Korndorffer v. Texas State Board of Medical Exam., 286

• Decision Date: 10 December 1969
• Docket Number: No. 286,286
• Citation: 448 S.W.2d 819
• Parties: William Earl KORNDORFFER, Jr., Appellant, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 819

448 S.W.2d 819

William Earl KORNDORFFER, Jr., Appellant, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellee.

No. 286.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 10, 1969.

Rehearing Denied Jan. 7, 1970.

Arthur J. Mandell, Mandell & Wright, Houston, for appellant.

Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Hawthorne Phillips, Executive Asst. Atty. Gen., J. C. Davis, John H. Banks, Asst. Attys. Gen., Austin, for appellee.

BARRON, Justice.

This is an appeal from a judgment of the District Court of Galveston County, Texas, which held that the appellee, Texas State Board of Medical Examiners, did not act arbitrarily and capriciously and affirmed the previously entered order of appellee revoking and canceling the license of Dr. William Earl Korndorffer, Jr., M.D., to practice medicine in the State of Texas, which order provided that the execution of said order or revocation be stayed during a probationary period of five years.

Appellant, William Earl Korndorffer, Jr., M.D., was charged before the Texas State Board of Medical Examiners, appellee, with having in his possession during a period of time from November 1, 1966 to December 13, 1967, 1598--50 mg. Demerol tablets and 872--1 gr. Codeine tablets, Class A narcotic drugs, and that appellant's records did not disclose or reflect the name or names of the person or individual to whom these narcotic drugs were dispensed, and that failure to keep such records constituted a violation of Subdivision (4) of Article 4505, Vernon's Ann. Revised Civil Statutes of Texas, 1925, as amended, which reads as follows:

'Grossly unprofessional or dishonorable conduct, of a character which in the opinion of the Board is likely to deceive or defraud the public.'

On January 23, 1968, appellee entered its order finding the charges in the complaint were true and that appellant had violated the provisions of subdivision (4) of Article 4505 as amended; revoked and canceled appellant's medical license but stayed its order, and placed appellant on probation for a period of five years.

Appellant is a duly licensed physician, specializing in Pathology. He did not regularly treat private patients and was not engaged in the private practice of medicine. Appellant testified that he administered to himself four tablets of 50 mg. Demerol every four hours at night for a period of about three months. He further admitted that he dispensed drugs to himself, his wife and his two older children. He dispensed some codeine tablets of 1/2 gr. each to his wife and children. He administered to his wife as directed by her physician, Dr. Jacobs, demerol for pain following her hysterectomy operation for a period of time less than two weeks, and certain quantities of codeine 1 gr. as directed by his wife's dentist, Dr. Brinkly, every six hours for painful sinus infection and infected teeth, for one or two days. To himself he administered certain quantities of demerol for a severe back sprain, and he administered to his two sons 1 tablet of 1 gr. of codeine for severe painful cold sore blisters, under the advice of Dr. Ed Schanke, a total of no more than 20 tablets, dispensing one a night to each child for about one week or so. The doctor testified that no formal records were kept of the amount of narcotics dispensed by him, though he did have records of invoices, orders and payment therefor, and the number of tablets on hand was ascertainable.

Weldon L. Parks, Special Agent for the Federal Bureau of Narcotics and Dangerous Drugs, testified that he checked the narcotic records and drugs of appellant, and that there was a shortage of 1598--50 mg. Demerol tablets and 872--1 gr. Codeine tablets, and that such shortage occurred during a period of time from November 1, 1966, to December 13, 1967. Mr. Parks, however, testified to facts which could be nothing but hearsay. Without supporting the record with documents or memoranda, he testified that he knew the quantity of the narcotics appellant had ordered, how much the doctor had on hand, and how much he was supposed to have on hand. There was no competent evidence shown concerning the orders for drugs actually made by the doctor, nor was there any testimony which we would consider reliable concerning the amount of narcotics actually delivered or sent to Dr. Korndorffer. Only one invoice was placed in evidence, that being an invoice from Interstate Drug Exchange, Inc., Plainview, N.Y., dated November 4, 1966, showing that many items of drugs and medical equipment were sent to Dr. Korndorffer. Among the items listed were 500 codeine phosphate 1 gr. tablets, 500 morphine sulfate tablets, and 1,000 demerol 50 mg. tablets. The morphine tablets were accounted for and were intact.

Mr. Parks, apparently testifying from notes and information he had received from other persons, testified further that on October 10, 1967, appellant ordered from Sherry Pharmaceutical Co., Long Island City, N.Y., 2,000 tablets of Demerol Hydrochloride and 2,000 tablets of Codeine Sulfate 1/2 gr. And further, on November 1, 1966 appellant had ordered 1,000 Codeine Phosphate, 1 gr. tablets, 1,000 Morphine Sulfate tablets, 1/2 gr., and 2,000 tablets of Demerol Hydrochloride, 50 mg. Mr. Parks stated that he had the duplicate or triplicate order forms, which he said the doctor had filled out, but that he did not check to see how many items of narcotics were actually shipped. His so-called order forms were not verified as being the orders made by appellant. He maintained that if there was a shortage shipped, it was up to the doctor to make inquiry. No records, authenticated or otherwise, were offered in evidence by appellees.

There is no evidence in the record to show that appellant used or administered narcotic drugs to anyone other than to himself, his wife and his two children. The record shows that a small quantity of drugs were administered to his wife and children under the supervision or advice of other doctors. There was no evidence in the record showing whether, under the circumstances, appellant's use of the drugs was in small quantities of solutions or other preparations of such drugs for local application (to himself, his wife and children), or whether the quantities used were large and excessive under the circumstances of the various cases, and we decline to make a guess, or to take judicial knowledge of the facts involving medical experience and medical standards without evidence in the record. The evidence shows that the administration of demerol was for a good purpose. The doctor felt that the dose was within the recommended dosage, and that the side-effects were non-existent. There is no evidence that the doctor and his family became addicted to the drugs in any manner. Appellant stated that he considered his family to be patients of his, and that he was supporting the treatment by their regular physician. Mr. Parks admitted that if the doctor personally gave drugs to a patient, he is not required to keep a record of it. Appellant's copy of the drug inventory made after the count of the tablets by Mr. Parks was requested to be signed in blank, and appellant denied that he had ever received a copy of it.

The appellee contends that the dispensing and administering of narcotic drugs in the manner and amounts shown by the record which the appellant administered constituted an infraction of the Vernon's Ann. Penal Code of Texas, Article 725b, Sec. 9, and that such conduct is of a class which lends itself to abusive practices in dealing with narcotics and, therefore, may properly be termed of a character likely to deceive or defraud the public. It is further contended that the governing principle of law in such a case is not whether the specific act did, in fact, 'defraud or deceive the public' but whether the class or kind of conduct to which the acts belong is of a character that is likely to do so.

The applicable statute of 1907, now Art. 4505, V.T.C.S., was amended in 1939. The result was a considerable broadening of the statute, especially the meaning of 'grossly unprofessional or dishonorable conduct.' In Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609, 614, the Court stated:

'The 'refusal' of the applications for writs of error by this Court in the Morse case in 1909 (Morse v. State Board of Medical Examiners, Tex.Civ.App., 122 S.W. 446) and the Berry case in 1911 (Berry v....