39 N.E.2d 851
No. 28806Supreme Court of Ohio.
Decided February 11, 1942.
Medicine and surgery — Requirements for admission to examination — Sections 1270 and 1272, General Code — State Medical Board to approve foreign diploma, or license — Full foreign right to practice all branches of medicine and surgery, necessary — Board may exercise right to approve foreign diploma when presented — Constitutional law.
IN MANDAMUS.
This is an original action in mandamus in this court and the question arises on a general demurrer to the petition.
It appears from the allegations of that pleading of fact that the relator, Harry Analis, graduated from an accredited high school and received the degree of Bachelor of Arts from Baldwin Wallace College in Berea, Ohio, likewise an accredited institution, and upon presentation of credentials to the State Medical Board of Ohio, he was given a certificate of preliminary examination duly attested on April 28, 1938.
The petition contained also the following material allegations:
“Relator further avers that the medical school of the University of Lausanne, situated in Switzerland, is in good standing with and recognized, accredited and approved by the defendant members of the State Medical Board of Ohio, and that on the 12th day of February, 1940, said university in its name and by its rector and chancellor and the dean of its medical school, after due consideration of the report of its faculty of medicine showing that relator after proper instruction had passed the examinations required by the law of Switzerland and said university officials, issued to relator its diploma conferring upon him the degree of Doctor of Medicine. * * *
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“Relator further avers that the law of Switzerland does not permit any person other than a Swiss citizen to be admitted to the federal examinations conducted by the authorities of that country for the purpose of licensing physicians and surgeons to practice their profession in Switzerland, but that the degree of Doctor of Medicine conferred upon relator by said University of Lausanne was issued to him after he had successfully passed examinations equivalent to those federal examinations the passing of which confers the right to practice medicine and surgery in Switzerland.”
There is the further allegation that the secretary of the board “notified relator that he was ineligible for admittance to such examination, and returned to him the proper fee which relator had theretofore deposited in order to take such examination.” It was further set out in the petition that relator thereafter was granted a hearing before the State Medical Board for reconsideration of his application to take the examination, and after his case was presented before such board he was informed that the board had affirmed the prior action taken through its secretary in denying his (relator’s) application.
The petition contains other allegations but they are either immaterial or conclusions of law.
Messrs. Payer, Corrigan, Bleiweiss Cook and Mr. Timothy F. McMahon, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Clemens R. Frank, for respondents.
BY THE COURT.
The question presented for determination is whether the presentation of a diploma from the University of Lausanne, Switzerland, by the relator requires the State Medical Board to permit him to take the regular examination conducted by the board
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for admission to the practice of medicine and surgery in Ohio.
The statutes governing the matter are as follows:
Section 1270, General Code, reads in part:
“* * * The applicant must also produce a diploma from a medical institution in the United States in good standing as defined by the board at the time the diploma was issued, or a diploma or license approved by the board which conferred the full right to practice all branches of medicine or surgery in a foreign country.”
Section 1272, General Code, reads:
“The State Medical Board shall admit to the examination an applicant holding the credentials set forth in Section 1270.”
For the purpose of the demurrer the operative allegations in the petition are admitted to be true.
The relator had a diploma from an accredited medical school in a foreign country but was not licensed to practice in that country. In substance the contention of the relator is that a citizen of Switzerland who comes to this country and seeks to take the medical examination would be permitted to do so under proper construction of our statutes whereas a citizen of the United States who graduated from an accredited medical school in Switzerland but who cannot be licensed to practice in that country is not permitted to take the examination. To sustain his contention he relies on the case of Leo v. Board of Medical Examiners of California, 36 Cal.App.2d 490, 97 P.2d 1046, in which it was held that the California statute would be construed as applying to alien applicants only.
It is enough to say that the California statute is different and the decision has no application here.
As we construe the Ohio statute it makes no difference whether the applicant has a diploma from a foreign institution or a license to practice in that country
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where the school is located. In either event two things are necessary, (a) the diploma or license, as the case may be, must be approved by the board, and (b) such diploma or license must confer the full right to practice all branches of medicine and surgery in a foreign country. It is plain therefore that our statute makes no distinction between an alien and a citizen of this state and it is a valid and constitutional enactment.
Either a diploma or license may be presented. Both are not necessary. Whichever is presented must be approved by the board before the applicant takes the examination. Is the averment that the University of Lausanne is in good standing with and recognized, accredited and approved by the board the equivalent of an averment that the diploma has been approved? In our judgment it is not. The right to approve exists at the time the diploma is presented, notwithstanding previous action as to the good standing of the institution which issued the diploma. The board had a right in the exercise of its discretion to withhold approval of the diploma. The allegations of the petition do not show any abuse of discretion.
If the statute does an injustice the appeal for relief must be made to the Legislature.
Demurrer sustained.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
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