Elder v. Board of Medical Examiners

• Decision Date: 31 March 1966
• Court: California Court of Appeals Court of Appeals
• Parties: Harry M. ELDER, M.D., Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant andAppellant. Civ. 22535.

Page 304

50 Cal.Rptr. 304

241 Cal.App.2d 246

Harry M. ELDER, M.D., Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant andAppellant.

Civ. 22535.

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

March 31, 1966.

Hearing Denied May 25, 1966.

Thomas C. Lynch, Atty. Gen. of State of California, Gerald F. Carreras, Deputy Atty. Gen., San Francisco, for appellant.

J. W. Ehrlich, Edward F. Dullea, San Francisco, for respondent.

SIMS, Justice.

The Board of Medical Examiners of the State of California, hereinafter referred to as 'the board,' has appealed from a judgment rendered and entered following a hearing on a petition for writ of mandate filed in the superior court by Harry M. Elder, M.D., hereinafter referred to as 'petitioner,' to review the decision and order of the board which revoked his license to practice medicine in this state.

The judgment provides that it is ordered, adjudged and decreed 'that the ruling of the respondent Board revoking the petitioner's license is an abuse of discretion and it is hereby, vacated, annulled and set aside and that this matter is hereby remanded to the State Board of Medical Examiners with the direction that any evidence procured or any information obtained as the result of the illegal search and seizure or by misrepresentation not be received in said hearing.' This judgment follows the recitals contained in conclusions of law which were signed and filed the same day. These conclusions in turn are predicated upon findings of fact, if they may be so termed, which read as follows: 'IV. It is true that respondent prejudicially abused its discretion in said proceeding upon said accusation of petitioner in that respondent had proceeded without and in excess of its jurisdiction; that respondent has not proceeded in the manner required by law in the institution and conduct of said proceeding upon said accusation of the petitioner; it is further true that petitioner was not afforded a fair trial in the hearing upon said accusation.

'V. It is true that the decision of the respondent Board is contrary to law and is not based on competent legal evidence.

'VI. It is true that respondent Board failed to follow the procedure provided by law and denied petitioner a fair trial. It is further true that the evidence introduced at the hearing was the result of unlawful search and seizure (while petitioner was outside the United States) when the agents of respondent Board arrested the office nurse of petitioner (charging her with unlawfully practicing medicine and she was found not guilty of this charge) and seized all of petitioner's patients' records which are confidential and protected under the laws of the State of California; and it is further true that at the time of the seizure of the patients' records, respondent Board and its agents did not have any search warrant therefor. It is true that the evidence introduced by respondent was the result of the unlawful search and seizure of petitioner's records.

'VII. It is true that the evidence presented by respondent Board was produced and obtained as a result of the unlawful search and seizure of petitioner's records.'

The board seeks an affirmance of its order, and contends on this appeal that the evidence at the hearing before the board sustains its decision and order; and that the record fails to support the findings of the superior court in any of the particulars stated therein. It asserts (1) that no objections were made on the grounds of unlawful search and seizure to the evidence actually admitted and upon which the board predicated its decision; (2) that insofar as there is evidence in these proceedings which reflects a seizure of other excluded evidence, it fails to show that that seizure was unlawful; (3) that none of the evidence allegedly unlawfully seized was admitted into evidence in these proceedings or used to support the board's decision; and (4) that, in any event, if there was any unlawfully seized evidence admitted it was not prejudicial because the other evidence of petitioner's guilt was overthelming. Finally, the board asserts (5) that the rule which precludes the use of unlawfully seized evidence in a criminal proceeding does not apply to an administrative proceeding for the revocation of a license.

The board fails to meet the full thrust of the trial court's findings which is not that the evidence introduced was itself unlawfully seized as the result of an unlawful search, but that it was the fruit of, and was produced and obtained as the result of an unlawful search and seizure of petitioner's records. Petitioner in support of the trial court's judgment has refused to accept the board's challenge to point out the particulars in which his rights were violated or the specific evidence which resulted therefrom. He has contented himself with a general statement of constitutional principles to establish that his license cannot be revoked without due process of law, that the use of records obtained by an illegal search and seizure would be a violation of his rights, and that in any event mere evidence cannot be seized in connection with an arrest.

In order to untangle this skein of disparate approaches to the fundamental question at issue: the validity of the decision and order of the board (Code Civ. Proc. § 1094.5; and Gov.Code, § 11523), the patient reviewer must start with the accusation filed against petitioner and unravel the circumstances as they are reflected by the record.

The accusation dated May 6, 1963 charges in a first cause of action that between the approximate dates of March 1, 1960 and August 3, 1962 petitioner prescribed Methedrine ampules ¹ for 100 named individuals in violation of sections 2391 ² and 2391.5 ³ of the Business and Professions Code and section 11391 ⁴ of the Health and Safety Code. In a second cause of action it is charged that between the approximate dates of August 4 and August 23, 1962 petitioner prescribed Methedrine ampules for 72 named individuals in violation of the provisions of law mentioned above, and also in violation of section 2399.5 of the Business and Professions Code. ⁵ A final cause of action alleged that between June 1, 1960 and July 9, 1962 petitioner prescribed Percodan and Empirin Compound with Codeine ⁶ for three named individuals in violation of the section of the Business and Professions Code first mentioned and of sections 11162.5, 11164, 11168 and 11391 of the Health and Safety Code. ⁷

Section 11391, see fn. 4.

The accusation further points out that the alleged conduct of petitioner in each cause of action constituted grounds for the suspension or revocation of his license under sections 2361 and 2378 of the Business and Professions Code. ⁸

On the receipt of the accusation the petitioner filed his notice of defense and request for hearing and the matter was regularly heard on June 18 and 19, 1963. Thereafter, on June 28, 1963, the board made its decision and order in which it found that petitioner was guilty of the charges, with the exception of the alleged violation of section 2399.5 of the Business and Professions Code, and ordered his license revoked for each 'of the separate and several violations.'

The principal elements of the charges as evidenced from an examination of the sections of law referred to, and as recognized by petitioner at the hearing, are (1) whether petitioner prescribed the alleged drug for any of the individuals concerned, and (2) whether that individual was then an addict. In an attempt to establish these facts the board subpoenaed petitioner's records relating to the individuals for whom he had prescribed Methedrine. According to petitioner's testimony in a prior action, a transcript of which was admitted in the hearing before the board, the records consist of cards entitled, 'Patients Financial Record Card' and each is a combination financial record and history and treatment card. The board also subpoenaed the pharmacists who allegedly filled the prescriptions which petitioner allegedly gave to the individuals named in the accusation.

The attorney for the board called as his first witness petitioner's office nurse. She identified two stacks of records then before the court as records of the doctor's 'Methedrine patients.' These cards she kept separately for 'my convenience in filing them, because as far as phone calls from patients and so forth and billing them, I do not send them out a bill every month. They usually either pay cash or I give them a statement before they leave the office to send their remittance in * * *.' They were differentiated from 'regular patients' which included everyone else except the ones for which petitioner prescribed Methedrine. She also maintained the records separately for 'O.B.' for 'O.A.S.' patients and for other categories under her own filing system. When the witness was asked what portion of the records she completed, petitioner objected on the ground that that question called for a privileged communication. In argument which extends over twelve pages of the hearing transcript the objection was considered as going to the admission into evidence of the record cards themselves. The attention of the hearing officer was directed to the physician-patient privilege as then found in the provisions of subdivision 4 of section 1881 of the Code of Civil Procedure, ⁹ to the provisions of section 11513 of the Government Code which declared: 'The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil action * * *'; ¹⁰ and to various provisions of the Health and Safety Code and Business and Professions Code which assertedly provide for the keeping and inspection of records. ¹¹ The hearing officer concluded under the law as it then existed (Code Civ.Proc. § 1881, subd. 4; Gov.Code, § 11513; and see Marlo v. State Bd. of Medical Examiners (1952) 112 Cal.App.2d 276,...