“That Peculiar Science”: Osteopathic Medicine and the Law

Gevitz N. , The D.O.'s — Osteopathic Medicine in America (Johns Hopkins University Press, Baltimore, Md.) (1982).

See, e.g., Mercer , The First Century of Osteopathic Medicine in the United States of America, Transactions&Studies of the College of the Physicians of Philadelphia 45: 127 (4th ser. January 1978); Schiller F. , Spinal Irritation and Osteopathy, Bulletin of the History of Medicine 45(3): 250 (May/June 1971).

See Northup G. W. , Osteopathic Medicine: An American Reformation (American Osteopathic Association, Chicago, Ill.) (2d ed. 1975) (author is past president of the American Osteopathic Association and apologist for the profession).

There are fifteen osteopathic medical schools in the United States. In 1978, there were approximately 237 osteopathic hospitals accredited and approved for intern and residency training, and 62 other licensed osteopathic hospitals not used for training purposes. Osteopathic Hospitals Accredited and Approved for Intern and Residency Training, Journal of the American Osteopathic Association 77 (supp.): 105–17 (April 1978). See also Jones B. , The Difference a D.O. Makes: Osteopathic Medicine in the Twentieth Century (Times Journal Publishing Co., Oklahoma City, Ok.) (1978); Blackstone E.A. , The A.M.A. and the Osteopaths: A Study of the Power of Organised Medicine, Antitrust Bulletin 22(2): 405 (Summer 1977).

New P. K. , The Application of Reference Group Theory to Shifts In Values: The Case Of the Osteopathic Student (Ph.D. dissertation, University of Missouri) (1960) at 51 (available from University Microfilms, Ann Arbor, Mich.).

Gevitz , supra note 1, at ix.

The remainder of this essay is based on the author's research for a Masters of Arts in History at Wayne State University in 1979–81.

“Full physician” means possession of the legal authority to engage in all those medical functions which licensed M.D.'s in the same jurisdiction may perform. Osteopathic colleges were chartered to teach medicine, surgery, and obstetrics, not simply manipulation; however, there were differences in emphasis in the curricula. See, e.g., Des Moines Still College of Osteopathy, Annual Catalog 1919–1920 (1919) at 19–20 (comparative curricula between medical and osteopathic colleges).

Doctor of Osteopathy is the degree granted by all osteopathic colleges. When the founder of osteopathy, Still A.T. , established his first school, he awarded this degree, instead of the M.D., to emphasize the distinctiveness of the new system. Some felt the degree was misleading, and urged him to authorize the M.D., but he refused. Jones , supra note 4, at 92. This “different” degree has been considered a stigma by some, and many D.O.'s have gone to some lengths to attach an M.D. to their names. See, e.g., Falcone v. Middlesex County Medical Society, 162 A.2d 324 (N.J. Law Div. 1960), aff'd, 170 A.2d 791 (N.J. 1961).

See, e.g., William R. Aho , the Orientation of Medical Students to Osteopathic Medicine (Ph.D. dissertation. University of Notre Dame) (1971) (available from University Microfilms, Ann Arbor, Mich.).

Missouri v. National School of Osteopathy, 76 Mo. App. 439, 446 (1898).

Northup, supra note 3, at 13. But see Nelson v. State Board of Health, 57 S.W. 501, 502 (Ky. 1900) (“Dr. Still … is said to have been a college graduate; but the proof as to this is not clear”).

Still A.T. , Autobiography with a History of the Discovery and Development of the Science of Osteopathy (A. Still, Pub., Kirksviile, Mo.) (rev. ed. 1908) at 87–88 [hereinafter referred to as Autobiography].

Id. at 85.

See, e.g., id. at 28–29, 93–94.

See generally id. (description of days before discovery of osteopathy).

Id. at 324–25.

Id.

Still A. , Osteopathy Research and Practice (A. Still, Pub., Kirksviile, Mo.) (1910) at 11.

See Gaines J.J. , My Friend the Osteopath, Journal of the Missouri State Medical Association 7(3): 90 (September 1910).

See, e.g., Grigg , Peripatetic Pioneer: Smith William , M.D., D.O. (1862–1912), Journal of the History of Medicine 22: 169 (1967). A more accurate statement might be that osteopathy and its colleges established higher standards for its students and became more scientific along with orthodox medicine in the early 20th century. The osteopathic and traditional systems took a parallel upward course; it was not the case that osteopathy spurted ahead at some point to meet traditional medicine.

State v. Bonham, 161 P. 377 (Wash. 1916).

State v. Sawyer, 214 P. 222 (Idaho 1923).

These included Vermont, Michigan, Missouri, and North Dakota. By 1908, laws regulating osteopathy reportedly had been passed in 35 other states. Autobiography, supra note 13, at 389. The Michigan Osteopathic Act was introduced in the legislature in 1897 by the Postmaster of Grand Rapids, who had been contacted by Michigan residents treated at Kirksviile, Missouri. The bill passed the House 70 to 0, and the Senate 24 to 1. Mead K. , History and Organization of the Michigan Association of Osteopathic Physicians and Surgeons (Unpublished Paper, Wayne State University) (Michigan Association of Osteopathic Physicians and Surgeons, Farmington Hills, Mich.) (1969).

Although osteopathic physicians trained at reputable colleges could choose to engage in the whole gamut of medical activity, from surgery to obstetrics, where the law allowed, some early D.O.'s limited their therapeutic, as opposed to diagnostic, activities to manipulation, just as some M.D.'s still limit their therapeutic activities to the prescription of drugs. These practitioners were, in effect, practicing an osteopathic form of “internal medicine.” They were primary “physicians,” as opposed to surgeons, in the old sense of the term.

See, e.g., State v. Gravett, 62 N.E. 325 (Ohio 1901); Hayden v. State, 33 So. 653 (Miss. 1903).

The requirement of a three-year curriculum was not established for colleges approved by the American Osteopathic Association until 1905, and a four-year curriculum was mandated in 1915. American Osteopathic Association, Events in the Development of Osteopathic Medicine (1980) (pamphlet).

See, e.g., Bragg v. State, 32 So. 767 (Ala. 1902).

See, e.g., Nelson v. State Board of Health, 57 S.W. 501 (Ky. 1900).

See Ligon v. State, 145 Ala. 659 (mem.), 39 So. 662 (Ala. 1905) (unofficial op.).

See, e.g., Nelson v. State Board of Health, supra note 29; Commonwealth v. Thompson, 10 Pa. D. 634 (1900).

Joyce J.B. , State Recognition of Doctors of Osteopathy Compared with State Recognition of Doctors of Medicine, Notre Dame Lawyer 31: 286, 290 (1956).

See, e.g., Commonwealth v. Pierce, 10 Pa. D. 335 (1901).

People v. Gordon, 62 N.E. 858 (Ill. 1902).

Shaw v. Ohio, 11 Ohio App. 486 (1919).

See, e.g., Commonwealth v. Zimmerman, 108 N.E. 893 (Mass. 1915); State v. Johnson, 114 P. 390 (Kan. 1911).

See, e.g., People v. Love, 131 N.E. 809 (Ill. 1921); State v. Hopkins, 166 P. 304 (Mont. 1917).

Chiropractic teaches that all diseases are caused by impingement of spinal nerves and can be corrected by manipulation of the spine. Osteopathic medicine teaches that any structural (i.e., bones, muscles), not just spinal derangements, may cause certain disorders or tend toward disease. See generally Sattler J.M. , Malpractice and the Healing Arts — Naturopathy, Osteopathy, Chiropractic, Utah Law Review 9: 705 (1965).

See, e.g., State v. Wisconsin State Board of Medical Examiners, 177 N.W. 910 (Wis. 1920) (surgery); Bruer v. Woodworth, 22 F.2d 577 (E.D. Mich. 1927) (narcotics); People v. Siman, 115 N.E. 817 (Ill. 1917) (death certificates).

Id.

In 1977, there were about 200 approved or licensed osteopathic hospitals in the United States. Osteopathic Hospitals, Journal of the American Osteopathic Association 77 (supp.): 105–17 (April 1977). Many other hospitals are now “mixed staff,” or have both M.D.'s and D.O.'s working together. See 2 Medical Principles Found in One Hospital In Pennsylvania Town, New York Times, June 15, 1980, §1, at 31.

An important exception is Michigan, which continues to adhere to the old rule. See Frazier v. Hurd, 157 N.W.2d 249 (Mich. 1968) (M.D. may testify against D.O., only if M.D. has knowledge of standard of care in osteopathic practice).

See, e.g., State v. McCombs, 181 P.2d 473 (Kan. 1947); Standard Oil Co. v. Ervin, 8P.2d 447 (Wyo. 1932); American Indemnity Co. v. Green, 281 S.W. 895 (Tex. Ct. App. 1926).

See, e.g., Flexner A. , Medical Education in the United States and Canada: A Report to the Carnegie Foundation for the Advancement of Teaching (Merrymount Press, New York, N.Y.) (1910) at 166.

This was recognized by some courts. See, e.g., Waldo v. Poe, 14 F.2d 749 (W.D. Wash. 1926); People v. Schaeffer, 142 N.E. 248 (Ill. 1923); State v. Wisconsin State Board of Medical Examiners, 177 N.W. 910 (Wis. 1920).

See Chicago College of Osteopathy v. Puffer, 120 N.E.2d 672, 680–81 (Ill. App. 1954), aff'd, 126 N.E.2d 26 (Ill. 1955).

See, e.g., Fishbein M. , A History of the American Medical Association 1847–1947 (W.B. Saunder Co., Philadelphia, Pa.) (1947) at 179.

See State v. Bonham, 161 P. 377 (Wash. 1916).

See State v. Gleason, 79 P.2d 911 (Kan. 1938); State v. Sawyer, 214 P. 222 (Idaho 1923).

See generally Joyte , supra note 32.

See State v. Sawyer, supra note 49.

See State v. Wagner, 297 N.W. 906 (Neb. 1941) (D.O. enjoined from performing surgery, despite evidence that he had been performing major surgery for some time).

See People v. Witte, 146 N.E. 178 (Ill. 1924) (naprapathy); Shaw v. Ohio, 11 Ohio App. 486, 492 (1919) (listing of various irregular medical groups).

See State v. Sawyer, supra note 49, at 214–15; State v. Gleason, supra note 49, at 917.

See, e.g., Lloyd v. Kull, 329 F.2d 168 (7th Cir. 1964); James v. Falk, 360 P.2d 546 (Or. 1961).

But see Ferguson v. Gonyaw, 236 N.W. 2d 543, 548–49 (Mich. App. 1975), Iv. to appeal denied, 396 Mich. 817 (1976) (D.O. neurosurgeon theoretically subject to different standard of care than M.D. neurosurgeon).

Gilb C.L. , Hidden Hierarchies: The Professions and Government (Harper&Row, New York, N.Y.) (1966) at 67.

It cannot be said that osteopathy is the equal of traditional medicine, due to continuing difficulties that individual osteopaths encounter when attempting to gain staff privileges at non-osteopathic hospitals. See, e.g., Berman v. Florida Medical Center, Inc., 600 F.2d 466 {5th Cir. 1979). There are also lingering inequalities regarding applications for licenses in a number of states, such as a requirement that to be eligible, a D.O. applicant have graduated only after a certain year, typically 1960, from osteopathic school. Such a requirement is based on the inaccurate belief that osteopathic education was sufficiently “modernized” only recently. Osteopathic Licensing Summary, Journal of the American Osteopathic Association 77(supp): 46–57 (April 1978).

The American Medical Association has supported an attempt to merge state medical and osteopathic societies in recent years, to eliminate separate osteopathic competition. See Osteopathic Physicians and Surgeons of California v. California Medical Association, 36 Cal. Rptr. 641 (Cal. App. 1964).

Gevitz , supra note 1, at ix.

This is true despite occasional cases on hospital privileges and claims to the use of the “M.D.” designation as a generic epithet. See, e.g., Weiss v. York Hosp., 524 F. Supp. 433 (M.D. Pa. 1981); Oliver v. Morton, 361 F. Supp. 1262 (E.D. Ga. 1973).

Gevitz, supra note 1, at 146.

See generally Starr P. , The Social Transformatton of American Medicine (Basic Books, New York, N.Y.) (1983). Rules (American Nurses’ Association, Kansas City, Mo.) (August 1983) at 12.