Davis v. Board of Medical Examiners

• Citation: 108 Cal.App.2d 346,239 P.2d 78
• Decision Date: 27 December 1951
• Docket Number: No. 14839,14839
• Court: California Court of Appeals
• Parties: DAVIS v. BOARD OF MEDICAL EXAMINERS.

Page 78

239 P.2d 78

108 Cal.App.2d 346

DAVIS v. BOARD OF MEDICAL EXAMINERS.

No. 14839.

District Court of Appeal, First District, Division 1, California.

Dec. 27, 1951.

Rehearing Denied Jan. 26, 1952.

Hearing Denied Feb. 21, 1952.

Leslie C. Gillen, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., J. Albert Hutchinson, Deputy Atty. Gen., San Francisco, for respondent.

BRAY, Justice.

Respondent, after a hearing, revoked petitioner's license as a physician and surgeon. The superior court in a mandate proceeding, after reviewing the board's action, found that the findings and order of the latter were supported by the weight of the evidence, that the hearing was fair and regular, and that the peremptory writ of mandate should be denied. Petitioner appeals from the court's judgment.

Questions Presented.

(1) Sufficiency of the evidence before the board and court, and (2) alleged abuse of discretion in the penalty imposed.

Facts.

By stipulation the evidence presented to the board and reviewed by the superior court was the 728 page transcript of the proceedings in criminal action No. 41,781, Superior Court of San Francisco, in People v. Davis, wherein petitioner had been charged with violation of section 11500 of the Health and Safety Code. The trial of that action resulted in a disagreement of the jury and the action was dismissed. After reading the transcript in the criminal action we feel that we cannot improve upon the statement of the facts set forth in the memorandum opinion of the Hon. Preston Devine, the judge who heard the mandate proceeding. That statement, in part, is as follows:

'3. It is contended that the findings are not supported by the weight of the evidence.

'The facts may be stated as follows:

'Petitioner was a very reputable physician whose specialty was internal medicine with particular reference to diseases of the heart. About two years before the occurrences which brought about these proceedings, he wrote two narcotic prescriptions for a woman who either was at that time or who later became, an informer for the Division of Narcotic Enforcement. As this informer did not testify at the trial, and as the doctor testified to the legitimacy of these transactions, and as they are not the subject of any charges against him, they are presumed to be legitimate and they simply give an introduction to the facts of the case.

'On April 19, 1948, this informer 'phoned to Doctor Davis and, according to the doctor's testimony, said that she had a friend who was suffering from cancer. The doctor endeavored to have her bring him to some one else, but she said that he was a stranger in town. She arrived in the doctor's office with Inspector Fennell, who passed as a 'Mr. Wilson,' and she asked 'Is there anything you can do to help us?' The doctor replied, 'I haven't any now,' and said, either 'You know we can't write for you people' or 'We can't write prescriptions for you,' or words to that effect. He asked Fennell, 'Do you use it, too?' to which Fennell replied that he did. This question and answer, which are quite important, Fennell testified to on direct examination, and on cross-examination, saying that he remembered it distinctly. He told the woman, whom he called Bonnie, or Mrs. Barney, to call him up later and he would let her know.

'That the transaction was of suspicious nature from the start appears from the facts that (a) the doctor made no inquiry of Fennell's pathology; (b) he announced from the start that he could not write a prescription (he understood that morphine was desired) though if there were a pathology requiring narcotics, there was no reason why he should not write a prescription; (c) the woman asked if the doctor couldn't help 'us' out; (d) if Fennell were really ill, there was no reason for deferring treatment and asking that the woman call up later. However, the doctor committed no offense at that time, for no narcotics were furnished.

'On April 27, the informer and the inspector visited the doctor the second time. The doctor required the woman to come into his office first, and since the informer did not appear at the trial, the only testimony we have is that of the doctor as to what occurred in his office then. In a short time, according to Fennell perhaps thirty or forty-five seconds, or perhaps a minute and a half, he invited Fennell in. At this point, the informer said 'He will let us have three half grains (or perhaps 'three halves') for $20.' The doctor handed over three tablets of morphine in a tissue, and the $20 was either left on the table or taken by the doctor, but in any event, paid.

'The illegitimacy of this transaction is apparent. No medical history of Fennell was taken, no inquiry was made as to previous medication, no examination whatever was made except looking at Fennell (Fennell denies that his glasses were removed, though the doctor asserts they were), and the alleged diagnosis was a combination of arthritis, tic and possibly gastric ulcers, summed up as pain, although at the trial, at least, the doctor remembered that the informer had said he had cancer. The woman related the quantity, three half grains, to a stated sum of $20, and she said he will let 'us' have the (morphine), though it was admitted the woman was not a patient. The 'fee' was $20 for a few minutes' visit. And, although the furnishing of narcotics by giving part of the office supply was not in itself an illegal method, combined with the other factors, it is plain why no prescription was issued. No record of the amount appears in the doctor's log book, though that fact may not be very important.

'Thereafter, the visits of Fennell alone on May 4, May 14 and May 21 were, in the main, repetitious of the first visit, with the added factors that the doctor required $50 thereafter, required payment in smaller bills than the $50 offered, inquired as to whether the money was marked, asked if anyone had followed Fennell, told Fennell not to have his name or address on his person, kept no records of the $50 payments, dropped the $50 on May 21 into a sterilizer when the officers came, was told by Fennell that the latter made his money by 'hustling' a girl and had never been arrested for vagrancy but never for 'junk,' never did any of the common examinations, such as blood pressure, and never prescribed any treatment, and upon his apprehension he claimed not to remember nearly everything that had happened. * * *

'The last question is: Did Fennell represent himself to be a narcotic addict, as set forth in Section 11164? He did not do so expressly. He did not say 'I am an addict,' or 'I am an habitual user'; but in answer 'Do you use it, too?' he said that he did. This was, I think, sufficient to brand him as an addict unless and until the doctor should, by a reasonable examination, become reasonably satisfied that Fennell's use of morphine was a legitimate use. The 'representation' likewise was by conduct, which was sufficient to cause the doctor to be fearful of marked money, fearful that someone had followed Fennell, and unwilling to write a prescription.'

Sufficiency of the Evidence.

The board found that petitioner had violated sections 11163, 11164 and 11500 of the Health and Safety Code, thereby constituting unprofessional conduct within the meaning of section 2391.5 of the Business and Professions Code, which provides that the violation of any of the statutes of this state regulating narcotics constitutes unprofessional conduct. Section 11163, Health and Safety Code, provides: 'Except in the regular practice of his profession, no person shall prescribe, administer, or furnish, a narcotic to or for any person who is not under his treatment for a pathology or condition other than narcotic addiction, except as provided in this division.' Section 11164 provides: 'No person shall prescribe for or administer, or dispense a narcotic to an addict, or to any person representing himself as such, except as permitted by this division.' Section 11500 provides: 'Except as otherwise provided in this division, no person shall possess, transport, sell, furnish, administer or give away, or offer to transfort, sell, furnish, administer, or give away, or attempt to transport a narcotic except upon the written prescription of a physician, dentist, chiropodist, or veterinarian licensed to practice in this State.'

Petitioner admits the furnishing of the narcotics to Fennell but contends that the evidence shows that they were furnished as stated in section 11163, 'in the regular practice of his profession'; that Fennell was not a person referred to in section 11164 as 'an addict, or * * * person representing himself as such' or at least...