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

Dr. Emanuel L. Stammer, petitioner-respondent, a physician and surgeon of some twenty years of active practice with an unblemished record, was disciplined by the Department of Education for violation of the provisions of section 1264, subdivisions 2(a) and (d) of the Education Law (Cons. Laws, ch. 16). In accordance with authorized procedure (Education Law, § 1265, subd. 5; Civil Practice Act, art. 78, § 1296), an order was made transferring proceedings for review of the findings and order which resulted in his suspension from practice and the cancellation of his certificate to the Appellate Division, third department. There an order was made reversing and annulling, on the law and the facts, the determination and order under review.

Procedure in a case like the present is governed by section 1265 of the Education Law. Upon a complaint and charges being filed, the Committee on Grievances of the Board of Regents refers the matter to a subcommittee who makes a preliminary investigation and later, if they feel the case warrants more attention, hold a formal hearing upon the charges; after the hearing the subcommittee makes findings and recommendations to the full Grievance Committee, who in turn, report to the Board of Regents, who make the final order.

The charges against respondent were made by one Violette Platt, a medical inspector in the Department of Education. She presented two charges, both of which were sustained, with all their accompanying specifications, by the Committee on Grievances and by the Board of Regents. He was charged, first, "with fraud and deceit in the practice of medicine in violation of Section 1264, subd. 2(a) of the Education Law," and, second, with "offering, undertaking and agreeing to cure and treat a disease by a secret method, procedure, treatment or medicine in violation of Section 1264, subd. 2(d) of the Education Law," both committed as follows:

"Between on or about the first day of October, 1938, up to and including about the first day of January, 1939, one James Blakeney, being unlicensed to practice medicine in the State of New York, and respondent did offer, undertake, promise, agree and guarantee to treat and cure one Rose Brower for the disease of cancer by means of a secret remedy and formula, and the said Blakeney and respondent did in fact treat the said Rose Brower for the said cancer by means of the alleged secret remedy and formula which they, the said Blakeney and respondent did assert that they possessed exclusively.

"(b) The representation, promise and guarantee of the said Blakeney and respondent that they would and could cure the said Rose Brower of her cancerous condition, was false, fraudulent and deceitful and was known by them to be false, fraudulent and deceitful in that there was and is no certainty as to the cure of cancer by any form of treatment.

"(c) The representations of the said Blakeney and respondent that they had a secret remedy and formula for the treatment and cure of cancer was false, fraudulent and deceitful and the said Rose Brower was induced thereby to engage the services of the said Blakeney and respondent.

"(d) The said Blakeney never has been and is not now licensed to practice medicine in the State of New York. Respondent's acts in permitting said Blakeney to treat the aforesaid cancerous condition by the alleged secret formula and remedy and by his association with the said Blakeney in the said treatment, did aid and abet the said Blakeney to unlawfully practice medicine. Respondent thereby held out the said Blakeney to the said Rose Brower as being able to treat a physical condition and disease by an alleged secret formula and remedy and thus misled and deceived the said Rose Brower."

The case is open to us to determine whether there was any sufficient legal evidence to sustain the findings and conclusions of the Board of Regents (Education Law, § 1265, subd. 5). The record of the hearing before the Subcommittee on Grievances disclosed the following:

Reportedly suffering desperately from an open, huge and foul-smelling cancerous growth on the side of her face and neck, beyond orthodox surgical and medical aid and given but a few weeks to live, volunteer social workers discovered impecunious Rose Brower and became interested in her case. She had been undergoing treatment at Queens General Hospital, was placed on the critical list and desperately ill and was finally discharged as beyond cure on August 31, 1938, but was advised to continue radiation theraphy at the clinic which she did. Medical records showed on September 22, 1938, that no benefit resulted from the treatment. A Mrs. Hendrickson had been taking her to and from the hospital at the times of clinical treatment. An interviewer at the hospital said that he knew a man who could positively cure cancer. Thereupon, after one of her treatments at the clinic and with the knowledge and consent of the interviewer and of the medical superintendent of the hospital and at the wish of Mrs. Brower, she was taken by Mrs. Hendrickson to Blakeney's home. At that interview Mrs. Brower and Mrs. Elcasser, wife of the hospital interviewer, at the interviewer's suggestion, were present. The respondent was not present. A Doctor Gilbert who was connected with the Queens General Hospital was supposed to be present but he was not there. Blakeney showed them photographs of cures he claimed to have effected on others, made various representations as to the efficacy of his treatment which was explained to consist of the application of a salve to the affected part to be changed each three hours for forty-eight hours when the roots would loosen from the normal tissue and the mass would drop off, but Blakeney refused personally to remove the bandage or undertake any treatment because Doctor Gilbert was not there. Blakeney told them he was not a physician.

On the following day, October 7, 1938, Blakeney was at the hospital and investigated the hospital charts and waited for Doctor Gilbert to arrive, but he did not appear. It was then decided to reach Doctor Stammer. Later, Mrs. Hendrickson and Blakeney found Doctor Stammer and the three went to Mrs. Brower's house. Shortly after their arrival, Doctor Gilbert and the interviewer arrived from the hospital. Again information was given that Blakeney was not a physician. At Doctor Stammer's request, the bandage was removed and Doctor Stammer examined the growth. The physician was told that the Browers were without means and said that he would like to help her if he could if her daughter-in-law would care for the dressings. Whereupon an appointment was made for him to visit her on the following day.

Thereafter respondent started to treat her with the salve, the daughter-in-law looking after the dressings. Doctor Stammer alone prepared and gave all treatment and gave all instructions for the care of Mrs. Brower. Although the salve was prepared for him by Blakeney, Doctor Stammer applied it and watched the results daily. Blakeney neither gave instructions nor participated in the treatments at any time. The patient and her relatives were told that the salve to be used was being prepared by Blakeney from his own formula and they consented to its use. At first the salve was applied every three hours and later each four hours. Mrs. Brower, the daughter-in-law, testified on February 27, 1940. She said: "As soon as we put this medicine on her it immediately cleaned up the odor. There was no more odor, there was no more discharge. Inasmuch as she had great pain it was nothing in comparison to what she had had before. As soon as this medication had taken place it seemed to have made her feel much better. * * * The ultimate result is the woman is living. * * * The growth has fallen out and scarred tissue is comparatively small now. She has gained twenty pounds, her general health inasmuch as she is not a young woman any longer, she is well, as well as can be expected. * * * There is nothing there, just scarred tissue there now. * * * All healed up." After the ten-day treatment with the salve under the doctor's orders and supervision, olive oil was applied until January, 1939, when the cure was complete. All told, the doctor made some hundred visits, visited her daily when necessary and has since watched the case — all without asking or receiving any compensation for his services.

It appeared that Blakeney had disclosed the formula for the salve to Doctor Stammer with directions as to how to use it some years before the treatment of Mrs. Brower, that the doctor was familiar with all its ingredients, had tried it on healthy skin before he used it on Mrs. Brower and found no ill results. One, at least, of its ingredients was in general use in cancer treatment. On the preliminary investigation of the case before the subcommittee of the Grievance Committee, the doctor disclosed to them the ingredients of the salve and the details of his use of it and later divulged the formula as and when requested and furnished detailed description of treatment to the full committee.

However much latitude there may be in the handling and in the decisions of cases committed to other administrative tribunals, the Education Law (§ 1265, subd. 5) provides that the Committee on Grievances need not be bound by the laws of evidence in the conduct of its proceedings, but its determination must be founded upon sufficient legal evidence to sustain the same. Hearsay evidence alone does not meet the test. The evidence must be of probative character. A decision based upon evidence other than that required by the statute is arbitrary and baseless. There is no evidence that Doctor Stammer practiced fraud and deceit and that charge has been abandoned by the appellants upon this appeal. Reliance is placed only on the second charge which arises out of section 1264, subdivision 2(d), of the Education Law which provides, so far as material, that "The license or registration of a practitioner of medicine may be revoked, suspended or annulled or such practitioner reprimanded or disciplined in accordance with the provisions and procedure of this article upon decision after due hearing in any of the following cases: * * * (d) That a physician offered, undertook or agreed to cure or treat disease by a secret method, procedure, treatment or medicine or 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." The commonly accepted and understood meaning of what is secret is that which is intentionally undisclosed or, as Webster puts it: "Something studiously concealed, a thing kept from general knowledge, what is not, or is not to be, revealed." The noun "secret" is similarly defined in the Century Dictionary. When used in a penal law, the word "secret" means "studiously concealed." (Ferrell v. State, 68 Tex.Crim. Rep..) Generally, in law, a "secret" is something "kept from the knowledge or notice of persons liable to be affected by the act, transaction, deed or other thing spoken of" (Black's Law Dictionary; Kaumagraph Co. v. Stampagraph Co., 235 N.Y. 1,7). It is something intentionally and studiously concealed.

Within the commonly accepted meaning of the term "secret," and as used in the statute under consideration, we find no sufficient legal evidence in the case that the physician offered, undertook or agreed to cure or treat Rose Brower by any secret method, procedure, treatment or medicine. There was nothing secret about the medicine used or the method, treatment or procedure adopted. Indeed, the evidence is to the exact contrary. Neither did he studiously conceal the method, procedure or treatment which he adopted or the medicine which he used. Some years before he treated Rose Brower with the salve, Blakeney had divulged the formula to him and had explained to him the method of its use. There was evidence that Doctor Gilbert had previously attended cases where the formula and treatment had been used. Before undertaking treatment of Mrs. Brower the procedure and treatment were fully explained. It was disclosed that a salve was to be used, the results to be expected were discussed, and consent of the patient and of her relatives to the use of the salve and to the treatment to be given were obtained. The mere fact that the details of the formula were not known to the patient or to some other particular person did not make it secret. The affirmative and uncontradicted evidence in the case is that Doctor Stammer had proposed to disclose to the medical society both the formula and treatment if it had merit and that he divulged upon demand to the Committee on Grievances the method, procedure and treatment adopted and used by him. The attempt to help Rose Brower by treatment outside of electro-theraphy was known to and approved by physicians connected with the hospital in whose clinic she was under treatment. The evidence is conclusive that respondent made no promise or representation that the treatment would cure the patient. Even had he done so, in the absence of fraud and deceit it would have been merely an expression of opinion and he would have committed no offense under the statute. If Blakeney at any time made any such representation, it was not made in the presence of Doctor Stammer or with his knowledge and any evidence thereof that appears in the record is not the legal evidence required by the statute or binding upon the doctor. It is quite immaterial that Blakeney did not disclose the formula and treatment to the Committee on Grievances previous to the formal hearing in this case even though such had been the fact. There is no evidence that he refused to divulge it to them or that they ever demanded it of him. The statute imposed no duty on him to make such disclosure in any event. Blakeney was not on trial. He was not a physician subject to discipline under the statute. He died before the trial of Doctor Stammer commenced and it was beyond the power of the doctor to show upon the hearing, though there was no legal requirement that he should do so, that the formula and treatment had not been disclosed generally by Blakeney during his lifetime to others.

By every test set by the Legislature, respondent committed no act condemned by the statute for which discipline could be imposed.

The order appealed from should be affirmed, with costs.