Neither Northup nor other leaders of the AOA thought it advisable to enter into editorial warfare with Chapman. The AOA's leaders had no interest in giving greater attention to him or the issues he highlighted or championed. Their interest lay in uniting the profession rather than identifying and magnifying small fractures that could widen and weaken their overall resolve or ability to fight AMA and state society policies, which were to them of a more pressing concern. Nevertheless, the AOA and state osteopathic medical associations became concerned when a handful of DOs went to court challenging the decisions of licensing boards to deny them the opportunity of identifying themselves or being licensed as MDs.
Richard Oliver, a 1960 graduate of the Kansas City osteopathic medical school, was one of the first DOs to serve in the military medical corps. He practiced medicine in Texas and New Jersey before entering and completing an allopathic residency program in obstetrics and gynecology in Georgia. In 1971, he took and passed an examination administered by the composite medical board of that state and was issued a “license to practice medicine.” He moved to a rural part of the state to practice as an obstetrician-gynecologist and used the designation “MD” rather than “DO” after his name on his stationary, in prescription blanks, and in public listings. Within months, the Composite Medical Board took action and informed Oliver that by not identifying himself by the diploma of the school from which he graduated, he was violating the law. He was ordered to cease and desist employing the MD designation to identify himself. Oliver immediately filed a lawsuit in federal court claiming that the Georgia statutes and Board rules in question deprived him of his constitutional rights of freedom of speech, due process, and equal protection under the law. The case was decided in July 1973.
39
The District Court seriously considered 2 of Oliver's arguments based on the Equal Protection Clause of the 14th Amendment. First, Oliver maintained that “there is no rational basis for the differentiation between D.O.'s and M.D.'s in that the two terms are functional equivalents.” His second argument was that…
…the statute is unconstitutionally applied to him in that foreign doctors, many of whom do not have the degree of Doctor of Medicine, or M.D., are nonetheless designated ‘M.D.’ on their licenses and are permitted to use the initials ‘M.D.’ in all their professional correspondence and listings.39
On the first, and what in time would be the most important precedent, the Court found “there are meaningful distinctions between D.O.'s and M.D.'s,” specifically citing osteopathic manipulative “therapy.” It found the state of Georgia's role in “the recognition and perpetuation of the classifications” withstood 14th Amendment scrutiny and that the existing “statutory scheme” does “bear a reasonable relation to a legitimate state purpose.” In concluding its analysis of Oliver's first argument, the Court declared,
In sum, while osteopaths and allopaths are both fully licensed and competent physicians, there are differences between them which make it rational for the State to require physicians to hold themselves out to the public and to be licensed with the letters of the degree which they have been awarded.
Speaking directly to Oliver's complaint that few people knew what DOs were or the breadth and quality of their training, the Court noted, “we believe that his remedy lies chiefly in a concerted effort by him and other osteopaths to educate the public.”
39
The court, however, sided with Oliver in the second aspect of his 14th Amendment “equal protection” argument. The court noted that the state arbitrarily differentiated between Oliver and licensed foreign-trained physicians who did not graduate with the MD degree “in its original language or as translated” or who instead of a degree held a certificate giving them “a license to practice medicine” in their home country. The Composite Board had not satisfactorily explained why these individuals were allowed to identify themselves as MDs. The District Court concluded that the state failed to show…
…any reasonable basis for its differing treatment of foreign-trained physicians and D.O.'s. The two are similarly situated; without a rational basis for the distinction, the State's differing treatment of foreign-trained physicians and D.O.'s is arbitrary and in violation of the Equal Protection Clause.39
Although the Court sided with Oliver and allowed him to use the MD designation for the time being, the ruling provided the Composite Board and the Georgia legislature with a simple and long-term solution that they subsequently employed. Through statute and rules they satisfactorily addressed the issue of why international medical graduates and not DOs were legally entitled to use and display the MD designation. Oliver's victory was thus short-lived.
39
The year after the Oliver decision, the AMA House of Delegates debated “Report D,” a policy proposal that called on state medical societies to have lawmakers introduce legislation at the state level to allow DOs to use the initials “MD” after their names. The AMA report carefully noted that no DO would actually “receive” the MD degree and that the initials would be an “occupational” designation. However, under the plan, any DO availing him- or herself of this MD title would no longer be permitted to use the DO title. The House of Delegates sent the report to a reference committee, which had serious concerns that this suggested course of action would undermine the legitimacy of the MD degree and recommended that it not be passed. Nevertheless, some in the House continued to enthusiastically endorse the report, arguing that the AMA owed it to DOs who took part in AMA training programs. However, in the end the resolution supporting Report D was narrowly defeated.
40,41
In subsequent years, federal courts of appeal handed down 3 decisions in cases originating in the states of Texas (1982),
42 New Jersey (1982),
43 and California (1983)
44 in which osteopathic medical graduates, all of whom had completed allopathic residency programs and were allopathically board certified, sued to be licensed as or permitted to advertise themselves as MDs.
45 Attorneys for these practitioners employed variations of the same constitutional arguments as found in Oliver's original lawsuit and challenged as discriminatory particular state statutes and regulatory board rules. Unlike the Oliver decision, appellants lost on each and every constitutional argument. Each federal court noted that there is a different philosophical basis underlying osteopathic medicine, that DOs, unlike MDs, mandatorily received instruction in their schools in manipulative medicine and that these differences were legally important. It did not matter to the courts whether individual DOs employed manipulative treatment or not. Each court also concluded that the state was not discriminating against DOs and that rules created to ensure that physicians employ the degree designation on their license passed what is called the “rational relation” test. Finally, all 3 courts, unlike in the Oliver decision, held that the practice of regulatory boards designating international medical graduates as “MDs” on their license and not allowing DOs to do so was “rationally related” to the purpose of allowing the public to make an informed choice among physicians. The 3rd Circuit Court in
Eatough v Albano43—citing the 5th Circuit Court in
Maceluch v Wysong42—noted,
Since there are no [foreign medical graduates] eligible to practice in New Jersey that come from a school identified with osteopathy, rather than allopathy, the distinction between MDs and DOs is rational in light of the previously mentioned purpose to inform patients of those physicians with osteopathic training.
In June 1982, the US Supreme Court let stand the 3rd Circuit Court decision in
Eatough v Albano, and after a 1983 California case (
Brandwein v California Board of Osteopathic Examiners) was decided in favor of the defendant, there were no further legal appeals by DOs to force regulatory bodies to license or permit them to advertise themselves as MDs solely on the basis of their possession of a DO diploma.
46,47 In more recent years, medical boards have taken legal action against some DOs who possess foreign medical degrees and advertise themselves as MDs when this credential does not constitute the basis upon which they have been licensed in the United States as physicians and surgeons.