State Board of Registration for the Healing Arts v. Giffen

WELLIVER, Judge.

The question in this case is whether appellant's practice of licensing as doctors of medicine (M.D.’s) those foreign medical graduates whose medical degrees do not reasonably translate into that designation denies doctors of osteopathy (D.O.’s) their right to equal protection of the laws. For the reasons that follow, we hold that it does not.

I

A

Osteopathy is a theory of medicine. It differs from the more traditional concept of allopathic medicine in that it places a greater emphasis on the role that the structural harmony of the human body plays in the prevention and cure of disease. Underlying the theory of osteopathy are the principles that the body is an integrated whole in which no part functions independently; that because of a complex system of checks and balances the body tends to be self-regulating and self-healing in the face of stress and disease; that the neuromusculoskeletal system is important in the body’s continuous effort to resist and overcome illness and disease; and that the forces of the nervous and circulatory systems must be properly integrated in order for all body organs and systems to function adequately. As originally envisioned,1 “osteopathy was chiefly a drugless, nonsurgical therapy, with emphasis on physical manipulation.” Oliver v. Morton, 361 F.Supp. 1262, 1264 (N.D.Ga. 1973). The manipulative procedures were developed “to correct structural abnormalities and restore body harmony, on the theory that given structural normality, the body had its own resources to combat disease.” 1 Lawyers’ Medical Cyclopedia § 1.19, at 39 (3d ed. 1981).

Today the use of drugs and surgery has become “more and more [an] important part of osteopathic practice” so that the differences between osteopathic and allo-pathic schools of medicine are “minor.” Ol*477iver, 361 F.Supp. at 1264.2 That is not to imply, however, that the differences are insignificant. One important difference lies in the instruction given in manipulative theory and technique. The American Osteopathic Association, the sole accrediting authority for the fourteen schools of osteopathic medicine,3 requires for accreditation that osteopathic schools provide within their curricula mandatory courses in osteopathic philosophy and concepts and in manipulative theory and treatment. Consequently, as the parties have stipulated, the “knowledge of manipulative therapy is available as a diagnostic and therapeutic [technique] for any osteopathic physician to apply.” The same is not true for graduates of allopathic medical schools. Osteopathic manipulative theory and treatment are not taught at allopathic schools, although some allopathic schools now offer somewhat similar courses under the description of physical therapy or biomechanics.

B

Respondent received his D.O. degree from the Kirksville College of Osteopathy and Surgery,4 a medical school approved and accredited by the American Osteopathic Association, in 1945. He does not hold an M.D. degree.5 Respondent is licensed as a D.O. to practice medicine in Missouri, and he maintains an office in Jefferson City. For approximately four years before commencement of the present litigation, respondent, knowingly in violation of § 334.-047(2), RSMo 1978,6 used the designation *478rather than “D.O.,” in the telephone directory, on his office door, and on his stationery, statements, prescription order blanks, and all other documents. In short, according to his own testimony, respondent universally represented himself to be an M.D. rather than a D.O.

Appellant is the state agency charged with “registering, licensing and supervising all physicians and surgeons” in Missouri. § 334.120, RSMo 1978; § 334.120(1), RSMo Supp. 1982. In 1979 appellant brought this action to enjoin respondent from using the M.D. designation and to compel him to use the D.O. designation for all purposes. In his answer respondent alleged as an affirmative defense that § 334.047 was unconstitutional as applied because appellant’s policy of licensing as M.D.’s foreign medical graduates not granted that degree breached respondent’s right to equal protection of the laws under U.S. Const, amend. XIV, § 1, and Mo. Const, art. I, § 2. Respondent also alleged that § 334.047 was unconstitutional because it constituted a special law prohibited by Mo. Const, art. Ill, § 40(28). In addition, respondent filed a counterclaim in which he reasserted his constitutional allegations and requested the trial court to enjoin appellant from licensing as M.D.’s those foreign medical graduates not entitled to use that designation by reason of their diplomas from medical schools approved and accredited by the American Medical Association.

The trial court ruled for appellant on its petition to enjoin respondent from using the designation “M.D.” Respondent has not appealed that decision. The trial court ruled for respondent on his counterclaim, finding that appellant’s licensure of foreign medical graduates whose degrees do not translate into “M.D.” violates respondent’s right to equal protection of the laws. It enjoined appellant from licensing as an M.D. any medical graduate whose diploma confers neither that degree nor one that “reasonably translates to ‘M.D.’ or ‘Doctor of Medicine,’ ” and it ordered appellant to recall the M.D. licenses of those physicians not entitled to such and to issue them new licenses consistent with the terms of the decree. It is that portion of the ruling that has been appealed. The case was transferred prior to opinion by the Missouri Court of Appeals, Western District, on the jurisdictional ground that because respondent challenges the constitutionality of a state statute, the case is within the exclusive appellate jurisdiction of this Court. Id. art. V, § 3. We review the case as if it were on original appeal, Rule 83.09, and we reverse that portion of the judgment that has been appealed.

II

Respondent’s equal protection complaint rests upon the fact that appellant allows use of the M.D. designation by foreign medical graduates who do not possess an M.D. degree but disallows its use by D.O.’s such as respondent who similarly do not possess an M.D. degree.7 The record contains numerous exhibits, considerable *479testimony, and the stipulation of the parties regarding the educational qualifications of graduates of foreign and domestic allopathic medical schools vis-a-vis those of graduates of osteopathic medical schools. It is unnecessary to set forth that evidence here. Respondent has not appealed the trial court’s ruling that he must designate himself a D.O. rather than an M.D. and therefore does not challenge the distinction between graduates of osteopathic schools and graduates of domestic allopathic schools that is codified in § 334.047(l)-{2).8 He challenges only the practice of allowing foreign medical graduates to employ the M.D. designation. As regards foreign graduates it suffices to say that every physician licensed in Missouri must pass the same examination or one equivalent to it.9 Respondent does not, and indeed could not, contend that appellant licenses as M.D.’s foreign medical graduates who have not demonstrated their competence to practice medicine. Respondent’s claim is simply that it is unconstitutional to distinguish between similarly qualified graduates of osteopathic schools and foreign medical schools.

A

The first step in addressing respondent’s equal protection claim is to determine whether the challenged classification “operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938). If the classification neither burdens a suspect class nor impinges upon a fundamental right, the only issue to be considered is whether the classification is rationally related to a legitimate state interest. Friedman v. Rogers, 440 U.S. 1, 17, 99 S.Ct. 887, 898, 59 L.Ed.2d 100 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976); State v. Bolder, 635 S.W.2d 673, 682 (Mo. banc 1982), cert. denied, - U.S. -, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983).

No fundamental right is at stake here. The Supreme Court has expressly declined to decide whether doctors have a constitutional right to practice medicine, Singeton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873-74, 49 L.Ed.2d 826 (1976) (plurality), but it has said that in any event “there is no right to practice medicine which is not subordinate to the police power of the States,” Lambert v. Yellowley, 272 U.S. 581, 597, 47 S.Ct. 210, 214, 71 L.Ed. 422 (1926). Similarly, this Court has said that “there can be no such thing as a vested right in the practice of medicine.” State v. Davis, 194 Mo. 485, 501, 92 S.W. 484, 489 (1906). Any right there might be to practice medicine certainly does not fall within the high category of rights held to be fundamental, such as freedom of speech and freedom of the press, Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1983), freedom of religion, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), the right to vote, Reynolds v. Sims, 377 U.S. 533, 561-62, 84 *480S.Ct. 1362, 1381-82, 12 L.Ed.2d 506 (1964), and the right to procreate, Skinner v. Oklahoma, 316 U.S. 535, 536, 62 S.Ct. 1110, 1111, 86 L.Ed. 1655 (1942). The practice of medicine therefore is not a fundamental right. Cf. Younger v. Colorado State Board of Law Examiners, 625 F.2d 372, 377 n. 3 (10th Cir.1980) (practice of law not a fundamental right). “A fortiori, the ‘right’ to use a particular professional designation is not fundamental.” Maceluch v. Wysong, 680 F.2d 1062, 1065 (5th Cir.1982).

Neither does the challenged classification burden a suspect class. Classifications based upon alienage are, of course, suspect. Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1851-52, 29 L.Ed.2d 534 (1971). The classification at issue here, however, is based not upon alien-age “but ... upon the locality of the education received. Substantial numbers of Americans attend medical schools abroad, just as some foreigners attend medical schools in the United States.” Maceluch, 680 F.2d at 1065. Because the challenged classification neither affects a fundamental right nor burdens a suspect class, the rational relationship standard is the proper one by which to assess its constitutionality. See id.; Eatough v. Albano, 673 F.2d 671, 676-77 (3d Cir.), cert. denied, 457 U.S. 1119, 102 S.Ct. 2931, 73 L.Ed.2d 1331 (1982); Oliver, 361 F.Supp. at 1267.

B

Osteopathic training in manipulative theory and treatment has been upheld as a proper basis for distinguishing between graduates of osteopathic and domestic allo-pathic medical schools. The state has a legitimate interest in assuring that members of the general public are able to make an informed and intelligent choice when they seek medical care. Some people prefer, and actively seek, treatment from osteopathic physicians because they offer manipulative therapy. Others, by the same token, avoid such treatment. Use of the M.D. designation by all physicians, including osteopaths, would serve only to confuse, rather than enlighten, the public. The requirement that osteopathic physicians employ the D.O. designation is rationally related to the state’s legitimate interest in assisting the public to make an informed and intelligent choice among physicians.10 Maceluch, 680 F.2d at 1066-67; Eatough, 673 F.2d at 676; Oliver, 361 F.Supp. at 1268. Although

medicine is practiced within an objective scientific framework, the decisional processes of a physician reflect not only the aggregate of his substantive knowledge of clinical techniques, but also his judgment as to the need for, and nature of, treatment. That skill, born of expertise, perception of human nature, and intuitions as to what is best for a patient, jumps over the many voids in “scientific” knowledge and separates the scientist from the doctor. It follows that two schools of medicine that advocate different approaches, even if they differ only in their advocacy of differing philosophical approaches to the same scientific realities, present a difference that a legislature may note without unlawfully discriminating against one, or preferring one over the other.... The legislature has not caused these differences. It has only required that, because differences exist, they be identified.

Maceluch, 680 F.2d at 1066.

These considerations also justify the distinction between osteopaths and foreign medical graduates. The two groups of physicians are not necessarily similarly situated. The parties have stipulated that there are no osteopathic medical schools outside the United States. See supra note 3. At *481least respondent knows of none whose degree would entitle its graduates to seek licensure as physicians in the United States. Id. Compare Maceluch, 680 F.2d at 1067 n. 6. Therefore, not all foreign medical graduates, like not all graduates of domestic allopathic medical schools, are trained as are osteopaths in the use of manipulation as a diagnostic and therapeutic technique. If this difference justifies the state’s requirement that osteopathic physicians use the D.O. designation vis-a-vis graduates of domestic allopathic medical schools, then it also justifies the requirement that they use the D.O. designation vis-a-vis foreign medical graduates. “What sets [osteopaths] apart from M.D.’s, sets them apart from graduates of foreign medical schools as well.” Id. at 1068.11

Respondent argues, however, that under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we must defer to the trial court’s findings of fact and that those findings do not support appellant’s claim that the challenged distinction helps eliminate confusion by assisting the public to make an informed and intelligent choice among physicians. That argument is wide of the mark. “States are not required to convince the courts of the correctness of their legislative judgments. Rather, ‘those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.’ ” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981) (quoting Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979)). Thus, “[w]hether in fact the [distinction] will promote [the stated objective] is not the question: the Equal Protection Clause is satisfied by our conclusion that the ... Legislature could reasonably have decided that [the distinction] might foster [more informed selection of medical care].” Id. 449 U.S. at 466, 101 S.Ct. at 725.

Our holding comports with the holdings of the federal courts of appeals in Maceluch and Eatough. See Maceluch, 680 F.2d at 1067—78; Eatough, 673 F.2d at 677. Only Oliver, the one other reported case we have found that has addressed the issue presented here, is to the contrary. The three-judge federal district court in Oliver held that the state had failed to demonstrate a “reasonable basis for its differing treatment of foreign-trained physicians and D.O.’s,” groups that it found “are similarly situated,” and that absent such a showing the state could not “differentiate between two qualified physicians who have not earned an M.D. degree and allow one to parade under an unearned M.D. degree while refusing to allow the other to do so.” 361 F.Supp. at 1269. We think Oliver is unpersuasive, because its premise that osteopaths and foreign medical graduates are Similarly situated fails to recognize the valid distinction that we have discussed above.

C

If because of that distinction the state may constitutionally require osteopaths to designate themselves as D.O.’s, it is immaterial for purposes of this case what designation the state allows foreign medical graduates to employ. Nothing in the record indicates that appellant has licensed any foreign medical graduate as a D.O.12 *482We need not decide, therefore, whether an equal protection violation would arise if appellant licensed as a D.O. a foreign medical graduate who did not possess the qualifications, including equivalent training in the use of manipulative theory and treatment, of a D.O.

Ill

Public perception of osteopathy lies at the heart of this case. Aside from the self-imposed additional requirement that osteopaths be trained in manipulative theory and treatment, the education of allopathic and osteopathic physicians is today substantially equivalent. Some persons, however, are unaware of this qualitative educational equivalence. They may confuse osteopaths with nonphysicians such as chiropractors, or they may view the M.D. designation as occupational, rather than academic, in nature and may not know that D.O.’s are in fact physicians. For this reason they may not seek treatment from osteopaths.

We can sympathize with the plight of osteopaths who endure the rigors of medical education and examination only to find themselves the subject of gross misperception by some members of the public. The answer to the problem, however, does not lie in resort to the legal system. The mis-perception “is not the fault of the State or of [appellant]. This is a problem of public relations which must be overcome by osteopaths themselves and their organization, the [American Osteopathic Association].” Oliver, 361 F.Supp. at 1268.

We hold that the challenged distinction is rationally related to the furtherance of a legitimate state interest and, therefore, that it does not violate respondent’s right to equal protection of the laws. In holding to the contrary the trial court erroneously declared and applied the law. Murphy, 536 S.W.2d at 32.

That portion of the judgment appealed from is reversed.

HIGGINS, GUNN and DONNELLY, JJ., and MAUS, Special Judge, concur. RENDLEN, C.J., dissents in separate opinion filed. SEILER, Senior Judge, dissents and concurs in separate dissenting opinion of RENDLEN, C.J. BILLINGS, J., not sitting. BLACKMAR, J., not participating because not a member of the Court when cause was submitted.

. Osteopathy was first espoused by Kansas physician Andrew Taylor Still in 1874. 1 Lawyers Medical Cyclopedia § 1.19, at 39 (3d ed. 1981). Dr. Still later established the first osteopathic medical school at Kirksville, Missouri, in 1892, and in 1894 that school was incorporated in Missouri as the American School of Osteopathy. The school is now known as the Kirksville College of Osteopathic Medicine.

. For example, similar courses with similar content are taught at both allopathic and osteopathic medical schools, and students at both schools take the same number of hours in the basic sciences and clinical work. Eatough v. Albano, 673 F.2d 671, 673 (3d Cir.), cert. denied, 457 U.S. 1119, 102 S.Ct. 2931, 73 L.Ed.2d 1331 (1982). The two schools use the same textbooks. Oliver, 361 F.Supp. at 1264. One difference between the schools is that, with one exception, osteopathic schools are not affiliated with large universities. Id. Osteopathic schools place less emphasis on medical research and more emphasis on family and community health and preventive medicine. Id. at 1264-65. Osteopathic physicians are permitted to undergo internships and residency programs approved by the American Medical Association, and they are not permitted to join both the AMA and local medical organizations. Id. at 1265.

. The parties have stipulated that there are no schools of osteopathic medicine outside the United States. Respondent testified at his deposition that there are “several” osteopathic schools in England but that they are not true medical schools: “They’re not approved by the American Osteopathic Association because they’re — they’re really — they just teach manipulation. They’re really not full physicians.... I don’t think [graduates of those schools] could possibly be licensed as physicians in the United States.”

. The school is now known as the Kirksvillé College of Osteopathic Medicine. See supra note 1.

. The degree of “M.D.,” signifying “medical doctor” or “doctor of medicine,” is conferred by American schools of allopathic medicine and by some foreign medical schools.

.Section 334.047, RSMo 1978, provides:

334.047. License to show degree held by licensee — use on stationery and displays required. — 1. On the licenses issued by the board, the board shall enter after the name of the licensee the degree to which the licensee is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association and approved or accredited as reputable by the American Osteopathic Association.
2. A licensee under this chapter shall, in any letter, business card, advertisement, prescription blank, sign, or public listing or display of any nature whatsoever, designate the degree to which he is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association or approved and accredited as reputable by the American Osteopathic Association.

The statute was amended in 1981. Act of June 30, 1981, sec. A, § 334.047, 1981 Mo.Laws 453, 521-22 (codified at § 334.047, RSMo Supp. 1982). The amendment reenacted the first two subsections in substantially the same form, adding the Liaison Committee on Medical Education as an accepted accrediting organization. The amendment also added a new subsection (3) relating to licensure of foreign medical graduates. The amended statute provides:

334.047. License to show degree held by licensee — use on stationery and displays required. — 1. On the licenses issued by the board, the board shall enter after the name of the licensee the degree to which the licensee is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association or the Liaispn Commit*478tee on Medical Education or approved and accredited as reputable by the American Osteopathic Association.
2. A licensee under this chapter shall, in any letter, business card, advertisement, prescription blank, sign, or public listing or display of any nature whatsoever, designate the degree to which he is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association or the Liaison Committee on Medical Education or approved and accredited as reputable by the American Osteopathic Association.
3. On licenses issued by the board to foreign trained licensees, the board may enter the degree to which the licensee is entitled based upon the nature of the licensee’s education and training and the licensee shall, in any writing or display, so designate this degree,

§ 334.047, RSMo Supp. 1982.

. This practice is now specifically authorized by statute. § 334.047(3), RSMo Supp. 1982. See supra note 6. Appellant contends that respondent’s equal protection claim was rendered moot by the enactment of that subsection after this litigation was begun. We disagree. That subsection codifies appellant’s existing practice of licensing foreign medical graduates according to the nature of their education and training. If that practice is invalid because it works an impermissible discrimination, legislative sanction of that practice cannot validate it.

. Section 334.047(l)-(2) provides that graduates of schools accredited by the specified organizations are to be licensed and designated according to the degrees to which they are entitled by reason of their diplomas of graduation. See supra note 6. The accrediting organizations named in the statute do not accredit medical schools outside the United States.

. Physicians may be licensed in Missouri either by examination or by reciprocity. Candidates for licensure by examination pursuant to 4 C.S.R. 150-2.010 (1982) must generally take the Federation Licensing Examination (FLEX). Upon a proper showing, however, appellant may accept in lieu thereof the results of the appropriate National Board examination. 4 C.S.R. 150-2.010(5) (1982). Physicians seeking licensure by reciprocity pursuant to 4 C.S.R. 150-2.030 (1982) must “have been successfully examined by any professional board considered competent” by appellant, must have “received grades not less than those required” by appellant, and must already be licensed as a physician and surgeon in another state, the District of Columbia, or a territory of the United States. 4 C.S.R. 150-2.030(5) (1982).

. This is in harmony with the official position of the American Osteopathic Association. In Maceluch, the AOA argued as amicus curiae that

[i]t is already exceedingly difficult for a layman to make an intelligent choice of physicians. To allow physicians trained in osteopathic schools to use the designation, “M.D.” would deprive a layman of one of the only methods available of differentiating between physicians. Osteopathic physicians have a unique contribution to make and offer the public a distinct option in health care.

680 F.2d at 1066.

. Respondent contends that because he does not use, and never has used, manipulative therapy in his medical practice the distinction is irrational. We disagree. “[W]hether or not [respondent] actually use[s] manipulative therapy in [his practice] does not affect the constitutionality of the statute as applied to [him]; the state’s interest in ensuring accurate information on the schooling of physicians is enough to sustain the statute.” Maceluch, 680 F.2d at 1067. See Eatough, 673 F.2d at 677.

. That is not to imply that appellant might not do so. Although appellant must license graduates of domestically accredited medical schools according to the degrees they receive, § 334.-047(1), RSMo Supp.1982, appellant is authorized to license foreign medical graduates according to “the degree to which the licensee is entitled based upon the nature of the licensee’s education and training,” § 334.047(3), RSMo Supp.1982. This authorization reflects the fact that it is the nature of the education and training, and not the degree itself, that is important. *482The degree is but a shorthand method of describing the physician’s education and training. Most persons understand the meaning of abbreviations for degrees conferred by American medical schools, but they likely would not understand the meaning of abbreviations for all foreign medical degrees. Foreign medical schools grant degrees with a variety of names, such as “M.B.B.S.” in Ireland, “Candíate in Medicine” in Norway, and “Licentiate in Medicine & Surgery” in Spain. Eatough, 673 F.2d at 677. Licensure of all foreign medical graduates according to the degrees actually conferred upon them undoubtedly would create, rather than reduce, confusion. Licensure of qualified foreign medical graduates as either M.D.’s or D.O.’s thus is rationally related to the state’s legitimate interest in assisting the public to make an informed and intelligent choice among physicians.