How did Oregon pass Medical Licensing Laws?

The Doctor by Luke Fildes

In the 19th century, physicians lobbied state legislatures throughout the United States to pass medical licensing laws. Some doctors were more successful than others in passing these laws. Starting in 1870s, states began to slowly adopt medical licensing laws. In order to make these laws more palatable to skeptical legislatures, physicians often tied these laws to sanitation reforms. Still, physicians in some states struggled to accomplish anything.

Physicians in Oregon became increasingly frustrated with the status quo and sought to pressure the legislature.Physicians began to sound the alarm that Oregon soon would become a haven for quacks and incompetents from other states. Oregon’s physicians did not want physicians who could not get licensed anywhere else to flood into the state. In 1888, the Oregon State Medical Association (hereafter OSMA) made yet another dedicated push to pass some type of medical regulatory act.[1] This time, the OSMA was willing to grease the appropriate palms with enough cash to push the licensing bill through the legislature.

Forming a Committee

At the 1888 annual OSMA meeting, the legislative committee appointed Charles C. Strong and five other members to spearhead the lobbying effort. According to Strong, the committee chair, they were told by the OSMA leadership “to go to work” on passing a medical licensing act.[2] In December 1888, a month before the legislature’s general session, the legislative committee sent out a fundraising letter to its members requesting ten-dollar pledges because the committee confidently stated “that such a law will be passed” if they could raise enough money. The committee stated in the letter that it hoped to raise one-thousand dollars. Eventually, the committee raised three-hundred-and-five dollars in pledges from the members. The committee never explained why it needed the money.[3]

To limit opposition and debate within the medical community, the legislative committee refused to draft a bill “until shortly before it was sent to the legislature.” Strong wanted to avoid telling members specifically what type of medical bill they were planning to propose. After receiving the fundraising solicitation, several physicians who had been practicing in Oregon “ten, fifteen or twenty years without a diploma, began to ask, ‘What kind of bill are you going to pass? Are you going to shut us out?” Strong evaded this question by sending postcards to any members who requested information about the bill; the cards stated that “the Committee ha[s] not as of yet drafted a bill. We have substantially agreed that a bill must be a reasonable in all its provisions; and it has proposed to not disturb the present relations of anyone practicing medicine and surgery at the time the bill becomes a law.”[4]

Greasing the Legislative Wheels

Oregon State Capital (1876-1935) in Salem, Oregon

The legislative committee approached legislator and Regular physician, Dr. James V. Pope, to introduce the Oregon association’s bill in the House. Pope studied medicine in St. Louis and worked as a physician during the Civil War, but he was not a medical school graduate.[5] After Pope introduced the bill, he abruptly threatened to scuttle it. Strong wrote, “[N]ow came the point to find out where the shoe pinched with Dr. Pope; but I knew it pinched somewhere, and surmised that probably he wanted the credit of introducing and passing the Medical Bill, and wanted it to be known as Pope’s bill.” Strong also stated that rumors had spread in the legislature that the OSMA raised a lot of money to smooth passage of the bill.[6]

The legislative committee sent one of its members to meet with Pope in Salem, to determine why he intentionally tried to stall the bill. The member magnanimously offered to name the medical bill “Pope’s Bill” and told him: “but in a way as not to accuse us of bribery--to be careful about that--that we had $200 down here, and if he would draw a draft on me for $200 I would recognize it, and he could see where the corruption fund was and where it was used. Well of course that knocked it all into ‘pi.’” [7]

After the OSMA offered Pope two hundred dollars and told him who else they planned to give money to, the bill began moving swiftly through the legislature. Within a few days of the committee’s meeting with Pope, Pope was selected to serve on a special legislative committee to review the legislation. Pope’s committee acted quickly and offered a few amendments. The only meaningful amendment created an exemption from licensing for any physician who practiced in state at the time the law went into effect.[8] Pope’s amendment provided broader protection for any physician than what the original bill offered. Under the original bill, Oregon physicians who had practiced in Oregon could have obtained licenses, but the licenses would have stated whether the doctor had attended medical school. Pope’s amendment ensured that physicians who were practicing without a diploma, such as himself, would not be listed any differently than other doctors in their community; the county clerk’s registry would indicate only that Pope and his ilk were simply practicing physicians and surgeons. The local registry would not state whether a physician went to medical school.

During the legislative session, the local newspaper, The Morning Oregonian, covered OSMA’s push for licensing. The Oregonian, the state’s largest newspaper, despite its support medical regulation published an article of a similar effort to license in Massachusetts. The Oregonian article an attorney speaking before the Massachusetts legislature testified that medical science failed in treating patients, and argued that the doctrine of supply and demand was the best way to regulate medicine. A letter to the editor of Capitol Evening Journal lambasted the so-called “quack bill” as an attempt to eliminate competition. Additionally, the writer was aghast that the bill invested enormous power with a three-physician medical board.[9] These complaints were essentially the same ones that scuttled previous medical regulation. Oregon papers were skeptical medical regulations.

Passing a Bill

The bill passed and authorized the creation of a medical licensing board and established specific criteria to receive an Oregon medical license. The medical board consisted of three members who had the power to approve three separate types of licenses that would permit the practice of medicine. First, individuals who could establish that they received a diploma or license from a legally chartered institution of good standing could qualify. Second, the board could issue licenses to anyone, regardless of educational background, by administering a test that evaluated the qualifications of the potential practitioner. Finally, doctors and surgeons already practicing in Oregon at the time the act was passed could simply register with the office of the county clerk sixty days after the act’s approval and continue their practices.[10] Anyone who practiced medicine in violation of this act was guilty of a misdemeanor.

Even though the bill had passed, the OSMA still feared that the governor would veto it. Governor Sylvester Pennoyer had expressed several concerns about the bill. If he chose to veto the bill late in the legislative session, it would have been at least two years before the bill could be reintroduced. Fortunately for the OSMA, Pennoyer decided not to veto it. Instead, Pennoyer issued a non-signing statement arguing that the bill should have been vetoed because it gave the medical board too much power to take away a physician’s diploma for unprofessional conduct. These broad powers were not circumscribed because the act failed to define dishonorable conduct, but Pennoyer instead decided “to obviate any difficulty by appointing as examiners men known to be cool-headed and conservative.”[11]

After almost fifteen years of failure, the OSMA finally succeeded in passing a regulatory act by paying a two-hundred dollar bribe from the “corruption fund” to a legislator who then passed an amendment to protect his own medical practice. Additionally, the remaining one-hundred-and-five dollars were distributed to other legislators on Pope’s suggestion. Despite Pope’s self-dealing, his modifications to the bill made it more palatable to Oregon physicians who were practicing without diplomas. Pope’s concerns were similar to other physicians in the state, and those doctors would have opposed the 1889 bill without those changes. The conclusion that the three-hundred-five dollars raised by the association was intended for bribes is unavoidable. It is not surprising that Strong was cagey about explaining what the money was for. Strong also acknowledged that even with Pope’s help and the OSMA members’ money, getting the bill passed was extremely difficult; “[i]f they knew the way that committee worked, the difficulties that arose, and the pressure brought to bear, the thumb screws we used here and there of one kind or another.”[12]

The legislative committee of the OSMA was not satisfied with the final bill, but it was willing to accept it because the committee was convinced that the bill could be easily remedied in the future. Even though the act fell “far short of perfection,” it fundamentally altered who could become an officially sanctioned physician in the state. The OSMA, like most other state societies, decided it was more important to pass something then to continue without any licensing law.[13] Strong also stated that the bill would silence the dissent of diploma-less practicing physicians. As long as any future bill did not encroach on those physicians’ rights, he argued that they would support future legislation. He stated it would be in the best interest of those physicians to support “the most stringent law against the admission of others.”[14] Strong understood that “it is to be hoped that it may go through a course of evolution that may ultimately bring our State abreast of the other states and territories in respect to legislation to regulate medicine and surgery.”[15]

Under the original 1889 act, physicians and surgeons were required to receive a diploma from a medical institution in good standing, but the act explicitly stated that the medical board was not permitted to discriminate against the holders of genuine licenses or diplomas from a licensed medical school or system. Therefore, the Oregon law did not discriminate against Homeopaths or Eclectics but due to sloppy drafting, the law not only avoided discriminating against any of three major sects, it prevented the board from excluding physicians who acquired medical degrees from diploma mills.[16] In the end, Strong was correct. Even though the law originally was amended to eliminate the drafting problem, the 1891 version was modified in several ways, and it ultimately resembled the original bill proposed by the OSMA rather than the bill promulgated by Pope.

The report of the State Medical Board to the OSMA by James Dickson, M.D, a member of the new board, addressed these changes. Dickson told the OSMA that the phrasing of the original bill was flawed and the board’s lawyers were concerned that if the law was challenged, it most likely would be scrapped by the courts.[17] The 1891 amendment eliminated this problem by augmenting the power of the medical board to set its own standards for medical schools. The board was no longer obligated to admit any physician who had graduated from a university if it had a proper charter. Instead, the board was allowed to set certain rules, as had been originally intended, to determine what the board considered to be a school in good standing. The board immediately decided to require that medical schools mandate three sessions of six months each of school and no two of those sessions could be in one year. The board, in essence, adopted the recommendations of the Illinois State Board of Health. Unlike Illinois, Oregon did not have the resources to conduct any meaningful investigations on its own.[18]

Under the promulgated standards, Dickson postulated that graduates of forty of the existing one-hundred-and-thirty-five American medical institutions would be forced to take an exam under Oregon law. The 1891 revision also placed physicians who registered with the county clerks under the control of the medical board. Under the 1889 Act, the board lacked jurisdiction over these physicians and could not discipline them for dishonorable conduct.[19] The 1891 act remedied the problem and compelled all practitioners to submit themselves to the board for a license. Not only did the medical board draft standards; it immediately exercised its statutory authority and began rejecting applicants.

Imposing and Licensing Exam and new Ethical Standards

In 1895, Oregon again altered its medical licensing law by requiring all applicants to pass a licensing exam. The 1895 amendment also expanded the power of the Oregon Medical Board to revoke the license of a physician for unprofessional or dishonorable conduct including any physician who was originally exempted in the first law. Soon thereafter, the Oregon board immediately targeted physicians in the state. The 1895 statute specified the grounds for unprofessional or dishonorable conduct: Taking part in a criminal abortion, employing “cappers” and “steerers,” obtaining a fee and claiming the ability to cure an incurable disease or condition, betraying a professional secret, using untruthful or improbable statements in advertisements, conviction of any offense involving moral turpitude and habitual intemperance, and advertising medicines claiming to regulate the monthly periods of women.[20]

State medical boards throughout the country were adopting similar licensing criteria. Before 1890, only nine states adopted codes of ethics, but during the 1890s, twenty-four more states developed codes of conduct for physicians. These codes governed what grounds could be used by the board either to deny a license or revoke one after issuance. These ethics rules often included laws that barred physicians from performing abortions. Typically, “the exercise of the same wide discretion cannot be extended to a case where, when one has been regularly admitted, the revocation of his license is sought under another independent provision of the statute.” Like Oregon’s, these codes typically barred unprofessional or dishonorable conduct, procuring abortions, gross immorality, false statements and promises, false advertising, distributing indecent and obscene material, and the fraudulent use of diplomas.[21]

In one case, the Oregon Medical Board enforced its ethics code and revoked the license of an Astoria physician, Otis Burnett Estes, for providing an abortion. Estes was a Regular physician and a graduate of College of Physicians and Surgeons at St. Joseph, Missouri. Estes had been described in the community as “Daddy Estes” because he delivered more than two-thousand-five-hundred babies around Astoria, Oregon.[22] Estes’s was convicted in the Oregon criminal court of performing an illegal abortion. After his conviction, a local Astoria physician, Dr. Oswald Beckman, filed a complaint against Estes with the state medical board. At the hearing, the full board heard the case against Estes. The prosecution questioned three witnesses at the hearing: Sophia Schultz and two other Astorian physicians. Schultz was Estes’s patient and she recanted her earlier testimony and stated that Estes had not performed an abortion. Estes’s counsel introduced sixty-four affidavits from Astorian citizens in support of the physician. Despite Estes’s support and Schultz’s testimony, the full board revoked Estes’s license.[23]

Estes challenged the board’s decision to revoke his license, and the trial court reversed the revocation.[24]While Estes was convicted of performing an illegal abortion, his patient recanted her testimony during the license revocation hearing and claimed that she was confused and sick with a fever during the criminal trial.[25] His patient’s inability to speak English also hampered the efforts of the prosecutor to cross-examine her. The prosecution failed to provide any other admissible evidence to support the charges. The board also failed to file an appeal of the circuit court’s decision in a timely fashion.[26] The board was forced to reinstate Estes as practicing physician and surgeon. The Estes cases demonstrated the difficulty in enforcing ethics laws. Even though Estes was convicted of performing an abortion, the court was not willing to use that conviction as evidence against Estes. Medical boards had to prove their cases in their own administrative hearings.

The Estes case showed that courts were not going to bar doctors from practicing based solely on a criminal convictions. To suspend or expel physicians from the practice of medicine, medical boards were going to have to prove cases in their own administrative hearings. They simply could not rely on outside hearings. Additionally, the court made that they were willing to scrutinize medical board decision, they were going to just rubber stamp their decisions.

Conclusion

While Oregon was one of the last states to pass a medical licensing laws, it took some states anywhere from from 5 to 10 years to pass a version of this law. Ultimately, the only way Oregon physicians could convince the state legislature to pass a law was to bribe lawmakers. Still, after the law was passed legislators amendments to these laws that strengthened these laws without additional incentives.

References

  1. The Medical Society of Oregon changed its name to the Oregon State Medical Association a few years earlier.
  2. “Report of the Legislative Committee,” Proceedings of the Sixteenth Annual Meeting of the Oregon State Medical Association 16 (1889): 203.
  3. Proceedings Sixteenth Annual Meeting (1889): 204.
  4. Proceedings Sixteenth Annual Meeting (1889): 205-206.
  5. O. Larsell, The Doctor in Oregon: A Medical History (Portland, Oregon State Historical Society 1947), 210.
  6. Proceedings Sixteenth Annual Meeting (1889): 206.
  7. Proceedings Sixteenth Annual Meeting (1889): 206-207.
  8. The Journal of the House of the Legislative Assembly of the State of Oregon for the Fifteenth Regular Session 1889, 15th House, 1889, 305.
  9. “The Quack Bill,” Capitol Evening Journal, Feb. 27, 1889.
  10. Oregon Sessions Law, “An Act to Regulate the Practice of Medicine,” 1891, section 3.
  11. “The Governor Dodges. The Medical Bill Becomes a Law Without His Signature – His Excellency longed to a farewell shot at the bill, but he concluded to check the veto impulse and trust in luck.”The Oregonian, Feb. 28, 1889.
  12. Proceedings Sixteenth Annual Meeting (1889): 208.
  13. A. C. Panton, M.D., “Address,” Proceedings of the Sixteenth Annual Meeting of the Oregon State Medical Society 16 (1889): 6
  14. Proceedings Sixteenth Annual Meeting (1889): 108.
  15. C.C. Strong, M.D., “Opening Address,” Proceedings of the Sixteenth Annual Meeting of the Oregon State Medical Society 17 (1889): 6.
  16. Oregon’s Sessions Laws, “An Act to Regulate the Practice of Medicine,” (1889).
  17. James Dickson, M.D. “Report of the State Medical Board,” Proceedings of the Eighteenth Annual Meeting of the Oregon State Medical Society 18 (1891): 176-177.
  18. Proceedings Eighteenth Annual Meeting (1891): 177-180.
  19. Proceedings Eighteenth Annual Meeting (1891): 177-180.
  20. Oregon Laws, 1895, 61-65, sec. 6.
  21. Hugh Emmett Culbertson, Medical Men and the Law: A Modern Treatise on the Legal Rights, Duties and Liabilities of Physicians and Surgeons, (Philadephia and New York, 1913), p. 47-51. Culbertson was citing Czarra v. Board of Medical Supervisors of District of Columbia, 25 App. D.C. 443.
  22. Larsell, The Doctor in Oregon, 285.
  23. State v. Estes, 1897 Ore. LEXIS1. Citing LEXIS because it is not clear if this portion of the decision is cited in the other reproductions of this decision; “Dr. O.B. Estes, of Astoria, Found Guilty by State Medical Board,” Daily Capitol Journal, October, 21, 1896.
  24. Estes, 14-15.
  25. Estes, 20-21.
  26. Estes, 24.