Evening star., 1938-12-21
The Medical Indictment

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drafting its indictment based on the
Group Health controversy, has fol-
lowed course which may render
unimportant the question whether
the practice of medicine is profess
sion or trade. If that is the case, it
becomes highly significant matter,
for the contention has been frequent
ly advanced that doctors cannot be
prosecuted under the Sherman Anti
Trust Act because they are profess
sional men.
That belief has its principal basis
In Supreme Court decision in a
local antitrust case in1932, in which
the justices said: wherever any oc-
cupation, employment or business is
carried on for the purpose Of profit,
or gain, or livelihood, not in the
liberal arts or in the learned profess
sions, it is constantly called trade"
On its face that definition would
appear to draw distinction between
a physician and one who earns his
living from trade, and if that we're
the fundamental issue involved in
the present controversy the indict-
ment returned yesterday might have
little chance of surviving. It is ap-
parent, however, that the Depart
ment Of Justice was fully aware of
that possibility, for it has not elected
to stand on that ground alone.
The indictment, which named the
American Medical Association, the
District Medical Society, two other
medical groups and a number of
individual physicians as defendants,
did not charge them merely with
combining and conspiring to re-
strain the practice of medicine. It
also alleged they combined and con-
spired for the purpose of restraining
Group Health Association "in its
business of arranging for the pro-
vision Of medical care and hospitali-
cation" to its members, and for the
additional purpose Of restraining the
members Of the association in OBJ
tanning, by cooperative efforts, ade-
quate medical care. Still a third
charge is that the defendants con-
spired for the purpose of restraining
the Washington hospitals in their
business.
From that 1t is obvious that the
department attorneys have sought to
avoid resting their case squarely on
the issue OF whether the practice of
medicine is or Is not a trade. Clearly,
there is distinction between the
practice of medicine as such and the
conduct Of the business affairs of a
hospital or a group health organiza-
ton, and the Department of Justice
contends the latter has been one of
the targets of the alleged conspiracy.
Because of other charges in the in
dictment, 1t Is quite probable there
will be a court ruling as to whether
a practicing physician is engaged in
a trade, but even If that decision is
In the negative, 1t seems that under
the legal theory on which the in
dictment has been drawn, a way
has been left open for prosecution
OF the doctors on the alternative
theory that they conspired to restrain
the business of conducting the Group
Health Association.
Should the case finally go to the
Jury on that ground, the defendants
will not have been disadvantaged.
All of them are men of excellent re-
pute, and presumably they would
prefer final adjudication of the
factual issues involved rather than
dismissal of the case on a point of
law which would not publicly de-
termine their guilt or innocence of
the charges.
Meanwhile, the public should keep
In mind the fact that the grand jury
hearing was an ex parte proceeding,
and that the Department Of Justice
has yet to come forward with evi-
dence In support of its charges. Pub
lie judgment should be withheld until
after the doctors have had their day
In court.