PRACTICE OF MEDICINE § 6. Penalties

Except as provided in section sixty-five, whoever, not being lawfully authorized to practice medicine within the commonwealth and registered under section two, or corresponding provisions of earlier laws, or under section one or two of chapter five hundred and twenty-six of the acts of nineteen hundred and nine, holds himself out as a practitioner of medicine or practices or attempts to practice medicine in any of its branches, or whoever practices medicine under a false or assumed name or under a name other than that by which he is registered, or whoever personates another practitioner, or whoever practices or attempts to practice any fraud in connection with the filing of an application, or whoever files an application under a false or assumed name or under a name other than his own, or whoever personates or attempts to personate another applicant for registration during an examination, shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment for not less than one month nor more than one year, or both. A person rendering medical service in violation of this section shall recover no compensation therefor.

LAW REVIEW AND JOURNAL COMMENTARIES

Constitutional right to unconventional medical treatment. 18 New Eng.L.Rev. 149 (1982-1983).

Incorporation of professional groups. (1962) 47 Mass.L.Q. 405.

Unauthorized practice of medicine; effect. William E. Hogan and Frederick D. Bonner, 3 Ann.Surv.Mass.L. 60 (1956).

Treatises and Practice Aids

39 Mass. Prac. Series § 860, The Unlicensed Practitioner.

17A Mass. Prac. Series § 38.25, Further Remedial Legislation.

37 Mass. Prac. Series § 279, Breach Of Duty.

37 Mass. Prac. Series § 280, Causation.

1. Validity

Statute imposing penalty on unlawful practice of medicine is not unconstitutional as a denial of equal protection of the laws when applied to chiropractors, though certain classes such as pharmacists and those practicing Christian Science, mind cure, and massage are exempted. Com. v. Antonio (1955) 129 N.E.2d 914, 333 Mass. 175, appeal dismissed 76 S.Ct. 710, 351 U.S. 916, 100 L.Ed. 1449; Com. v. Zimmerman (1915) 108 N.E. 893, 221 Mass. 184.

Requirement that a physician be registered with the Director of Registration is constitutionally valid. Com. v. Brunelle (1972) 277 N.E.2d 826, 361 Mass. 6. Health  105

2. Construction and application

Section 6 of this chapter imposing penalty on unlawful practice of medicine is not unconstitutional as a denial of equal protection of the laws when applied to chiropractors, though certain classes such as pharmacists and those practicing Christian Science, mind cure, and massage are exempted. Com. v. Antonio (1955) 129 N.E.2d 914, 333 Mass. 175, appeal dismissed 76 S.Ct. 710, 351 U.S. 916, 100 L.Ed. 1449. Constitutional Law  240(6.1); Health  105

Statute imposing a penalty for the practice of medicine without being lawfully authorized applied to defendant, a chiropractor. Commonwealth v. Zimmerman (1915) 108 N.E. 893, 221 Mass. 184. Health  176

Term "clairvoyants" within R.L.1902, c. 76, § 9 creating exceptions to § 8 of said chapter regulating practice of medicine, related to persons who see while in a trance things which by reason of distance or for some other reason ordinarily are not visible. Commonwealth v. Delon (1914) 106 N.E. 846, 219 Mass. 217. Health  175

R.L.1902, c. 76, § 8 imposed a penalty upon any person who practiced or attempted to practice medicine without being registered, was general in its application and applies to all persons without regard to whether they were employed in state institutions or elsewhere. 4 Op.Atty.Gen.1915, p. 432.

3. Purpose of law

G.L.1921, c. 112, providing for registration of medical practitioners, was intended not only to provide penalty for its violation, but to protect the public from incompetents, and must be construed to afford relief to persons suffering harm, where violation of statute is proximate cause of injuries. Whipple v. Grandchamp (1927) 158 N.E. 270, 261 Mass. 40.

4. Practice of medicine, in general

Under R.L.1902, c. 76, § 9, creating an exception in favor of clairvoyants to the application of § 8 of said chapter, prescribing a penalty for the unlawful practice of medicine, one to whom the diagnosis of a disease and the medicine prescribed for it were revealed by clairvoyance could not prescribe for its cure. Com. v. Lindsey (1916) 111 N.E. 869, 223 Mass. 392; Com. v. Delon (1914) 106 N.E. 846, 219 Mass. 217.

Mere attendance at spontaneous births by person not licensed as a physician, without doing more, was not unauthorized practice of medicine. Leigh v. Board of Registration in Nursing (1985) 481 N.E.2d 1347, 395 Mass. 670. Health  167

The supreme judicial court will not adopt a narrow or constricted view as to what activities are comprised within practice of medicine, particularly in those aspects which bear upon maintenance of public health and upon protection and security of those who resort for aid to persons holding themselves out as possessing peculiar knowledge and skill in treatment of disease. Sachs v. Board of Registration in Medicine (1938) 15 N.E.2d 473, 300 Mass. 426. Health  164

To prescribe and furnish medicines is to "practice medicine," within the meaning of § 6 of this chapter though registered physician makes diagnosis. Gouy Shong v. Chew Shee (1926) 150 N.E. 225, 254 Mass. 366.

The words "practitioner of medicine" and "practice of medicine in any of its branches," as used in St.1917, c. 55, § 2, relating to examinations and registration of practitioner to practice medicine, included the practice of surgery and the art of setting fractured bones. Com. v. Dragon (1921) 132 N.E. 356, 239 Mass. 549. Health  164

One could "practice medicine" without prescribing drugs or other substances to be used as medicines, and one may do it in other ways than those practiced as a part of their respective systems, by either osteopaths, pharmacists, clairvoyants, or persons practicing hypnotism, magnetic healing, mind cure, etc.; and on a trial for violating R.L.1902, c. 76, § 8, by practicing medicine without being lawfully authorized to do so, the court properly refused to charge the jury to find that one may practice medicine without necessarily prescribing a substance to be used as a medicine. Commonwealth v. Jewelle (1908) 85 N.E. 858, 199 Mass. 558. Health  164

A person who practiced medicine under a limited registration certificate for 18 months, and as a qualified physician under an unlimited license for two years has the legal requirements and competence of a physician to make a certificate of insanity. Op.Atty.Gen., March 15, 1940, p. 48.

It cannot be said as a matter of law that one who has in fact practiced medicine under the limited registration provided for by § 9 of this chapter, for two years, and as a qualified physician under this section, for a further period of 18 months, has not been in the actual practice of medicine for three years since his graduation within the meaning of said § 9. Op.Atty.Gen., March 15, 1940, p. 48.

5. ---- Assistants, practice of medicine

Assistants in state institutions if practicing or attempting to practice medicine in any of its branches must be duly registered in accordance with this section. 4 Op.Atty.Gen.1915, p. 432.

6. ---- Podiatrists, practice of medicine

Enactment of proposed bill which would add chiropodists (podiatrists) to those who may contract with medical service corporations operating a nonprofit medical service plan would be futile since services, by definition contained in c. 176B, § 1, could only be performed by a registered physician and a chiropodist is not a registered physician. Opinion of the Justices (1963) 190 N.E.2d 873, 346 Mass. 787. Health  103

7. ---- Chiropractors, practice of medicine

Bill filed by chiropractic association and by one holding degree of doctor of chiropractic who desired to practice chiropractic in commonwealth, requesting declaration that chiropractic was not practice of medicine, that even if it was practice of medicine, statute forbidding medical practice without license was unconstitutional as applied to chiropractors, and that certain statutes did not regulate chiropractic, stated cause for declaratory relief at least as to individual plaintiff. Massachusetts Chiropractic Laymen's Ass'n v. Attorney General (1955) 130 N.E.2d 101, 333 Mass. 179. Declaratory Judgment  315

8. ---- Corporations, practice of medicine

A licensed practitioner of a profession, including a physician or dentist, in absence of statutory modification, may not lawfully practice his profession as servant of unlicensed person or corporation, and, if he does so, employer is guilty of practicing such profession without license. McMurdo v. Getter (1937) 10 N.E.2d 139, 298 Mass. 363. Health  108; Health  164

A registered physician may lawfully sell eyeglasses as an employee of a corporation which is unregistered. Op.Atty.Gen., Feb. 10, 1936, p. 37.

9. ---- Midwives, practice of medicine

Person who practices midwifery and uses obstetrical instruments when a physician is unavailable and who prescribes drugs is engaged in the practice of medicine, requiring such person to be licensed as a physician. Leigh v. Board of Registration in Nursing (1985) 481 N.E.2d 1347, 395 Mass. 670. Health  167

A woman who held herself out as a midwife, practiced midwifery, delivered many women in childbirth for compensation, and carried with her the usual obstetrical instruments, was required to be licensed to practice medicine. Commonwealth v. Porn (1907) 82 N.E. 31, 196 Mass. 326.

R.L.1902, c. 76, § 8, prohibiting the practice of medicine or surgery without a license, was not unconstitutional, in so far as it prohibited the unlicensed practice of midwifery by the use of instruments and the giving of prescriptions. Commonwealth v. Porn (1907) 82 N.E. 31, 196 Mass. 326. Licenses  7(1)

10. ---- Military medical officers, practice of medicine

Medical officers of the federal services, who are charged by regulations of their several services with the duty of attending certain persons when sick or injured, may attend and treat such persons either in civilian hospitals or elsewhere in the commonwealth without being registered as physicians by the commonwealth. Op.Atty.Gen., Jan. 5, 1943, p. 12.

Medical officers of the federal services may sign birth and death certificates with respect to patients whom their official duties require them to attend, even though the officers are not registered as physicians in the commonwealth. Op.Atty.Gen., Jan. 5, 1943, p. 12.

11. ---- Ophthalmologists, practice of medicine

Rights of ophthalmologist to practice profession are duly protected by Federal and State Constitutions but must be evaluated in light of paramount right of government to protect public health by any rational means. Fogland v. Board of Registration in Medicine (1970) 259 N.E.2d 780, 357 Mass. 624. Health  111

The "practice of medicine" as ordinarily understood covers a wide field, does not necessarily involve the use of drugs, and commonly includes bone-setting, midwifery, chiropractic, and osteopathy, and work of an eye specialist and of an ophthalmologist may also constitute the practice of medicine; the word "ophthalmology" being of much broader signification than "optometry." Sachs v. Board of Registration in Medicine (1938) 15 N.E.2d 473, 300 Mass. 426. Health  169; Health  167; Health  170

12. ---- Optometrists, practice of medicine

One who practices optometry exclusively is not commonly to be treated as "practicing medicine," "optometry" in its origin and nature being more akin to physical science of optics than to science of medicine, and its emphasis being upon supplying physical means to aid bodily powers rather than upon cure of disease. Sachs v. Board of Registration in Medicine (1938) 15 N.E.2d 473, 300 Mass. 426. Health  170

A physician who with a lay person was associated in optical business which carried on newspaper advertising, furnished glasses designed to correct defective vision of purchaser complete for a single price, and owned all optical instruments and equipment, which physician diagnosed optical defects, deficiencies or deformities and if necessary prescribed lenses or prisms for correction, but used no drugs and performed no surgical operation, was not engaged in the "practice of medicine" within statute. Sachs v. Board of Registration in Medicine (1938) 15 N.E.2d 473, 300 Mass. 426. Health  170

A registered physician may practice optometry without being examined or registered as an optometrist or subject to regulations applicable to others who practice optometry. Op.Atty.Gen., Feb. 10, 1936, p. 37.

13. ---- Osteopaths, practice of medicine

As osteopath registered under St.1909, c. 526 could not legally furnish the death certificate required to be furnished by physicians. 4 Op.Atty.Gen.1915, p. 406.

A proposed bill for the registration of physicians and surgeons which provides penalties for an unregistered physician or surgeon to practice or attempt to practice medicine, or to hold himself out as a practitioner of medicine, cannot assume, as a matter of law, that pharmacists, osteopathists, clairvoyants, etc., do not practice or attempt to practice medicine. 2 Op.Atty.Gen.1901, p. 269.

14. ---- Pathologists, practice of medicine

A person acting as a pathologist should be registered under statute and the following sections, providing for medical registration. 6 Op.Atty.Gen.1921, p. 372.

15. Use of titles

A dentist possessing a doctorate in dentistry can use the prefix "Dr." in writing his name, however if he uses such a prefix for the purpose of leading others to think that he is a registered physician and endeavors to practice as such, he would be violating this section. Op.Atty.Gen., Dec. 15, 1948, p. 54.

A person who is registered as a doctor of osteopathy can use the letters M.D. after his name, if he is entitled to a degree of doctor of medicine. Op.Atty.Gen., Dec. 6, 1946, p. 54.

16. Recovery of compensation

St.1818, c. 113, providing that no person entering the practice after a day therein named should be entitled to the benefit of the law for the recovery of any debt or fee accruing for his professional services, merely deprived an unlicensed physician of legal remedy for compensation for his services; and, since its repeal, an action lay in his favor for services rendered prior thereto. Ames v. Gilman (1845) 51 Mass. 239, 10 Metc. 239; Hewitt v. Wilcox (1840) 42 Mass. 154, 1 Metc. 154.

A person practicing bonesetting, and reducing sprains, swellings, and contractions of the sinews, by friction and fomentation, but no other branch of the healing art, was a person practicing surgery, within the meaning of St.1818, c. 113, § 1, depriving persons practicing physic or surgery of the benefit of the law for the recovery of their fees, unless licensed or graduated according to the statute. Hewitt v. Charier (1835) 33 Mass. 353, 16 Pick. 353.

A person who practiced bonesetting and reducing sprains, swellings and contractions of the sinews, by friction and fomentation, but no other branch of the healing art, was a person practicing surgery, within the meaning of St.1818, c. 113, § 1, which provided that no person practicing physic or surgery should be entitled to the benefit of law for the recovery of his fees, unless he shall have been licensed by the Massachusetts Medical Society or graduated a doctor in medicine in Harvard University. Hewitt v. Charier (1835) 33 Mass. 353, 16 Pick. 353.

St.1818, c. 113, § 1, providing that no person practicing medicine or surgery shall be entitled to the benefit of the law for the recovery of any fee for professional services unless he shall have been licensed or been graduated a doctor of medicine in Harvard University, is not in violation of Const. Pt. 1, Art. 6, which provides that no person or association shall have any advantages or exclusive privileges distinct from those of the community. Hewitt v. Charier (1835) 33 Mass. 353, 16 Pick. 353.

The provisions of St.1817, c. 131, and St.1818, c. 113, regulating the practice of physic and surgery applied to practitioners living without the state, as well as to those within it; and hence no physician or surgeon, though he lived without the state, was entitled to recover fees for services rendered within it, unless previously licensed in the manner prescribed thereby. Spaulding v. Inhabitants of Alford (1822) 18 Mass. 33, 1 Pick. 33.

17. Presumptions and burden of proof

Under P.S.1882, c. 214, § 12, providing that the burden of proof was on the defendant to prove license or authority when relied upon "for his justification," one who was charged with unlawfully acting as a physician and surgeon had to show that he was a registered physician, when relied on as a defense. Commonwealth v. St. Pierre (1899) 55 N.E. 482, 175 Mass. 48. Health  186(3)

Proof that defendant acted either as a physician or surgeon was sufficient to support an information charging that he held himself out as a physician and surgeon. Commonwealth v. St. Pierre (1899) 55 N.E. 482, 175 Mass. 48. Health  186(5)

18. Evidence

Requirement that physician who makes request for temporary care of a patient in mental hospital be registered is satisfied by general registration under statute permitting practice anywhere in the Commonwealth or registration in accordance with § 9 of this chapter granting limited authority to practice within a specific hospital. Beaumont v. Morgan, C.A.1 (Mass.)1970, 427 F.2d 667, certiorari denied 91 S.Ct. 120, 400 U.S. 882, 27 L.Ed.2d 121. Mental Health  38

In medical malpractice action predicated on alleged negligence in the administration of intensive radiation therapy treatments, testimony that hospital's chief resident of radiology was not licensed to practice medicine in Massachusetts (due to his failure to renew his limited license) during period when second and third series of x-rays were given plaintiff was properly excluded, since there was no showing of a causal connection between the lack of registration renewal and plaintiff's injuries. McCarthy v. Boston City Hospital (1971) 266 N.E.2d 292, 358 Mass. 639. Health  820

In prosecution of chiropractors for unlawful practice of medicine, court properly excluded testimony of physician, who was a member of board of registration in medicine, that no hospital in the state permits a chiropractor to treat a patient, since testimony was irrelevant. Com. v. Antonio (1955) 129 N.E.2d 914, 333 Mass. 175, appeal dismissed 76 S.Ct. 710, 351 U.S. 916, 100 L.Ed. 1449. Health  186(4)

In prosecution of chiropractors for unlawful practice of medicine, court properly excluded testimony of physician, who was a member of the board of registration in medicine, that physicians have no cure in the form of a drug or medicine for the common cold, since such testimony was irrelevant. Com. v. Antonio (1955) 129 N.E.2d 914, 333 Mass. 175, appeal dismissed 76 S.Ct. 710, 351 U.S. 916, 100 L.Ed. 1449. Health  186(4)

In prosecution of chiropractors for unlawful practice of medicine, court properly excluded testimony of physician, who was a member of the board of registration in medicine, that no medical school in the state teaches the science or art of chiropractic, since testimony was irrelevant. Com. v. Antonio (1955) 129 N.E.2d 914, 333 Mass. 175, appeal dismissed 76 S.Ct. 710, 351 U.S. 916, 100 L.Ed. 1449. Health  186(4)

Conviction of defendant of offense of holding himself out as a practitioner of medicine, contrary to R.L.1902, c. 76, § 8, as amended by St.1917, c. 55, § 2, was warranted, where defendant had been engaged in the practice of bonesetting for 25 years in various places, had represented that he was qualified to perform such services, and had a room in the city where he was charged to have held himself out as a practitioner, which he said was his office, in which he transacted that business by setting fractured bones. Com. v. Dragon (1921) 132 N.E. 356, 239 Mass. 549. Health  164

In a prosecution for practicing optometry and medicine without registration and certificate, evidence was sufficient to warrant finding that defendant practitioner of optometry, using the words "Doctor of Ophthalmology" on his sign and billheads, and asserting he was a graduate of a medical college, held himself out as a practitioner of medicine without registration and certificate contrary to R.L.1902, c. 76, § 8. Commonwealth v. Houtenbrink. (1920) 126 N.E. 669, 235 Mass. 320. Health  186(5)

Despite R.L.1902, c. 218, § 20, where commonwealth charged defendant with series of illegal acts committed between March 3 and August 3 by having unlawfully held himself out as a practitioner of medicine, in violation of c. 76, § 8, defendant could not be convicted on proof of such an act on any occasion preceding date alleged in complaint within period of six years. Commonwealth v. Runge (1919) 121 N.E. 499, 231 Mass. 598. Indictment And Information  176

The guilt of one charged with illegal practice of medicine must be determined by what he actually did and not by the fact that he purported to treat them by clairvoyance. Com. v. Lindsey (1916) 111 N.E. 869, 223 Mass. 392. Health  175

In a prosecution for the illegal practice of medicine, where the commonwealth relied on the giving of medicines in November, 1914, evidence of defendant's like acts and conversations with patients between April, 1913, and November, 1914, was admissible to show intent. Com. v. Lindsey (1916) 111 N.E. 869, 223 Mass. 392.

In prosecution for practicing medicine without license, expert testimony was inadmissible to prove that defendant's practice of midwifery by use of instruments and giving of prescriptions did not constitute practicing of medicine within meaning of R.L.1902, c. 76, §8. Commonwealth v. Porn (1907) 82 N.E. 31, 196 Mass. 326.

In a prosecution for practicing medicine without being duly registered, expert medical testimony as to what a midwife does or is expected to do as such was admissible for the purpose of determining whether such acts constituted the practice of medicine. Commonwealth v. Porn (1907) 82 N.E. 31, 196 Mass. 326.

At the trial of a complaint for holding one's self out as a physician and surgeon without being registered according to law, the government having put in testimony to the effect that the defendant had given directions and advice as to the use of the contents of certain packages and bottles sold by him, and had been paid by the persons to whom the contents were sold, testimony offered by him on cross-examination that on each and every occasion at the time the parties were told by him that he was not a doctor and that he did not charge for his services should have been admitted. Commonwealth v. St. Pierre (1899) 55 N.E. 482, 175 Mass. 48. Witnesses  268(3)

Where the information charged that defendant unlawfully held himself out as a physician and surgeon, a ruling that, if he "held himself out as an eye specialist, he held himself out as a physician and surgeon," was correct. Commonwealth v. St. Pierre (1899) 55 N.E. 482, 175 Mass. 48. Health  187

19. Questions for jury

In a prosecution for the unlawful practice of medicine, whether in selling medicines defendant acted entirely as the agent for corporations or was engaged in the practice of medicine was for the jury. Com. v. Lindsey (1916) 111 N.E. 869, 223 Mass. 392. Health  187

20. Review

In a prosecution, under R.L.1902, c. 76, § 8, for practicing medicine without lawful authority, where defendant did not claim that he came within any of the exceptions of § 9 of said chapter, he could not on appeal contend that his practice might be described as "cosmopathic method of healing," within said § 9. Commonwealth v. Zimmerman (1915) 108 N.E. 893, 221 Mass. 184.

Where, on appeal from a conviction for violating R.L.1902, c. 76, § 8, by practicing medicine without being lawfully authorized so to do, there was nothing in the bill of exceptions to show what the facts were, except the statements in the judge's charge, and there was much to indicate that accused not only practiced medicine in other ways, but that he dealt out substances to be used as medicines, which did not apply to the practice of osteopathy, mind cure, or massage, and there were no requests for instructions as to what constituted the practice of medicine, nor anything to show that more specific instructions were necessary than those given by the court, an exception to "the rulings and refusals to rule" must be overruled. Commonwealth v. Jewelle (1908) 85 N.E. 858, 199 Mass. 558.