It is a well-settled principle that when any act is declared by statute to be criminal, a contract calling for the performance of such an act is illegal and void. The early English authorities on this point are fully collated in Wheeler v. Russell (17 Metc., Mass., 258), and the later English and American cases may be found in “American and English Cyclopædia of Law,” title “Contracts,” Vol. III., p. 872 et seq.; see also id., Vol. XVIII., p. 440. Further consideration of the validity of contracts for medical and surgical services will be had hereafter. A full synopsis of the statutes of the different States regulating the licensing of physicians and surgeons in force at the time this volume goes to press will be placed in another chapter.
In a suit between a person who has performed medical and surgical services, and one who employed him, it is said that the person performing the services is presumed to have been licensed to do so.[157] If the State sues for a penalty, a different rule is claimed to prevail.[158]
How may a Diploma or License be Proved in a Court of Law?
It is evident from the foregoing considerations that in any proceedings to punish for practising without license or legal authority, and in actions to recover payment for professional services in the States and countries, where a license or diploma of a regularly chartered school or college is required by statute to entitle the person to practise, it may become important to establish—first, the legal authority to grant the license or diploma; and second, the genuineness of the license or diploma produced. It frequently happens that the diploma or license has been obtained in another State or country. Under the New York statutes, especially the laws of 1880 and 1890, it was made necessary to file a diploma. When it had been issued by a chartered school of another State it must be certified to by some lawfully incorporated medical college in this State, before being received for filing, or regarded by the law as conferring upon its possessor the right to practise in that State.
As to the chief element of authenticity, namely, the legal incorporation or authority of the body or institution granting the diploma, it is clear that the act of incorporation itself would be the best evidence of the incorporation of the college or school, and a special act granting the power to license to a board of censors or other official body or board would have to be produced to show the right vested in that board or body to grant a license. In Georgia it has been held (Hunter v. Blount, 27 Ga., 76), that to prove a diploma given to a physician in another State, the existence of the college, and the fact of its being a chartered institution, must be shown by producing its act of incorporation.
In Thornton’s case (8 Term Rep., 303; same case, 3 Esp., 4), it was held that the mere production in court of a diploma under the seal of one of the universities, is not of itself evidence to show that the person named in the diploma received the degree which the diploma specified. In another and later case, however, Simpson v. Dunmore (9 M. & W., 45; same case, 5 Jurist, 1012), it was held that it was unnecessary for the person producing a license from the Apothecaries’ Company (an incorporated body) to practise as an apothecary, the seal on which license was proved to be genuine, to give any additional evidence of his identity with the person named in the license. The reason for this doctrine is probably to be found in the well-known rule of evidence, that identity of both christian name and family name, is sufficient to raise a presumption of fact that the person bearing the name is the identical person so named in any written instrument.
In Walmsley v. Abbott (1 K. & P., 309; same case, 5 D. & R., 62), proof of the signature of one of the examiners who signed a certificate of examination was held sufficient to warrant the acceptance of the certificate in evidence in the first instance. In another case the proof was that a person previously a stranger to the place went to a town which was the seat of a university, and was told that a certain building was the college, and that a certain person whom he saw there was the librarian, and that this librarian showed him what purported to be the seal of the university, and also a book which the librarian stated was the book of acts or records of the university, and the seal so shown him was compared with the seal of a certain diploma, the genuineness of which was in question, and a copy was made from the said book of acts, of an entry stating that the degree of M. D. had been conferred by the university upon a person bearing the same name as that in the diploma, and this proof was held a sufficient authentication of the diploma, and of the act or authority of the university conferring the degree. Collins case, 1 Addison & Ellis, 695; same case, 3 N. & M., 703.[159]
The Rule in Criminal Prosecutions.—We have seen above, that in a criminal prosecution the burden is on the defendant to produce and prove his license, but to warrant a conviction for practising without a license it must be shown that the accused actually practised. It is not enough to show that he is called by persons whom he attends personally, that is, for whom he prescribes, or to whom he gives medicine or whom he treats. There must be proof shown that he has done this on his own account or for his own profit. But proof of a single act connected with other circumstances, such as tend to show that he held himself out as a physician, is enough. Burham v. State, 116 Ind., 112; Hill v. Bodie, 2 Stew. and P. (Ala.), 56; Pedgrift v. Schiller, 8 C. B., N. S., 200 (same case, 6 Jurist, N. S., 1341). And if he simply practises “massage,” he does not fall within the acts against practising medicine, even though he pretends to accomplish as much good as could have been accomplished by a regular physician. Smith v. Lane, 24 Hun, N. Y., 632. But see also Leech v. Ripon, 12 Cent. L. J., 479; State v. Schultz, 11 Reporter, 701.[160]
Falsely Pretending to be a Licensed Practitioner Generally a Misdemeanor.—In some of the States, and in England, it is not only made a misdemeanor to practise without a license, but falsely pretending to be a licensed practitioner is made a misdemeanor. Such is the provision of the Penal Code of New York heretofore cited. In England such a statute has been somewhat strictly construed in the case of Carpenter v. Hamilton (37 Law Times Rep., 157). In that case it appeared that a person advertised himself as “John Hamilton, M.D.,” of the “Metropolitan Medical College of New York.” It further appeared that he was not registered as required by the law of England. In a prosecution against him for falsely pretending to be a licensed physician, the only proof of his practising being as just stated, an acquittal was sustained by a majority of the court, which held that it was a question of fact to be determined by a trial court whether or not what he did was pretending to be a physician authorized to treat a patient. The Court intimated that the person simply pretended to be what he really was, namely, a doctor of medicine of the Metropolitan Medical College of New York.