Buck's License, In re

• Decision Date: 06 June 1951
• Citation: 232 P.2d 791,192 Or. 66
• Parties: In re BUCK'S LICENSE. BOARD OF MEDICAL EXAMINERS v. BUCK.
• Court: Oregon Supreme Court

Page 791

232 P.2d 791

192 Or. 66

In re BUCK'S LICENSE BOARD OF MEDICAL EXAMINERS v. BUCK.

Supreme Court of Oregon, En Banc.

June 6, 1951.

Howard I. Bobbitt, of Portland, argued the cause and filed a brief for appellant.

Ralph E. Moody, of Salem (James L. Means, of Portland, and Henry M. Hanzen, of Salem, on the brief), for respondent.

BRAND, Chief Justice.

A complaint was filed with the Secretary of the Board of Medical Examiners against the defendant Dr. George H. Buck, seeking the revocation of his license to practice medicine and surgery. After a hearing, the Board revoked the license. The defendant appealed to the circuit court which reversed the order of revocation and directed the Board to reinstate the defendant as a duly licensed physician and surgeon. The Board appeals.

The original complaint was filed on 25 September 1946. It contained 13 alleged causes of complaint separately stated. In each instance the act complained of was alleged to have occurred 'during a period approximately between the 10th day of October, 1943, and the 18th day of October, 1943'. The amended complaint was filed on 13 December 1946. It contained 14 alleged causes of complaint, separately stated. In each instance the act complained of was alleged to have occurred 'during a period approximately between the 2nd day of October, 1943, and the 19th day of October, 1943'. Although the methods employed, and the ensuing results, are variously stated in the 27 alleged causes of complaint, nevertheless, they are all based upon the same general charge, namely, the causing of an abortion by operation upon, or treatment, of one Frances Rasmussen. In some instances, the death of the child, and in others, the death of the mother, is alleged. In the circuit court the issue was determined solely upon the pleading. It was held that none of the counts in the original or in the amended complaint state facts constituting sufficient ground for the revocation of the license. The court made a special finding to the effect that the Board of Medical Examiners had no jurisdiction to determine any matter alleged in the 14th charge of the amended complaint, because that complaint was not filed within three years from the date of the alleged act.

The Board of Medical Examiners exists by virtue of the provisions of Title 54, Chapter 9, O.C.L.A., as amended. The statute provides in part as follows:

'The board shall have the following powers, in addition to the powers otherwise granted in this chapter, and shall have all powers necessary or proper to carry granted powers into effect:

'(a) To make such rules and regulations not inconsistent with the laws of this state as shall be deemed necessary or proper to carry out the lawful powers and duties of the board.

'(b) To make such rules and regulations as may be necessary or proper to determine the qualifications of applicants for licensure to practice medicine and surgery in the state of Oregon, and to establish educational, moral and professional standards for such applicants, subject to laws of this state.

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'(h) To refuse to issue licenses and to suspend or revoke licenses to practice medicine and surgery within the state of Oregon in accordance with the provisions of this chapter and the rules and regulations of the board.

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'(k) To investigate any alleged violation of this act and bring to the attention of the proper district attorney any alleged violation of the act.

'(1) To enforce the provisions of this chapter and to exercise general supervision over the practice of medicine and surgery within the state of Oregon. * * *' O.C.L.A. § 54-913.

'The board may refuse to grant a license to any applicant who desires to practice medicine and surgery in this state or may suspend or revoke such licenses for any of the following reasons:

'(a) Unprofessional or dishonorable conduct;

'(b) The procuring or aiding or abetting in procuring an abortion unless such is done for the relief of a woman whose health appears in peril because of her pregnant condition after due consultation with another duly licensed medical physician and surgeon;

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'(i) Conviction of any offense for which the punishment may be incarceration in a state penitentiary or in a federal prison; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence;

'* * *.' O.C.L.A. § 54-931.

'When used in this act, the following terms will have the following meanings, unless otherwise limited:

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"Unprofessional or dishonorable conduct' shall mean such conduct as would not be indulged in by an ethical physician and surgeon, under all the circumstances, taking into consideration the good of the patient, and the public, the time and place.

"Abortion' shall mean the expulsion of the foetus at a period of uterogestation so early that it has not acquired the power of sustaining an independent life; provided it shall be conclusively presumed for the purpose of this statute that the foetus has not acquired such power earlier than one hundred fifty (150) days after gestation, and a disputable presumption of lack of such power shall arise if the expulsion take place earlier than two hundred forty (240) days after gestation.

'* * *.' O.C.L.A. § 54-901.

In addition to the substantive rules as above set forth, the statute also prescribes rules of procedure: The statute provides that a complaint seeking revocation of a license 'shall not be filed later than three years from the date that the act complained of was committed by such licensee.' § 54-932. It will be observed that the original complaint was filed within three years from the time of the alleged offense but that the amended complaint was not.

We now direct our attention to the only issue presented, namely, the sufficiency of the pleadings. We shall outline in detail the allegations of the first count in the original complaint and then summarize the differences as they appear in the succeeding 12 counts thereof. Count I: It is alleged that the defendant was a licensed physician and surgeon. This allegation is repeated in the succeeding counts.

'II

'That the said George H. Buck within the City of Portland, Multnomah County, Oregon, did, during a period of approximately between the 10th day of October, 1943, and the 18th day of October, 1943, procure and perform an abortion upon one Frances Rasmussen, who was then and there in a pregnant condition.

'III

'That the health of the said Frances Rasmussen was not in peril because of her pregnant condition, and that the said George H. Buck did not duly consult with another duly licensed medical physician and surgeon prior to performing said abortion.

'IV

'That the said conduct on the part of the said George H. Buck was and is contrary to the laws of the State of Oregon, and particularly Section 54-931, O.C.L.A.'

All succeeding counts reiterate the allegation of paragraph IV. The second count alleges: 'That the said George H. Buck is guilty of unprofessional and dishonorable conduct in that he did, within the City of Portland, Multnomah County, Oregon, during a period approximately between the 10th day of October, 1943, and the 18th day of October, 1943 perform an operation upon one Frances Rasmussen, or upon the child with which she was then and there pregnant, the exact kind and nature of which operation is unknown to complainant, which resulted in the death of the child with which the said Frances Rasmussen was then and there pregnant.'

The third count differs from the corresponding paragraph of the second count in that the charge is that the defendant did administer to and treat Frances Rasmussen or the child with which she was then and there pregnant in such a manner as to result in the death of the child. The fourth count alleges that the operation was performed wilfully. The fifth count is like the corresponding paragraph of the third count except that it alleges that the treatment was wilful. The sixth count alleges that the defendant's operation was negligently performed, resulting in the death of the child. The seventh count alleges that the treatment was negligent, resulting in the death of the child. The eighth count alleges unprofessional conduct and the performing of an operation upon Frances Rasmussen or upon the child, which resulted in the death of Frances Rasmussen. The ninth count alleges unprofessional and dishonorable conduct in treating Frances Rasmussen or the child, resulting in the death of Frances Rasmussen. The tenth count alleges unprofessional conduct by the wilful performing of an operation upon Frances Rasmussen or the child, causing the death of Frances Rasmussen. The eleventh count is like the corresponding paragraph of the ninth count except that the act is charged as wilfully done. The twelfth count charges unprofessional and dishonorable conduct and the negligent performing of an operation upon Frances Rasmussen or upon the child, resulting in the death of Frances Rasmussen. The thirteenth count resembles the twelfth count except that the charge is negligently administering to and treating Frances Rasmussen. The allegations of the first thirteen counts of the amended complaint are substantially identical to the corresponding counts of the original complaint except for the fact that the dates within which the acts are alleged to have occurred are in each case stated to be 'approximately between the 2nd day of October, 1943 and the 9th day of October, 1943' instead of 'between the 10th day of October, 1943, and the 18th day of October, 1943' as stated in the original complaint. The fourteenth count of the amended complaint alleges: 'That the said George H. Buck is guilty of unprofessional and dishonorable conduct in that he did, within the City of Portland, Multnomah County, Oregon, during a period approximately between the 2nd day of October, 1943, and the 19th day of Cotober, ...