Knight v. Louisiana State Bd. of Medical Examiners, 2807

• Decision Date: 10 June 1968
• Docket Number: No. 2807,2807
• Citation: 211 So.2d 433
• Parties: Dr. Sidney C. KNIGHT v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
• Court: Court of Appeal of Louisiana — District of US

Page 433

211 So.2d 433

Dr. Sidney C. KNIGHT v.LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.

No. 2807.

Court of Appeal of Louisiana, Fourth Circuit.

June 10, 1968.

Rehearing Denied July 1, 1968.

Allen & Mamoulides, Douglas A. Allen, John M. Mamoulides, Richard Troy, Metairie, for relator-appellant.

Adams & Reese, Thomas J. Wyllie, New Orleans, for respondent-appellee.

Before YARRUT, SAMUEL and HALL, JJ.

SAMUEL, Judge.

Dr. Sidney Knight filed this suit against the Louisiana State Board of Medical Examiners, seeking: (1) by mandamus to compel the Board to reinstate his license to practice medicine; alternatively (2) to enjoin the Board from refusing to reinstate that license; and in the further alternative (3) that the Court annul an administrative action suspending the license for a period of five years.

Essentially, plaintiff contended: (1)LSA-R.S. 37:1285, the statute under which his license was suspended, is invalid insofar as it fails to set a maximum time limit on suspensions; (2)he was deprived of a property right without due process of law because of the manner in which the hearing was conducted; and (3) the Board conspired to manufacture evidence against him and then improperly concluded he had performed an abortion on one Mrs. Smith, the finding which resulted in the suspension of his license.

When the petition was filed the Court issued alternative writs of mandamus and injunction.The defendant Board then pleaded various exceptions including an exception of lis pendens which the trial court maintained.On appeal from that judgment this Court reversed and remanded the matter for further proceedings.SeeKnight v. Louisiana State Board of Medical Examiners, La.App., 195 So.2d 375.

After a trial on the merits following remand judgment was rendered recalling the alternative writ of mandamus and injunction and dismissing the suit.Plaintiff has appealed.

The litigation stems from the defendant Board's suspension of Dr. Knight's license to practice medicine for five years after determining he had illegally performed an abortion.The Board's authority for this action is LSA-R.S. 37:1285, which provides in pertinent part:

'The board may refuse to issue, suspend, or institute proceedings in any court of competent jurisdiction to revoke any certificate issued under this Part for any of the following causes:

(6) Procuring, aiding or abetting in procuring an abortion unless done for the relief of a woman whose life appears in peril after due consultation with another licensed physician; * * *.'

The events leading to the suspension, which he now asserts constitute a conspiracy to deprive him of his license, are these:

In March, 1964 the Board summoned Dr. Knight to appear before it to answer charges that he had performed an abortion on one Mary H., who was not available to testify because she had left the state.Dr . Knight was present and represented by counsel.Because the evidence was inconclusive, his license was not suspended; however, his 1964 renewal license was issued on a probationary status.This meant that his professional activities would be subject to investigation by the Board in the future.

In November, 1964 Dr. Knight was notified of a hearing by the Board regarding charges that he had performed an abortion on a Mrs. Smith (who was an admitted prostitute).After receiving this notification, Dr. Knight persuaded Mrs. Smith to sign an affidavit stating he had never performed an abortion on her and she never had an abortion performed.The doctor forwarded the affidavit to the Board and later was notified by them that the hearing had been cancelled.The Board did convene on December 10, 1964, the scheduled date of the hearing, at which time it interviewed several witnesses concerning alleged abortion activities of Dr. Knight and two other physicians in the greater New Orleans area.No action was taken against Dr. Knight at that meeting.

Thereafter the defendant hired Southern Research, a local detective agency, to investigate Dr. Knight.Frank Cefalu, one of the agency's employees, conducted most of the investigation.While making inquiries, he interviewed the Mrs. Smith who had previously appeared before the Board in December, 1964.In March, 1965 Mrs. Smith informed Cefalu she again was pregnant and intended to ask Dr. Knight to perform an abortion.Cefalu reported this to his office and was instructed to relay the information to the Jefferson Parish authorities.After this had been done, he and the Parish officials attempted to dissuade Mrs. Smith from going through with the abortion.Having failed in the attempt, Cefalu and the Jefferson Parish authorities decided to gather evidence to establish an abortion had been performed, should the act be committed.

Mrs. Smith consulted Dr. Knight on March 23, 1965.Before going to his office she was examined by two doctors, both of whom confirmed her pregnancy.In addition, their diagnoses were supported by positive laboratory tests.After her pregnancy was confirmed she went directly to the office of Dr. Knight in the company of a female deputy sheriff.When Mrs. Smith was called into a private examination room, the deputy remained in the waiting room for approximately twenty minutes until she returned.According to Mrs. Smith, Dr. Knight probed the uterus five or six times with an instrument in order to abort pregnancy as she had requested.

Immediately after leaving Dr. Knight's office she was returned for re-examination to the office of one of the doctors who had diagnosed pregnancy.His findings were that the physiological changes in Mrs. Smith's cervix could only have been caused by the instrumentation she had described.There was a time lapse of only three hours between this doctor's first examination, before she visited Dr. Knight, and the second examination, made after she had seen Dr. Knight.

Mrs. Smith then returned home.That same night she began bleeding profusely.She consulted a doctor who had examined her before the abortion and he sent her to Baptist Hospital the next day.On admission her condition was diagnosed as acute pelvic inflammatory disease and possible incomplete abortion.

On March 23, 1965 Jefferson Parish officials arrested Dr. Knight on the criminal charge of abortion.

Mrs. Smith remained in Baptist Hospital until March 31, 1965, receiving treatment which retarded expulsion of the fetus.On her release she was taken directly to court to testify in the preliminary hearing on the criminal charges against Dr. Knight.

At this hearing Dr. Knight was represented by counsel and was fully informed of the facts upon which the charges for which he was arrested were based.The court reached a finding of probable cause and bound the accused over for trial on the charges of criminal abortion.

On April 3, 1965 Mrs. Smith began hemorrhaging again and was returned to Baptist Hospital where her condition was provisionally diagnosed as incomplete abortion.On April 6, 1965she finally aborted expelling a dead three and a half month old male fetus.

On April 5, 1965the defendant notified Dr. Knight that a hearing would be held on May 1, 1965 concerning charges of unprofessional conduct.The letter of notification read:

'Dear Doctor Knight:

The Louisiana State Board of Medical Examiners requests that you appear at the office of the Board, 521 Hibernia Bank Building, New Orleans, Louisiana, at 9:00 A.M., on Saturday, May 1, 1965, for a hearing before the Board on your moral and professional conduct; moral and professional competence; your alleged procuring, aiding or abetting in procuring one or more abortions or attempting same; prescribing of habitforming drugs in other than a legal and legitimate manner.

You are duly advised of the fact that you may present any witnesses or evidence that you wish, and you have the right to be represented by counsel if you so desire.

Your prompt acknowledgment of receipt of this notice will be appreciated

Yours very truly,

J.MORGAN LYONS, M.D.

Secretary-Treasurer'

Dr. Knight's attorneys, Frank Zaccaria and A. J. Graffagnino, attempted to cancel the May 1st hearing by obtaining a temporary restraining order from the Civil District Court for the Parish of Orleans.When this failed, Mr. Zaccaria telephoned a member of the Board requesting more particulars on the charges Dr. Knight would have to answer at the hearing.He was advised the hearing would be restricted to matters for which Dr. Knight was arrested on March 23, 1965.As the same two attorneys also had acted as Dr. Knight's council for the preliminary hearing on March 31, 1965, they were fully apprised of the facts upon which the criminal charges were based.We desire at this time to make it clear there is no indication of any improper action on the part of Dr. Knight's attorneys; all of the evidence contained in the record is to the contrary.

In another court action stemming from Dr. Knight's ultimate suspension, i.e., an injunction proceeding initiated by the Board to prohibit Dr. Knight's continued practice of medicine after his suspension, Mr. Zaccaria, again representing Dr. Knight, stipulated he was informed before the hearing that charges to be heard would consist only of matters for which Dr. Knight was arrested in March.He further stipulated the hearing was in...