Opposition Brief — Guess v. North Carolina Board of Medical Examiners

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No. 90-766 JOSEPH F. SPANIONL, dit

are

In The

Supreme Court of the United States

October Term, 1990

+

GEORGE A. GUESS, M.D.,

Petitioner, .

v.

NORTH CAROLINA BOARD

OF MEDICAL EXAMINERS,

Respondent.

+

Petition For Writ Of Certiorari To

The Supreme Court Of North Carolina

--

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

4

MIcHAEL E. WEDDINGTON

SmITtH, ANDERSON, BLOUNT, DorseETT,

MiTcHe.t & JERNIGAN

1300 St. Mary’s Street

Post Office Box 12807

Raleigh, North Carolina 27605

(919) 821-1220 y

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING (800) 225-0964

OR CALL COLLECT (02) 1

Il.

Ii.

QUESTIONS PRESENTED

Was the conditional revocation by the Board of

Medical Examiners of Petitioner’s license to practice

medicine for his failure to conform to the standards

of acceptable and prevailing medical practice a

proper and constitutional exercise of the State’s

police power?

Is N.C. Gen. Stat. § 90-14(a)(6) (1985) unconstitu-

tionally vague as interpreted by the North Carolina

Supreme Court?

Does N.C. Gen. Stat. § 90-14(a)(6) (1985), as inter-

preted by the North Carolina Supreme Court, limit-

ing Petitioner’s methods of practice to those which

conform to the standards of acceptable and prevail-

ing medical practice, infringe on Petitioner’s liberty

or privacy rights?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............-0--eceeeees i

TABLE OF AUTHORITIES.............-2--0--eeee- iv

PEPE BI iii fins oi coe ccs doen bans convenes 3

STATEMENT OF THE CASE...........--.++-+-+++- 4

SUMMARY OF ARGUMENT...............++-+00+- 7

ps Re rene ne eee Er eer Te 8

I. N.C. GEN. STAT. § 90-14(a)(6) IS A VALID

EXERCISE OF THE STATE’S POLICE POWER

AND THE BOARD’S APPLICATION OF THE

STATUTE IN REVOKING PETITIONER’S

LICENSE WAS APPROPRIATE.............. 8

II. N.C. GEN. STAT. § 90-14(a)(6) AS INTER-

PRETED BY THE NORTH CAROLINA

SUPREME COURT IS NOT UNCONSTITU-

TIONALLY VAGUE..............00eeeeeeees 13

III. LIMITING PETITIONER’S METHCDS OF

MEDICAL PRACTICE TO THOSE METHODS

WHICH CONFORM TO THE STANDARDS

OF ACCEPTABLE AND PREVAILING MEDI-

CAL PRACTICE DOES NOT INFRINGE ON

HIS PROTECTED LIBERTY OR PRIVACY

APPENDIX A — In re Guess, M.D., 327 N.C. 46, 393

S.E.2d 833 (1990).............. App. 1

iii

TABLE OF CONTENTS - Continued

Page

APPENDIX B - In re Guess, M.D., 95 N.C. App. 435,

382 S.E.2d 459 (1989)......... App. 21

APPENDIX C - Findings of Fact, Conclusions of

Law and Order, In re Guess, M.D.,

Board of Medical Examiners (N.C.

kg) er a App. 26

iv

TABLE OF AUTHORITIES

Page

CasEs:

Barsky v. Board ents, 347 US. 442, 74 S.Ct.

650, 98 L.Ed. I is eithin blnhd i nnd kp edpietn ens 9

Berman v. Parker, 348 US. 26, 75 S.Ct. 98, 99 L.Ed.

I Fh ss 0k cadAAN es det ngeed shu brecdbeas- 8, 9

Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32

OO me ee enn eae 14

—_ v. North Carolina Board of Dental Examiners,

N.C. 710, 309 S.E.2d 219 (1983)............ 12, 17

Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32

LR ie ee a eis wks Seer on BOG Cine ces bee's 10, 11

Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d

BE Ta 5 a GE AWA Reon ho heh th ash 0 0080. 18

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct.

TAG, ee ee Ess ant-bbneee 845 Gaecdeiescesss 10

Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8

Be EE re er ee reer ere 9

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.

yr et cs ee 17

In re Hawkins, 17 N.C. App. 378, 194 S.E.2d 540,

cert. denied, 283 N.C. 393, 196 S.E.2d 275, cert.

Dea: GU APA. TOE MATTE viv cn cncccnbacvscensss 16

In re Wilkins, 294 N.C. 528, 242 S.E.2d 829 (1978) .15, 16

Iowa Dept. of Health v. Van Wyk, 320 N.W.2d 599,

I is I a 4 oa sh oe keno on Fe Sie enaes os 20

Kansas State Board of Healing Arts v. Foote, 200 Kan.

Sag SW Fee EE GAPE os sens eatin cecnadednpeincss 17

Vv

TABLE OF AUTHORITIES - Continued

Page

Lambert v. Yellowsley, 272 U.S. 581, 596, 71 L.Ed.

a ee Es ek aa ev FE Sw pew bb kw hb hc caccees 19

Rutherford v. United States, 616 F.2d 455 (10th Cir.

sk eb aeeene 20

Skinner v. Thomas, 171 N.C. 98 (1916) ......... a 8

State v. Howard, 78 N.C. App. 262, 269, 337 S.E.2d

598, 603 (1985), disc. rev. denied, a I dismissed,

316 N.C. 198, 341 S.E.2d 581 (1986)............... 20

United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710,

BD Fe FI Ps vc o.vc cécwcvcccccsteccccds 15, 16

United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46

Se ew veee 14, 15

Warth v. Seldin, 422 U.S. 90, 95 S.Ct. 2197, 45

ee ee i kwbeheseene 20

Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51

hy BR Ae as 2 oe ee 4

a

STATUTES:

Pee ID icin os nek cu svevcee ncdntlntwet 15

N.C. Gen. Stat. § 90-14(a)(6) .........---- eee eee passim

No. 90-766

+

In The

Supreme Court of the United States

October Term, 1990

+

GEORGE A. GUESS, M.D.,

Petitioner,

Vv.

NORTH CAROLINA BOARD

OF MEDICAL EXAMINERS,

Respondent.

+

Petition For Writ Of Certiorari To

The Supreme Court Of North Carolina

+

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

-

Respondent, Board of Medical Examiners of the State of

North Carolina (“Board”),’ respectfully submits that a writ of

certiorari to review the judgment and opinion of the North

Carolina Supreme Court in In Re Guess, M.D., 327 N.C. 46,

393 S.E.2d 833 (1990), is unnecessary and should not issue.

1 The correct name of Respondent is “Board of Medical

Examiners of the State of North Carolina”, not “North Carolina

Board of Medical Examiners” as Petitioner indicates.

rr 2

The North Carolina Supreme Court affirmed the deci-

sion of the Board which limited Petitioner’s practice of

medicine to the statutory standard of “acceptable and

prevailing medical practice.” Contrary to Petitioner’s

assertion, the Board’s conditional revocation of his

license was not “solely because he was the only doctor in

North Carolina using homeopathic drugs.” (Petition, p.

1). Rather, the Board’s decision was based on its obliga-

tion to enforce the statutory requirement that its licensees

practice in accordance with the standards of acceptable

and prevailing medical practice.

The Petitioner misstates the holding of the North Caro-

lina Supreme Court. ‘Petition, p. 2). The North Carolina

Supreme Court held that N.C. Gen. Stat. § 90-14(a)(6) is a

valid exercise of the State’s police power and that the statute

requires no specific showing of harm. The State Supreme

Court also held that the statute is sufficiently specific to give

guidance to the Board to determine whether a licensee’s

practice is within the “standards of acceptable and prevailing

medical practice.” In reaching its conclusion, the State

Supreme Court noted that evidence as to the efficacy of

homeopathic drugs was not relevant to the issue before the

Court “in light of the uncontroverted evidence and the

Board’s findings and conclusions that homeopathy is not

currently an ‘acceptable and prevailing system of medical

practice in North Carolina.’” (App. pp. 12-13). The State

Supreme Court noted that the legislature and not the courts

would be the proper forum for any debate as to the efficacy

of homeopathy and whether its practice should be allowed

in North Carolina.

3

OPINIONS BELOW?

Proceedings below were as follows:

1. In re Guess, M.D., 327 N.C. 46, 393 S.E.2d 833

(1990) (affirming Board’s Order and revers-

ing Court of Appeals); |

* Sin-2d 499 (1989) (alfieming Superior Court

E. ourt

decision on different grounds and imposing

an additional requirement in the statute of a

showing of harm);

3. a pA. Guess, ang oy N.C. i poi 4 .

(holding Court ppeals

jurisdiction to consider appeal);

4. In re Guess, M.D., 89 N.C. App. 711, 367

S.E.2d 11 (1988) (dismissing appeal for lack

of jurisdiction);

5. In re Guess, M.D., No. 89CVS510 (Superior

Court, Wake County, North Carolina, May

20, 1987) (reversing Board’s Order on basis

that Order not supported by evidence);

6. Finaings of Fact, Conclusions of Law and

Order of the Board of Medical Examiners of

the State of North Carolina, January 14,

1986. (revoking Petitioner’s license but stay-

| ing revocation on condition that he refrain

from use of homeopathic medicines in his

practice of medicine).

—+

2 Pursuant to Rule 24.2, Supreme Court Rules, the State-

ment of Jurisdiction and the Statement of Constitutional and

Statutory Provisions involved are omitted.

STATEMENT OF THE CASE

PROCEDURAL BACKGROUND

This matter began on June 25, 1985 as a professional

disciplinary action initiated by the Board with the issu-

ance of a Notice of Charges and Allegations against Peti-

tioner. The Board charged that Petitioner had engaged in

“unprofessional conduct” in that his prescribing of

homeopathic medicines in the course of his medical prac-

tice “departs from and does not conform to the standards

of acceptable and prevailing medical practice in the state

of North Carolina.” N.C. Gen. Stat. § 90-14(a)(6) (1985).

At the properly noticed hearing held before the

Board in October and December 1985, evidence estab-

lished that Petitioner was the only licensee of the Board

known to be employing homeopathic medicines in his

practice in North Carolina. Following the hearing, the

Board ordered that Petitioner’s license be revoked, with

the revocation stayed on the condition that he refrain

from the use of homeopathic medicines in his medical

practice in North Carolina. The Board specifically found:

9. Respondent is the only licensee of the

Board known to the Board who utilizes, in the

course of diagnosing or attempting to diagnose,

treating, or attempting to treat, prescribing for

or administering to, or professing to treat

human ailments, diseases, and the like, certain

preparations known generally as “homeopathic

medicines.”

12. While a few other states have statutory

schemes for the regulation of the practice of so-

called “homeopathic medicine,” no such statu-

tory procedures exist in North Carolina.

— —

—

5

13. The utilization by Respondent in his

practice of medicine of certain preparations

known generally as “homeopathic medicines”

departs from and does not conform to the stan-

dards of acceptable and prevailing practice in

this State.

Findings of Fact, Conclusions of Law and Order of the

Board of Medical Examiners of the State of North Caro-

lina, January 14, 1986. (App. pp. 27-28). Based, inter alia,

on these Findings of Fact, the Board concluded that Peti-

tioner’s utilization of homeopathic medicines in his prac-

tice of medicine constituted unprofessional conduct

within the meaning of N.C. Gen. Stat. § 90-14(a)(6).

Petitioner appealed from the Board’s Order to the

Superior Court of Wake County, North Carolina. The

Superior Court reversed the Board on the basis that the

Board’s Findings of Fact were not supported by the evi-

dence. The Board appealed to the North Carolina Court

of Appeals.3 Although the Court of Appeals ultimately

affirmed the Superior Court’s decision, it specifically dis-

agreed with the lower court’s basis for reversal of the

Board. The Court of Appeals stated:

The Superior Court's findings and conclusions

as to the Board’s findings of fact have no basis,

as the Board’s principle [sic] findings of fact are

not only supported by competent evidence, they

are essentially undisputed.

3 The North Carolina Court of Appeals initially declined

to review the matter because of jurisdictional concerns. In re

Guess, M.D., 89 N.C. App. 711, 367 S.E.2d 11 (1988). The North

Carolina Supreme Court vacated the Court of Appeals’ deci-

sion and ruled that jurisdiction was proper in the Court of

Appeals. In re Guess, M.D., 324 N.C. 105, 376 S.E.2d 8 (1989).

(App. p. 23). Having so said, however, the Court of

Appeals affirmed the result reached by the Superior

Court, finding an implicit requirement in the statute that

“the nonconforming practices endanger or harm the pub-

lic in some way,” because, according to the court, “in our

opinion the revocation of a physician’s license to practice

his profession in this state must be based upon conduct

that is detrimental to the public.” (App. p. 24).

The Board’s petition for discretionary review to the

North Carolina Supreme Court was granted and the

Supreme Court reversed the Court of Appeals and

affirmed the Board’s Order. The North Carolina Supreme

Court held that N.C. Gen. Stat. § 90-14(a)(6) was a valid

exercise of the police power and that there is no require-

ment that “every action taken by the Board specifically

identify or address a particular injury or danger to any

individual or to the public.” (App. p. 10).

FACTUAL BACKGROUND

The Board of Medical Examiners is authorized by

N.C. Gen. Stat. § 90-14 to suspend or revoke a license

issued by it to any person who has been found by the

Board to have committed any one of certain specifically

enumerated acts. Among those enumerated acts is the

following:

(6) Unprofessional conduct, including, but not

limited to, any departure from, or the failure to

conform to, the standards of acceptable and pre-

vailing medical practice or the ethics of the

medical profession, irrespective of whether or

not a patient is injured thereby... .

N.C. Gen. Stat. § 90-14(a)(6) (1985).

ee eT ee eee

ne

The evidence in the record before the state appellate

courts showed that the use of homeopathic medicines

was not an acceptable and prevailing system of medical

practice in North Carolina. The evidence indicated that

Petitioner was the only licensee of the Board utilizing

homeopathic medicines in North Carolina. The Court of

Appeals stated that the Board’s Findings of Fact were not

only supported by competent evidence in the record, but

also, that they were “essentially undisputed.” (App. p.

23). The Supreme Court stated, “The facts of this case are

essentially uncontested.” (App. p. 2). Based on the undis-

puted, uncontested evidence, the Board was obligated by

statute to conclude that Petitioner’s use of homeopathic

medicines in his practice of medicine did not conform to

“the standards of acceptable and prevailing medical prac-

tice” in the State.

SUMMARY OF ARGUMENT

The regulation by the Board of medical practitioners

in North Carolina by requiring that they comply with the

statutory prohibition against “unprofessional conduct,”

which includes engaging in practices which fail to “con-

form to the standards of acceptable and prevailing medi-

cal practice,” is a reasonable and appropriate exercise of

the State’s police power. The regulation of medical prac-

tice is clearly within the scope of the State’s police power

and the means chosen by the legislature and incorporated

in N.C. Gen. Stat. § 90-14(a)(6) are reasonable.

N.C. Gen. Stat. § 90-14(a)(6) is sufficiently specific to

give notice to the “reasonably intelligent practitioner” of

the types of forbidden conduct. In the present case, the

Petitioner knew his practice of homeopathic medicine

was not within the “standards of acceptable and prevail-

ing medical practice” in North Carolina. Therefore, Peti-

tioner’s argument that the statute is vague or overbroad

is misplaced.

The Petitioner’s right to practice medicine is subject

to the State’s police power. By limiting Petitioner’s choice

of treatments to those treatments which conform to the

acceptable and prevailing standards of medical practice

in the State, the State has not infringed on any of Peti-

tioner’s protected rights.

. 4 -

ARGUMENT

I. N.C. GEN. STAT. § 90-14(a)(6) IS A VALID EXER-

CISE OF THE STATE’S POLICE POWER AND THE

BOARD’S APPLICATION OF THE STATUTE IN

REVOKING PETITIONER’S LICENSE WAS

APPROPRIATE.

A State’s police power is an essential attribute of

sovereignty and, although precise definitions of police

power are difficult, if not impossible, it is clearly “the

power to protect the public health and the public safe-

ty . . . to protect the lives and property of the citi-

zens . . . by any legislation appropriate to that end.”

Skinner v. Thomas, 171 N.C. 98 (1916), citing, 9 Ency. of

U.S. Reports 473; Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98,

99 L.Ed. 27 (1954).

The expansive scope of the State’s police power has

long been recognized, as has the concept that exercise of

the power should be left to the discretion of the legisla-

ture. Berman v. Parker, supra. Thus, the General Assembly

of North Carolina has authority and broad discretion to

legislate for the protection of the public health, safety,

and general welfare of the people of North Carolina.

Further, a State’s police power is particularly broad in the

regulation of medical practice and administration of

drugs within its borders. Whalen v. Roe, 429 U.S. 589, 97

S.Ct. 869, 51 L.Ed.2d 64 (1977) (“It is of course, well

settled that the State has broad police powers in regulat-

ing the administration of drugs by the health profes-

sions.” (citations omitted) 429 U.S. at 603, n. 30). As the

Court stated in Barsky v. Board of Regents, 347 U.S. 442, 74

S.Ct. 650, 98 L.Ed. 829 (1953):

It is elemental that a state has broad power to

establish and enforce standards of conduct

within its borders relative to the health of every-

one there. It is a vital part of a state’s police

power. The state’s discretion in that field

extends naturally to the regulation of all profes-

sions concerned with health.

347 U.S. at 449.

If a statute by which the State exercises its police

power is challenged, courts will uphold the challenged

statute if the subject matter sought to be regulated is

within the scope of the police power and the means

employed are reasonable. Goldblatt v. Hempstead, 369 U.S.

590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (“ ‘debatable ques-

tions as to reasonableness are not for the courts but for

the legislature... .’” (citation omitted) 369 U.S. at 595).

In assessing the reasonableness of legislation, a court may

not substitute its judgment fcr that of the legislative

10

body. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct.

114, 71 L.Ed. 303 (1926).

As the United States Supreme Court has long recog-

nized, regulation of the medical profession is clearly

within the scope of the State’s police power. Dent v. West

Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889). The

Dent Court, in upholding the validity of regulations

regarding the licensure of physicians noted:

The power of the State to provide for the gen-

eral welfare of its ple authorizes it to pre-

scribe all such r tions as in its judgment will

secure or tend to secure them against the conse-

quences of ignorance and incapacity as well as of

deception and fraud. (emphasis added).

129 U.S. at 122.

Apparently, Petitioner’s challenge to the disciplinary

action taken against him by the Board is based on the

grounds articulated by the North Carolina Court of

Appeals, that is, that the statute implicitly requires a

showing of specific harm prior to a finding that a noncon-

forming practice is “unprofessional conduct” within the

meaning of the statute. However, such a challenge must

fail in light of the clear language of the statute and its

expression of the reasonable legislative intent.

Obviously, by including in the statute the language,

“irrespective of whether or not a patient is injured

thereby,” the North Carolina General Assembly chose to

make the existence of a specific harm irrelevant to the

inquiry. The legislature reasonably believed that

unprofessional conduct, for which the Board would be

authorized to suspend or revoke a license, should include

“any departure from, . . . the standards of acceptable and

11

prevailing medical practice, . . . irrespective of whether or

not a patient is injured thereby. . . . ” N.C. Gen. Stat.

§ 90-14(a)(6). The legislature’s determination that specific

injury was not required is a determination within the

legislature’s discretion.

The North Carolina Supreme Court concluded that

N.C. Gen. Stat. § 90-14(a)(6) was a valid exercise of the

State’s police power because the statute addressed what

the legislature might reasonably perceive as a “general

risk of endangering the public [which] is inherent in any

practices which fail to conform to the standards of

‘acceptable and prevailing’ medical practice in North

Carolina.” (App. p. 8). Thus, the State Court reasoned, in

the language of Dent, that the statute “tend[s] to secure”

the public against “the consequences of ignorance and

incapacity as well as of deception and fraud,” even

though it may not immediately have that direct effect in a

particular case. (App. p. 8).

In addition to the reasons articulated by the North

Carolina Supreme Court, the statute and the Board’s dis-

ciplinary action thereunder against Petitioner should be

upheld as a proper exercise of the police power because,

in the absence of any regulatory body for homeopathic

medicine in North Carolina, if the Petitioner is allowed to

practice homeopathic medicine in North Carolina, his

homeopathic practice would be entirely unregulated. The

existence of such an unregulated practice would pose a

clear danger to the public health and welfare. Unlike the

few states which Petitioner identified as having licensing

agencies for homeopathic physicians, North Carolina

12

does not have any means for the regulation or supervi-

sion of an individual engaged in the practice of

homeopathic medicine. Thus, even if the statute were to

be interpreted as requiring some risk of endangerment to

the public, that risk exists both in the general risk identi-

fied by the Supreme Court and in the further specific risk

resulting from unregulated practice.

Petitioner complains that the Board and the North

Carolina Supreme Court rejected as irrelevant his evi-

dence and contentions that homeopathic medicines are

used and considered efficacious in a few other states in

this country and in several foreign countries. (Petition, p.

12.) However, in its regulation of the practice of medicine

in North Carolina, the Board is required to apply a state-

wide standard of practice. See, Dailey v. North Carolina

Board of Dental Examiners, 309 N.C. 710, 309 S.E.2d 219

(1983). The only physicians the Board is empowered to

regulate are those whom it licenses for the practice of

medicine in North Carolina. Thus, it clearly is not rele-

vant to this inquiry whether some doctors in Connecticut

or Nevada or Mexico or Pakistan are practitioners of and

believers in homeopathy. All of the physicians who testi-

fied at Petitioner’s hearing before the Board and who

were licensed to practice in North Carolina - including

those called as witnesses by Petitioner - agreed that the

use of homeopathic medicines was not an “acceptable

and prevailing medical practice in North Carolina.”

Under the required statewide standard, Petitioner’s use

of homeopathic medicines was overwhelmingly shown to

be improper.

Consequently, the conditional revocation by the

Board of Petitioner’s license for his failure to conform to

eer a

13

the standards of acceptable and prevailing medical prac-

tice in North Carolina was a proper and constitutional

exercise of the State’s police power.

II. N.C. GEN. STAT. § 90-14(a)(6) AS INTERPRETED

BY THE NORTH CAROLINA SUPREME COURT

IS NOT UNCONSTITUTIONALLY VAGUE.

The Petitioner apparently contends that because of

alleged vagueness of N.C. Gen. Stat. § 90-14(a)(6) a prac-

titioner would not be able “to predict when a practice is

prevailing” and, thus, would not know when he was

engaging in unprofessional conduct. (Petition, p. 15).‘

Petitioner’s contention is disingenuous. He complains

that the Board ignored and the North Carolina Supreme

Court rejected as irrelevant his evidence that homeopathy

is a “widely accepted method of medical treatment”

approved by “many regulatory professional bodies,

including a nationwide professional association and three

separate state licensing boards.” (Petition, p. 15.) If

homeopathy is so “widely accepted,” why was Petitioner

not able to produce a single witness to attest to its use

and acceptance in the medical profession in North Caro-

lina? Moreover, it is obvious that some “nationwide pro-

fessional association” and licensing boards in three other

states have neither the authority to regulate medical prac-

tice in North Carolina nor any knowledge of the level of

acceptance and use of homeopathic medicines in the

4 Petitioner argues that the North Carolina Supreme

Court’s “interpretation” of the statute is vague. Presumably,

the Petitioner means that the statute itself is vague as inter-

preted by the Court. See Petition, p. 16.

14

medi. profession in North Carolina. Accordingly, if

there is any relevance to this “evidence” offered by Peti-

tioner, it is to show that it is not reasonable for him to

contend that he could not know that under N.C. Gen.

Stat. § 90-14(a)(6) his conduct was outside the bounds of

acceptable and prevailing medical practice in North Caro-

lina. The statute provides adequate notice to practitioners

of the types of conduct which would constitute unprofes-

sional conduct and gives adequate guidance to the Board.

In the case of United States v. Powell, 423 U.S. 87, 96

S.Ct. 316, 46 L.Ed.2d 228 (1975), the Supreme Court noted

that, “straining to inject doubt as to meaning of words

where no doubt could be felt by the normal reader is not

required by the ‘void for vagueness’ doctrine, and we

will not indulge in it.” 423 U.S. at 93. Additionally, in the

case of Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32

L.Ed.2d 584 (1972), the Court stated:

The root of the vagueness doctrine is a rough

idea of fairness. It is not a principle designed to

convert into a constitutional dilermma the practi-

cal difficulties in drawing . . . statutes both

general enough to take into account a variety of

human conduct and sufficiently specific to pro-

vide fair warning that certain kinds of conduct

are prohibited.

407 U.S. at 110.

The predecessor statute to N.C. Gen. Stat.

§ 90-14(a)(6) authorized the Board of Medical Examiners

to revoke an individual’s license to practice medicine if

the licensee “had been guilty of any unprofessional or

15

dishonorable conduct unworthy of and affecting the prac-

tice of his profession.” N.C. Gen. Stat. § 90-14 (super-

seded). This predecessor statute was upheld by the North

Carolina Supreme Court against a challenge that the stat-

utory language was vague and overbroad. In re Wilkins,

294 N.C. 528, 242 S.E.2d 829 (1978), criticized on other

grounds by In ve Guess, 324 N.C. 105, 376 S.B.2d 8 (1989).

In the Wilkins case, the State Supreme Court noted that

the issues involved were not related to any of the free-

doms protected by the First Amendment to the Constitu-

tion of the United States and, thus, the “vagueness”

challenge to the statute was “not to be weighed . . . in the

delicate scales required to be used in cases where First

Amendment freedoms are at stake.” In re Wilkins, 294

N.C. at 547, citing United States v. Powell, 423 U.S. 87, 96

S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Mazurie,

419 US. 544, 95 S.Ct. 710, 42 L.Bd.2d 706 (1975).

In concluding that the statute sufficiently defined

“unprofessional conduct” and provided practitioners

with adequate notice, the Wilkins Court stated:

It would obviously be futile to attempt to cata-

log in a statute, or in an order of the Board

conditionally revoking the license of a practi-

tioner, every conceivable improper practice in

which the licensee is forbidden to engage. Nei-

ther the Federal nor the State Constitution

uires such a tedious exercise in futility in

order to save a disciplinary statute, or order,

from attack on the ground of vagueness and

over-breadth. In the application of such statute

or order to yore medical practices by a

licensee, not involving his First Amendment

freedoms, the facts of the case at hand must deter-

mine the decision of the courts as to vagueness and

over-breadth. United States v. Mazurie, supra. The

16

test is whether a intelligent member of the

| wouhl undorelend thee the ane in

question is forbidden. (emphasis added).

294 N.C. at 548. Applying the test articulated by the

Wilkins Court, the North Carolina Supreme Court in the

present case concluded that “any reasonably intelligent

licensed physician will know when he is engaging in a

practice which does not conform to the ‘standards of

acceptable and prevailing medical practice’ in North Car-

olina.” (App. p. 14).

Particularly when N.C. Gen. Stat. § 90-14(a)(6) is

“examined in light of the facts of the case at hand,”

(United Sates v. Mazurie, 419 U.S. at 550), is it apparent

that the statutory language is sufficiently specific. Not

only did several physicians testify before the Board that

the use of homeopathic medicines did not conform to the

standards of acceptab'e and prevailing medical practice

in North Carolina, but also, Petitioner, himself, presented

evidence that the use of homeopathic medicines was not

common in North Carolina. Thus, on the facts of this case,

Petitioner clearly understood that the use of homeopathic

medicines was not within the “standards of acceptable

and prevailing medical practice” in North Carolina.

In the case of In re Hawkins, 17 N.C. App. 378, 194

S.E.2d 540, cert. denied, 283 N.C. 393, 196 S.E.2d 275, cert.

denied, 414 U.S. 1001 (1973), respondent dentists chal-

lenged as unconstitutionally vague a North Carolina stat-

ute permitting revocation of a dental license for

“unprofessional conduct.” The Court of Appeals upheld

the statute, stating, “the determination whether by com-

mon judgment certain conduct is disqualifying is left to

the sound discretion of the Board.” 17 N.C. App. at 395,

17

citing, Kansas State Board of Healing Arts v. Foote, 200 Kan.

447, 436 P.2d 828 (1968). Similarly, the determination that

Petitioner’s conduct constitutes unprofessional conduct is

a matter within the sound discretion of the Board.

In the case cited by the Petitioner, Grayned v. City of

Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222

(1972), a First Amendment case, the statute at issue was

upheld because the Court found that the challenged ordi-

nance was sufficiently clear as to the conduct prohibited.

The Court noted that:

Here, we are “relegated to the words of the

ordinance itself,” to the interpretations the court

below has given to an analogous statute and,

perhaps to some degree, to the interpretation of

the statute given by those charged with enforc-

ing it. “Extrapolation,” of course, is a delicate

task, for it is not within our power to construe

and narrow state laws. (citations omitted).

408 U.S. at 110. Similarly, in the present case, the courts

below, being “relegated” to the clear language of N.C.

Gen. Stat. § 90-14(a)(6) and the interpretation North Caro-

lina courts have given its predecessor statute, upheld the

statute against Petitioner’s claim of vagueness. Contrary

to the assertion of Petitioner that he and other licensees

are “at the mercy of the Medical Board to decide on an ad

hoc and subjective basis whether a practice is prevailing”

(Petition, p. 16), it is clear under North Carolina law that

the Board must prove by independent evidence in the

record the violation by a licensee of a statewide standard

of practice. Dailey v. North Carolina Board of Dental Exam-

iners, supra. Here, that is exactly what has been done via

the testimony at the hearing before the Board of physi-

cians who were licensed to practice in North Carolina

18

and who were unanimous that the use of homeopathic

medicines was not a prevailing practice in North Caro-

lina. There was nothing ad hoc or subjective about the

findings and conclusions of the Board that Petitioner had

engaged in unprofessional conduct. While Petitioner may

not like the result in this case, that does not make the

challenged statute impermissibly vague.

lil. LIMITING PETITIONER’S METHODS OF MEDI-

CAL PRACTICE TO THOSE METHODS WHICH

CONFORM TO THE STANDARDS OF ACCEPT-

ABLE AND PREVAILING MEDICAL PRACTICE

DOES NOT INFRINGE ON HIS PROTECTED

LIBERTY OR PRIVACY RIGHTS.

Based on Petitioner’s analysis of the Court’s opinion

in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201

(1973), Petitioner contends that N.C. Gen. Stat.

§ 90-14(a)(6) infringes on his right to practice his profes-

sion. In the Doe case, the physician appellants argued that

the Georgia abortion statute requiring that an individual

physician’s decision to perform an abortion must be

reviewed by a hospital committee and must be confirmed

by two consulting physicians “impermissibly restricted

his right to practice his profession.” 410 U.S. at 193. In

striking down the provisions of the Georgia statute

requiring confirmation by two consulting physicians, the

Court stressed that its reasoning was based on the fact

that the Georgia statute’s emphasis was on the physi-

cian’s “best clinical judgment” and that that judgment

should be sufficient.

19

The Doe Court reasoned:

If a physician is licensed by the State, he is

recognized by the State as capable of exercising

acceptable clinical judgment. If he fails in this,

professional censure and deprivation of his

license are available remedies. . . . It is still true

today that “[rJeliance must be placed upon the

assurance given by his license, issued by an

authority to judge in that respect, that [the phy-

sician] possesses the requisite qualifications.”

Dent v. West Virginia, 129 U.S. 114, 122-123, 32

L.Ed. 623, 9 S.Ct. 231 (1889).

410 U.S. at 199-200. Obviously, the United States Supreme

Court recognized the importance of a state licensing

authority in controlling the “acceptable clinical judg-

ment” of physicians. Similarly, the North Carolina statute

gives the Board of Medical Examiners authority to sanc-

tion a physician for failure to conform to acceptable and

prevailing standards of practice.

As the North Carolina Supreme Court recognized in

the present case, any privacy or liberty right Petitioner

might have to select a method of practice remains subject

to the police power of the State. As the State Supreme

Court noted:

Regarding Guess’s ability to select his method of

practice, “there is no right to practice medicine

which is not subordinate to the police power of

the states.” Lambert v. Yellowsley, 272 U.S. 581,

596, 71 L.Ed. 422, 429 (1926) (citing cases).

(App. p. 14). Petitioner’s argument that because a person

can refuse life sustaining medical treatment, he, therefore,

has a constitutional liberty to choose a course of treat-

ment and, further, that a doctor must then have the

constitutional right to provide such treatment is simply

20

too attenuated. Furthermore, Petitioner lacks standing to

raise the constitutional rights of patients or other third

parties. Warth v. Seldin, 422 U.S. 90, 95 S.Ct. 2197, 45

L.Ed.2d 343 (1975).

Ciearly, Petitioner has no unrestricted right to select

medications or treatments for use in his medical practice.

As the Iowa Supreme Court noted, “It does not follow,

[from the right to accept or reject medical treatment gen-

erally) however, that there is a fundamental right to select

a particular treatment or medication.” Iowa Dept. of Health

v. Van Wyk, 320 N.W.2d 599, 606 (Iowa, 1982). The Court

of Appeals for the Tenth Circuit in the case of Rutherford

v. United States, 616 F.2d 455 (10th Cir. 1980), stated:

It is apparent in the context with which we are

here concerned that the decision whether to

have a treatment or not is a protected right, but

his selection of a particular treatment, or at least

a medication, is within the area of governmental

interest in protecting public health.

616 F.2d at 457. At issue in Rutherford was whether the

Food, Drug, and Cosmetic Act requirements should per-

mit an exemption for the interstate shipment for sale of

the drug laetrile to be used in the treatment of the termi-

nally ill.

Additionally, as the North Carolina Supreme Court

stated, “we have recognized no fundamental right to

receive unorthodox medical treatment, and we decline to

do so now. See State v. Howard, 78 N.C. App. 262, 269, 337

S.E.2d 598, 603 (1985), disc. rev. denied, appeal dismissed,

316 N.C. 198, 341 S.E.2d 581 (1986).” (App. p. 15). Because

Petitioner’s right to choose any particular method of

treatment to provide for his patients is limited by the

21

‘State’s police power, there is no impermissible infringe-

ment on Petitioner’s rights. As interpreted by the North

Carolina Supreme Court, N.C. Gen. Stat. § 90-14(a)(6)

does not deprive Petitioner of any right to practice his

profession; rather, it simply reasonably limits the choice

of treatments which he may offer patients to those treat-

ments which conform to the acceptable and prevailing

standards of medical practice in North Carolina.

+

CONCLUSION

The conditional revocation of Petitioner’s license for

his failure to conform to the standards of acceptable and

prevailing medical practice clearly was a proper and con-

stitutional exercise of the State’s police power. As inter-

preted by the North Carolina Supreme Court, N.C. Gen.

Stat. § 90-14(a)(6) is neither unconstitutionally vague nor

an infringement on Petitioner’s liberty or privacy rights.

For these reasons, the petition for a writ of certiorari

should be denied.

This the 12th day of December, 1990.

/s/ Michael E. Weddington

MicHaet E. WeEDDINGTON

SMITH, ANDERSON, BLOUNT,

Dorsett, MitcHett. & JERNIGAN

1300 St. Mary’s Street

Post Office Box 12807

Raleigh, North Carolina 27605

(919) 821-1220

App. 1

APPENDIX A

IN THE SUPREME COURT

IN RE GUESS

[327 N.C. 46 (1990)]

IN RE: GEORGE A. GUESS, M.D., RESPONDENT

No. 431PA89

(Filed 26 July 1990)

Justice Frye dissenting.

On discretionary review pursuant to N.C.G.S.

§ 7A-31 of the decision of the Court of Appeals, 95 N.C.

App. 435, 382 S.E.2d 459 (1989), affirming an order

entered by Farmer, J]., on 20 May 1987 in Superior Court,

Wake County. Heard in the Supreme Court on 11 April

1990.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,

by Michael E. Weddington and Susan M. Parker, for the

complainant appellant Board of Medical Examiners of the State

of North Carolina.

Manning, Fulton & Skinner, by Charles E. Nichols, Jr.,

for the respondent appellee George A. Guess, M.D.

MITCHELL, Justice.

At issue in this case is whether the Court of Appeals

erred in affirming a Superior Court order which reversed

and vacated a decision of the Board of Medical Examiners

of the State of North Carolina conditionally revoking the

respondent appellee’s medical license. We conclude that

the Court of Appeals did err in this regard, and we

reverse its holding.

App. 2

The facts of this case are essentially uncontested. The

record evidence tends to show that Dr. George Albert

Guess is a licensed physician practicing family medicine

in Asheville. In his practice, Guess regularly administers

homeopathic medical treatments to his patients. Homeo-

pathy has been defined as:

A system of therapy developed by Samuel

Hahnermann on the theory that large doses of a

certain drug given to a healthy person will pro-

duce certain conditions which, when occurring

spontaneously as symptoms of a disease, are

relieved by the same drug in small doses. This

[is] .. . a sort of “fighting fire with fire” therapy.

Stedman’s Medical Dictionary 654 (24th ed. 1982); see

Schmidt’s Attorneys’ Dictionary of Medicine H-110

(1962). Homeopathy thus differs from what is referred to

as the conventional or allopathic system of medical treat-

ment. Allopathy “employ[s] remedies which affect the

body in a way opposite from the effect of the disease

treated.” Schmidt’s Attorneys’ Dictionary of Medicine

A-147 (emphasis added); see Stedman’s Medical Diction-

ary 44.

The Board of Medical Examiners of the State of North

Carolina (herein Board) is a legislatively created body

established “to properiy regulate the practice of medicine

and surgery.” N.C.G.S. § 90-2 (1985). On 25 June 1985, the

Board charged Dr. Guess with unprofessional conduct,

pursuant to N.C.G.S. § 90-14(a)(6), specifically based

upon his practice of homeopathy. In a subsequent Bill of

Particulars, the Board alleged that in his practice of medi-

cine, Guess utilized “so-called ‘homeopathic medicines’

prepared from substances including, but not limited to,

moss, the night shade plant and various other animal,

App. 3

vegetable and mineral substances.” The Board further

alleged that the use of homeopathic medicines “departs

from and does not conform to the standards of acceptable

and prevailing medical practice in the State of North

Carolina.” See N.C.G.S. § 90-14(a)(6) (1985).

Following notice, a hearing was held by the Board on

the charge against Dr. Guess. The hearing evidence

chiefly consisted of testimony by a number of physicians.

Several physicians licensed to practice in North Carolina

testified that homeopathy was not an acceptable and

prevailing system of medical practice in North Carolina.

In fact, there was evidence indicating that Guess is the

only homeopath openly practicing in the State. Guess

presented evidence that homeopathy is a recognized sys-

tem of practice in at least three other states and many

foreign countries. There was no evidence that Guess’

homeopathic treatment had ever harmed a patient, and

there was anecdotal evidence that Guess’ homeopathic

remedies had provided relief to several patients who

were apparently unable to obtain relief through

allopathic medicine.

Following its hearing, the Board revoked Dr. Guess’

license to practice medicine in North Carolina, based

upon findings and conclusions that Guess’ practice of

homeopathy “departs from and does not conform to the

standards of acceptable and prevailing medical practice

in this State,” thus constituting unprofessional conduct as

defined and prohibited by N.C.G.S. § 90-14(a)(6). The

Board, however, stayed the revocation of Guess’ license

for so long as he refrained from practicing homeopathy.

App. 4

Guess appealed the Board’s decision to the Superior

Court, Wake County, pursuant to N.C.G.S. § 90-14.8. On

17 January 1986, the Superior Court stayed the Board’s

decision pending judicial review. After review, the Supe-

rior Court entered an order on 20 May 1987 which

reversed and vacated the Board’s decision. The Superior

Court found and concluded that Guess’ substantial rights

had been violated because the Board's findings, conclu-

sions and decision were “not supported by competent,

material and substantial evidence and [were] arbitrary

and capricious.”

The Board appealed the Superior Court’s order to the

Court of Appeals, which dismissed the appeal for lack of

jurisdiction. In re Guess, 89 N.C. App. 711, 367 S.E.2d 11

(1988). This Court reversed that decision and remanded

this case to the Court of Appeals for its determination of

the issues raised by the appeal. In re Guess, 324 N.C. 105,

376 S.E.2d 8 (1989). On remand, the Court of Appeals

rejected the Superior Court’s reasoning to the effect that

the Board’s findings, conclusions and decision were not

supported by competent evidence. In re Guess, 95 N.C.

App. 435, 437, 382 S.E.2d 459, 461 (1989). The Court of

Appeals, nonetheless, affirmed the Superior Court’s order

reversing the Board’s decision,

because the Board neither charged nor found

that Dr. Guess’ departures from approved and

prevailing medical practice either endangered

or harmed his patients or the public, and in our

opinion the revocation of a physician’s license to

practice his profession in this state must be

based upon conduct that is detrimental to the

public; it cannot be based upon conduct that is

merely different from that of other practitioners.

App. 5

Id. at 437, 382 S.E.2d at 461. We granted the Board’s

Petition for Discretionary Review, and now reverse the

Court of Appeals.

I.

The statute central to the resolution of this case pro-

vides in relevant part:

§ 90-14. Revocation, suspension, annulment or

denial of license.

(a) The Board shall have the power to deny,

annul, suspend, or revoke a license . . . issued by

the Board to any person whc has been found by

the Board to have committed any of the follow-

ing acts or conduct, or for any of the following

reasons:

(6) Unprofessional conduct, including, but

not limited to, any departure from, or the failure

to conform to, the standards of acceptable and

prevailing medical practice, or the ethics of the

medical profession, irrespective of whether or not a

patient is injured thereby. . . .

N.C.G.S. § 90-14 (1985) (emphasis added). The Court of

Appeals concluded that in exercising the police power,

the legislature may properly act only to protect the public

from harm. In re Guess, 95 N.C. App. at 437-38, 382 S.E.2d

at 461. Therefore, the Court of Appeals reasoned that, in

order to be a valid exercise of the police power, the

statute must be construed as giving the Board authority

to prohibit or punish the action of a physician only when

it can be shown that the particular action in question poses

a danger of harm to the patient or the public. Id. Specifi-

cally, the Court of Appeals held that:

App. 6

Before a physician’s license to practice his pro-

fession in this state can be lawfully revoked

under G.S. 90-14(a)(6) for practices contrary to

acceptable and prevailing medical practice that

it must also appear that the deviation complained of

posed some threat of harm to either the physician's

patients or the public.

Id. at 438, 382 S.E.2d at 462 (emphasis added).

The Board argues, and we agree, that the Court of

Appeals erred in construing the statute to add a require-

ment that each particular practice prohibited by the stat-

ute must pose an actual threat of harm. Our analysis

begins with a basic constitutional principle: the General

Assembly, in exercising the state’s police power, may

legislate to protect the public health, safety and general

welfare. See, e.g., Treants Enterprises, Inc. v. Onslow County,

320 N.C. 776, 360 S.E.2d 783 (1987); Martin v. Housing

Corp., 277 N.C. 29, 175 S.E.2d 665 (1970); Shelby v. Power

Co., 155 N.C. 196, 71 S.E. 218 (1911). When a statute is

challenged as being beyond the scope of the police

power, the statute will be upheld unless it has no rational

relationship to such a legitimate public purpose. See, e.g.,

In re Hospital, 282 N.C. 542, 193 S.E.2d 729 (1973); Surplus

Stores, Inc. v. Hunter, 257 N.C. 206, 125 S.B.2d 764 (1962);

Skinner v. Thomas, 171 N.C. 98, 87 S.E. 976 (1916).

Turning to the subject of this case, regulation of the

medical profession is plainly related to the legitimate

public purpose of protecting the public health and safety.

See Board of Medical Examiners v. Gardner, 201 N.C. 123,

127, 159 S.E. 8, 10 (1931). State regulation of the medical

profession has long been recognized as a legitimate exer-

cise of the police power. As the Supreme Court of the

United States has pointed out:

App. 7

The power of the State to provide for the gen-

eral welfare of its people authorizes it to pre-

scribe all such regulations as in its judgment

will secure or tend to secure them against the

consequences of ignorance and incapacity as

well as of deception and fraud. As one means to

this end it has been the practice of different

States, from time immemorial, to exact in many

pursuits a certain degree of skill and learning

upon which the community may confidently

rely... . The nature and extent of the qualifica-

tions required must depend primarily upon the

judgments of the States as to their necessity. . . .

Few professions require more careful prepa-

ration by one who seeks to enter it than that of

medicine. It has to deal with all those subtle and

mysterious influences upon which health and

life depend. . . . The physician must be able to

detect readily the presence of disease, and pre-

scribe appropriate remedies for its removal.

Everyone may have occasion to consult him, bu

comparatively few can judge of the qualifica-

tions of oe skill which he possesses.

Reliance must placed upon the assurance

given by his license, issued by an authority com-

petent to judge in that respect, that he possess

the requisite qualifications. . . . The same rea-

sons which control in imposing conditions,

upon compliance with which the physician is

allowed to practice in the first instance, may call

for further conditions as new modes of treating

disease are discovered, or a more thorough

acquaintance is obtained of the remedial proper-

ties of vegetable and mineral substances, or a

more accurate knowledge is acquired of the

human system and of the agencies by which it is

affected.

Dent v. West Virginia, 129 U.S. 114, 122-23, 32 L. Ed. 623,

626 (1889) (emphasis added); see also, e.g., Barsky v. Board

App. 8

of Regents, 347 U.S. 442, 449, 98 L. Ed. 829, 838 (1954) (“It

is elemental that a state has broad power to establish and

enforce standards of conduct within its borders relative to

the health of everyone there.”).

The provision of the statute in question here is rea-

sonably related to the public health. We conclude that the

legislature, in enacting N.C.G.S. § 90-14(a)(6), reasonably

believed that a general risk of endangering the public is

inherent in any practices which fail to conform to the

standards of “acceptable and prevailing” medical practice

in North Carolina. We further conclude that the legisla-

tive intent was to prohibit any practice departing from

acceptable and prevailing medical standards without

regard to whether the particular practice itself could be

shown to endanger the public. Our conclusion is but-

tressed by the plain language of N.C.G.S. § 90-14(a)(6),

which allows the Board to act against any departure from

acceptable medical practice “irrespective of whether or

not a patient is injured thereby.” By authorizing the Board

to prevent or punish any medical practice departing from

acceptable and prevailing standards, irrespective of

whether a patient is injured thereby, the statute works as

a regulation which “tend[s] to secure” the public gener-

ally “against the consequences of ignorance and inca-

pacity as well as of deception and fraud,” even though it

may not immediately have that direct effect in a particu-

lar case. See Dent v. West Virginia, 129 U.S. at 122, 32 L. Ed.

at 626. Therefore, the statute is a valid exercise of the

police power, >

We next address a related question, whether the stat-

ute, N.C.G.S. § 90-14(a)(6), properly delegates authority

to the Board. We have previously recognized that the

App. 9

legislature may delegate certain authority, such as adjudi-

cative and rule-making functions, to administrative

bodies. See Adams v. Dept. of N.E.R. and Everett v. Medical

Examiners v. Gardner, 201 N.C. 123, 159 S.B. 8. However,

the legislature may not give unfettered discretion to ihe

administrative body, but must instead provide “adequate

guiding standards to govern the exercise of the delegated

powers.” Adams v. Dept. of N.E.R. and Everett v. Dept. of

N.E.R. 295 N.C. at 697, 249 S.E.2d at 410 (citing cases).

Regarding this level of guidance which the legislature

must provide to administrative bodies, we have held that:

When there is an obvious need for expertise in

the achievement of legislative goals the General

Assembly is not required to lay down a detailed

—— covering every conceivable problem

which might arise in the implementation of the

legislation. It is enough if general policies and

standards have been articulated which are suffi-

cient to provide direction to an administrative

body possessing the expertise to adapt the legis-

lative goals to varying circumstances.

Id. at 698, 249 S.B.2d at 411.

Certain aspects of regulating the medical profession

plainly require expertise beyond that of a layman. Our

legislature recognized that need for expertise when it

created a Board of Medical Examiners composed of seven

licensed physicians and one additional member. N.C.G:S.

§ 90-2 (1985). Examining the language of N.C.G.S.

§ 90-14(a)(6), we conclude that the legislature clear'y

wished to protect the public from “unprofessional c ‘a-

duct” by physicians, and gave as an example of such

conduct that which does not conform to the “standards of

App. 10

acceptable and prevailing medical practice.” The statu-

tory phrase “standards of acceptable and prevailing med-

ical practice” is sufficiently specific to provide the Board

- comprised overwhelmingly of expert physicians — with

the “adequate guiding standards” necessary to support

the legisiature’s delegation of authority.

The statute in question is a valid regulation which

generally tends to secure the public health, safety, and

general welfare, and the legislature has permissibly dele-

gated certain regulatory functions connected with that

valid exercise of the police power to the Board. There is

no requirement, however, that every action taken by the

Board specifically identify or address a particular injury

or danger to any individual or to the public. It is enough

that the statute is a valid exercise of the police power for

the public health and general welfare, so long as the

Board’s action is in co“«pliance with the statute. The

Court of Appeals th-.s erred in requiring a showing of

potential harm from the particular practices engaged in

by Dr. Guess as a prerequisite to Board action, and for

that reason the Court of Appeals’ decision is reversed.

Il.

Having determined that N.C.G.S. § 90-14(a)(6) does

not require that an unacceptable practice by a physician

pose a particular threat of public harm before the Board

may take action against that physician, we next consider

whether the Board’s action in this case was otherwise

within its statutory authority. We first must decide

whether the Board’s decision in this case was supported

by “competent, material, and substantial evidence.”

App. 11

N.C.G.S. § 90-14.10 (1985). Judicial review of a decision

by the Board of Medical Examiners is made according to

what is frequently referred to as the “any competent

evidence” standard. See In re Rodgers, 297 N.C. 48, 64 n.4,

253 S.E.2d 912, 922 n.4 (1979). The Superior Court found

that the Board’s decision was not supported by “compe-

tent, material and substantial” evidence. On this issue,

however, we agree with the Court of Appeals:

The Superior Court’s findings and conclu-

sions as to the Board’s findings of fact have no

basis, as the Board’s principal findings of fact

are not only ve ogee by competent evidence,

they are essentially undisputed. Dr. Guess him-

self testified that "tee ra sear used homeo-

pathic medicines in treating patients, several

qualified North Carolina physicians testified

that such use is contrary to the “standards of

acceptable and prevailing medical practice” in

this state, and no doctor testified otherwise;

indeed, so far as the record indicates Dr. Guess

is the only physician in North Carolina that

administers homeopathic medicines to patients.

In re Guess, 95 N.C. App. 435, 437, 382 S.E.2d 459, 461

(1989).

Findings by the Board of Medical Examiners, if sup-

ported by competent evidence, may not be disturbed by a

reviewing court. Further, “[jludicial review of a revoca-

tion of license by order of the Board does not authorize

the reviewing court to substitute its discretion for that of

the Board.” In re Wilkins, 294 N.C. 528, 545, 242 S.E.2d

829, 830 (1978) (citations omitted), criticized on other

grounds by In re Guess, 324 N.C. 105, 376 S.E.2d 8 (1989).

Dr. Guess argues that the Board must show a specific risk

of harm resulting from his homeopathic practices before

App. 12

it may interfere with them and that, since no such risk

was shown, the Board’s decision could not be based upon

competent evidence. As we have already rejected his

underlying premise, his argument here is likewise

rejected. The Board’s findings leading to its decision were

based upon competent, material, and substantial evi-

dence regarding what constitutes “acceptable and pre-

vailing” standards of medical practice in North Carolina.

No more was required. Guess’ evidence concerning the

efficacy of homeopathy and its use outside North Caro-

lina simply was not relevant to the issue before the Board.

Dr. Guess also contends that the Board’s decision was

arbitrary and capricious and, therefore, must be reversed

under N.C.G.S. § 90-14.10. He argues that the Board’s

arbitrariness is revealed in its “selective” application of

the statute against him. He seems to contend that if the

Board is to take valid action against him, it must also

investigate and sanction every physician who is the

“first” to utilize any “new” or “rediscovered” medical

procedure. We disagree. The Board properly adhered to

its statutory notice and hearing requirements, and its

decision was amply supported by uncontroverted compe-

tent, material and substantial evidence. We detect no

evidence of arbitrariness or capriciousness.

Dr. Guess strenuously argues that many countries

and at least three states recognize the legitimacy of

homeopathy. While some physicians may value the

homeopathic system of practice, it seems that others con-

sider homeopathy an outmoded and ineffective system of

practice. This conflict, however interesting, simply is

irrelevant here in light of the uncontroverted evidence

and the Board’s findings and conclusion that homeopathy

App. 13

is not currently an “acceptable and prevailing” system of

medical practice in North Carolina.

While questions as to the efficacy of homeopathy and

whether its practice should be allowed in North Carolina

may be open to valid debate among members of the

medical profession, the courts are not the proper forum

for that debate. The legislature may one day choose, to

recognize the homeopathic system of treatment, or

homeopathy may evolve by proper experimentation and

research to the point of being recognized by the medical

profession as an acceptable and prevailing form of medi-

cal practice in our state; such choices, however, are not

for the courts to make.

We stress that we do not intend for our opinion in

this case to retard the ongoing research and development

of the healing arts in any way. The Board argues, and we

agree within our admittedly limited scope of medical

knowledge, that preventing the practice of homeopathy

will not restrict the development and acceptance of new

and beneficial medical p.actices. Instead, the develop-

ment and acceptance of such new practices simply must

be achieved by “acceptable and prevailing” methods of

medical research, experimentation, testing, and approval

by the appropriate regulatory or professional bodies.

Il.

Dr. Guess also argues that N.C.G.S. § 90-14(a)(6) is

unconstitutionally vague, because a reasonably intelligent

doctor will not know whether he is engaging in unprofes-

sional conduct each time he tries a new or different

medical practice not widely used in North Carolina. See

App. 14

In re Wilkins, 294 N.C. 528, 548, 242 S.E.2d 829, 841 (1978),

criticized on other grounds by In re Guess, 324 N.C. 105, 376

S.E.2d 8 (1989). We have previously held that the prede-

cessor statute to the current N.C.G.S. § 90-14 was neither

vague nor overbroad. Id. at 546-49, 242 S.E.2d at 839-41.

For reasons similar to those expressed in Wilkins, we

conclude that any reasonably intelligent licensed physi-

cian will know when he is engaging in a practice which

does not conform to “the standards of acceptable and

prevailing medical practice” in North Carolina. Our con-

clusion is buttressed by the hearing testimony before the

Board, where several doctors testified without hesitation

that the practice of homeopathy does not conform to the

standards of acceptable and prevailing medical practice

in North Carolina.

IV.

Dr. Guess next contends that the Board’s decision

unconstitutionally invades his and his patient’s privacy

rights, by invading Guess’ right to select his method of

practice and invading his patients’ rights to their choice

of treatments. We disagree on both points. Regarding

Guess’ ability to select his method of practice, “there is no

right to practice medicine which is not subordinate to the

police power of the states.” Lambert v. Yellowsley, 272 U.S.

581, 596, 71 L.Ed. 422, 429 (1926) (citing cases). Further,

the Board’s decision does not deprive Guess of his privi-

lege to practice medicine, it simply limits his methods of

treating patients to those which conform to the acceptable

and prevailing standards of medical practice in North

Carolina. Regarding Guess’ claim that the Board’s deci-

sion invades his patients’ right to select the treatment of

App. 15

their choice, we initially note that he has no standing to

raise his patients’ privacy interests in this regard. See

Stanley, Edwards, Henderson v. Dept. Conservation & Devel-

opment, 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973) (citing

cases), limited on other grounds by Madison Cablevision v.

City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

Further, we have recognized no fundamental right to

receive unorthodox medical treatment, and we decline to

do so now. See State v. Howard, 78 N.C. App. 262, 269, 337

S.E.2d 598, 603 (1985), disc. rev. denied, appeal dismissed,

316 N.C. 198, 341 S.E.2d 581 (1986).

V.

Finally, Dr. Guess contends that by denying him the

opportunity to practice homeopathy, the Board is exercis-

ing unbridled and unconstitutional monopoly power. We

disagree. The Board’s authority to regulate the practice of

medicine creates no unconstitutional monopoly. See State

v. Call, 121 N.C. 643, 646, 28 S.E. 517, 517 [sic] (1897); State

v. Howard, 78 N.C. App. at 266, 337 S.E.2d at 601.

VI.

The order of the Board of Medical Examiners allowed

Dr. Guess to continue practicing medicine so long as he

refrained from practicing homeopathy and otherwise

conformed to the standards of acceptable and prevailing

medical practice in North Carolina. The Superior Court

erred in reversing and vacating the Board’s decision, and

the Court of Appeals erred in its decision affirming the

Superior Court. The decision of the Court of Appeals is

reversed. This case is remanded to the Court of Appeals

App. 16

for its further remand to the Superior Court, Wake

County, for proceedings consistent with this opinion.

Reversed and remanded.

Justice Frye dissenting.

The underlying and essential question in this case is

whether the Board may revoke a physician’s license to

practice medicine for “unprofessional conduct” under

N.C.G.S. § 90-14(a)(6) based on a deviation from “the

standards of acceptable and prevailing medical practice”

without a finding that the deviation carries with it a

potential for harm to the physician’s patients or to the

public. The Court of Appeals held that the Board may not

do so. I agree and therefore dissent from the majority’s

holding to the contrary.

I believe that the majority has construed subsection

(6) of N.C.G.S. § 90-14(a) in a manner inconsistent with its

purpose and legislative intent. N.C.G.S. § 90-14(a) pro-

vides that the Board shall have the power to deny, annul,

suspend, or revoke a physician’s license to practice medi-

cine in this State for any of some thirteen reasons. In

addition to “unprofessional conduct,” a license may be

revoked for immoral or dishonest conduct; for producing

or attempting to produce an abortion contrary to law; for

making false statements to the Board; for being unable to

practice medicine with reasonable skill and safety to

patients by reason of illness, drunkenness, etc.; for con-

viction of a crime involving moral turpitude; for making

false representations in order to obtain practice, money or

anything of value; for advertising or publicly professing

to treat human ailments under a system or school of

treatment or practice other than that for which the person

0 aie

App. 17

has been educated; for mental incompetency; for lack of

professional competence to practice medicine with a rea-

sonable degree of skill and safety for patients; for promo-

tion of the sale of drugs, etc., in such a manner as to

exploit the patient for financial gain; upon suspension or

revocation of a license to practice medicine in another

state; or for failure to respond, within a reasonable period

of time and in a reasonable manner, to inquiries from the

Board concerning any matter affecting the license to prac-

tice medicine. Even a cursory review of subsection (6)

shows that it is directed to protecting the health and

safety of patients and the public. The common thread

running through each of these reasons for revocation of a

license is the threat or potential for harm to patients and

the public.

Subsection (6) of N.C.G.S. § 90-14(a) provides that the

Board shall have the power to deny, annul, suspend, or

revoke a physician’s license for:

(6) unprofessional conduct, including, but not

limited to, any departure from, or the failure to

conform to, the standards of acceptable and pre-

vailing medical practice, or the ethics of the

medical profession, irrespective of whether or

not a patient is injured thereby, or the commit-

ting of any act contrary to honesty, justice or

good morals, whether the same is committed in

the course of his practice or otherwise, and

whether committed within or without North

Carolina[.]

The majority treats the language “irrespective of whether

or not a patient is injured thereby” as meaning irrespec-

tive of whether there is an injury or threat of injury

App. 18

caused by the deviation. I do not believe that the legisla-

ture so intended. Dr. Guess argues, and I agree, that this

language gives the Board authority to act before injury

occurs, but does not eliminate the public purpose require-

ment that the medical practice pose some threat or poten-

tial for harm to the public. The phrase “unprofessional

conduct” connotes dishonorable or unethical behavior, In

re Wilkins, 294 N.C. 528, 242 S.E.2d 829 (1978), and, in the

context of the statute, means substandard medical prac-

tice that cannot be tolerated because of the risk of harm

such treatment poses to the public. Subsection (6), like

the remainder of section 90-14(a), was enacted for the

purpose of regulating the medical profession to protect

the public health and safety and not simply to prevent a

doctor from being the first one in the State to use a

particular medicine or form of healing.

A careful examination of the evidence presented

before the Board shows that Dr. Guess’ practice of

homeopathy is not unprofessional conduct within the

meaning of N.C.G.S. § 90-14(a)(6). All of the evidence

tended to show that Dr. Guess is a highly qualified prac-

ticing physician who uses homeopathic medicines as a

last resort when allopathic medicines are not successful.

He takes 150 credits of continuing medical education

approved by the American Medical Association every

three years and from fifty to eighty hours of homeopathic

continuing medical education each year. The homeo-

pathic medications prescribed by him are listed in the

Homeopathic Pharmacopoeia of the United States and are

regulated by the United States Federal Food, Drug and

Cosmetic Act. The homeopathic approach is often prefer-

red, in Dr. Guess’ words, “primarily because of its well

' oe

App. 19

documented safety.” This is not a case of a quack beguil-

ing the public with snake oil and drums, but a dedicated

physician seeking to find new ways to relieve human

suffering. The legislature could hardly have intended this

practice to be considered “unprofessional conduct” so as

to revoke a physician’s license in the absence of some

evidence of harm or potential harm to the patients or to

the public. Nothing in the record before the Board or this

Court justifies so broad a sweep in order to secure the

public “against the consequences of ignorance and inca-

pacity as well as of deception and fraud.” See Dent v. West

Virginia, 129 U.S. 114, 122, 32 L.Ed. 623, 626 (1889).

I also disagree with the majority’s conclusion that Dr.

Guess’s evidence presented to the Board concerning the

efficacy of homeopathy and its use outside North Caro-

lina was not relevant to the issue before the Board. North

Carolina does not and should not exist as an island to

itself. The evidence that homeopathy is accepted in other

states and in other countries of the world and that it has a

beneficial rather than harmful effect certainly ought to be

of some significance to the Broad and to the citizens of

this State concerned about the public health and safety.

The majority rejects evidence of the legitimacy of homeo-

pathy in other states and countries throughout the world

as being irrelevant because homeopathy is not currently

an acceptable and prevailing system of medical practice

in North Carolina. This raises the legitimate question of

how the acceptable and prevailing practice can be

improved in North Carolina if we do not even consider

what happens in other states and countries.

Lastly, I disagree with the majority’s conclusion that

Dr. Guess’ remedy lay with the legislature. As I have

App. 20

stated earlier, N.C.G.S. § 90-14(a) is intended to protect

the public from harmful or dangerous practices. In light

of this policy, I do not believe that the General Assembly

would require a physician to undergo a possibly lengthy

wait for legislative action while it is attending to other

matters before allowing him to make non-dangerous,

beneficial treatments available to members of the public

who knowingly consent. Where there is no showing of

danger, I do not believe specific legislative approval is a

prerequisite to a physician engaging in a practice which

is by all indications helpful when used wisely.

I vote to affirm the unanimous decision of the Court

of Appeals.

n

App. 21

APPENDIX B

IN THE COURT OF APPEALS

IN RE GUESS

[95 N.C. App. 435 (1989)]

IN Re: GEORGE A. GUESS, M.D., ResponpeNt

No. 8710SC618

(Filed 5 September 1989)

On remand from the North Carolina Supreme Court

by a decision reported at 324 N.C. 105, 376 S.E.2d 8

(1989).

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,

by Michael E. Weddington and Susan M. Parker, for petitioner

appellant.

Manning, Fulton & Skinner, by Howard E. Mannixg, Jr.,

for respondent appellee.

PHILLIPS, Judge.

This appeal by the North Carolina Board of Medical

Examiners is from the judicial review of its decision sanc-

tioning the respondent physician. When it was first here

we declined to determine it, In re Guess, 89 N.C. App. 711,

367 S.E.2d 11 (1988), because G.S. 90-14.11, still in the

books, directs that decisions of the North Carolina Board

of Medical Examiners, after being reviewed by the Supe-

rior Court, be appealed to the Supreme Court, and

because several years after G.S. 7A-27(b) authorized this

Court to receive appeals from the judicial review of

administrative decisions our Supreme Court in in re

Wilkins, 294 N.C. 528, 242 S.E.2d 829 (1978), accepted an

App. 22

appeal from the Superior Court’s review of a decision by

the North Carolina Board of Medical Examiners and

stated that it had jurisdiction to do so. Our decision was

vacated by the Supreme Court, which held that this Court

had initial appellate jurisdiction over the appeal because

the enactment of G.S. 7A-27(b) in 1967 in effect repealed

G.S. 90-14.11, and we herewith determine it as directed.

The pertinent facts are few and essentially undis-

puted. Following notice and a hearing the Board of Medi-

cal Examiners of the State of North Carolina conditionally

revoked the license of Dr. George Albert Guess, a special-

ist in family medicine situated in Asheville, to practice

medicine in this state. The action was taken under G.S.

90-14(a), which authorizes the Board to suspend or

revoke licenses to practice medicine for several improper

activities or practices, one of which is-

(6) Unprofessional conduct, including, but not

limited to, any departure from, or the fail-

ure to conform to, the standards of accept-

able and prevailing medical practice, or the

ethics of the medical profession, irrespec-

tive of whether or not a patient is injured

thereby, .. .

Proceeding under this provision the Board charged Dr.

Guess with unprofessional conduct in that he customarily

treated patients with preparations known generally as

“homeopathic medicines,” a practice not in accord with

the standards of acceptable and prevailing medical prac-

tice in this state. From the evidence presented at the

hearing the Board found that the charge had been sus-

tained; viz, that in treating patients Dr. Guess customarily

administered “homeopathic medicines” to his patients

and that such administration was contrary to acceptable

ee ee Annee elise

- SD e haett ah oee

App. 23

and prevailing medical practices in this state. From these

findings the Board concluded that Dr. Guess’ utilization

of homeopathic medicines in his practice was unprofes-

sional conduct under G.S. 90-14(a)(6) and revoked his

license to practice, but stayed the revocation upon the

condition that he not use homeopathic medicines in his

practice and otherwise conform to acceptable and pre-

vailing medical practice in this state. Following Dr.

Guess’ appeal to the Superior Court the order was

vacated upon findings and conclusions that the Board’s

findings of fact and conclusions of law were not sup-

ported by competent evidence and were arbitrary and

capricious.

The Superior Court’s findings and conclusions as to

the Board’s findings of fact have no basis, as the Board’s

principle findings of fact are not only supported by com-

petent evidence, they are essentially undisputed. Dr.

Guess himself testified that he frequently used homeo-

pathic medicines in treating patients, several qualified

North Carolina physicians testified that such use is con-

trary to the “standards of acceptable and prevailing med-

ical practice” in this state, and no doctor testified

otherwise; indeed, so far as the record indicates Dr. Guess

is the only physician in North Carolina that administers

homeopathic medicines to patients. Nor is the Board’s

conclusion of law that such departure from acceptable

and prevailing medical practice was unprofessional con-

duct and a ground for punishment arbitrary and capri-

cious, as the court ruled, for the Board’s conclusion is

based upon the provisions of G.S. 90-14(a) which explic-

itly state that “any departure” from the standards of

acceptable and prevailing medical practice in this state is

App. 24

unprofessional conduct and a ground for suspending or

revoking a physician’s license.

Nevertheless, we believe that the order vacating the

Board’s order is correct and we affirm it. We do this

because the Board neither charged nor found that Dr.

Guess’ departures from approved and prevailing medical

practice either endangered or harmed his patients or the

public, and in our opinion the revocation of a physician’s

license to practice his profession in this state must be

based upon conduct that is detrimental to the public; it

cannot be based upon conduct that is merely different

from that of other practitioners. For the General Assem-

bly created the Board of Medical Examiners to “properly

regulate the practice of medicine and surgery” in this

state, G.S. 90-2; and since “[t]he State can only regulate

for the protection of the public,” State v. McKnight, 131

N.C. 717, 724, 42 S.E. 580, 582 (1902), its purpose could

have only been to protect the public. Thus, implicit in the

provisions granting the Board power to revoke a medical

license for practices not in conformity with the standards

of acceptable and prevailing medical practice in the state

is the requirement that the nonconforming practices

endanger or harm the public in some way. Without that

implicit requirement G.S. 90-14(a)(6) would permit the

Board of Medicai Examiners to suspend the license of any

physician whose methods or practices, though harmless

or even beneficial to his patients and the public, differ in

some particular from those of most practitioners. Such

unqualified power by an administrative agency would be

contrary to the public interest, and was not the legisla-

ture’s to give in any event.

PRB Cenc Ae

eat Rae Tae he

App. 25

Emphasizing that G.S. 90-14(a)(6) expressly makes it

unnecessary to establish that a patient was injured by any

unapproved medical practice and makes departures from

approved and prevailing medical practice unprofessional

conduct and a ground for sanctions, the Board contends

that the legislature intended thereby to require it to estab-

lish only a departure from accepted and prevailing medi-

cal practice before suspending or revoking a physician’s

license. This argument is rejected. In not making injury to

a patient an element of improper medical practice that

warrants suspension from the practice the General

Assembly only recognized the commonly known fact that

not every improper or even irresponsible act of a physi-

cian results in injury to a patient; and that it did not go

farther and provide that potential harm to the public

need not be established is an indication that it under-

stood that innocuous departures from prevailing medical

practice cannot be a ground for suspending or revoking a

physician’s license.

Our holding, therefore, is that: Before a physician’s

license to practice his profession in this state can be

lawfully revoked under G.S. 90-14(a)(6) for practices con-

trary to acceptable and prevailing medical practice that it

must also appear that the deviation complained of posed

some threat of harm to either the physician’s patients or

the public. This decision, of course, is no bar to any

future proceeding by the Board against Dr. Guess or any

other medical practitioner based upon charges and evi-

dence that practices or conduct contrary to approved and

prevailing medical practices in this state have exposed

either persons or the public to harm.

Affirmed.

Judges Wexts and Parker concur.

App. 26

APPENDIX C

BEFORE THE BOARD OF MEDICAL EXAMINERS

OF THE

STATE OF NORTH CAROLINA

In re:

)

) FINDINGS OF FACT,

cone am — ) CONCLUSIONS OF

es ) LAW AND ORDER

Respondent. )

THIS MATTER coming on for hearing and being

heard before the Board of Medical Examiners of the State

of North Carolina (“Board”) on October 18, 1985 at Ashe-

ville, North Carolina and on December 2, 1985 at Raleigh,

North Carolina; and the Board, having heard and consid-

ered the evidence presented in the form of testimony

from Respondent and various witnesses and documen-

tary exhibits; and having heard and considered the argu-

ments of counsel; now makes the following Findings of

Fact, Conclusion of Law and Order:

Findings of Fact

1. Respondent was duly licensed to practice medi-

cine in North Carolina on June 13, 1978 and holds license

no. 22573.

2. Respondent is specialty-board certified in the

practice of family medicine.

3. Respondent conducts his practice in Asheville,

North Carolina.

4. In his practice Respondent offers his services to

the general public to diagnose or attempt to diagnose,

Riis thscntats Data bet ae

App. 27

treat or attempt to treat, and prescribe for or administer

to, or profess to treat human ailments, diseases and the

like.

5. Respondent, in the course of his diagnosing or

attempting to diagnose, treating or attempting to treat,

prescribing for or administering to, or professing to treat

human ailments, diseases and the like, regularly and

customarily administers to his patients certain prepara-

tions known generally as “homeopathic medicines.”

6. Respondent, in the course of his diagnosing or

attempting to diagnose, treating or attempting to treat,

prescribing for or administering to, or professing to treat

human ailments, diseases and the like, regularly and

customarily recommends to and prescribes for ingestion

and consumption by his patients certain preparations

known generally as “homeopathic medicines.”

7. Respondent, in his utilization in his practice of

certain preparations known generally as “homeopathic

medicines,” provides such preparations to, and is the

source of supply for, his patients since such preparations

are not generally available through retail pharmacies or

other sources of medicinal supplies usually available to

the general public.

8. Respondent’s patients use, ingest and consume

these preparations generally known as “homeopathic

medicines” which Respondent administers, recommends

and prescribes to and for them.

9. Respondent is the only licensee of the Board

known to the Board who utilizes, in the course of diag-

nosing or attempting to diagnose, treating or attempting

App. 28

to treat, prescribing for or administering to, or professing

to treat human ailments, diseases and the like, certain

preparations known generally as “homeopathic medi-

cines.”

10. N.C.G.S. §90-14(a)(6) provides that the Board

has the power to “deny, annul, suspend, or revoke” a

license to practice medicine issued by the Board for any

of various reasons, including “[uJ]nprofessional conduct,

including, but not limited to, any departure from, or the

failure to conform to, the standards of acceptable and

prevailing medical practice . . . irrespective of whether or

not a patient is injured thereby.”

11. For any of the 13 enumerated reasons set forth

in N.C.G.S. §90-14(a), the Board may revoke a license,

and “may limit the accused physician’s practice of medi-

cine with respect to the extent, nature or location of his

practice as the Board deems advisable.”

12. While a few other states have statutory schemes

for the regulation of the practice of so-called “homeo-

pathic medicine,” no such statutory procedures exist in

North Carolina.

13. The utilization by Respondent in his practice of

medicine of certain preparations known generally as

“homeopathic medicines” departs from and does not con-

form to the standards of acceptable and prevailing medi-

cal practice in this State.

Conclusions of Law

1. Respondent is engaging in the practice of medi-

cine within the meaning of N.C.G.S. §90-18.

:

|

3

{

4

|

RAEN SRE in HO tee ISTO Wt

App. 29

2. The utilization by Respondent in his practice of

medicine of certain preparations known generally as

“homeopathic medicines” constitutes unprofessional con-

duct within the meaning of N.C.G.S. §90-14(a)(6).

Order

1. License no. 22573 issued by the Board to Respon-

dent is revoked effective five (5) days from the date upon

which these Findings of Fact, Conclusions of Law and

Order are signed by the Board.

2. The revocation of Respondent's license is stayed

for a temporary period of three (3) years, after which

such stay of revocation shall become permanent, pro-

vided that:

a. Respondent refrains from the use in his prac-

tice of medicine of certain preparations known generally

as “homeopathic medicines”; and

b. Respondent conducts his practice of medi-

cine in accordance with the standards of acceptable and

prevailing medical practice in North Carolina; and

c. Respondent continues to be of high moral

character; and

d. Respondent violates no state or federal laws.

App. 30

i

SO ORDERED.

This the 14th day of January, 1986.

BOARD OF MEDICAL EXAMINERS

OF THE STATE OF NORTH

CAROLINA

By: /s/ et A. Koontz, M.D.

ack A. Koontz, M.D.

President

ATTEST:

/s/ Bryant D. Paris, i

ryant VD. Paris, Jr.

Executive Secretary

MEW:mbp/3-I