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Eatough v. Board of Medical Examiners

Decided: August 1, 1983.


On appeal from the Board of Medical Examiners.

Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.


[191 NJSuper Page 169] This is an appeal from the Board of Medical Examiners.

There are two types of medical schools in the United States, allopathic and osteopathic. Graduates of American allopathic medical schools are awarded an M.D. degree. Graduates of American osteopathic medical schools are awarded a D.O. (Doctor of Osteopathy) degree.

These two types of schools may be distinguished by their approach to healing. The osteopathic approach to treatment arose in the United States in the late 19th Century. That approach centered on the belief that the proper functioning of the various parts of the musculoskeletal system is crucial to maintaining health and preventing or curing disease. Historical osteopathic practice used only techniques of bio-mechanics to manipulate the neuromusculoskeletal system in order to return the various bodily systems to their naturally harmonious state. Prescription drugs and surgery were not accepted treatment modalities.

Osteopathy no longer defers the use of drugs and other medications and measures in the treatment of disease, but osteopathic medical schools require their students to take courses in osteopathic theory and manipulation. There are presently 14 osteopathic medical schools in the United States, and each such school provides medical education which is at least minimally equivalent in both substance and quality to that which is provided in the American nonosteopathic medical schools. In New Jersey, osteopathic medical schools are required by the Board to provide the same minimum curriculum as is required of all other approved medical schools.

It is the expressed legislative policy of the State as well as the policy of the Board to recognize graduates of osteopathic medical schools as fully competent in every respect to practice medicine and surgery. There are over 21,000 licensed M.D.'s in New Jersey (including graduates of foreign medical schools) and there are approximately 1,600 licensed D.O.'s. Each of the four plaintiffs in this action is a graduate of an American osteopathic medical school and each has received a D.O. degree. Each is

licensed to practice medicine and surgery in New Jersey and all have the designation D.O. inscribed on their licenses (i.e., "Philip B. Eatough, D.O."). None of the plaintiffs use osteopathic manipulative techniques nor do they follow osteopathic principles in their practice.

The four plaintiffs have instituted this action against the Board to challenge the validity of N.J.S.A. 45:9-16 and N.J.A.C. 13:35-4.1 and 13:35-6.13. The challenged provisions contain affirmative requirements on the minimum content of professional commercial advertisements and also prohibit advertising which is false and deceptive in content or which presents serious potential for abuse (advertisement in the electronic media is prohibited, N.J.A.C. 13:35-6.13(d)).

The New Jersey Medical Practices Act, N.J.S.A. 45:9-1 et seq., contemplates that the Board issue a license to practice medicine and surgery for all physicians who have met specified requirements. Under the Board's licensing scheme, however, all licensed physicians and surgeons who have graduated from American allopathic medical schools with an M.D. degree, and all foreign medical school graduates (FMGs) regardless of the degree awarded to them, are issued licenses inscribed with the M.D. designation. Those physicians are required to hold themselves out to the public as M.D.'s. All physicians and surgeons who are graduates of American osteopathic medical schools and who have received D.O. degrees, whether or not they choose personally to employ osteopathic treatment techniques, are issued licenses with the inscription D.O. and are required to hold themselves out to the public as D.O.'s.

Some physicians have been issued licenses which are inscribed D.O., M.D. (i.e., John Smith D.O., M.D.). The physicians holding those licenses obtained them as a result of action taken by the California legislature in 1962. Legislation was passed there which authorized California's osteopathic medical school to confer the M.D. degree. In that year a number of persons with the D.O. degree exchanged their diplomas for M.D. degrees with

California's permission. Subsequently some of those physicians requested New Jersey to recognize the new degrees. The State issued licenses to those physicians who carry both designations. Those physicians must continue to carry the D.O. designation (with the M.D. designation) in any holding out to the public. In 1963, California discontinued that practice. Thus, the class of physicians whose licenses carry both the D.O. and M.D. designation is quite limited.

N.J.A.C. 13:35-4.1 (Degree Designation Rule) provides:

A physician licensed to practice medicine and surgery in the State of New Jersey shall identify himself only by that degree designation (M.D. or D.O.) which imprinted [ sic ] on the license issued to said person by the board; for example, John Doe, M.D., Joe Doe, O.D., Dr. John Doe, M.D. or Dr. John Doe, D.O.

N.J.A.C. 13:35-6.13(b) (Provision of information to the public) provides:

(b) A licensee in the State of New Jersey may provide information to the public, by publication in a dignified manner in newspapers or comparable written publications concerning: education, certification or appointment, location and availability of services, fees for routine professional services and other pertinent information about the licensee's practice. On any such publication, license degree must be designated. To the extent that information provided to the public by the licensee may be misleading, the licensee shall provide clarification, such as, but not limited to, whether additional charges may be incurred for related services when fees are stated.

Plaintiffs in this case are of the opinion that a substantial segment of the population does not understand the meaning of D.O., and that along with those persons who do understand the designation, believes that D.O.'s are either not qualified to practice medicine and surgery as is a physician who is required to use the M.D. designation, or are less competent than the latter. Plaintiffs, therefore, all use the suffix M.D. and not D.O. in their dealings with the public (i.e., in the telephone directory; on signs). Plaintiff Eatough made a written request to the Board that a new medical license be issued to him with the suffix M.D., but the Board refused. All four plaintiffs have been threatened with disciplinary action by the Board unless they cease using the M.D. suffix in their professional activities

and advertising. (The Board has agreed not to take any disciplinary action while this appeal is pending). The Board has the power to suspend or revoke a physician's license upon proof of improper advertising. N.J.S.A. 45:9-16.

Plaintiffs are demanding, among other things, that this court issue an order directing the Board to issue each of the plaintiffs a new plenary license to practice medicine and surgery in the State of New Jersey with the designation M.D. following his name. Plaintiffs also demand that they be permitted to advertise using the M.D. designation free from interference by the Board.

In May 1979, one of the plaintiffs, Eatough, filed an action against the Board in the United States District Court for the District of New Jersey, challenging the same statutory and administrative provisions challenged in the present action. In an unreported opinion dated March 25, 1981 the District Court rejected Dr. Eatough's claims. The doctor appealed and the Third Circuit Court of Appeals affirmed the judgment of the District Court with one judge dissenting. Eatough v. Albano, 673 F.2d 671 (3 Cir.1982), cert. den. 457 U.S. 1119, 102 S. Ct. 2931, 73 L. Ed. 2d 1331 (1982). A central issue in the present case is whether principles of res judicata and collateral estoppel bar this action entirely.


Plaintiffs Griggs, Van Dyken and Haberman were not parties to the federal court action and no final judgment has been entered in any court with respect to the issues raised here which would be binding on those plaintiffs.

New Jersey requires for the application of res judicata identity of causes, of parties or their privies, and of issues. New Jersey -- Philadelphia etc. v. N.J. State Bd., 654 F.2d 868, 876 (3 Cir.1981). In the last cited case, Judge Gibbons refused to apply the doctrine of res judicata to bar the claims of a group of plaintiffs only one of whom had been a party to prior state court

litigation. In the federal litigation it was asserted by the opposing party that the same issues were being raised that had been litigated in the state court action. Id. at 876. There was no showing in federal court that the plaintiff in the prior state court litigation was acting as a privy in that state litigation for the new plaintiffs in the federal litigation. Id. Moreover, as concerns the prior plaintiff, new issues were presented in the federal litigation which had not been litigated in the state proceedings. Id. Judge Gibbons stated that barring the claims of the federal plaintiffs who had not been involved in the state litigation by applying the doctrine of res judicata would be a violation of the due process clause of the Fourteenth Amendment. Id.

In this case, the Board has made no showing that Eatough was a privy for Griggs, Van Dyken and Haberman in the federal court litigation. Griggs, Van Dyken and Haberman are entitled to be heard. We will not apply the doctrine of res judicata to bar the claims of Griggs, Van Dyken and Haberman.

We note that the Board cites 290 Madison Corp. v. Capone, 485 F. Supp. 1348 (D.N.J.1980), as holding that res judicata will bar federal relief on a claim previously litigated in state courts even though the federal court plaintiffs are different from the state court plaintiffs. That is not the holding of that case, and the case does not otherwise assist the disposition of the issues here. In Madison, the same plaintiffs who had sued in state court and lost were barred by res judicata from bringing their claim in federal court. Id. at 1352. The Madison court found that although the defendants were different, res judicata still applied. Defendants in the state court action were the Orange New Jersey Rent Leveling Board (as a body) and the Commissioners of the City of Orange (as a body). In the federal action, those bodies were not sued; rather plaintiffs sued the members of both bodies individually. Id. at 1352.

The State also asserts that the doctrine of collateral estoppel should apply to bar the claims of ...

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