Cooper v. State Bd. of Medical Examiners of Dept. of Professional and Vocational Standards of Cal.

• Decision Date: 28 April 1950
• Citation: 18 A.L.R.2d 593,217 P.2d 630,35 Cal.2d 242
• Court: California Supreme Court
• Parties: , 18 A.L.R.2d 593 COOPER v. STATE BOARD OF MEDICAL EXAMINERS OF DEPARTMENT OF PROFESSIONAL AND VOCATIONAL STANDARDS OF CALIFORNIA et al. L. A. 21190.

Page 630

217 P.2d 630

35 Cal.2d 242, 18 A.L.R.2d 593

COOPER v. STATE BOARD OF MEDICAL EXAMINERS OF DEPARTMENT OF PROFESSIONAL AND VOCATIONAL STANDARDS OF CALIFORNIA et al.

L. A. 21190.

Supreme Court of California, in Bank.

April 28, 1950.

Rehearing Denied May 25, 1950.

Walter N. Anderson, Los Angeles, French & Indovina, F. Walter French and Frank J. Indovina, Santa Monica, for appellant.

Fred N. Howser, Attorney General, and J. Albert Hutchinson, Deputy Attorney General, for respondents.

SCHAUER, Justice.

The superior court, pursuant to an alternative writ of mandate issued upon the petition of William LeGrande Cooper (hereinafter called petitioner), reviewed disciplinary proceedings theretofore had before respondent Board of Medical Examiners (hereinafter termed the board) and rendered judgment upholding the findings and conclusions of the board as well as its order revoking petitioner's license as a drugless practitioner (see State Medical Practice Act, Bus. & Prof. Code, Div. 2, Ch. 5). Petitioner has appealed, and as ground for reversal contends that certain acts performed by him (which formed the basis of two counts of the accusation filed against him before the board), upon which the order of revocation was based, did not constitute unprofessional conduct within the meaning of the Medical Practice Act (see Bus. & Prof. Code, §§ 2360, 2361, 2378). He also relies upon various asserted procedural irregularities in the proceedings before the board, and in addition urges that the penalty of license revocation was so disproportionate to the violations involved as to amount to an abuse of discretion on the part of the board (see Code of Civ.Proc. § 1094.5, subs. (b) and (c)). We have concluded that petitioner's conviction of unprofessional conduct cannot be sustained as to one of the two counts upon which the revocation order was based, and that the judgment should be reversed and the matter remanded to the board for reconsideration of the penalty on the other count.

Petitioner does not deny that he performed the acts which the board and the superior court held to constitute unprofessional conduct. They were: (count 7) the use of the prefix 'Dr.', with certain descriptive language, while holding licenses as a drugless practitioner and as a clinical laboratory technologist, and (count 9) the penetration of tissue incidental to the giving of a blood transfusion at the direction of a qualified physician as well as the recommendation and delivery of aspirin to the patient and the suggested use of massage and liniment by him following the transfusion. ¹ The superior court, after a hearing but with no other evidence than the transcript and record of the proceedings before the board, found and concluded that the 'findings and order of respondent Board revoking petitioner's license as a drugless practitioner were * * * supported by the findings of respondent Board; that the findings of respondent Board were, and are, based upon and supported by the weight of the evidence,' and that the proceedings before the board were within its jurisdiction and were conducted 'without procedural or prejudicial error or abuse of discretion of any kind.' Judgment was rendered denying the peremptory writ of mandate and recalling the alternative writ theretofore issued.

Petitioner first contends that the trial court erred in not holding that as to count seven the board committed an abuse of discretion (see Code of Civ.Proc. § 1094.5) in that it violated the provision of section 11517(a) of the Government Code to the effect that 'Where a contested case is heard before an agency itself, no member thereof who did not hear the evidence shall vote on the decision.' The accusation against petitioner as originally filed with the board contained eight counts, on which the board held a hearing and took evidence in August, 1947. The hearing was then continued, without a decision, to March, 1948. Meanwhile five of the ten members of the board (Bus. & Prof. Code, § 2100) were replaced with five new members. In February, 1948, count nine was filed as an amendment to the accusation and petitioner filed his demurrer and answer to the new count; and in March, 1948, a hearing was held by the board and evidence taken on the new count. Three days later the board rendered its decision holding petitioner guilty of unprofessional conduct as charged in counts seven and nine. The other counts were dismissed and, therefore, cannot be relied upon to support the order or judgment.

An affirmative vote of seven members of the board is required for license revocation (Bus. & Prof. Code, § 2119, see also, § 2376.5). Administrative procedure provisions of the Government Code apply to disciplinary proceedings before the board (Bus. & Prof. Code, §§ 2360, 2364; Govt. Code, §§ 11500, 11501(b)).

In Hohreiter v. Garrison (1947), 81 Cal.App.2d 384, 339-401, 184 P.2d 323, it was commented that 'Due process requires a fair trial before an impartial tribunal and that requires that the person or body who decides the case must know the evidence, but due process is not interested in mere technical formalism. It is the substance that is determinative of whether due process has been afforded. * * * The Supreme Court stated (in Morgan v. United States, 298 U.S. 468, 480, 56 S.Ct. 906, 80 L.Ed. 1288) * * * 'the officer who makes the determinations must consider and appraise the evidence which justifies them. * * * The 'hearing' is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given. " In that case it was held that an insurance agent whose license was revoked had not been denied due process by reason of the fact that under the permissive provisions of subdivision (b) of SECTION 11517 OF THE GOVERNMENT CODE² the insurance commissioner adopted the findings and proposed decision of a hearing officer, without reading or hearing the evidence produced before that officer. (See also California Shipbuilding Corp. v. Industrial Accident Comm. (1946), 27 Cal.2d 536, 544, 165 P.2d 669.) We conclude here that participation in a decision by a board member who has read and considered the evidence, or a transcript thereof, even though he was not physically present when the evidence was produced, does not violate the requirements of due process.

We are of the view that the Legislature did not, by the provision of subsection (a) of section 11517 of the Government Code, relied upon by petitioner, intend to require auditory perception of all the evidence by each board member who votes. A contested case may be heard either before a hearing officer alone or before the agency and a hearing officer (Govt. Code, § 11512(a)). If the hearing is held before a hearing officer alone, the agency may adopt the officer's 'proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision' (Govt. Code, § 11517(b)), without reading the record (Hohreiter v. Garrison (1947), supra, 81 Cal.App.2d 384, 397, 184 P.2d 323); or may adopt a different decision 'upon the record, including the transcript, with or without taking additional evidence' (Govt. Code, § 11517(c)). It thus seems that the Legislature simply intends that an agency member who exercises his own independent judgment on the case, as distinguished from adopting a hearing officer's decision either in its entirety or with a reduced penalty, must be acquainted with the record but need not be physically present when the evidence is produced. Such a holding also appears to comport with the purpose of the Judicial Council of California (see Tenth Biennial Report, p. 24) whose 'tentative proposals (for the Administrative Procedure Act) were designed to require actual familiarity with the case on the part of the person having the power to decide * * *.'

Moreover, as in the Hohreiter case, petitioner's contentions that as to count seven both due process and legislative intention were violated, are further met by the fact that the trial court here was 'authorized by law to exercise its independent judgment on the evidence.' (Moran v. State Board of Medical Examiners (1948), 32 Cal.2d 301, 308, 196 P.2d 20, and cases there cited.) That court did exercise its judgment upon the evidence and has made its decision, and petitioner has thus been accorded a full and fair judicial hearing which he does not even suggest did not comply with all requirements of due process. Arguments made by petitioner as to other claimed procedural irregularities before the board are likewise answered by the fact that he received a full hearing in the superior court.

Petitioner makes no contention that the evidence does not support the findings of fact made by the board, which were in effect adopted by the trial court also, but does urge that such findings do not as to either count seven or count nine support the conclusion of law that petitioner violated the statutory provisions cited by the board in its decision and order revoking petitioner's license.

From the findings it appears that at the time of the acts performed by petitioner, upon which the order of revocation is based, he was licensed both as a clinical laboratory technologist under the provisions of chapter 3, division 2, of the Business and Professions Code, and as a drugless practitioner under the provisions of article 7, chapter 5, division 2, of the same code. (Unless otherwise stated, section numbers mentioned hereinafter will refer to the Business and Professions Code.) For 'some years prior to the filing of the Accusation' before the board, petitioner and one King 'maintained their offices and laboratories in the same premises' in Los Angeles; King 'maintained his office as a physician and surgeon and X-ray laboratory in a portion of said premises' and petitioner 'maintained his offices and clinical laboratory in...