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PROCARIO v. AMBACH

March 22, 1983

Dr. Rudolph F. PROCARIO, Jr., Dr. Frederic Haberman, Dr. Marvin L. Ebert and Dr. Marvin S. Watsky, Plaintiffs,
v.
Gordon M. AMBACH, Individually and as Commissioner of Education of the State of New York, et al., Defendants



The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

 MINER, District Judge.

 I

 Plaintiffs, Doctors of Osteopathy licensed to practice medicine and surgery in the State of New York, bring this action for declaratory judgment against defendants, the Commissioner of Education and the Board of Regents of the State of New York, pursuant to 42 U.S.C. § 1983, contending that the failure of the defendants to grant them the degree of Doctor of Medicine constitutes a denial of equal protection of the laws. Jurisdiction in this Court is predicated upon the provisions of 28 U.S.C. § 1343(3), 28 U.S.C. § 2201 and 28 U.S.C. § 2202. The matter has been submitted for final determination by the Court pursuant to a stipulation of relevant and material facts dated November 30, 1982, a stipulation of facts not considered material or relevant by the defendants dated November 22, 1982 and certain documents and exhibits.

 II

 Each plaintiff is a graduate of a medical school authorized to grant the degree of Doctor of Osteopathy (D.O.). These medical colleges provide medical education in osteopathic principles and techniques *fn1" as well as in all subjects taught in non-osteopathic medical schools. *fn2" Graduates of the latter schools are awarded the degree of Doctor of Medicine (M.D.) in the United States. Foreign medical colleges award medical degrees bearing various designations, *fn3" but no foreign medical college awards the D.O. degree. Licenses to practice medicine and surgery granted by the State of New York following the completion of training requirements and examinations make no reference to the degree held by the licensee. Indeed, certain holders of these licenses are American citizens who hold no degree, having attended foreign medical schools without completion of degree requirements and having returned to the United States for completion of training under a program known as the "Fifth Pathway." *fn4"

 In 1977, Section 6529 was added to the New York State Education Law *fn5" to allow the Board of Regents to confer the M.D. degree upon all physicians not holding that degree who are licensed to practice medicine in the State of New York, including those licensed under Section 6524 and those licensed under Section 6528 of the Education Law. *fn6" Section 6529 was enacted in its present form in two stages, the first stage authorizing conferral of the M.D. degree on "Fifth Pathway" licensees who are licensed under Section 6528 and the second authorizing conferral of the degree on foreign medical school graduates licensed under Section 6524. *fn7" In spite of the clear legislative intent expressed in the titles of the two acts and in the legislative history, *fn8" it is noteworthy that the statute authorizes the award of the M.D. degree to any physician, ostensibly including osteopaths licensed under Section 6524. Shortly after the enactment of Section 6529, the Department of Education adopted a regulation, 8 NYCRR 3.57, implementing the statute and establishing requirements for the granting of the M.D. degree as follows:

 
(a) completion of a medical education program in a foreign medical school satisfactory to the department which does not grant the degree of doctor of medicine (M.D.) and in which the philosophy and curriculum were equivalent as determined by the department, in accordance with the policy of the Board of Regents to those in programs leading to the degree of doctor of medicine (M.D.) at medical schools in the United States satisfactory to or registered by the Board of Regents and the department. . . .

 Plaintiffs challenge that regulation in this action, since they do not meet the criteria set forth in the regulation and are excluded by its terms from eligibility for the degree of Doctor of Medicine. Plaintiffs apparently also challenge Section 6529 to the extent that it precludes conferral upon them of the M.D. degree.

 III

 Plaintiff Rudolph F. Procario was awarded the D.O. degree by the Philadelphia College of Osteopathic Medicine and has been licensed to practice medicine and surgery in New York since 1956. After completing an approved residency in psychiatry at the Mt. Sinai Hospital in New York City, he served for one year as chief resident in psychiatry at the City Hospital Center in Queens, New York. He was employed thereafter as a psychiatrist at the Bronx Psychiatric Center and currently is employed as the admissions psychiatrist at the Manhattan Psychiatric Center. Plaintiff Procario is a member of the American Medical Association and various other medical societies and holds membership in the American Psychiatric Association and other organizations related to his specialty.

 Dr. Frederic Haberman, the second named plaintiff, was graduated from the Kansas City College of Osteopathic Medicine, completed an approved residency in Dermatology at the Albert Einstein College of Medicine and is Board Certified in Dermatology. Before entering upon his dermatology residency, Dr. Haberman was engaged in family practice and was Board Certified in that specialty. Licensed to practice in New York since 1969, Dr. Haberman has been a medical examiner for the Federal Aviation Administration since 1970. He is affiliated with a number of hospitals and serves as clinical instructor in dermatology on the faculty of the Albert Einstein College of Medicine.

 Plaintiff Marvin L. Ebert was licensed to practice in New York in 1968 following his graduation from the Kirksville College of Osteopathic Medicine. He has practiced family medicine during his entire career and, for the past six years, he has been the Medical Director of two medical groups in the South Bronx. In this capacity, he supervises all medical services performed by the physicians affiliated with the groups. Both medical groups serve poor and minority patients residing in the South Bronx area.

 Dr. Marvin S. Watsky, the fourth named plaintiff, received his D.O. degree from the Kansas City College of Osteopathic Medicine. He served an internship at the United States Public Health Service Hospital at Staten Island and thereafter served as a public health service officer at the same hospital. Dr. Watsky was licensed to practice medicine and surgery in New York in 1971 and completed an approved residency in Dermatology at the Brooklyn Veterans Administration Hospital. He is ...


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