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10/05/87 the People of the State of v. Susan Roos

October 5, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

SUSAN ROOS, APPELLEE



SUPREME COURT OF ILLINOIS

514 N.E.2d 993, 118 Ill. 2d 203, 113 Ill. Dec. 81 1987.IL.1495

Appeal from the Circuit Court of Lake County; the Hon. Jane D. Waller, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. WARD, MORAN, and CUNNINGHAM, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendant, Susan Roos, an acupuncturist, was charged with practicing medicine without a license. The defendant moved to dismiss the complaint on the ground that the Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111, par. 4401 et seq.) is unconstitutional as applied to the practice of acupuncture. The circuit court of Lake County agreed, and granted the motion to dismiss. A direct appeal to this court was taken pursuant to Rule 302(a) (107 Ill. 2d R. 302(a)).

On August 30, 1985, a two-count misdemeanor complaint was filed in the circuit court of Lake County charging the defendant with the "unlawful practice of medicine" in violation of section 25 of the Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111, par. 4460). The charges stemmed from the fact that the defendant, who is not a licensed physician, engaged in the practice of acupuncture without applying for a license from the Department of Registration and Education. At the bench trial, it was stipulated that if called, John Germain, an investigator for the Department of Registration and Education, would testify that he twice received acupuncture treatments from the defendant. The acupuncture treatments consisted of the insertions of needles into various locations of the agent's body. At the hearing on the motion to dismiss, the defendant admitted that she was engaged in the practice of acupuncture. She further testified that she received her training in acupuncture at the Midwest Center for the Study of Oriental Medicine in Chicago and from the Shanghai College of Traditional Chinese Medicine in Shanghai, China. The defendant received certificates from both institutions; however, she did not have a license from the Department of Registration and Education to practice acupuncture.

The defendant moved to dismiss the charge of practicing medicine without a license on the ground that the Medical Practice Act is unconstitutional as applied to acupuncture. The defendant asserted at trial, and argues here, that the Department of Registration and Education refuses to license acupuncturists. She therefore contends that acupuncturists must be graduates of medical school in order to practice acupuncture. The defendant further contends that there is no rational basis for allowing graduates of Western medical schools, who have no training in the field, to practice acupuncture, while denying this right to those who have acupuncture training but have not graduated from a Western school of medicine.

The circuit court granted the defendant's motion and held that the application of the Medical Practice Act to the practice of acupuncture is unconstitutional under the fourteenth amendment. The circuit court noted that although acupuncture does not derive from Western medicine and is not offered as a course of study in medical school, it falls within the scope of the Medical Practice Act and requires a medical degree as a prerequisite to practicing acupuncture. The circuit court held that the State's interest in requiring a certain degree of skill and learning in those practicing acupuncture is not rationally advanced by requiring a medical degree.

The Medical Practice Act contemplates two types of licenses: one authorizes the practice of medicine in all its branches, and the other permits the treating of human ailments without the use of drugs or medicine and without operative surgery. The recipient of the limited license is restricted to the use of the method or system designated in his application. However, "the licensee authorized to practice medicine in all its branches may, without limitation, use any method or system for the treatment and healing of human ailments." People v. McGinley (1928), 329 Ill. 173, 178.

Section 2 of the Medical Practice Act provides, in pertinent part:

"No person shall practice medicine, or any of its branches, or midwifery, or any system or method of treating human ailments without the use of drugs or medicines and without operative surgery, without a valid, existing license so to do . . .." Ill. Rev. Stat. 1985, ch. 111, par. 4403.

Section 5(1)(b) and section 5(2)(b) (Ill. Rev. Stat. 1985, ch. 111, pars. 4411(1)(b), (2)(b)) set out the minimum standards of professional education under the Act for the practice of medicine. Section 5(1)(b) applies to the practice of medicine in all of its branches and sets forth the educational requirements. Section 5(2)(b) applies to "treating human ailments without drugs or medicine and without operative surgery," and requires that the applicant be a graduate "of a professional school, college or institution which taught the system or method of treating human ailments which he specifically designated in his application as the one which he would undertake to practice." (Ill. Rev. Stat. 1985, ch. 111, par. 4411(2)(b).) The circuit court concluded that the Act required medical school training as required by section 5(1)(b) before a person could practice acupuncture.

In holding the Act unconstitutional, the circuit court relied on People v. Schaeffer (1923), 310 Ill. 574. In Schaeffer, the defendant, an osteopath, was charged with performing surgery without a license as required under the Act. The court in Schaeffer held the Medical Practice Act was unconstitutional as applied to osteopaths because one who was licensed to practice medicine and surgery in all of its branches would be able to practice osteopathy despite the fact that they may not have received ...


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