.
Rehearing Denied December 13, 1978.

Abe A. Rotwein, Jackson, for appellant.

Wise, Carter, Child, Steen & Caraway, James K. Child, Jr., J. Leray McNamara, Jackson, for appellee.

Before SMITH, WALKER and COFER, JJ.

WALKER, Justice, for the Court:

This is a suit to enjoin a chiropractor from the practice of medicine without a license. Suit was brought in the Chancery Court of the First Judicial District of Hinds County, Mississippi by the Mississippi State Medical Association against L. Alfred Norville, Jr. The court granted partial relief and issued a permanent injunction prohibiting Norville from prescribing, recommending or suggesting vitamins and food supplements for use by his patients and prohibiting the use of microwave diathermy machines, ultrasonic devices, and electric muscle stimulators.

The case presents three issues:

(1) Whether the use of microwave diathermy machines, ultrasonic devices and electric muscle stimulators by a chiropractor constitutes the unlicensed practice of medicine?

(2) Whether prescribing, recommending or suggesting use of vitamins by a chiropractor constitutes the unlicensed practice of medicine?

(3) Was the petitioner, Mississippi State Medical Association, required to prove irreparable harm and lack of an adequate *1085 remedy at law before an injunction could issue?

The Mississippi State Medical Association, at the 1975 annual meeting of its House of Delegates, approved a resolution to initiate legal action against chiropractors who violate the Chiropractic Licensing Act resulting in unlicensed practice of medicine. Subsequently the executive secretary of the Mississippi State Medical Association selected Norville as a defendant and employed counsel to file suit. The suit was for injunctive relief. Defendant generally demurred to the bill on the grounds that there was no equity on the face of the bill; that it did not state a cause of action; that there existed a proper remedy at law, and that complainant was not a proper party to bring suit and therefore lacked standing. The demurrer was overruled and the cause set for trial.

At trial, Norville admitted that he prescribed vitamins for his patients and kept a supply for sale in his office. He further stated that his use of vitamins was for the purpose of relieving ailments or disease and that he prescribed vitamins in ninety to ninety-five percent of his cases. Similarly, Norville admitted the use of ultrasound, microwave, and electric muscle stimulators in ninety to ninety-five percent of his cases. He testified that the modalities were used to relieve an ailment or treat a disease; however, at another joint he had testified they were used to facilitate spinal adjustments.

Photographs of the vitamins involved were introduced into evidence. There were some eighty-one different types of vitamins and food supplements involved, but all were of the type which can be purchased in stores without prescription. The modalities prohibited were ultrasound, microwave diathermy, and electric muscle stimulator. Dr. Wharton, an orthopedic surgeon and chief of the spinal injury service at Methodist Rehabilitation Center testified that microwave diathermy is a form of treatment which concerns the use of radio waves in the microwave spectrum. These microwaves have the capability of developing heat or translating the energy of radio waves deep within the body or at least deeper than the superficial layers of skin. The purpose of microwave diathermy according to Dr. Wharton is to produce heat deep within the body and by doing so to increase blood circulation in that particular area. He also testified that if overheating occurs, tissue necrosis (death of the tissue) can occur. He further testified that in his opinion it was possible to cause death with the use of diathermy.

Ultrasound, according to Dr. Wharton, is energy in the form of a sound frequency. The ultrasound equipment can cause changes in the temperature of tissue and the purpose is to alter temperature selectively. As with microwave diathermy, it also produces some degree of increased circulation. According to Dr. Wharton, ultrasound penetrates more deeply than microwave diathermy. Among other dangers of the use of ultrasound, Dr. Wharton pointed out that if used in an area of an underlying tumor, the vibratory form of energy may spread malignancies through the bloodstream. A similar effect may occur if used over an area of infection.

Electrical muscle stimulators are used to transmit a low voltage current through the skin, generally to trigger points in a muscle near the junction of nerves and muscle tissue thereby causing the muscle to contract. Dr. Wharton testified that he knew of no circumstances where a muscle stimulator would be used with regard to the spine or spinal column.

Several physicians testified that ultrasound or microwave diathermy were used only in fairly rare circumstances and only after other forms of treatment had proven ineffective. Photographs of these three modalities were introduced into evidence. All three machines bore plates warning that the machines were sold only for use by or under the direction of a qualified physician or by a person licensed by state law to use such machines.

DIATHERMY
Federal law restricts the sale of this device for use by or on the order of a *1086 physician or any other practitioner licensed by the law of the state in which he practices to use or order the use of this device.
The manufacture, use and sale of this equipment is licensed by Raytheon Company
ULTRASOUND
Federal law restricts this device to sale by or on the order of a qualified physician or other qualified practitioner licensed by the law of the state in which he practices to use or order the use of this device. Licensed under U.S. patents of A.T.&T. Co. and Western Electric Co., Inc. for therapeutic generators. Other patents pending. Federal Communications Commission type approved.
ELECTRIC MUSCLE STIMULATOR
WARNING: This device is sold only for use by or under the direction of a qualified physician. The observance of safe and established medical practices is essential to its proper use. Otherwise there are possibilities of injury to patients or operators.

MAJESTIC INSTRUMENTS

I.

(1) Does use of the modalities microwave diathermy, electrical muscle stimulators and ultrasound equipment constitute the practice of medicine?

(2) If so, is use of such equipment permitted by the Chiropractic Licensing Act?

The practice of medicine is defined in Mississippi Code Annotated section 73-25-33 (1972) as:

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, or for the cure or relief of any wound or fracture or other bodily injury or deformity, or the practice of obstetrics or midwifery, after having received, or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, profit or compensation; provided, that nothing in this section shall apply to females engaged solely in the practice of midwifery.

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Bluebook (online)
364 So. 2d 1084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norville-v-miss-state-medical-assn-miss-1978.