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Eatough v. Albano

decided as amended march 8 1982.: March 1, 1982.

DR. PHILIP B. EATOUGH, JR. APPELLANT
v.
DR. EDWIN H. ALBANO, DR. RUTH S. BALLOU, DR. CLARENCE BOOKBINDER, DR. JORDAN D. BURKE, DR. ENIO J. CALLUORI, DR. ARNOLD E. CIANCIULLI, DR. THOMAS C. DE CECIO, DR. RUDOLPH T. DE PERSIA, DR. IRVING H. PLAIN, DR. JOSEPH A. RIGGS, DR. JAMES M. ROSSER, NICHOLAS A. SIDOTI, THEODORE SIMKIN, DR. RICHARD G. STEFANACCI, DR. CARL N. WARE, INDIVIDUALLY AND AS MEMBERS OF THE NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Gibbons, Weis and Garth, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

This appeal presents a federal constitutional and a state statutory challenge to certain regulations and practices of the New Jersey Board of Medical Examiners regarding the licensing of physicians. These regulations and practices have prevented the appellant, Dr. Philip B. Eatough, Jr., a Doctor of Osteopathy (D.O.) and Board licensed physician, from holding himself out to the public as an M.D. Eatough contends that this results in a violation of the United States Constitution and of the New Jersey statutes governing medical practice. The district court rejected these claims. We affirm.

I

Osteopathy, as a distinct approach to medical treatment, arose in the latter part of the nineteenth century in the mid-western United States.*fn1 The osteopathic approach-as opposed to allopathy, the more widespread approach adopted by the majority of physicians in this and other countries-stresses a view of the human organism as a self-regulating and self-healing whole. In emphasizing the interdependence and interrelatedness of bodily systems, osteopathy tends to employ surgery and drug treatments less frequently than does allopathy. Instead, there is a more frequent use of techniques of "bio-mechanics" to manipulate the neuromusculoskeletal system in order to return the various bodily systems to their naturally harmonious state.

There are presently fourteen osteopathic medical schools in the United States, all accredited by the American Osteopathic Association. The parties have stipulated that accredited osteopathic schools provide medical education equal in substance and quality to that provided by non-osteopathic schools. The subjects taught, and the content of those subjects, are the same in both types of schools (with equal numbers of classroom hours in the basic sciences and clinical work), except that osteopathic medical students are required to take, in addition, courses in osteopathic theory and manipulation (which courses may be electives in non-osteopathic schools). In New Jersey, for example, students of the Rutgers Medical School and those of the New Jersey School of Osteopathic Medicine (both are part of the University of Medicine and Dentistry of New Jersey) attend the same classes and labs in basic sciences for the first two years, while students in the latter are also required to take courses in osteopathic manipulation.

Manipulative medicine is practiced and is the subject of textbooks by both M.D."s and D.O."s. D.O."s are on the faculties of many American medical schools that grant the M.D. degree, and D.O."s are accepted with the approval of the American Medical Association (A.M.A.) into internships and residencies in A.M.A. approved hospitals. D.O."s presently may join, and are members of, county and state medical societies as well as the A.M.A.

Licensing of persons to practice medicine in New Jersey is governed by the New Jersey Medical Practices Act, N.J.Stat.Ann. §§ 45:9-1 to 9-27.9. (West 1978). Statutory licensing requirements, Sections 9-6 to 9-14, are the same for all current applicants (regardless of medical school attended) and do not distinguish between graduates of allopathic and osteopathic schools for licensing purposes. New Jersey legislative policy has been to recognize graduates of osteopathic medical schools as fully competent in every respect to practice medicine and surgery.*fn2

Under Section 9.2, the State Board of Medical Examiners "shall make and adopt all necessary rules, regulations and bylaws not inconsistent with the laws of the State or of the United States, whereby to perform the duties and to transact the business required under the provisions of this article (section 45:9-1 et seq.)." Eatough objects to a practice of the Board and to two related rules promulgated by it. The Board's practice has been to issue the same license to all physicians (regardless of what medical school they attended), but to add the suffix D.O. to the names of all graduates of osteopathic medical schools, while employing M.D. for the graduates of other medical schools. There is no express statute or rule that authorizes the inscription of these suffixes on the license of any physician in New Jersey. A "Degree designation" rule passed in 1971 reads:

A physician licensed to practice medicine and surgery in the State of New Jersey shall identify himself only by that degree designation (M.D. or D.O.) which imprinted (sic) on the license issued to said person by the board; for example, John Doe, M.D., Joe Doe, O.D. (sic), Dr. John Doe, M.D. or Dr. John Doe, D.O.

N.J.A.C. 13:35-4.1. And a rule governing "Provision of information to the public" passed in 1978 provides, in pertinent part:

A licensee in the State of New Jersey may provide information to the public, by publication in a dignified manner in newspapers or comparable written publications concerning: education, certification or appointment, location and availability of services, fees for routine professional services and other pertinent information about the licensee's practice. On any such publication, license degree must be designated....

N.J.A.C. 13:35-6.13(b).

In addition to his challenge of this practice and related rules, Eatough objects to the way the Board has chosen to treat graduates of foreign medical schools (FMG's). FMG's may receive a license in much the same way as graduates of schools in this country: e.g., by passing the Federation Licensing Examination (FLEX) (N.J.A.C. 13:35-3.1), or by endorsement after being first licensed to practice in another state (N.J.A.C. 13:35-3.2 and 3.3). See N.J.Stat.Ann. § 45:9-8.*fn3 Although the Board may have no specific information concerning the medical education at these foreign schools, when it issues medical licenses to FMG's, the Board imprints the M.D. suffix.

Eatough graduated from the Philadelphia College of Osteopathic Medicine with the degree of Doctor of Osteopathy in 1971. He thereafter completed a one year internship and two year residency in internal medicine at St. Michael's Medical Center in Newark, New Jersey. In April of 1972, he was licensed to practice medicine and surgery in the State of Missouri, and in 1973, he was licensed by endorsement of his Missouri license to practice in New Jersey. He has also become a Diplomate in Internal Medicine, certified by the American Board of Internal Medicine in 1976, and a Diplomate in Cardiovascular Diseases, having passed all required exams of the American Board of Cardiovascular Diseases by 1979. He is affiliated with two A.M.A. hospitals in New Jersey: Riverview in Red Bank and St. Michael's Medical Center in Newark. His practice is limited to the two specialties for which he has been trained: internal medicine and cardiovascular diseases.

Eatough asserts that he never has and does not presently employ any osteopathic manipulative techniques or principles in his practice. When he first began to practice, he used the degree designation D.O., but after coming to believe that the public did not perceive him to be a qualified physician, he substituted the M.D. suffix in his practice (e.g., in the telephone directory and on office signs). When he made a written request through ...


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