Ask anyone who has conducted historical research and they’ll likely offer their own example of the scenario I’m about to share. You’re deep into researching one thing when suddenly you run across something entirely unexpected, only to find yourself irresistibly drawn away from what you were initially researching. Think dog sees squirrel and you’ll get the picture.

You feel exhilarated tracking a little-known subject or story that seems to offer intriguing possibilities; you also can’t help feeling irritated with yourself for losing focus and valuable time traipsing deeper into a research forest well-off the main trail.

In this instance, my research subject was Dr. Benjamin Hawker, the litigant in the key Supreme Court decision Hawker v. New York that secured the authority of state medical boards to discipline physicians. My attempts to trace Hawker’s backstory led to some extensive online research. Somewhere along the way, I stumbled upon “Dr.” Edward Dowdall. His story offers a reminder of the white-collar criminal elements that gravitated toward medicine in the late 19^th and early 20^th centuries. The persistent activities of Dowdall and his ilk created a good deal of additional work for state medical boards.

In spring 1906, Dr. Seymour Doss (S.D.) Van Meter, Secretary of the Colorado Board of Medical Examiners (pictured below) received an odd letter from an Illinois physician requesting a “favor.” Edward Dowdall explained that he wanted to obtain a Colorado medical license but didn’t feel “overconfident” the board would accept his application.

Furthermore, he wanted a Colorado license even though he didn’t wish to practice in the state. He confessed that there were so many doctors in the state that “I fear I would starve to death in Colorado.” Still, if Van Meter would “help me out” he (Dowdall) would return the favor with a gold watch and a diamond set locket.

Van Meter must have been surprised by the clumsy but direct bribe offer for a license he didn’t intend to use. In closing the letter, Dowdall made clear his ultimate objective—he wanted to practice in New York state. His plan was to get the Colorado license and bide his time (“lay dormant” for a few years as he described it) before using that Colorado license to get licensed in New York.

Dr. Van Meter joined the Colorado board in 1901. Over the subsequent twenty years of his service on the board, he enjoyed a front-row seat to many attempts to circumvent the regulatory system. In a delightful 1925 article, “Medical Forgeries,” Van Meter shared stories of the fakes, frauds and imposters that he and the board encountered. Dowdall’s awkward attempt at bribery—while striking in its directness—lacked sufficient deviousness to make the cut for inclusion in Van Meter’s1925 reminiscence piece, but he knew already how to handle such matters.

He responded to Dowdall with an “encouraging” letter and asked for two photos. Dowdall responded with the requested photos and information, intended (so he assumed) for his Colorado license application. Instead, Van Meter forwarded all their correspondence to Dr. James Eagan, Secretary for the Illinois Board of Health.

As it turned out, Eagan and colleagues were already investigating Dr. Dowdall for several misdeeds in that state. Practicing medical without a license was one infraction. The one that authorities seemed most focused on involved allegations that Dowdall attempted to secure money under false pretenses—specifically, securing hundreds of dollars from medical students and prospective midwives by promising he could “fix” things with the Illinois Board through a “charitable scrutiny” in scoring their licensing examination.

The case against Dowdall only grew stronger when the arresting authorities found bogus diplomas from the American Association of Physicians and Surgeons. Dowdall had apparently sold a large quantity of these for as little as $5 each.

What also came out at that time was the reason why Dowdall felt he couldn’t legitimately secure a license from the Colorado board: while practicing medicine in Detroit he had been sentenced in to 7 years for perjury in a botched effort by Dowdall and a female companion to punish a rival physician through a sexual assault claim. Dowdall sat in prison from 1899 until sometime prior to July 1905.

He apparently arrived in the Chicago area after Port Huron, Michigan police “ordered [him] to leave the city” in 1905. He was practicing medicine without a license in Illinois when Eagan received the bundle of letters from Van Meter.

A Chicago jury convicted Dowdall in August 1907 but from there the paper trail disappears entirely. We don’t know what sentence the court imposed. We don’t know whether Dowdall lingered in the area afterward or made his way east to ply his trade (medicine? Fraud?) in New York City.  

Dowdall presents a good example of the weaknesses of the medical regulatory system of that era. Take the matter of his medical credentials. In 1890s Michigan, the basis for a medical license was a diploma from a “legally chartered” institution. Don’t be fooled, however, by the gravitas suggested by the term, “legally chartered.” This represented a low standard as laws governing the issuance of school charters were notoriously lax in many states. A medical degree from a “legally chartered” medical school was easily obtained as Dowdall knew first-hand. While he claimed to have graduated from Trinity College (Dublin), the specific degree he presented for licensure was from the Independent Medical College of Chicago—a fraudulent school notorious as a medical diploma mill. (The Illinois Supreme Court revoked the school’s charter in 1899.)

Another weakness was the anemic statutory language in many states for regulating medical practice in those days. When Dowdall was convicted of perjury in 1899, only nineteen states gave their medical board the authority to revoke a license they had previously issued. Michigan was among the nineteen. So even though Dowdall had a perjury conviction, the Michigan board could not remove his license to practice…though local authorities apparently found ways to make life sufficiently uncomfortable that he opted to leave for Chicago.

Another weakness stemmed from the poor communication among and between medical boards. This was precisely the flaw that Dowdall intended to exploit with his clumsy attempt at a Colorado license. He knew that his Michigan license was tainted by his perjury conviction in that state. Thus, he needed a clean license as the basis for trying to secure a license in New York without having to reference his time in Michigan. If Dowdall could’ve obtained that Colorado license and laid low for a few years, his application for a New York license ca. 1908 or so would’ve been based upon that Colorado license and passing the New York licensing exam. If he could pass the exam (no small hurdle) he would’ve been open for business in the relative anonymity of New York City’s metropolis.

Looking back at this era, we can see this sprinkling of non-violent, white collar criminal types hovering around the fringes of medical licensure and practice. I don’t believe there were necessarily a lot of these types but just enough to require regulatory vigilance. I guess we shouldn’t be surprised. Once a license became mandatory in order to legally practice medicine, both the medical degree and the license itself acquired an economic value as credentials and as the basis for income beyond that of the average worker.  

As for Benjamin Hawker? Dowdall only sidetracked me so long. I’ll write about Hawker v. New York and the good doctor’s surprising backstory in my next posts.

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

It would be naïve to think that this nation’s fraught history with race did not impact medical regulation. The challenge here, as for all the categories explored in this post, is pulling together a reasonable overarching narrative from fifty different states. If we pull back to a thirty-thousand foot view for medical regulation, however, there was one development that carried by far the greatest impact.

Black Americans faced limited opportunities for medical education and, ultimately, licensure in the late 19^th and early 20^th century. These opportunities were curtailed further by reform measures in medical education such as those by the Carnegie Foundation and the AMA Council on Medical Education. While the Carnegie Foundation’s Flexner Report remains the better known of these efforts, the Council on Medical Education’s inspection and rating system for U.S. medical schools proved even more impactful. You may wonder, “How is this relevant to medical regulation?” I’ll explain.

The Council created a 3-tier rating system that categorized all schools as Class A, Class B or Class C. The first two categories either met standards or were deemed capable of doing so with reasonable changes. Class C schools were classified as substandard and deemed unsalvageable. This categorization system carried a profoundly negative impact to historically black medical colleges (HBMCs), nearly all of which fell into the Class C grouping.

With the exception of Howard, HBMCs were proprietary endeavors chronically short on funding and resources. Yet they were often the only option available to black physician hopefuls. As state legislatures and medical boards –desirous of higher standards for medical education and plagued by persistent diploma mill style educational endeavors—eagerly embraced the Council’s rating system. The classification system fit conveniently and without ambiguity into state law and seemed a mom-n-apple pie recipe for improving the quality of this nation’s physicians.

The downside? Once this became a primary basis for licensure, HBMCs routinely found themselves assigned to the Class C category with their graduates’ ineligible for licensure in all but a few states by 1923. This reality contributed to a death spiral for all but two HBMCs (Howard, Meharry) and represented a massive setback for black Americans aspiring to become licensed physicians.

While this systemic factor cannot be emphasized too much, there was also impactful activity happening around licensing decisions specific to individual physicians. Here it is difficult to generalize without succumbing to speculation. So I will offer a few anecdotes though I acknowledge that the plural of anecdote is not evidence!

Justina Ford was the first black female physician licensed in Colorado. The year was 1902. Her encounter with the Colorado board left an indelible memory. As she related the story later, one board member told her: “I’d feel dishonest taking a [licensing] fee from you. You’ve got two strikes against you. First off, you’re a lady and second, you’re colored.” Her low-key response suggested she would be a persistent licensure applicant. “I know it. I thought it all through before I came. This is just the place I want to practice.”

Or take the example of the North Carolina Medical Board. For roughly 40 years, the Board’s administrative practice was to annotate the record of black licensure applicants with a “col” or “colored.” I wrote about this practice recently in the North Carolina Historical Review though the extant evidence and data available were ambiguous as to whether this impacted the scoring of their examination.

It seems highly unlikely that North Carolina was the only state medical board utilizing this annotation practice. It was common to see state medical journals and JAMA publishing updates from medical boards on the administration of their licensing exam…and also common for these narrative pieces to call out the number and/or performance of “colored” candidates. Clearly, someone at these boards was keeping track; and in an era when extended response/essay questions were the norm…well, scoring these licensing exam questions was inherently a subjective matter by the board member(s). Scorer bias—whether racial or subject-matter specific—was impossible to remove from such a testing format.

The Journal of the National Medical Association commented in 1910 on the challenge confronting black physicians to receive due and appropriate credit for their performance on state licensing examinations. Historian Neil McMillian asserted that it was “an article of faith” among black physician candidates in Mississippi that prejudice impacted licensing decisions in that state. The truth behind these concerns and perceptions—to the extent it is recoverable at all—is buried in records dispersed across fifty states. Records that may be suggestive but not explicit about this reality.

Final thoughts

I know that some readers will react to a blog entry like this and think I’m picking at an old wound…that I’m focusing unnecessarily on past shortcomings rather than celebrating the more recent successes in the regulatory narrative. I guess that is one way to interpret this post.

I would hope, however, that readers of this blog over the past few years will see this piece for what I intended—to share what I suspect is a lesser-known aspect of the history of medical regulation; to tell stories—both good and bad—about this unique field; and to inform today’s regulators about the rich history in their field as helpful context for the important work they do today.

Select sources:

Federation Bulletin spanning multiple years from 1915-1926.

“State Board Statistics” in JAMA. This extensive presentation of aggregated information/data appeared annually in April-May.

Marilyn Griggs Riley, High Altitude Attitudes: Six Savvy Colorado Women (Boulder: Johnson Books, 2006)

David Alan Johnson, “The North Carolina Medical Licensing Examination, 1886-1925: Analysis of Performance by Examinees from Historically Black Medical Colleges,” The North Carolina Historical Review (April 2021).

The opinions expressed are those of the author and do not represent the views of his employer (Federation of State Medical Boards)

In Part 1 of this blog post, we explored medical regulation’s imperfect past, including the barriers that confronted women as well as the nature of the appointment process to state medical boards. In Part 2, we consider the experience of two more groups: international medical graduates (IMGs) and osteopathic physicians.

IMGs

The regulatory narrative around IMGs is rather unusual compared to that of other groups. In the late 19^th and early 20^th century, IMGs—especially those from Europe—often possessed medical education credentials considered every bit as good, if not better, than most US graduates. Licensing presented a modest barrier to these physicians. This was at a time when IMGs numbers were relatively modest–only 3-4% of all the physicians examined in a given year by medical boards. This demographic reality that didn’t change until the wave of refugee and émigré physicians following the Second World War and the rapid expansion of US healthcare demanding more doctors.

All of which makes the anti-IMG sentiment that arose in the 1920s all the more unanticipated. The post-WWI era saw a reactionary wave sweeping American politics and culture with nativist and racist sentiment erupting in 1919. Conditions in medical regulation–once relatively conducive to IMGs–quickly turned uninviting.  

As the primary communication tool among and between state medical boards, the Federation of State Medical Boards’ monthly Bulletin offers a unique look into this deteriorating regulatory landscape in the 1920s. For the first time, inflammatory language began to appear in the Federation Bulletin with phrases like “alien invasion” and “undesirable foreign applicant” entering its editorial pages.

At this same time in the mid-1920s, states targeted IMGs directly with a mix of legislation and licensing requirements mandating full citizenship as a condition for medical licensure or, in some instances, that the individual begin the formal process by filing naturalization papers. Twenty-one states had such requirements in place by 1926 with the number rising to 47 states by 1958. By the 1930s, justification for such restrictions gained an added economic incentive as the country lapsed into the Great Depression.

IMGs were disadvantaged in another way–state medical boards lack of first-hand knowledge regarding the medical education provided even at elite European universities. Thus, the longtime practice by medical boards for using lists of “approved” medical schools whose graduates were deemed eligible for licensure proved problematic for IMGs. Such lists were originally created around US medical schools often based upon informed by information and data via the AMA Council on Medical Education and annual issue of JAMA reporting school performance on state licensing exams. These lists were always subjective to a large decree when considering schools outside the US. Consequently, these lists were a mechanism that could easily shut out IMGs (whether intentionally or not), especially those from lesser-known schools outside of Europe.

Osteopathic physicians

If the language directed against IMGs feels embarrassing to read in 2022, brace yourself for worse. Even harsher statements directed at osteopathic physicians can be found in nearly all the medical journals of the day, including the Federation Bulletin during this same period. The invective is noteworthy for its extreme nature and its frequency and persistence over a prolonged period of time. A few excerpts are representative. In 1915, the Bulletin labeled osteopathic medicine a “fraud” and denigrated its practitioners as a “pseudomedical cult.” The Bulletin editors and contributors questioned whether osteopaths deserved the title of physician and lamented legislative efforts to create separate licensing boards for them. The Bulletin further decried osteopathic medicine’s “fallacious claims,” characterized its treatment regimen as bordering on “criminal” and argued that “no conciliatory tone” should be adopted in interacting with osteopathic physicians.

In one regard this was nothing new in American medicine. The animus directed against osteopathic physicians by medical “regulars” represented another chapter in the profession’s tawdry nineteenth century internecine war against homeopaths, eclectics and other “irregular” practitioners. Yet the lingering effects of this bias are far more significant. The lines of demarcation erected between MD and DO continue to this day, impacting accreditation, licensing, examination and certification related to physicians. Medical regulators of the day fought long and hard to deny legal recognition to osteopaths; and when that failed, they sought to curtail their legal scope of practice and confine them to separate licensing boards. Still not content, the profession succeeded in creating basic science boards in multiple states as a screening tool constructed with with DOs, chiropractors and others in mind. T

Some may be surprised to learn that there are still 13 states with separate MD and DO licensing boards—a questionable decision involving taxpayer dollars with boards performing largely identical functions in verifying credentials, discipline and rule-making. Similar parallel systems are in place for medical school accreditation and even the licensing examination. With any luck, the recent success in consolidating what had been separate accrediting bodies for MD and DO graduate medical education programs will set an example to be followed elsewhere, e.g., medical school accreditation, licensing, examination.

In the final post on this topic, we will consider race and racism in the history of medical regulation.

The opinions expressed are those of the author and do not represent the view of his employer (Federation of State Medical Boards).

I’ve debated how I wanted to begin this post. I finally decided to open with the two pictures you see below. Both show the governing board for the Federation of State Medical Boards, the national organization supporting medical licensing authorities throughout the U.S.  On the left is the board in 1960; on the right, the current board. The two photos offer a striking contrast and they are also representative of this board’s composition—and that of medical regulation generally—in their respective eras.

Looking at these photos, it’s tempting to craft a soothing narrative, one allowing us to pat ourselves on the back and feel good about the progress we’ve made. Some might say: “Why shouldn’t we?” The visual evidence of progress in terms of diversity is obvious and worth celebrating. Yes, absolutely. Still…contenting ourselves with just that story tends to gloss over the harsher features in the long history of medical regulation, including systemic factors that may still be relevant.

Let’s start with what I think is a key to understanding this history: Medical regulation justified its creation as serving the interests of the public; yet for most of its history, this regulatory framework reflected the demographics, interests and priorities of the medical profession, just as much, if not more than, those of the public.

Medicine as a profession has enjoyed significant latitude in policing itself, i.e., “self-regulating.”  While the self-regulatory aspect of medicine today is far less pronounced than it once was, the long historical record, including the late nineteenth century creation of state-based licensing, reflects a clear self-regulatory model. This means that any bias and discriminatory elements in the profession tended to flow inexorably into medical regulation as well. How so? Let’s start with gender.

Women

From an historical perspective, medicine as a field has not been especially inviting of women. Similarly, positions of authority within the field were few and far between for women until more recent decades. Consequently, women were absent from medical boards throughout most of their history.

Granted, we can find the unusual historical first (Dr. Adele Hutchinson appointed to the Minnesota board in 1899) but otherwise the best evidence suggests medical regulation saw few women participating until the 1980s. For example, consider just a cursory breakdown by gender of medical board members between 1985 and 2018. Women comprised only 16% of all board members in 1985. Even that figure is arguably misleading as there were 17 boards with no women serving at all at that time. In 2018, the figure rose to 33% for women serving on state medical boards.

And what of the long period preceding this? Absent a historical listing of all state medical board rosters, it is impossible to offer a definitive statement characterizing the gender landscape for medical regulation between Adele Hutchinson and the mid-1980s. However, there is suggestive photographic evidence. The Federation Bulletin—a monthly FSMB journal—published group photos of medical boards on a periodic basis between 1956 and 1984. A visual review shows that the Bulletin published 29 such photos showing 254 people—only 6 were women. While the available evidence is admittedly limited, it seems sufficient to safely state medical regulation remained male-dominated until recent decades.

Systemic Factor

I know that some will greet my assertion of an historically male-dominated medical regulatory system with a collective, “Duh!” Sheer numbers were one factor. The number of female physicians in this country hovered around seven to eight thousand from about 1900 to 1940. Yet numbers alone don’t tell the story. Instead, it is important to recall the mechanism by which individuals made their way onto state medical boards.

In almost all instances, state medical board members were (and remain today) gubernatorial appointments. In some instances, unilaterally appointed though often with input from the profession via the state medical association. Gender and racial norms throughout the first half of the 20^th century differed significantly from today. At a time when Jim Crow segregation predominated in much of the country and women were still fighting for a Constitutional right to vote (1920), the power dynamics in medicine—and thus medical regulation—were slanted almost entirely toward white, male physicians. In essence, even if women or persons of color wished to serve on a state medical board, the likelihood of their doing so was slim at best simply due to the power dynamics at work.

This is an important point that should not be glossed over. Access to power—often predicated upon proximity to, or personal acquaintance with, persons already in a position of power or influence—remains important even today. Talk to individuals appointed to a state medical board today and two themes often crop up as they relate how they came to be appointed. Their stories usually involve either (1) a personal relationship with someone in a position of authority/influence—sometimes even the governor him/herself, or (2) prior direct political engagement or activism bringing the person into contact with key figures in the decision-making dynamics. Whatever the collective composition of state medical boards today (and none of us know precisely what it is), it is undoubtedly much more representative than its past iterations. But it is also still impacted by the dynamics of power and access to that power.

In part two of this blog series, we will consider the regulatory experience of two more groups—international medical graduates (IMGs) and osteopathic physicians. A century ago regulators targeted both groups with measures intended marginalize and limit their ability to practice medicine.

The opinions expressed are those of the author and do not represent the views of his employer (Federation of State Medical Boards)

Writing about the history of medical regulation means spending a fair amount of time poking around the internet, browsing through online archives and searching Google Books. While the internet includes plenty of crap, there’s also valuable material hiding in plain sight for those willing to look for it. Take for example what I ran across recently: annual reports published by the Maryland State Board of Medical Examiners.

These reports (1914, 1916, 1918, 1920, 1922, 1923) spanned nearly a decade over a century ago. Now I suspect some of you are thinking: “What possible interest could these have today? Aren’t they just dry as dust reports from government bureaucrats?” I understand that sentiment; yet you’d be surprised by what we can glean from these annual reports.

First, these reports serve as a reminder that the primary role and function of medical boards has evolved in fundamental ways. Most board carried the title “Board of Medical Examiners” for one reason: the vast majority of their work involved writing and administering a licensing examination twice a year—usually May or June and then again late in the year. Things are much different today. By the mid-1970s state medical boards had collectively removed themselves from writing their own exams in favor of national exams. By 2000, they relinquished administration of the exam to national test entities that developed them.

A century ago, however, state medical boards like that in Maryland did the heavy lifting for these exams. These reports record that Maryland examined 928 physicians over the thirteen test administrations documented here. Their exam consists of ten  extended response items in nine subjects: Chemistry, Anatomy, Physiology, Pathology, Obstetrics, Surgery, Materia Medica, Practice of Medicine, Therapeutics.

And the exam data from these reports? If we exclude the individuals retesting just the failed portion from a prior exam, there were 706 full test administrations. What can we glean from the data? Several things. First, the exam presented a modest hurdle to prospective licensees.  Of those 706 test administrations, 651 were passing (92%)—a figure not that far removed from USMLE first-taker pass rates for US students/grads.

These reports also tell us a good bit about the demographics of Maryland’s doctors. Specifically, the licensed physician population in Maryland was largely homegrown. The vast majority of physicians tested by the board (86%) graduated from medical schools within the state or the District of Columbia. There wasn’t much diversity either. International graduates were quite uncommon—only fifteen appeared for a licensure over the entire period. A total of 38 graduates from one of the historical black medical colleges of that era presented for licensure.

I mention demographics, in part, because it seems  relevant to my second major observation in reading this reports: There is a distinctly provincial element that I detect in reading these reports—one in which the interests of medical licensure and the medical profession run parallel and often overlap. For example, the board’s twice yearly licensing exams were conducted with a large assist by the Medical Chirurugical Society of Maryland which contributed physical space for the exam. The board apparently reciprocated when it could. One year the board closed its books with excess funds and used the opportunity to contribute $1,000 to the MedChi Society’s building fund. I guess we shouldn’t be surprised as the annual report’s title identified it as a report to “the Medical Chirurgical Faculty of Maryland.”

Now, I don’t wish to overstate this provincial element as these reports also reveal an attentiveness to issues and trends happening outside the state. That was certainly true with the board’s exam. The board’s 1914 report commented favorably on an amendment to state law allowing the board to incorporate a “practical” component to the licensing exam, e.g., lab work, directly observed interaction with a patient, etc. Two years later the board commented favorably on the first administration of the NBME Parts certifying exam. The launch of the NBME was “favorably received” as the opening of a “new era” with board member Dr. Herbert Harlan as one the staunchest supporters of NBME.

Other annual reports commented on leadership changes at the Federation of State Medical Boards and more stringent educational requirements set by the AAMC for the nation’s medical colleges (including the use of matriculation exams) while lamenting the steadily rising cost of medical education. Obviously, Maryland wasn’t a true provincial backwater with Johns Hopkins in state and the District of Columbia on its border.

So what then do I mean by characterizing these reports as provincial? Think of it this way.  Looking at any century old document represents an exercise in “backward reading.” Unlike the writer of the document, we enjoy the luxury of knowing what happened in the century that followed. One of the things that is so striking in reading these reports is the sense that they were written as an intra-professional document intended for the community of Maryland physicians represented by the Society…a sense that the medical regulator writing the report was speaking to a peer, a colleague in medicine, whose duties may not have included the licensing function but whose interests and priorities were shared jointly as medical professionals. In essence, the reports speak far more to the profession than the public.

This is evident with the space given in these reports to initiatives such as the crackdown on illegal practitioners (1914, 1918, 1920, 1922, 1923). This focus on reining in unlicensed physicians and non-physician healers doesn’t surprise me. Read enough of the late 19^th and early 20^th century medical literature and you realize the medical boards defined “discipline” in a far more limited way in those days. Medical boards pursued discipline as an exercise what I have termed as boundary maintenance, i.e., guarding the profession against scope creep by chiropractors, midwives, optometrists and, in those days, osteopathic physicians. The 1922 report included a lament that somehow this task had been “comparatively eas[ier]” several decades earlier when the boards had simply to chase after “notorious charlatan[s]” and eliminate diploma mill grads. This was probably more rose-colored nostalgia than reality but still…the board felt under assault by illegal practitioners who “resourcefulness” and identity “disguises” seemed unlimited.

This seemingly Sisyphean task exhausted the board and its members if the periodic complaints about the public in these reports are any indication. Irritation with the public expressed itself in various ways—genuine puzzlement as to why the public failed to appreciate the profession’s efforts of their behalf. To the board, continued popularity of medical fads and “cults” simply reflected that the public mind is “uncertain” if not downright fickle. Surprisingly enough, one report ended with a long passage in which the frustrated board offered to simply throw up its hands. Rather than erecting a large mechanism to track down illegal practitioners such as the California board had done, they wondered aloud, “Why bother?”  Maybe the state should just handle medicine as a “local option” issue just like alcohol had been t for treated for so many years prior to Prohibition? If the locals want to license a Christian Scientist, go ahead. If they want non-degreed physicians, why not?

This philosophical throwing up of ends didn’t extend beyond the 1918 report. And yet…it seems that the board’s report pulled back the veil, just briefly, to show its true feelings—feelings seemingly aligned as much with professional pride as a regulatory commitment to public health.  

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

In March 1899, the Minnesota legislature confirmed a series of appointments by Governor John Lind. Passing largely, but not entirely, unnoticed was the appointment of Dr. Adele Stuart Hutchinson to the Minnesota State Board of Medical Examiners. As the Minneapolis Homeopathic Magazine trumpeted in its headline, Minnesota had placed a woman on their state medical board—a first for the state and the country.

Dr. Hutchinson served two terms (6 years) on the board from 1899-1905. In 1900, her peers on the board selected her as president of the board—a decision drawing a snide comment from one journal, The Medical Advance: “Well! Well! Wouldn’t that agitate your mesentery[sic]?” Hutchinson’s health may already have begun declining by the end of her tenure on the board as she returned to her family home in Andover, Massachusetts in 1906. Though active socially her health worsened steadily and she died in May 1909.

Looking back, the appointment of Hutchinson seems to have led directly to the selection of two of her successors on the board, Drs. Margaret Koch (1905-1911) and Annah Hurd (1911-1917). The linkage between all three was the Minnesota Homeopathic Medical College.

As noted in Part 1 of this blog, Hutchinson was an early founder and supporter of the college. Margaret Koch, the daughter of German-born immigrant parents, graduated from the college in 1895 and two years later was serving as part of its faculty. She and Hutchinson were both active in the state homeopathic medical society. Thus, their paths intersected at several points within what was a small community of women physicians in Minneapolis.

As the end of Hutchinson’s tenure on the medical board drew closer, there were parties determined not to waste the precedent set by Hutchinson’s appointment. The Women’s Medical Club of Minneapolis mounted a campaign for Dr. Koch to fill Hutchinson’s spot on the board.

With Koch’s appointment to the board, a direct connection to the suffrage movement becomes clear. Koch actively worked with the Minnesota Woman Suffrage Association (MWSA) with her office even serving for a period as the organization’s headquarters. Koch served various roles with the organization from 1900 to 1910 (auditor, reporter, treasurer, chairman) and then as Vice-President (1910-1913). Many of the women physicians remembered by Hutchinson in her 1903 article with the newspaper were active in that state’s suffrage movement: Mary Hood, Martha Ripley, Mary Whetstone.

Among Koch’s colleagues in the suffrage movement were a remarkable mother and daughter, Ethel and Annah Hurd. Ethel Hurd was one the mainstays of the movement. The first woman to graduate Knox College in Illinois, Ethel Hurd labored for decades with the Minnesota Women’s Suffrage Association (MWSA) and the Political Equality Committee of Minneapolis. Ethel and Annah both graduated from the Minnesota Homeopathic Medical College. Ethel in 1897 at approximately the age of fifty; Annah in 1900 after earlier graduating from its school of Pharmacy (1896).

 As Koch’s term on the state medical board drew to a close in 1911, the same forces that rallied to place Koch on the board now pressed the case for Annah Hurd. Like Hutchinson and Koch before her, Dr. Annah Hurd served six years on the Minnesota board. She seemed to have been instrumental in that board’s development and administration of its “practical” component to its licensing examination.

The string of appointments placing a woman physician on the board continued in 1917 with Dr. Ida Adams McKeen. Once again personal/professional connection played a pivotal role. Dr. McKeen worked with Annah Hurd as the lead physicians at a private hospital, the Minneapolis Maternity Hospital. Dr. McKeen appears to have served two terms on the Minnesota board (1917-1923).

I have been unable to learn more about Dr. McKeen or find records for the Minnesota board beyond this point. Thus, it is possible that the unique and unprecedented string of appointments placing a woman physician on the board continued beyond 1923…but it also possible Dr. McKeen was the last woman to serve on the Minnesota board before a lapse of many years.

As I reflect on these women and their stories, several thoughts are crowding my mind. First, it strikes me as remarkable that this story has lain buried so long…essentially forgotten today and all but not ignored even at the time it was happening. Keep in mind, I have run across no other instances of a woman serving on a state medical board during this time period. And while I cannot state definitively that no other state had a woman physician serving on their medical board during this period, the best evidence suggests this.

The American Medical Directory from 1921 listed the member of each state’s medical licensing body, i.e., state board of medical examiners or board of health. I found no other women listed as serving that year though it is possible some are hidden in plain sight due to the practice of some states listing people by initial rather than given name, e.g., D. A. Johnson rather than David A. Johnson.

Second, I found the personal histories of Hutchinson, Koch and Hurd striking in one regard. All three women defied their time period’s conventional notions of gender roles and societal norms by remaining unmarried. I find myself wondering whether this was a consciously made choice as perhaps professional and social priorities felt more rewarding? Or was this simply a life that unfolded without the right partner (him or her) ever intersecting with these women?

Finally, I am struck by the power of personal and professional relationships in the appointment of individuals to state medical boards. This is hardly surprising. I suspect if we selected ten people at random from the state board community today we would hear stories from most explaining how a “connection” led them to service. What feels unique with this Minnesota experience from a century ago is that the relationships and connections may have had as much to do with political and social activism as they did with conventional relationships established through medical education and practice.  

The opinions expressed are those of the author and do not reflect those of the Federation of State Medical Boards.

Sources:

“The First Woman Medical Examiner,” Minneapolis Homeopathic Magazine, Vol 8, no 5, 1899, page 152

“Personals,” The Medical Advance, Vol 37, 1900, page 648

Official Register of Physicians (Minneapolis: State Board of Medical Examiners, 1909)

“News Items,” New York Medical Journal and Philadelphia Medical Journal: A Weekly Review of Medicine, February 11, 1905, p. 300

Biography of Margaret Koch at https://documents.alexanderstreet.com/d/1009932307

Biography of Annah Hurd at https://documents.alexanderstreet.com/d/1009860072

David Johnson, ‘Practical Examinations’: How Minnesota’s Experiments with Assessment Changed Perspectives in the Early 20th Century,” Journal of Medical Regulation, vol 104, no 3, 2018

Polk’s Medical Register and Directory of the United States (Detroit: R.L. Polk and Co., 1917) p 831

American Medical Directory, 7^th edition, p. 787…see also 6^th edition p. 835

I first stumbled upon Dr. Adele Hutchinson through a small news item in the Minneapolis Journal newspaper. What caught my eye was the statement that she was entering the last year of her second term on the Minnesota State Board of Medical Examiners. Surprised by this statement of fact, I quickly double checked the date of this news item—November 26, 1903. This meant Dr. Hutchinson had joined the Minnesota board in the mid- to late-1890s! I immediately suspected—and now feel confident in stating—that Adele Hutchinson was the first woman to serve on a state medical board in this country.

This distinction alone makes it worth remembering Dr. Adele Hutchinson but I suspected there was an equally interesting story behind her journey into medicine and later onto the Minnesota board. This news clipping shared just enough about her career to tantalize. Mostly it brought to mind several questions. Who was Adele Hutchinson? What was her life story? How did she end up in Minnesota? How did it come to pass that she was appointed to the board?

Not satisfied to just leave her as the answer to a trivia question, I decided to do a little digging. What I have learned is surprising—not only was Adele Hutchinson the first woman to serve on a medical board but two of her women colleagues succeeded her on the Minnesota board…and that the suffrage movement in Minnesota appears to have played a significant role in these appointments.

But let’s not get ahead of ourselves.

Let’s start by placing some context around women in medical regulation. In 2020, women comprised 36% of all physicians with an active medical license in this country according to the census produced by the Federation of State Medical Boards (FSMB). Similarly, women accounted for 34% of the total membership on state medical boards when last I looked in 2018. These figures aren’t particularly surprising…and yet it is easy to forget that they stand in stark contrast to the fact that at one time the presence of any woman on a state medical board was uncommon—even a rarity.

As recently as 1985, fewer than half of all state medical boards had women serving. Going back even further, and despite the lack of a complete set of board rosters to review, there is photographic evidence that remains quite telling. I reviewed all of the group photos of medical boards published in the Federation Bulletin between 1956-1984. While the photos weren’t inclusive of all medical boards, what was published showed only 6 women out of 256 people captured in these pictures.

To be honest, with this kind of evidence in hand, I was shocked to find Adele Hutchinson serving on a state medical board in the 1890s. If I had been forced to hazard a guess as to when any woman first served on a state medical board, I would’ve selected a much later date, probably the 1920s or ‘30s.

So what do we know about Dr. Adele Hutchinson?

She was born in Andover, Massachusetts sometime in 1847 to Robert Stuart and Helen Christie Hutchinson. Adele attended the Boston University School of Medicine where she graduated in 1877. According to the 1903 news item, Adele and her classmate Mary Swain (also B.U., class of ‘77) arrived in Minneapolis soon after their graduation.

Apparently the two women determined to throw in their lot together practicing medicine. Their decision was a pragmatic one based upon Hutchinson’s statements to the reporter for that 1903 article in which she reminisced on opportunities out West and their comparable lack in the East. Hutchinson cited the strong “prejudice” against women physicians in the East, especially at the time she and Swain graduated. Despite the antipathy of the male-dominated profession, women were obviously interested in the practice of medicine if Hutchinson’s graduating class was any indication—nearly half of her senior class (16:38) were women.

The decision to go West to practice medicine seems a bold move. After all, Hutchinson knew no one in Minneapolis; Swain had only shirttail relations whom she had never met. Hutchinson later laughingly attributed their leap of faith as much to “ignorance” as to courage. Still, Hutchinson felt the West offered a true opportunity for women to be judged based upon their talents rather than their gender. In describing the situation in Minnesota in the late 1870s, she stated: “When a woman failed the blame was not placed at her sex but at her personal ability. It was the individual who could not grasp success, and women were deemed as capable as ever.”

The two women roomed together at 416 Fifth Street in Minneapolis for some time. Swain apparently found their western adventure a bit much and, homesick for family back in Massachusetts, she left Minnesota after a few years.

An important early success for Dr. Hutchinson was her acceptance to the Minnesota Homeopathic Society. This was no accident. The Boston University catalogue makes clear the homeopathic basis for its medical instruction. Hutchinson had a strong education in homeopathic medicine and worked directly with faculty member Dr. Mary J. Safford-Blake who served as preceptor to Adele. Dr. Safford-Blake, with training in the United States, Breslau and Heidelberg, was acknowledged as an expert in gynecology.

Hutchinson and Swain were elected to join the Minnesota Homeopathic Society shortly after their arrival. By the following year, several more women physicians arrived in Minneapolis:  Drs. Mary Hood, Martha Ripley, Mary Whetstone. All of these women put down roots in the area and became deeply engaged in medicine and civic affairs in the region.

Hutchinson established a successful practice for herself in Minnesota. She later served for many years as a physician staff member of the Minneapolis City Hospital…and more importantly she seemed to integrate smoothly into the homeopathic physician community. Hutchinson served as a committee member for the state homeopathic society studying the prospects for a medical college. The group recommended the establishment of a medical college and Hutchinson served as one of the school’s incorporators in 1886. Her engagement with the Minnesota Homeopathic Medical College (later absorbed as the Medical Department of the University of Minnesota) created the path leading not just Hutchinson, but two of her female colleagues at the college, onto the state medical board.

In my next blog post, I’ll explain this journey.

The opinions expressed are those of the author and do not reflect those of the Federation of State Medical Boards

Sources:

“Our Pioneer Women Doctors,” Minneapolis Journal. November 26, 1903.

“Adele Stuart Hutchinson,” Andover Townsman. May 28,1909

Boston University School of Medicine Fifth Annual Announcement and Catalogue. June 1877

William Harvey King, History of Homeopathy and its Institutions in America, Vol. 3 (New York: Lewis Publishing Co., 1905), 240-43.

 “The First Woman Medical Examiner,” Minnesota Homeopathic Magazine, Vol 8, no 5, 1899, page 152

It is human nature to crave certainty…to seek a clear understanding of our world and definitive answers to the questions—big and small—that confront us. There’s a reason for this. Science suggests strongly that we, as humans, are fundamentally hard-wired to seek answers or explanations. Indeed, even when these are not available or immediately apparent, our minds work actively to supply them. Along the way is an accompanying human tendency toward reductivist thinking—the tendency to take complex questions and issues and rework them in order to reduce them to ones offering simplified, general answers.

I offer this as preface to my update from an October 2018 blog entry titled, “Bias in Testing?” In that post from three years ago, I discussed a research project I had undertaken—one looking at the Register (official record) from the North Carolina Medical Board triggered by my finding that for nearly fifty years the board’s practice had been to annotate the record of black physician candidates for licensure. The board annotated these physicians’ record with “c,” “col” or “colored.”

I wondered whether this was a striking but ultimately benign action consistent with administrative practices in other state agencies in North Carolina? Or did this flagging point toward bias in the examining and licensing of these physicians? My research is complete and now appears in the current issue of the North Carolina Historical Review.

Like so much of history, “facts” do not necessarily speak for themself. I know some may balk at this statement fearing it justifies revisionist historical narrative. I will be blunt in my response. That kind of knee jerk reaction championing “facts” reflects a fundamental misunderstanding of the nature of historical inquiry. Placing evidence within an appropriate historical context requires the active participation of a human being —specifically the overlaying element of interpretation of the facts, findings, documents, evidence, etc. Quite simply, someone has to place research findings within a narrative framework to communicate to the rest of the world, whether fellow scholars or the public.

As the historian Nancy Partner once wrote, “Archives contain many interesting things but Truth is not included among them.”

So what did I find in looking at scores and performance on North Carolina’s licensing exam over forty years (1886-1925)? Let’s start with this.

Data analyses showed the exam performance by graduates of historical black medical colleges (HBMCs) as consistently lower than that of graduates from non-HBMC schools throughout the period studied. Those who would argue for letting the “facts” speak would likely point to this data as direct evidence of bias in the North Carolina exam. You may even agree.

But before you leap to that conclusion, what if I told you that the scoring for these exams (comprised of extended response or essay questions) was done in a blinded fashion? The candidates for licensure by examination were issued either a pseudonym or a number by the board Secretary on the day prior to testing. The examinees used this identifier, rather than their actual name, on their examination papers. Thus, the board member scoring the test ostensibly did not know the identity of the examinee.  

You may be thinking several things now. After all, we have the advantage of historical hindsight. We know the segregated nature of much of America at that time so you might ask, “How can we be sure the board followed this safeguard consistently?” Or you might ask, “Wasn’t the board Secretary still in a position where he knew the identity of the examinees?”

Those are fair questions. All we know is what was preserved in the board’s records documenting this process. Absent evidence to the contrary—letting the facts speak without the historian’s involvement as some would demand—means we start with a presumption that this safeguard was followed. Hopefully, however, some of you are thinking again about that Truth and the archives quote.

Let’s consider another question. If we accept the scoring safeguard used by the board and thus the legitimacy of the data, how do we explain the discrepancy in HBMC performance? In the article, I treat this question at length and find strong evidence from contemporary black educators suggesting the performance differential stems from significant challenges presented to HBMC matriculants by inadequate pre-medical education and financial/resource constraints facing these schools. The records of administrative officials at HBMCs are rife with concerns these realities presented in preparing their graduates for state board licensing exams.

Now let’s turn to a second finding from this research. Graduates of HBMCs showed a higher pass rate on the North Carolina exam relative to their performance on other states’ licensing examinations. Indeed, the performance of HBMC grads on the North Carolina exam exceeded (by 12%) the overall pass rate on state board exams collectively during this time period. In essence, the North Carolina presented “no greater hurdle” to licensure than that of most of states.

If we let the facts speak for themselves, this finding suggests that conscious, overt bias in scoring the exam—if it existed—did not play as extreme a role as we might have thought. But as an historian of medical regulation, I am uncomfortable in stopping there (i.e., simply accepting the facts) as opposed to contextualizing this finding.

Black physicians of this era viewed state licensing exams cautiously and with an understandable degree of skepticism. Who wouldn’t wonder what kind of standard was being applied when the New Orleans Medical and Surgical Journal reported that 70% of the 257 applicants for licensure failed Mississippi’s exam in summer 1907 and then nearly 80% passed in December?

The insular nature of the medical boards (almost exclusively all-male and all-white) meant that those outside those demographics held understandable reservations about fairness. What was the purpose of an annotation to a record if not to clearly make someone, in a position of authority and/or control, aware of the race of the licensure applicant? Here I can’t help but remember the story shared by the first black woman licensed in Colorado in 1902. That board’s executive secretary expressed reluctance to accept her license application and fee. With total candor he said, “You’ve got two strikes against you. First off, you’re a lady and second, you’re colored.”

The annotation practice itself? It appears to have been…well, if not ubiquitous, then certainly common enough that it triggered no contemporary comment. The North Carolina nursing board during this period annotated their records for black nurses as well. Updates on state board exams published in medical journals include numerous instances in which “colored” examinees’ performance is called out explicitly.

Thus, even though I had a significant amount of data (“facts”) at my disposal, I found it challenging to present my findings—sometimes mentally second guessing myself in my interpretations. For example, the board’s Register documented a single segregated administration of their exam in 1886, the first year an HBMC grad presented for licensure. The Register doesn’t record a segregated administration again. Does this mean this practice stopped after 1886? Or was it a continued practice so administratively unimportant (or socially presumed) that it didn’t merit documenting in the Register?

And what about the role of the board Secretary? The board’s blinded scoring protocol operated as intended only to the extent that the person serving in that role behaved in a manner that preserved the de-identification until after scoring had been completed. Said another way, the efficiency of this safeguard rested upon the integrity of one man. Where does that leave the historian? Am I naïve in presuming the integrity of this safeguard? Is it fair for me to cast suspicion based upon performance differential alone if no other evidence exists suggesting the safeguard was not being utilized?

I found this research project to be both fascinating and discomforting. In 2021, questions of race—even when seen through the lens of an exam discontinued long ago—cause many to give pause and tread lightly. I had professional colleagues reluctant to collaborate on this research project. I had one medical board executive director express early interest in a similar project with their board’s exam; then disengage entirely after I shared details of the North Carolina project. I understand the reaction in both instances.

I hear Nancy Partner yet again: “Archives contain many interesting things but Truth is not included among them.”

In the final draft of the article sharing my findings, I found myself acknowledging an uncomfortable truth common to historical research and writing. “…neither this study’s data analyses nor documentation from the time period provide unambiguous evidence.”

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

Sources:

David Alan Johnson, “The North Carolina Medical Licensing Examination, 1886–1925: Analysis of Performance by Examinees from Historically Black Medical Colleges,” North Carolina Historical Review, April 2021 (152-182)

While I have been fortunate never to have been the victim of identity theft, I suspect the feelings of those victimized are similar to those of us who have experienced a home burglary. My wife and I experienced the latter nearly thirty years ago: a daytime smash and grab operation through a backyard window while we were away at work. All we lost physically was a pillowcase filled with some jewelry items. Still, I remember the distinct feelings this crime triggered—a sense of personal violation, insecurity, vulnerability and, of course, anger. I suspect Dr. Emma W. Mooers experienced similar emotions over a century ago.

Emma W. Mooers graduated from the University of Michigan medical college in 1884. She was one of thirteen women in a 92-member graduating class. She later practiced at McLean Hospital in Waverly, Massachusetts and by 1896 made her way to the Neuropathology Department at Harvard Medical School. Obviously, this was a very talented physician. Shortly before her arrival at Harvard, Dr. Mooers first learned that someone been practicing medicine under her name.

Sometime in 1894 or ’95, Victor Vaughan (Dean of the Michigan medical school) received a letter of complaint from a physician in a small north Michigan town. The disgruntled doctor claimed a UM grad, Dr. Emma Mooers was practicing nearby; and in a manner he deemed highly “irregular.” However, Vaughan knew that Emma Mooers was in Massachusetts, not Michigan. Vaughan told the doctor they had an imposter in their community and to take action immediately. Before an arrest could be made, the faux Dr. Mooers fled. Vaughan and his colleagues soon tracked the imposter to Chicago but again the faux Dr. Mooers eluded authorities, fleeing before they could arrest her. Then silence—for the next few years nothing more was heard of the faux Dr. Mooers.

Fast forward to the year 1900. The real Dr. Emma Mooers is firmly established at Harvard when Dr. S. D. Van Meter, Secretary for the Colorado Board of Medical Examiners, received an inquiry from Dr. Emma W. Cory for a license. In her application, she supplied a certificate from a Univ. of Michigan official attesting to Emma Mooers graduating in 1884, explained Mooers as her maiden name and that her original diploma had been destroyed in a fire—thus the certificate.  The Colorado board, trusting the UM document and unaware of what Vaughan knew, issued a license. Soon enough, Dr. Cory’s conduct of her practice aroused the board’s suspicions but as Van Meter later wrote, “Suspicions without proof are worthless.”

The faux Mooers, now practicing as Dr. Cory, almost got away with her identity theft. In fact, she would have if she had not run into, and struck up a conversation with, Dr. Laura Leibhardt—Michigan class of 1884! Recall there were only 13 women in that graduating class. Far too few for Leibhardt not to recognize it was an imposter standing before her claiming to be Dr. E. W. M. Cory, class of ’84. Leibhardt alerted the board; they filed formal charges with an arrest warrant forthcoming soon after.

“Dr” Cory was probably overconfident. She had kept one step ahead of the authorities at least twice before. Now she even had in her possession an official certificate from UM attesting to her graduation. Why should she run again? Rather than bolt, she remained in state and showed up for her trial. What she didn’t know is that the real Dr. Emma Mooers had boarded a train and had traveled to Denver for the trial!

What an immensely satisfying moment it must have been for Dr. Emma Mooers to see her imposter convicted and sentenced to a year in jail. The Colorado board must have felt similarly. In an era of relatively poor communication and little coordination in verifying credentials, medical imposter stories like this one litter the professional literature. When Dr. Van Meter wrote about the Cory-Mooers case at length many years later, it was just one of a half dozen that he shared for the memorable elements they contained.

If that was all there was to this story, it would still be worth presenting as an interesting saga in its own right. But the epilogue I wish to share ties things up in a rather unexpected way.

For starters, we don’t know who Emma Cory was in reality. Furthermore, we don’t know how or why she selected Dr. Mooers for this identity theft and imposture. Their paths must’ve crossed in some way—tangential or otherwise—but how so remains a mystery.

To the disappointment of the real Dr. Mooers and others, the Colorado district court took pity on the imposter. The court suspended Emma Cory’s one year sentence and placed her on parole. Why? Her attorney undoubtedly placed great emphasis during the sentencing phase on his client’s status as a mother of several children. Cory fulfilled the conditions of her parole and, according to Van Meter, later practiced the “healing arts” as a discipline of Mary Baker Eddy. Otherwise, she seems to have disappeared from the historical record—at least to the extent of my cursory google searches. Perhaps a reader of this blog would like to do a little sleuthing?

And the real Dr. Emma Mooers? A hint of the tragic and the eerie followed her. Having to deal with several years of someone stealing her identity was bad enough. Fate was even less kind as Dr. Mooer’ promising career was cut short. She and a colleague became infected while studying the tissue of a man who died of septic tonsillitis. Her colleague recovered; she did not—dying of streptococcus poisoning on May 31, 1911. She was only 52.

And the eerie element I mentioned? Well…check out the gentleman pictured next to her in their UM class of ’84 photo.

His name was Herman Webster Mudgett–at least, that’s how he presented himself to the university. The name doesn’t ring a bell does it? But look closer—the photo may look familiar…you may even get a sense of ‘Where have I seen this guy before?’ if you are a fan of the true crime genre. Let me help.

Think Devil in the White City…think H. H. Holmes, notorious serial killer. Now do you recognize him?  

Mooers, Mudgett and Leibhardt, UM Class of 1884

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

Sources:

S. D. Van Meter, “Medical Forgeries,” in Colorado Medicine, C. S. Bluemel, Ed.  (May 1925), 169-77

Victor Vaughn, “Papers Fraudulently Obtained,” JAMA. March 8, 1902, 658-59

A Handbook for Speakers on Public Health (Chicago: AMA Press, 1914) p. 463

Composite Photo, UM School of Medicine, Class of 1884. HS1501

Bentley Historical Library, University of Michigan.

My last post shared the story of Nathan Aiken: the first physician to have his license revoked by a medical board and the subsequent court case presenting the first challenge to a board’s legal right to do so. Aiken v. State Board of Health set the stage for the U.S. Supreme Court’s Dent v. West Virginia (1889). The relatively modest attention devoted to Dent belies its importance to medical regulation…and as the historian James Mohr made clear in Licensed to Practice, the court’s decision was no foregone conclusion.

These are the facts of Dent. The West Virginia legislature established a State Board of Health in 1881.  Along with the usual scope of powers (e.g., sanitary investigation, monitoring water quality, sewage) the board received statutory authority to license individuals for the practice of medicine. Licenses could be obtained by any of three methods: medical degree from a “reputable medical college,” practicing within the state for the prior ten years or passing the board’s licensing exam.  

Frank Dent made inquiries in 1881 only to learn that his seven years practice in the state didn’t satisfy the law; so he journeyed to Ohio and by 1882 gained a medical degree from the American Medical Eclectic College in Cincinnati. He then reapplied and the board turned him down citing the school as “not reputable.” Angry and spoiling for a confrontation, Dent practiced medicine openly hoping to force a legal showdown. The board obliged by notifying the attorney general and soon both parties found themselves in court. Dent lost ($50 fine) but appealed to the state supreme court. He lost again in 1884. Dent persisted by filing with the U. S. Supreme Court in 1885. The stage was set for the Supreme Court to render its first decision on the constitutionality of the medical licensing laws common in most states by then.

The Court’s decisions in the preceding years signaled a general acceptance of states’ authority and latitude in matters of public health and safety. [Thurlow, 1847; Mugler, 1887] The Court seemed also to have accepted state intervention impacting individual private property interests despite the due process guarantees of the Fifth and Fourteenth Amendments. [Slaughterhouse Cases,1873; Munn v. Illinois, 1876].

Still, the Dent decision seemed inevitable only in hindsight. The Court’s composition had shifted toward one reflecting strong pro-business, pro-capital bias favorable to private property interests of individuals as well as corporations. Dent and others argued the medical license as property and the Court remained strongly behind private property rights under the Fourteen Amendment and in keeping with “entrepreneurial liberty.”

Justice Stephen Field wrote the majority opinion. Ironically, if one had been asked to guess the direction of the decision based upon the choice of Field as its author, it would have been understandable to predict an entirely different decision. The wave of medical licensing laws in place by the late 1880s represented some of the most active regulation by the state touching upon matters both economic and legal (private property). Field had dissented in multiple cases in the preceding years in his defense of property rights. In addition, several of the Field’s fellow justices (Samuel Miller, Samuel Blatchford) had personal experience or familial connections to medicine–connections that might have left them sympathetic to Frank Dent’s arguments.

Instead, Dent is a good reminder why one should be careful reading the tea leaves to guess Supreme Court decisions. In January 1889, the Supreme Court ruled decisively against plaintiff, Frank Dent. Justice Field opened by covering the same ground featured in Aiken v. State Board of Health. He acknowledged the right to follow a “lawful calling” but then cited a higher societal right—setting reasonable conditions in the interest of protecting the citizen. Field wrote:

“The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as deception and fraud.”

However, the state did not enjoy carte blanche. Fields wrote that state authority to set qualifications for practicing a profession were not unlimited. They had to be “appropriate” and “attainable.” 

Dent echoed themes arising from Aiken a decade earlier. Where Judge Williams alluded in Aiken to the unique and privileged position enjoyed by medicine, Justice Field sounded a similar note: “Few professions require more careful preparation…than medicine.”  He cited the “subtle and mysterious influences” at work in the interactions of mind and body, disease and remedy in a passage hinting at the blend of art and science inherent to medicine. Field blended deference to physicians predicated upon their specialized knowledge with a recognition that this distinctive knowledge made regulation by fellow professionals a necessity.

“…few can judge…the qualifications of learning and skill which he [the physician] possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications.”

The implications of this articulated deference toward medical professionals proved significant. Emphasizing the esoteric nature of medical knowledge reinforced medicine as a field separate from the rest of society. From here it was a short mental leap to asserting the uninitiated (laymen) could not understand the nuances of the field. Thus, only fellow initiates (physicians) could truly understand medicine in all its complexity, including the qualifications for successful practice.

The Court embraced a kind of circular logic creating the foundation for an insular community of practitioners who would be given wide latitude in regulating themselves as professionals: The practice of medicine would be a closed community of physicians—entry into the community required a demonstration of specialized knowledge and skills—and those physicians already within the fold (physician serving on state medical boards) would be the primary determinant of entry as the profession’s specialized knowledge precluded lay decision-making.

This deference to medicine and medical professionals would go a long way toward creating a board structure that kept state medical boards the exclusive domain of physicians. Inclusion of non-physicians to this community would not come until the 1960s.

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

Sources:

James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009

James Mohr, Licensed to Practice: The Supreme Court Defines the American Medical Profession, 2013

Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age, 1997

Carl Brent Swisher, Stephen J. Field: Craftsman of the Law, 1969