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Attorney General's Opinion.
Charleston, September 25, 1913.
Wheeling, West Virginia,
I have your esteemed favor of 23rd, instant, propounding the following questions:
First. “Has an unlicensed physician any legal right to practice medicine under the protection of a licensed practitioner, whether in the office of or located at a distance from the latter”
Second: "Has the board any recourse when a prosecuting attorney declines to prosecute an unlicensed practitioner, even when absurdant evidence as to the violation of the law by the latter is presented?”.
In answer to the first question, section 9 of chapter 150 of the supplement to the Code, 1909, provides:
"The following persons and no others shall hereafter be permitted to practice medicine in this state.”
1st. All such persons as shall be legally entitled to practice medicine in this state at the time of the passage of this act.
2nd. All such persons as shall be graduates of a reputable medical college, recognized as such by the state board of health, who shall pass an examination before said state board of health and shall receive certificates therefrom, as hereinafter provided. Provided, also, that the state board of health, or a majority of them, may accept in lieu of an examination, the certificate of license to practice medicine legally granted by the board of registration or examination or licensing board of any other state, territory or any foreign country whose standard of qualification for the practice of medicine is equivalent to that of this state, and grant to the said applicant a certificate of license to practice medicine in this state; provided, such states, territories or foreign countries accord like privilege to medical licentiates of this state. The state board of health shall at such times as a majority of them may deem proper, hold examinations for the licensing of practitioners of medicine; such examinations shall not be less in number than three during each year, and shall be held at such points in the state as shall be most convenient to those pre senting themselves for examination, or to the state board of health at such examinations written and oral questions shall be submittel to the applicant for license, covering all the essential branches of the sciences of medicine and surgery, and the examina tion shall be a thorough and decisive test of the knowledge ari ability of the applicants.”
This section provides what persons shall be entitled to practice medicine in this state and provides that no others than the parties therein named shall herafter be permitted to practice medicine in this state. There is, however, the following proviso in the latter part of the above section:
“Provided, however, that the provisions of this and the preceding section shall not apply to physicans living in other states and duly qualified to practice medicine therein, who shall be called into consultation into this state, by a physician legally entitled to practice medicine in this state under this chapter, etc."
And section 15 of chapter 150 of the Code provides as fol
“If any person shall practice, or attempt to practice medicine, surgery, or obstetrics in this state, without having complied with the provisions of section nine of this chapter, except as therein provided, he shall be guilty of a misdemeanor and fined for every such offense, not less than fifty nor more than five hundred dollars, or imprisoned in the county jail not less than one month for more than twelve months, or be punished by both such fine and imprisonment, at the discretion of the court."
By these provisions it will be seen that any person who shall practice medicine and surgery, except as provided in section 9, above, shall be punished, as provided by section 15. I am, therefore, of the opinion that an unlicensed physician has no legal right to practice medicine and surgery under the protection of a regularly licensed practitioner, either in the same office with him or at any other place.
Answering your second question, section 6 of chapter 120 of the Code provides what the duties of the prosecuting attorney are as to the criminal business of the state in his county, which section is as follows:
“It shall be the duty of every prosecuting attorney in this state, to attend to the criminal business of the state in the county in which he is elected and qualified, and also to civil cases in which the state is interested in such county, when required by and under the direction of the auditor; and when he has information of the violation of any penal law committed within his county, shall institute and prosecute all necessary and proper proceedings against the offender, and may in such case issue or cause to be issued a summons for any witness he may deem material. He shall also represent the county in all suits and proceedings for and on behalf of or against the county, or county court, overseers of the poor, or other public authorities of the county, and carefully look after and give attention to the general interests of the county. And no allowance or compensation shall be made for such services, except his annual salary and the allowance provided for in chapter one hundred and thirty-eight of this Code.”
And the latter part of section 17 of chapter 36 of the Code provides the penalty for the failure of the prosecuting attorney in the performance of his duty as to criminal prosecutions, which is as follows:
"And if any prosecuting attorney shall compromise or suppress any indictment or presentment without the consent of the court entered of record, he shall be deemed guilty of malfeasance in office, and may be removed therefrom in the mode prescribed by law."
I should think, therefore, if the prosecuting attorney declines to prosecute an unlicesned practitioner when his attention is called to the same by the State Board of Health that the state board could report that fact to the circuit court of his county, and proceeding could be instituted under the above provision of the last-named section and remove him from office.
Very truly yours,
A. A. LILLY,
-Attorney General. By JOHN B. MORRISON,
Through the efforts of the board and its secretary at least six irregular practitioners have been driven from the state, and we are on
officers become thoroughly enlisted in this work, the purpose of the State Board of Health in this direction becomes known, and when prosecuting attorneys and grand juries become equally interested with the board in the care of the health of the people, better results may be expected, and the number of the imposters here alluded to be greatly reduced. We take occasion to hereby solicit the active interest of all of these officials to the end that the health especially of the poor and ignorant, may be better cared for, and that they may be protected from gross imposition that too often results in protracted ill health or even death.
HYGIENIC LABORATORY OF THE STATE BOARD OF HEALTH.
Acting under the authority given it by the amended law of 1913, the State Board of Health, at its meeting at Charleston August 4, 1913, passed the following resolution:
“RESOLVED, that President Golden, Dr. Robins and the secretary, Dr. S. L. Jepson, be appointed to visit state institutions with Governor Hatfield with authority to establish a hygienic laboratory at such place as they may determine. Awaiting the convenience of the Governor, who had expressed deep interest in this matter, Dr. Robins and the secretary (Dr. Golden being detained) accompanied His Excellency, Governor Hatfield, and president of the State Board of Control, J. S. Lakin, on an inspection tour of the state penitentiary at Moundsville, and later visited the University at Morgantown and held a conference with Dean J. N. Simpson of the medical school, Dr. A. Arkin, professor of bacteriology, Professors Shelden and Whitehill and Dean F. B. Trotter. After an inspection of the laboratories of that institution and a protracted conference with the authorities of the University, it was unanimously resolved to establish the Hygienic Laboratory of the State Board of Health at Morgantown in connection with the University 'on the conditions set forth in the following agreement:
“At a conference held November 16, 1913, between a committee of the State Board of Health, consisting of Dr. S. L. Jepson, secretary; Dr. J. E. Robins, Governor H. D. Hatfield, and President J. S. Lakin of the State Board of Control, and the University authorities, represented by Dean J. N. Simpson, Professor Aaron Arkin, Professor J. L. Shelden, Professor A. R. Whitehill, of the School of Medicine, and Dean F. B. Trotter for the College of Arts and Sciences, it was agreed that the State Board of Health shall establish its hygienic laboratory at the University in co-operation with the School of Medicine.' The University agrees to furnish its laboratories and to give a general supervision of the work in bacteriology, pathology, chemistry and toxicology.
The Board of Health agrees to appropriate for this year's work, $ 1500 each for an assistant bacteriologist and an assistant chemist, and to furnish $1200 for equipment and supplies.
The assistant bacteriologist and assistant chemist shall, as their time will permit, assist in the instruction of students in their respective
The following rules governing the Hygienic Laboratory were agreed upon:
The services of the laboratory are free to any state, county or municipal officer, and to railroad companies for the examination of water, either chemical or bacteriological. To any private party wishing such examination there is to be a small fee charged which will go into the laboratory fund. In matters that affect the Public Health, such as examination of suptum for tuberculosis, diphtheria swabs, widal and diazo tests for typhoid, smears for syphilis, actinomycosis, glanders, etc., laboratory service is free.
Examination of the brains of animals for suspected rabies is free.
Pathological examinations of tissue will be made for physicians, for which a small fee will be charged unless the patient is unable to pay for it.
The Wasserman test for syphilis will be made for a small fee.
Samples of drugs will be tested in the department of pharmacology, and pure food analysis will be made by the department of chemistry.
The laboratory shall be in charge of the Dean of the School of Medicine as director.
The working basis for suceeding years is to be adjusted by the board of health and the University authorities.
(Signed) S. L. JEPSON,
Secretary State Board of Health. (Signed) THOS E. HODGES, President West Virginia University.”
Necessary additional equipment was added to the laboratory of the University as soon as possible, and all the supplies necessary for the work of the institution have been added as needed. The laboratory has been in successful operation for more than a year and the demands made upon it are constantly increasing. A complete report of the work done since the organization of the laboratory will be found on another page.
Report for the Years 1912 and 1913.
The report on the vital statistics of the state is here made because it is the requirement of the law. The Registrar, however, is quite well aware of the very small value to be attached to the report. The law provides that “every physician and accoucheur shall report every birth and death which may come under his supervision to the clerk of the county court in which it may happen, stating in case of a birth the time and place, name of the child, if it have one, and the names of the parents; in case of a death, the time and place, the name of the decedent and the cause of death, and in either case such additional facts as may be required by to be prepared by the board as hereinafter provided, and in accordance with such instructions as may be given it."
In the absence of a physician, “the oldest resident member is required to make the report," and the coroner and undertaker are to report monthly cases coming under their care. A fee of 25 cents is provided for each report. In some counties the county courts have refused to pay the authorized fee, and as a result physicians decline to make the reports. Hence, by no means all of the births and deaths are reported. The county clerk is required to tabulate the reports reaching him, with such additions as may be made by the assessor after his house to house visits—and annually send this to the registrar of vital statistics. When the reports are made by a layman, as is very often the case, the causes assigned for deaths are seldom accurate, and we find in the tabulated reports reaching this office such meaningless causes as “inflammation,” “liver disease,'' “stomach trouble," "dropsy," "bold hives," child birth,” “hemorrhage," "complication” and many even more absurd.
When possible we have endeavored to solve the mystery of these causes, but many remain which we are compelled to assign to the columns, “miscellaneous” and “unknown,” and many come to us with “unknown” given as the cause of death.
If this report serves no other purpose, it will at least demonstrate the necessity for a more effective law regulating the reporting and registration of vital statistics. No report of deaths approaching accuracy need ever be expected until a state law is enacted which forbids the burial of any dead body until a burial permit is issued by some authorized person, which permit shall be based upon a certificate of death filled by the attending physician, if there has been one, or in cases of necessity by a coroner. It is hoped that such a law will be enacted by the next legislature. :
It will be noted in the statistical tables that from a number of counties no report is given. The law requires that the county clerk of each county shall send to the registrar of vital statistics by September 1st of each year, a report of the births and deaths of the preceding year, and the marriages are to be reported by March 1st. Notwithstanding this law, we found when compiling these statistics, that many counties had not been reported even for the year 1912, and two, in some cases three, letters to the clerks of the delinquent counties have failed to bring these reports. Hence, the incompleteness in our tables here presented.
NEW HEALTH LAW.
The present State Board of Health, as doubtless others before it, has realized the impossibility of performing efficient service for the state because of imperfections in the health law under which it operates. In other parts of this report have been given illustrations of the impossibility of improving sanitation by reason of the lack of authority in the board. Solely with a desire of rendering more