Board of Medical Examiners v. Eisen

• Decision Date: 23 April 1912
• Citation: 123 P. 52,61 Or. 492
• Parties: BOARD OF MEDICAL EXAMINERS v. EISEN.
• Court: Oregon Supreme Court

123 P. 52

61 Or. 492

BOARD OF MEDICAL EXAMINERS v. EISEN.

Supreme Court of Oregon

April 23, 1912

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

The State Board of Medical Examiners revoked the license of William Eisen for the practice of medicine and surgery. From an order of the circuit court, affirming the action of the Board on an appeal thereto, Eisen appeals. Reversed and remanded.

On December 22, 1910, there was filed with the State Board of Medical Examiners a complaint reading thus: "William Eisen is accused by Ben L. Norden, by this complaint, with unprofessional and dishonorable conduct, committed as follows: That the said William Eisen did, on or about the 13th day of October, 1910, in the county of Multnomah and state of Oregon, then and there being, wrongfully and unlawfully procure, and aid and abet in procuring, a criminal abortion upon one Anna Foleen by means unknown to complainant, the said Anna Foleen then and there being pregnant with child, and the said abortion then and there not being necessary to preserve the life of said Anna Foleen, and contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon." Afterwards the defendant, Eisen, filed his answer with the board, denying all the allegations of the complaint. With this complaint as a basis of action, the board took testimony and entered an order, revoking the license of the defendant. He appealed to the circuit court, which, after a hearing made the same order, affirming the action of the board, and the defendant has appealed to this court.

Waldemar Seton and Dan R. Murphy, both of Portland (Murphy, Brodie &amp Swett, on the brief), for appellant.

Samuel White, of Portland (Manning & White, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

The State Board of Medical Examiners has authority to revoke a license to practice medicine and surgery for unprofessional or dishonorable conduct, subject however to the right of appeal as provided in the statute. L.O.L. § 4733. By section 4734, L.O.L., the term "unprofessional or dishonorable conduct" is declared to mean, among other things, the procuring, or aiding and abetting in procuring, a criminal abortion. It is said, in section 4735 L. O.L., that "before a license can be revoked by said board for unprofessional or dishonorable conduct under the provisions of this act a complaint of some person under oath must be filed in the office of the secretary of said board charging the acts of unprofessional or dishonorable conduct and facts complained of against the licentiate accused, in ordinary and concise language."

As may be done, under a long line of precedents from McKay v Freeman, 6 Or. 449, to Parrish v. Parrish, 52 0r. 161, 96 P. 1066, the objection is urged for the first time at the argument on appeal that the complaint in this proceeding does not state facts sufficient to constitute a cause of action against the defendant. The only statute to which our attention has been directed, relating to what may be termed criminal abortion, is section 1900, L. O.L defining a certain grade of manslaughter: "If any person shall administer to any woman pregnant with a child, any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to...