Van De Kamp, 032084 CAAGO, AGO 83-904

Docket Nº:AGO 83-904
Case Date:March 20, 1984
JOHN K. VAN DE KAMP Attorney General
RONALD M. WEISKOPF Deputy Attorney General
AGO 83-904
No. 83-904
California Attorney General Opinion
Office of the Attorney General State of California
March 20, 1984
         THE HONORABLE GERALD N. FELANDO, MEMBER OF THE ASSEMBLY, has requested our opinion on the following question.          Do the "reciprocity" provisions of article 7 of the Medical Practice Act, and particularly those of section 2135 thereof, apply to the Board of Osteopathic Examiners' licensure of doctors of osteopathic medicine?          CONCLUSION          The "reciprocity" provisions of article 7 of the Medical Practice Act, including those of section 2135, do apply to the licensure of doctors of osteopathic medicine by the Board of Osteopathic Examiners.          ANALYSIS          Article 7 of the state's Medical Practice Act (Bus. & Prof. Code, div. 2, ch. 5, § 2000 et seq.)1 establishes the requirements for and the procedures under which the Division of Licensing of the Board of Medical Quality Assurance will issue a reciprocity certificate enabling an allopathic physician licensed in another state to become licensed to practice medicine in California. The question presented is whether those provisions also govern the requirements for and the procedures under which the Board of Osteopathic Examiners issues reciprocity certificates to out-of-state osteopathic physicians. Upon review of article 7 of the Medical Practice Act and the turbulent history of the "Osteopathic Act" we will conclude that the provisions of article 7, including those of section 2135 found therein, do apply to and do govern that reciprocity licensure.          Osteopathy and allopathy are two of the several approaches to the practice of medicine, others being homeopathy, naturopathy, and the eclectic. (64 Ops.Cal. Atty.Gen. 672, 674 & 674 fn. 3 (1981).) Osteopathy began as a system of healing based on the theory that all diseases were caused by irregularities in the musculoskeletal structure of the body which could be corrected by manipulation and the body's intrinsic ability to heal itself without the use of drugs. (D'Amico v. Board of Medical Examiners [D'Amico I] (1970) 6 Cal.App.3d 716, 721; 64 Ops.Cal.Atty.Gen., supra, at 673-674; cf. Gk. osteon = bone + pathos = suffering, disease.) Osteopaths were first licensed in California under the Statutes of 1901 (Stats. 1901, ch. XCIX, p. 113) which provided for a state Board of Osteopathic Examiners whose licensees could not prescribe drugs or practice major surgery. Allopathy is "an erroneous designation for the regular system of medicine and surgery. The term really means the curing of diseased action by inducing a different kind of action in the body." (Board of Osteopathic Examiners v. Board of Medical Examiners (1975) 53 Cal.App.3d 78, 81 fn. 2.) In other words, it is a method of treating disease by employing remedies that will produce effects opposite from those that are being produced by the disease being treated (e.g., a disease which causes an increased rapidity of heartbeat would be treated with a drug which slows the beat). (Cf., Gk. allos = other + pathos = suffering, disease.) Allopaths have been licensed in California since at least 1876. (Stats. 1875-1876, ch. DXVIII, p. 792; Stats. 1877-1878, ch. DLXXVI, p. 918; Stats. 1901, ch. LI, p. 56.)2          For all intents and purposes the differences between the two systems of medicine have all but disappeared today. (D'Amico v. Board of Medical Examiners [D'Amico II] (1971) 11 Cal.3d 1, 11, 23-24, & 11 fn. 4.) The original theory of osteopathy has become less important to its practice and, like allopathy, it has evolved into a "complete school of medicine and surgery whose practitioners successfully engage in the full range of activities commonly thought of as constituting medical science, including manipulation, treatment by drugs, operative surgery and physical therapy." (Id., at 23.) Colleges of osteopathy now have curricula more or less identical with those of allopathic medical schools, with both teaching bio-mechanical physiology and the modality of manipulation (64 Ops.Cal.Atty.Gen., supra, at 674 & 674 fn. 4), and the A.M.A. considers osteopathic background and education the equivalent of allopathic background and education for purposes of membership on its specialty boards. (D'Amico II, supra, at 11 fn. 4.) Indeed, the California Legislature has declared it to be the policy of this state for "holders of M.D. degrees and D.O. degrees [to] be accorded equal professional status and privileges as licensed physicians and surgeons", and it has provided that no governmental agency or licensed health facility may discriminate between them on the basis of their degree. (§ 2453.)          Nevertheless, as a result of "the pitched battle that has raged between the osteopathic and allopathic professions since the turn of the century—and the various . . . acts which have littered the field" (D'Amico II, supra, at 8), separate regulatory bodies now regulate the two professions: allopathic physicians are governed by the Board of Medical Quality Assurance administering the Medical Practice Act, while osteopaths fall under the jurisdiction of the Board of Osteopathic Examiners, administering the "Osteopathic Act." We deliberately place the latter in quotations, for it is an amorphous term which, because of historical circumstances, embraces at least three enactments—viz, the Osteopathic [Initiative] Act of 1922 (Stats. 1923, p. xciii), the Osteopathic [Referendum] Act of 1962 (Stats. 1963, First Ex. Sess. 1962, ch. 48, pp. 337-338) and, insofar as consistent with those measures, the state the state Medical Practice Act vis-avis osteopathic physicians. (§§ 2450, 2452;3 Board of Osteopathic Examiners v. Board of Medical Examiners, supra, 53 Cal.App.3d at 85, 86, 87; cf. Gamble v. Bd. of Osteopathic Examiners (1942) 21 Cal.2d 215, 218-219; 64 Ops.Cal.Atty. Gen., supra, at 677; Osteopathic Physicians & Surgeons v. Cal. Medical Assn. (1964) 224 Cal.App.2d 378, 382.)          As noted introductorily, the provisions of article 7 of the Medical Practice Act set put forth the conditions under which the Division of Licensing is to issue a certificate on reciprocity to an out-of-state allopath applicant to practice medicine in California. Not surprisingly those provisions speak in allopathic terms -- to wit, the Division of Licensing (one of the three divisions comprising the Board of Medical Quality Assurance (§ 2003) and responsible, inter alia, for issuing licenses and certificates under the Board's jurisdiction (§ 2005(a))), the practice of medicine, medical schools, physicians and surgeons and physicians' and surgeons' certificates. For example, troublesome section 2135 provides generally for the Division of Licensing to issue a physician's and surgeon's certificate on reciprocity without examination if the applicant holds a license to practice medicine in another state, and if he or she had been granted the degree of doctor of medicine after completion of a resident course of professional instruction in an approved medical school. And a companion, section 2136, provides for the issuance by the Division of Licensing of a physician's and surgeon's certificate on reciprocity following an oral and comprehensive clinical examination, if the applicant is licensed as a physician and surgeon and has practiced medicine in another state for four years and the Division determines that its written examination is equivalent to California's. (See fn. 10, post.) The other sections of article 7 are similarly cast,4 and, once again, the question to be answered is whether article 7, and especially section 2135 which is of particular concern, applies to the Board of Osteopathic Examiners' licensing osteopathic examiners. To answer it we look to the "Osteopathic Act" for it creates and defines the powers of that Board. (Cf. Gov. Code, §§ 11342.1, 11342.2; Agricultural Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 419; Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 105; City of San Joaquin v. State Bd. of Equalization (1970) 9 Cal.App.3d 305, 314; Conover v. Board of Equalization (1941) 44 Cal.Ap.2d 283, 287.) That in turn involves our understanding the evolution of that "Act." (Cf. 64 Ops.Cal.Atty.Gen., 672, 675, supra.)          Whereas osteopaths had originally been licensed separately from allopaths (cf. Stats. 1901, ch. XCIX, supra; Stats. 1901, ch. LI, supra), in 1907 the Legislature "repealed" the separate "medical" and osteopathic licensing statutes and enacted a general Medical Act in their place which brought both schools under the aegis of a single licensing authority, a Board of Medical Examiners composed of both allopaths and osteopaths. (Stats. 1907, ch. 212, p. 252.) While...

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