People v. John H. Woodbury Dermatological Institute

124 A.D. 877, 109 N.Y.S. 578, 1908 N.Y. App. Div. LEXIS 2212

Opinions

Laughlin, «I.:

The defendant" is a domestic corporation. It' was duly incorporated on or about the 31st day of March, 1890, under ánd piursuant to the provisions of an act of the Legislature, passed on the 17th day of February, 1848,

Footnotes

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* entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” and acts amendatory thereof and supplemental thereto. , ...

The evidence satisfactorily shows that the defendant advertised that it was practicing medicine, as set forth in the information upon which it was tried. . 1

Section 15 - of chapter 344 of the Laws of 1907, which became of force prior to the time the defendant advertised the practice of medicine, as set forth in the information, provides, among other tilings, as follows : “ Any person, not a registered physician, who shall advertise to practice medicine, shall be guilty of a misdemeanor.” The conviction was for a violation of this provision of the statute. The learned noun sel for the appellant contends that the statute does not prohibit the practice of medicine by a corporation. The learned counsel for the People draws attention to sectibn 5 of the ,Statutory Construction Law (Laws of 1892, chap. 677), which provides that “ The term person includes a corporation and a joint stock association,” and insists that this is the rule of construction to be applied to the statute in question; Section 1 of the Statutory Construction Law piro vides as follows-: /‘-This chapiter * * * is applicable to every statute unless its general - object,/or the context of the language construed, or- other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.”

I am of opinion that this Statutory Construction Law is applicable and governs the construction of the statute in question. The piurpose and object :of the statute -was to limit, tlib piractice of medi- . cine and advertising to practice medicine to those lawfully registered or otherwise authorized to practice medicine. Strictly, speaking, of course, a corporation can neither qualify -to practice medicine nor administer medical or surgical aid. If the Legislature enacted the prohibition against -piracticing medicine and advertising to practice medicine upon the theory that a corporation could not practice medicine, then there. would' he no reason for inferring that it intended to prohibit something which could not be done, for that would be quite unnéeessary. As I view it, the only theory upon which this prohibition can be deemed to extend to corporations is that the Legislature recognized that while corporations may not obtain diplomas and register as physicians or actually treat patients or perform surgical operations, they may, through agents and employees, as all corporations are obliged to perform their functions, practice medicine by providing accommodations for patients and facilities for their care and treatment, and physicians and surgeons to administer to them. This is and for many years has been done in hospitals, dispensaries, infirmaries and sanitariums with which the Legislature is presumed to have been familiar. Were the corporation authorized to receive, and by the aid of physicians and surgeons to treat patients, and by the aid of nurses and other employees to properly care for them, I am of opinion that they come within the exception contained in section 1 of the Statutory Construction Law, and are neither prohibited from practicing medicine in that sense, nor from advertising such practice. Although, therefore, in a technical sense, a corporation cannot practice medicine, yet, if it.be authorized to provide suitable accommodations for the care and treatment of the sick and to receive patients, and to employ physicians and surgeons to treat them, this law should not be construed as prohibiting it from advertising that which it is thus authorized to do. This being so, I see no public good or advancement in the cause of relieving the community from the imposition of quackery that will flow from a judicial decision that a corporation thus authorized to receive and provide for the medical or surgical treatment of patients may not advertise that it prescribes medicines or performs surgical operations for- the reason that it is not and cannot be registered as a physician, or surgeon and it is physically impossible for it to so prescribe or perform operations because of its inanimate nature, but that it may lawfully advertise just what it in fact does and that is that it receives patients and employs physicians and surgeons to treat them, for everybody knows that that is the only way it could treat them. If such an institution employed others than duly registered physicians and surgeons to treat thosq coming to it'for medical or surgical aid, then if it advertised that it was practicing medicine, it might be guilty of a. violation of this statute, even though it be authorized to thus practice medicine, employing duly registered physicians and surgeons; and of course the individuals prescribing for the patients in treating them surgically would be subject to prosecution if not duly registered.

Chapter 95 of the Laws of 1889,* which authorized the incorporation of “ hospitals, infirmaries, dispensaries' and homes for invalids or aged and indigent persons,” provided in section 5 that the certificate of incorporation might declare and prescribe the qualifications of members “ in the matter of adherence or non-adherence to any particular school or theory of medical or surgical treatment, and what system of practice, of medicine or treatment shall be used and applied in such hospital, infirmary or home,” and section 4 thereof, so far as material, provided that the property of the corporation should be exempt from taxation “ to the extent that, and so long as,. the same shall be used exclusively for the care, reception, maintenance, medical and surgical advice, aid and treatment, * * * and provided that it shall and do actually render medical and surgical aid, advice and treatment to poor persons in need of such treatment without charge therefor.”

Section 8 provided, among other things, that “ the by-laws may specify, what classes and descriptions of persons shall or may receive treatment, advice, care and maintenance from said hospital, infirmary, dispensary or home.” These statutory provisions have been superseded by the provisions of article 6 of the Membership Corporations Law (Laws of 1895, chap. 559, as ámd. by Laws of 1900, chap. 404), in which they are substantially' re-enacted.† It will be seen that by the provisions quoted from sections 4 and 8 of the act of 1889 it was expressly contemplated that the patients should be treated by the institution, which, of course, is the practical effect in such cases. The hospitals or other institutions owe a duty with respect to the care and medical treatment even of free patients; and we may take judicial notice of the fact that they receive some patients for hire and incur a responsibility to exercise proper care in the selection of physicians, surgeons, nurses and other attendants, as is shown by the cases which have come before the court for adjudication. I am of opinion, therefore, as already observed, that these institutions which are authorized to receive patients for treatment and to provide medical and surgical treatment for them, do not come within the prohibition of the act'and they may lawfully advertise the business .which they are thus duly authorized to do. It may be that sanitariums and similar institutions, although incorporated under the Business Corporations Law,* are authorized to receive patients and employ physicians and surgeons to treat them; but that question is not presented for decision and upon it I express no opinion. £ limit my opinion to the proposition that any corporation lawfully authorised to receive and care for individuals requiring medical or surgical treatment, to provide proper treatment for them either gratuitously or for hire, may advertise its business without subjecting itself to 'liability for a violation of the statute in question and that it is quite immaterial whether it advertises ■ that it prescribes for and treats the patients or that this is done by its employees. The defendant,, however, has not-shown that it was duly authorized to receive patients or furnish them medical -or surgical aid or treatment. Its certificate of incorporation limits its business to “ manufacturing chemical preparations and printing, publishing and selling books and pamphlets'relating to the same and advertising the same.” It, therefore, does not come within the exception-contained in section 1 of the Statutory Construction Law, and the statute prohibits it from advertising the practice of medicine.

It follows that the judgment should be affirmed.

Patterson, P. J., concurred; Houghton, J., dissented.

Laws of 1848, chap. 40.— [Rep.

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See Laws of 1894, chap. 256.— [Rep.

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See Tax Law (Laws of 1896, chap; 908), § 4, subd. 7, as amd. by Laws of 1897, chap. 371; Laws of 1903, chap-. 204; Laws of 1906, chap. 336, and Laws of 1907, chap. 693. Sec, also, Matter of Troy Press Co. (187 N. Y. 279, 284,285). For repeal of act of 1889, except section 4,. see Mémb. Corp. Law, §§ 147, 148. For by-laws see Memb. Corp. Law, § 8, and Gen. Corp. Law (Laws of 1892, chap. 687), §§ 11, 29, as respectively amd. by Laws of 1895, chap. 672, and Laws of 3*904, chap. 737. See, also, 2 Birdseye’s R. S. (3d ed.) 2298, § 8, note.— [Rep.

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See Laws of 1890, chap. 567, as amd. by Laws of 1892, chap. 691, and other statutes.— [Rep.