A state has the power to regulate medical practice and issue licenses for the practice of medicine. Medical practice without a license is a public offense in most states. States can make unlicensed medical practice a crime by passing appropriate legislation. Criminal sanctions are made against a physician who practices medicine without a license. The right or power of the legislature to provide criminal sanctions for the enforcement of regulations regarding medical practice is for the benefit of community health[i].
However, medical practice not involving criminal or evil acts is not considered a criminal offense in common law. However, the unlicensed practice of medicine is an offense that does not require criminal intent to consider it a crime.
A person who aids another in practicing without a license will be guilty for violating the law in the jurisdictions where unlicensed practice of medicine is a misdemeanor. The fact that the person who supports the unlicensed practice is a person having a license does not relieve him/her from the liability of aiding an offense[ii]. However it has been also observed that a dentist’s license can not be revoked on the evidence that an unlicensed individual, who shared office space with a dentist, provided dental services with the dentist’s knowledge[iii].
A corporation may have criminal liability for the illegal practice of medicine and for advertising to practice medicine by a person who does not possess a license.
However, if a person practices for no compensation, then no violation of law takes place in a jurisdiction where it is required that practice is to be done for a compensation to amount to a crime[iv]. Also, if the statute stating the requirements to obtain a license is invalid then no penalty can be assessed against the unlicensed practitioner.
A person who was wrongfully charged with practicing medicine without a license may not be entitled to damages for malicious prosecution in a situation where his/her magic healing activities constituted practice of medicine[v].
A complaint against the unlicensed practice of medicine should allege that the accused practiced and projected him/her as practicing medicine with a valid license. It is not necessary to get into the details like fee paid by the patient for the unlicensed practitioner’s service, the method of treatment used or the drugs prescribed[vi], or the disease treated.
In a proceeding against an accused for practicing medicine without a license, the burden of proving the offense beyond a reasonable doubt is on the prosecution. The prosecution needs to prove that an accused practiced medicine or put forth himself as a physician. The accused has to show that s/he possess a license if the prosecution proves that an accused has practiced medicine and has alleged that it was done without a license.
Evidence with regard to intent may be produced at the time of prosecution. The incidents that took place in the office of an accused on the day of arrest, which are related to the practice of medicine may be admissible as evidence to prove the practice of medicine. If the record kept in the office of the licensing board with regard to the list of persons who are issued with license does not contain an accused’s name, it may be considered sufficient evidence to presume that s/he do not possess a license[vii].
Generally, the trial of a person accused of the practice of medicine without a license is conducted with a jury. But, trial by a jury is not essential in a summary proceeding of a person charged with unlicensed practice of medicine[viii]. If there arises a dispute of fact with regard to possession of license, it is the duty of a jury to decide whether there is a license because it is a question of fact.
In addition, a jury has to be instructed regarding the rules of evidence. It is for the accused to prove that s/he possessed a license and the prosecution is not required to prove that an accused was unlicensed. The proof regarding the issue is within the control of the accused and s/he can disprove it at once if the allegation is not true. If the accused withholds or does not produce the proof that is within his/her hands, then the law presumes the allegation of negative fact as true[ix].
Usually, a trial court may refuse to accept testimony from the accused’s patients that shows that the accused’s treatment was beneficial and the patient was cured. Such evidence is immaterial and constitutes no defense[x]. But, a person’s conviction for practicing medicine without a license may be affirmed on the basis of the testimony of witnesses that proves the accused projected himself/herself out to the public as being a licensed physician[xi].
A judgment may not be set aside on appeal even though some information under certain counts are insufficient, provided a part of the information is adequate and sustained by evidence[xii].
[i] Bentley v. State Board of Medical Examiners, 152 Ga. 836 (Ga. 1922).
[ii] Garfield v. Board of Medical Examiners, 99 Cal. App. 2d 219 (Cal. App. 1950).
[iii] smith v. State ex rel. Board of governors of the registered dentists of oklahoma, No. 38109, Supreme Court of Oklahoma, 1958 OK 215; 330 P.2d 366; 1958 Okla. LEXIS 572.
[iv] Nighohossian v. State, 75 Ariz. 162 (Ariz. 1953).
[v] Bennett v. Ware, 4 Ga. App. 293, 1908 Ga. App. LEXIS 273.
[vi] People v. Cochran, 56 Cal. App. 394 (Cal. App. 1922).
[vii] People v. Wah Hing, 47 Cal. App. 327 (Cal. App. 1920).
[viii] State Bd. of Medical Examiners v. Buettel, 102 N.J.L. 74 (Sup. Ct. 1925).
[ix] State v. Wilson, 62 Kan. 621 (Kan. 1901).
[x] Nighohossian v. State, 75 Ariz. 162 (Ariz. 1953).
[xi] Lyda v. State, 47 Ga. App. 45, 1933 Ga. App. LEXIS 286.
[xii] Bennett v. State, 188 Ind. 380 (Ind. 1919).