Magit v. Board of Medical Examiners of California

• Decision Date: 18 July 1961
• Court: California Court of Appeals Court of Appeals
• Parties: Jack MAGIT, Petitioner and Respondent, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF CALIFORNIA, Defendant and Appellant. Civ. 24981.

Page 716

14 Cal.Rptr. 716

Jack MAGIT, Petitioner and Respondent, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF CALIFORNIA, Defendant and Appellant.

Civ. 24981.

District Court of Appeal, Second District, Division 2, California.

July 18, 1961.

Rehearing Denied Aug. 15, 1961.

Hearing Granted Sept. 13, 1961.

Opinion vacated 17 Cal.Rptr. 488, 366 P.2d 816.

Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Warren H. Deering, Deputy Atty. Gen., for appellant.

Mitchell, Silberberg & Knupp, Arthur Groman and Allen Kaufman, Los Angeles, for respondent.

FOX, Presiding Justice.

The Board of Medical Examiners revoked petitioner's license to practice medicine and surgery in the State of California. Petitioner secured a judgment which granted a peremptory writ of mandate annulling the Board's order. This is an appeal by the Board from that judgment.

An accusation was filed with the Board charging petitioner with two counts ¹ of unprofessional conduct under section 2392 ² of the Business and Professions Code, together with sections 2141 ³ and 2378 ⁴ of the same code. (All code references will be to the Business and Professions Code unless otherwise stated.) Section 2392 states that it is unprofessional conduct for a licensed physician and surgeon (hereafter called physician) to employ, aid or abet an unlicensed person in the practice of any system or mode of treating the sick or afflicted. Section 2141 makes it a misdemeanor for one to practice or hold himself out as practicing medicine without holding a certificate, and section 2378 deems it unprofessional conduct for a licensed physician to assist in or abet the violation or to conspire to violate section 2141.

The charges grow out of these facts: Petitioner is a licensed physician, and is a director of the corporation which owns and operates a hospital in Beverly Hills. He is also chief anesthesiologist at the hospital. One of his functions has been the recruiting of assistants for the hospital's department of anesthesiology. The hospital is not approved for the training of interns within the exemption of section 2147.5. During the period between March of 1956 and July of 1958 petitioner employed three persons unlicensed in any of the healing arts--Francisco Rios, Luciano Celori and Ahmet Ozbey--to serve as anesthetists. These three persons were doctors of medicine with specialized training in anesthesia, and they were all highly competent anesthetists. ⁵ During this period these three persons administered spinal, ⁶ epidural ⁷ and general ⁸ anesthetics to patients in the hospital, with the knowledge and authorization of petitioner. The administration of a spinal or epidural anesthetic involves the insertion of a hypodermic needle between the bones of the spine. When the needle enters the spinal canal the anesthetic is considered 'spinal'. If it is merely inserted into the space between the spinal canal and the bones of the spinal column it is considered 'epidural'. A 2 1/2 inch needle is used. It is inserted about 1 1/2 inches in the administration of an epidural anesthetic and less than a centimeter further for a spinal. To determine whether the needle is in the spinal canal or the epidural space it is necessary to observe the end of the needle which is opposite the end inserted (the syringe is not attached at the time of insertion). If there is a large onrush of spinal fluid out of the needle then the needle is in the spinal canal, and it then becomes necessary either to give a spinal or remove the needle and give a general anesthetic. An epidural can then no longer be given safely. Whether or not the needle is in the spinal canal is important in determining how much anesthetic to use. Too great an amount may result in paralysis. With respect to the spinal, it is necessary that the needle not be inserted too high in the spinal column, where the spinal cord is still present. See Seneris v. Haas, 45 Cal.2d 811, 816 et seq., 291 P.2d 915, 53 A.L.R.2d 124.

Based upon these facts, petitioner is charged with employing, aiding, assisting or abetting the three men in the practice of medicine. It is not disputed that Rios, Ozbey and Celori administered the anesthetics as charged, ⁹ nor is it disputed that petitioner aided and abetted them in and employed them to administer spinal, epidural and general anesthetics. ¹⁰ Although counsel have argued a number of subsidiary questions, the basic issue is whether the acts complained of, when performed by persons totally unlicensed in the healing arts, constitute a violation of sections 2141 and 2392.

It will be noted that sections 2141 and 2392 do not use the phrase 'practice of medicine'. ¹¹ The act prohibited is the practice of any mode of treating the sick or afflicted and the diagnosing or treating or operating for or the prescribing for any ailment by an unlicensed person. There is no substantial question with respect to any of these except whether the acts in question constitute 'treatment' within the meaning of the statute. ¹² We believe that the administration of anesthetics is so much a part of the surgical procedure, so intimately connected with and linked to the operation of which it is an integral portion that it must be considered as 'treatment'. We are not alone in this view. In Order of United Commercial Travelers of America v. Shane, 8 Cir., 64 F.2d 55, 59, it was stated: 'We think the administration of the drug [an anesthetic] must be placed in the category of medical or surgical treatment.' State v. Catellier, 63 Wyo. 123, 179 P.2d 203, involved a manslaughter prosecution of a chiropodist. He had given sodium pentothal, a general anesthetic administered by needle, to induce unconsciousness in order to set a shoulder. The opinion stated: 'We think we can take judicial notice of the fact that the administration of a general anesthetic may entail danger to a patient,' and '[T]he cases as a whole indicate that the administration [of an anesthetic] is a part of the practice of medicine, and we think that is the general understanding.' Also: 'The administration of the anesthetic in connection with the setting of the shoulder was, we think, part of the remedy applied by him.' (Emphasis added.) 179 P.2d at page 218. In Fuller v. Board of Medical Examiners, 14 Cal.App.2d 734, 741, 59 P.2d 171, 174 it was stated: 'The right to administer anesthetics which produce local or general insensibility to pain, or drugs which may produce total or semi-unconsciousness, or otherwise affect the nervous system, should be withheld not only from all persons who are not highly skilled in the knowledge of and use of said drugs, but also from persons who are not of good moral character.' See also Painless Parker v. Board of Dental Exam., 216 Cal. 285, 295, 14 P.2d 67. In People v. Nunn, 65 Cal.App.2d 188, 150 P.2d 476, an osteopath was prosecuted for conspiracy to violate the Medical Practice Act by working with and aiding a chiropractor to perform acts which only a licensed physician may do. The conviction was affirmed. Although the chiropractor performed many prohibited acts in addition to the administration of anesthetics, the opinion lays some stress on that point. At page 190 of the opinion in 65 Cal.App.2d, at page 478 of 150 P.2d, it was said: 'Nunn [the osteopath] witnessed Navarre's [the chiropractor] application of ethyl chloride; observed his injections of atropine preliminary to the operations * * * and knew the Navarre had no license to administer the anesthetic, apply the hypodermic needle or give any drug that comes within the materia medica.'

'Treatment' has been defined as 'the application of some supposed curative agency to the person seeking relief.' People v. Ratledge, 172 Cal. 401, 156 P. 455, 456. In an apparent literal interpretation of this definition, there is some authority for the proposition that since an anesthetic itself does not purport to cure, it is merely preparatory and not treatment. Frank v. South, 175 Ky. 416, 194 S.W. 375, 380; Beile v. Travelers' Protective Ass'n, 155 Mo.App. 629, 135 S.W. 497, 502. However, the balance of authority and the weight of reason indicate a contrary conclusion. Of course not all procedures which precede the application of the curative agency need be performed by a licensed practitioner. But those which are sufficiently dangerous and difficult so as to require the judgment, skill, and moral character of which only the license to practice the healing arts can give us a reasonable assurance must be considered 'treatment' within the meaning of sections 2392 and 2141. At least the administration of spinal and epidural anesthetics fall within this class. Aside from the case authority cited above, there is medical authority which also is persuasive of this conclusion. In his treatise on spinal anesthesia, Dr. Dillon states: 'When spinal anesthesia is administered without full appreciation of the consequence that may follow, the results may be prejudicial to both the patient's welfare and to his life. * * * It is absolutely essential that any physician undertaking the administration of spinal anesthesia be thoroughly familiar with the anatomy of the spinal column and spinal cord * * *. It is equally essential that he be familiar with the alterations that occur * * * following interruption of the sympathetic nerve supply * * * and know how to cope with these alterations. * * * Spinal anesthesia should not be attempted by anyone who is not completely competent in the management of all types of general anesthetic techniques.' ¹³ On epidural anesthesia, Dr. Dillon has this to say: 'One of the reasons why the epidural technic of anesthesia has not been popular with anesthesiologists * * * is the increased risk of inadvertently producing massive spinal anesthesia due to penetration of the dura by the needle during the injection of the anesthetic solution.' ¹⁴ See also, Seneris v. Haas, supra, for testimony relating to the complications of spinal anesthesia. ...