D'Amico v. Board of Medical Examiners

• Citation: 112 Cal.Rptr. 786,11 Cal.3d 1,520 P.2d 10
• Court: United States State Supreme Court (California)
• Decision Date: 19 March 1974
• Parties: , 520 P.2d 10 Theodore A. D'AMICO et al., Plaintiffs and Appellants, v. BOARD OF MEDICAL EXAMINERS et al., Defendants and Appellants, Board of Osteopathic Examiners et al., Defendants and Respondents. Sac. 7976.

Page 786

112 Cal.Rptr. 786

11 Cal.3d 1, 520 P.2d 10

Theodore A. D'AMICO et al., Plaintiffs and Appellants, v. BOARD OF MEDICAL EXAMINERS et al., Defendants and Appellants Board of Osteopathic Examiners et al., Defendants and Respondents.

Sac. 7976.

Supreme Court of California In Bank.

March 19, 1974.

Evelle J. Younger, Atty. Gen., Talmadge R. Jones and Joel E. Carey, Deputy Attys. Gen., for defendants and appellants.

Hassard, Bonnington, Rogers & Huber, Howard Hassard and John I. Jefsen, San Francisco, as amici curiae on behalf of defendants and appellants.

Alexander R. Tobin and Tobin & Gassner, Upland, for plaintiffs and appellants.

Clarence S. Brown, Sacramento, for defendants and respondents.

SULLIVAN, Justice.

The state Board of Medical Examiners (medical board) and its president appeal from a summary judgment granting a peremptory writ of mandate ordering the state Board of Osteopathic Examiners (osteopathic board) to furnish plaintiff osteopaths and all others of their class with application forms, to process those forms as received, and to examine and license as physicians and surgeons plaintiffs and all others of their class as are found qualified under the provisions of the Osteopathic Act and the Medical Practice Act.

This litigation constitutes the latest chapter in the long and bitter history of the efforts of medical practitioners having osteopathic (as opposed to allopathic) training to practice their profession in this state. That history has been amply described in previous appellate opinions and we do not undertake to reiterate it here. (See D'Amico v. Board of Medical Examiners (1970), 6 Cal.App.3d 716, 721--723, 86 Cal.Rptr. 245; Osteopathic Physicians & Surgeons v. Cal. Medical Assn. (1964), 224 Cal.App.2d 378, 36 Cal.Rptr. 641; Gamble v. Bd. of Osteopathic Examiners (1942), 21 Cal.2d 215, 130 P.2d 382.) Instead we turn directly to a consideration of the instant litigation.

Plaintiffs are eight graduates of out-of-state colleges of osteopathy and hold D.O. degrees granted by those colleges. Four are residents of California and all have either been admitted to practice in other states or are practicing on federal enclaves in this state as members of the armed forces. All plaintiffs desire to practice their profession as physicians and surgeons in California but are not permitted to do so by present law. Their basic claim is that the law which so prevents their consideration for licensure (to wit, the Osteopathic Act of 1962 (1962 Act), ¹ together with the 1962 amendment to the Medical Practice Act in section 2310 of the Business and Professions Code) denys them equal protection of the laws in violation of the state and federal Constitutions.

The instant action was commenced in 1968. In their first amended petition plaintiffs prayed, generally speaking, that defendant boards be compelled to examine and license them as physicians and surgeons--Either in the manner provided for the examination and licensing of 'new' physicians Or in the manner provided, as a matter of reciprocity, for the examination and licensing of out-of-state physicians. ²

Defendants appeared by separate demurrers. The demurrer of the osteopathic board was sustained without leave to amend. The demurrer of the medical board was sustained without leave to amend as to those counts dealing with reciprocity but was overruled as to those counts dealing with 'new' licensing. Leave to answer was denied to defendants and judgment was entered ordering that a peremptory writ of mandate issue directing the Medical board 'to furnish application forms to each of the petitioners and to process said applications in accordance with provisions of the California Medical Practice Act.' However, for reasons which appear below, plaintiffs greeted this 'victory' with less than elation, and they appealed.

Plaintiffs' unwillingness to accept the trial court's decision on demurrer, and their subsequent appeal, are best understood through a brief consideration of the two scholarly memorandum opinions filed by that court.

The first question before the court was whether 'present law'--which is the referendum Osteopathic Act of 1962, amending and repealing certain portions of the initiative measure entitled the Osteopathic Act of 1922--gave either of defendant boards authority to examine and license plaintiffs as 'new' physicians. Apparently the Attorney General and various state administrative officers had taken the position Prior to this litigation that such authority No longer resided in either board, and plaintiffs sought to raise an equal protection argument on this basis. However, an amicus curiae brief filed in the trial court by the California Medical Association (C.M.A.) took the opposite position--possibly in order to avoid plaintiffs' equal protection argument. The C.M.A.'s position was that under the 1962 Act the medical board Did have the power to examine and license osteopaths as physicians and surgeons. This 'concession' would seem to be illusory, since the medical board has no procedures for inspecting osteopathic schools and certifies only those schools certified by the American Medical Association (A.M.A.), which presently does not certify osteopathic schools.

Perceiving the advantage to be gained by acceptance of the C.M.A.'s position--namely, the possible avoidance of plaintiffs' equal protection argument--the medical board through the Attorney General changed its former position in the midst of the litigation. To evidence its conversion it offered eight blank application forms to plaintiffs and then proceeded to announce that the matter was moot.

The trial court on demurrer was not deluded by the argument of mootness--noting that it was the object of plaintiffs to be licensed by the Osteopathic board, which had procedures for approving their schools. However, it accepted the position of the C.M.A. and the medical board on its merits. Reviewing the pitched battle that has raged between the osteopathic and allopathic professions since the turn of the century--and the various legislative acts which have littered the field--the trial court concluded that the 1962 referendum act, by removing from the osteopathic board the power to license osteopaths, had revived a portion of a 1913 act which had placed the power to license osteopaths in the medical board. As to the question of medical board inability or refusal to approve osteopathic schools, the court considered that such matter would best be considered in a later proceeding when it was actually shown that the medical board, although having the power to license osteopaths as physicians, did not do so because it could not or would not approve osteopathic schools. ³

In a supplemental opinion the trial court on demurrer considered the question of Reciprocity examination and licensing. Here the constitutional question was unavoidable, for the Business and Professions Code (§ 2310, as amended in 1962) expressly provides that only those holding an M.D. degree are eligible for a reciprocity certificate. The question was determined by means of judicial notice. Referring almost exclusively to a work written by an M.D. and Published after the passage of the 1962 referendum, the court concluded that the differences in the quality of osteopathic education provided a conceivable state of facts which might reasonably justify the legislative conclusion that osteopaths seeking licensure as physicians take the comprehensive examination required of 'new' physicians. Thus the court held that there was no denial of equal protection in forbidding reciprocity licenses to osteopaths.

Plaintiffs appealed. The Court of Appeal in D'Amico v. Board of Medical Examiners, Supra, 6 Cal.App.3d 716, 86 Cal.Rptr. 245, reached a result more pleasing to them. Again reviewing the history of internecine conflict between the osteopathic and allopathic schools of medicine in California, the court concluded that the 1962 referendum act indeed had the effect of removing from both the osteopathic board and the medical board authority to examine and license as physicians and surgeons persons who had received their degree from an osteopathic school. Among the considerations which led it to this conclusion were (1) the fact that a 1961 agreement between the C.M.A. and the California Osteopathic Association ⁴ contemplated that the subject legislation, which the parties agreed to support, would eliminate the future licensing of osteopaths as physicians in California while providing for the licensure As M.D.'s of graduates from the single osteopathic school in California; (2) the Attorney General's interpretation of the 1962 Act over a period of six years to the effect that it forbade licensure of osteopaths; (3) the similar interpretation of the medical board over that period of time; (4) the fact that no osteopaths had been examined or licensed as physicians and surgeons since 1962; (5) the fact that no osteopathic school had been approved by the medical board since 1962; (6) the fact that no holder of an osteopathic degree was eligible for appointment to the medical board; and (7) the fact that the ballot argument in favor of the 1962 Act represented that adoption thereof would discontinue the practice of osteopathy in California. The court concluded: '(T)he terms of the act, its effect if given the interpretation now urged by defendants, the administrative interpretations given it, the intent of the merger agreement in which it was agreed that the parties thereto would support the initiative or legislation bringing about the complete elimination of new osteopaths, and the interpretation of the act by the Legislature as shown by the statutes adopted in view of the passage of the act, all compel the conclusion that the elimination of the licensure of new osteopaths is the only reasonable result.' (6 Cal.App.3d at p. 726, 86 Cal.Rptr. at p. 251.)

This conclusion placed squarely before the Court of...