In Re Guess

393 S.E.2d 833 (1990)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P is a licensed physician practicing family medicine. P regularly administers homeopathic medical treatments to his patients. D is a legislatively created body established 'to properly regulate the practice of medicine and surgery.' P charged D with unprofessional conduct specifically based upon his practice of homeopathy. D alleged that in his practice of medicine, P utilized 'so-called 'homeopathic medicines' prepared from substances including, but not limited to, moss, the nightshade plant and various other animal, vegetable and mineral substances.' D 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.' A hearing was held and several physicians licensed to practice in North Carolina testified that homeopathy was not an acceptable and prevailing system of medical practice in North Carolina. P is the only homeopath openly practicing in the State. P presented evidence that homeopathy is a recognized system of practice in at least three other states and many foreign countries. There was no evidence that P's treatment had ever harmed a patient, and there was anecdotal evidence that P's homeopathic remedies had provided relief to several patients who were apparently unable to obtain relief through allopathic medicine. D revoked P's license to practice medicine but stayed the order so long as he refrained from practicing homeopathy. The Superior Court reversed and vacated D's decision. It held that P's substantial rights had been violated because D's findings, conclusions, and decision were 'not supported by competent, material and substantial evidence and [were] arbitrary and capricious.' D appealed. The Court of Appeals rejected the Superior Court's reasoning to the effect that the D's findings, conclusions, and decision were not supported by competent evidence. It affirmed the Superior Court's order because D neither charged nor found that P's departures from approved and prevailing medical practice either endangered or harmed his patients or the public. It held that 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. D appealed.