Magit v. Board of Medical Examiners

• Decision Date: 07 December 1961
• Citation: 57 Cal.2d 74,17 Cal.Rptr. 488
• Court: California Supreme Court
• Parties: , 366 P.2d 816 Jack R. MAGIT, Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Appellant. L. A. 26517.

Page 488

17 Cal.Rptr. 488

57 Cal.2d 74, 366 P.2d 816

Jack R. MAGIT, Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Appellant.

L. A. 26517.

Supreme Court of California, In Bank.

Dec. 7, 1961.

Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Richard R. Rogan, Chief Deputy Atty. Gen., and Warren H. Deering, Deputy Atty. Gen., for defendant and appellant.

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

GIBSON, Chief Justice.

The Board of Medical Examiners appeals from a judgment granting a peremptory writ of mandate directing the board to set aside its order revoking the license of Jack R. Magit, a physician and surgeon.

An accusation filed with the board alleged that Dr. Magit, a director and chief anesthesiologist of the Beverly Hills Doctors Hospital, employed Francisco Rios, Luciano Celori, and Ahmet Ozbey to assist him in the practice of medicine and paid them salaries knowing they had no licenses which authorized them to practice medicine in California, that with his authorization they administered anesthetics, including spinal and epidural anesthetics, ¹ and treated sick persons, and that he thus violated section 2392 as well as section 2378 considered together with section 2141 of the Business and Professions Code. ²

After a hearing the board found that Dr. Magit, acting on behalf of the Doctors Hospital, employed Rios, Celori, and Ozbey, that he knew they were not licensed to practice any of the healing arts in California, and that with his knowledge and authorization they administered general, spinal, and epidural anesthetics in the hospital. The board also found that Dr. Magit aided and abetted their practice of medicine and surgery. The board concluded that Dr. Magit was guilty of unprofessional conduct under section 2392 of the code and was guilty of unprofessional conduct under section 2378 together with section 2141, and it determined that for each of these two violations of professional standards his license ought to be revoked. A petition for reconsideration was denied by the board.

The superior court stayed revocation of the license and reviewed the matter on the record before the board without additional evidence. The court exercised its independent judgment, as it was authorized to do (Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 246, 217 P.2d 630, 18 A.L.R.2d 593; Moran v. State Board of Medical Examiners, 32 Cal.2d 301, 308, 196 P.2d 20), and determined that Dr. Magit was not guilty of unprofessional conduct under the cited sections of the code.

The findings of the court may be summarized as follows: Dr. Magit Knew that Rios, Celori, and Ozbey were not licensed to practice medicine in California. At various times, with his knowledge and authorization, they administered anesthetics in the course of operations but never in the absence of supervision, direction, and control of a licensed physician. They did not diagnose or treat sick and afflicted persons with his knowledge or authorization. The three men were 'doctors of medicine' with specialized training in anesthesiology and were highly competent anesthetists. ³ Prior to his work at the Doctors Hospital Rios had been employed by the State of California to administer anesthetics at Patton State Hospital. It is a common and recognized practice in California and in other parts of the United States for licensed physicians to authorize and permit persons not licensed as physicians to administer anesthetics. Dr. Magit acted in the utmost good faith; he relied on legal advice from the attorney for the Doctors Hospital that authorizing unlicensed persons to administer anesthetics was not illegal, and he was justified in so relying. He believed that such was the common and recognized practice in California and in other parts of the United States, and he immediately terminated the practice upon learning that it was considered illegal by the board.

It is not disputed that Rios, Celori, and Ozbey administered anesthetics at the Doctors Hospital with the authorization of Dr. Magit and that they were not licensed to practice any of the healing arts in California. The determination of the court that they did not, with his permission, diagnose or treat sick and afflicted persons amounts to a conclusion of law that the administration of anesthetics does not constitute a mode of treating the sick within the meaning of sections 2141 and 2392 of the code. Whether this conclusion is correct is one of the principal questions to be decided in this case. The finding of the court that it is a common practice in California and elsewhere to permit persons not licensed as physicians to administer anesthetics is vague in that it does not show what persons in addition to licensed physicians customarily administer anesthetics. As we shall see, there is no substantial evidence that the common practice referred to exists with respect to persons other than nurses and interns.

Our statutes do not specifically provide that one who administers anesthetics must have a license to practice medicine or any of the other healing arts. Whether the administration of anesthetics by the three unlicensed persons was illegal and made Dr. Magit guilty of unprofessional conduct depends primarily upon whether it constituted the practice of 'any system or mode of treating the sick or afflicted' within the meaning of section 2141 and 2392. If the administration of anesthetics does not come under these provisions, everyone would be free to administer them since there is no other statutory restriction which would apply. Those who administer anesthetics 'use drugs or what are known as medical preparations in or upon human beings' and, in administering spinal or epidural anesthetics, they 'penetrate the tissues of human beings' within the meaning of section 2137 of the code, which includes the quoted terms in setting forth the practice authorized by a physician's and surgeon's certificate. ⁴ The application of anesthetics is obviously an integral part of the surgical treatment which it facilitates, and it falls directly within the language of sections 2141 and 2392.

Moreover, the code speaks of anesthetics in a manner which indicates a legislative intent that their use be considered as coming within the practice of medicine. Section 2192 includes in the curriculum required of applicants for a physician's and surgeon's certificate adequate instruction in 'surgery, including * * * anesthesia,' and section 2139 provides that no chiropodist shall 'use an anesthetic other than local.' Section 2139, of course, is not intended to prohibit chiropodists from performing acts generally permitted to be done by everyone, and since it precludes a chiropodist from administering general, spinal, or epidural anesthetics, it clearly indicates that the right to give such anesthetics is restricted. (Cf. State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 218 (construing Wyoming statute similar to section 2139).)

In accord with the conclusion that anesthetization constitutes a mode of treating the sick is People v. Nunn, 65 Cal.App.2d 188, 190, 150 P.2d 476, 478, which affirmed an osteopathic physician's conviction of conspiracy to cause a chiropractor to practice as a surgeon and to administer drugs. The opinion sets forth among the incriminating facts the administration of anesthetics by the chiropractor in the presence of the osteopath who knew that the chiropractor 'had no license to administer the anaesthetic, apply the hypodermic needle or give any drug that comes within materia medica.' The desirability of restricting the right to administer anesthetics was recognized in Painless Parker v. Board of Dental Examiners, 216 Cal. 285, 295, 14 P.2d 67, 71, where this court said: 'The right to administer anesthetics which produce local or general insensibility to pain, or drugs which may produce total or semiunconsciousness, or otherwise affect the nervous system, should be withheld not only from all persons who are not highly skilled in the knowledge of and the use of said drugs, but also from persons who cannot produce evidence of good moral character.'

Under some circumstances, persons not licensed to practice medicine in California may legally perform some medical acts, including the administration of anesthetics. For example, sections 2147-2147.6 of the Business and Professions Code permit certain persons engaged in medical study and teaching at approved hospitals to perform acts which constitute treatment of the sick, but no such exemption is applicable to the activities of Rios, Celori, and Ozbey at the Doctors Hospital, which concededly was not approved for the training of students or interns. Another example is found in Chalmers ,-Francis v. Nelson (1936) 6 Cal.2d 402, 57 P.2d 1312, where it was held that a licensed registered nurse should not be restrained from administering general anesthetics in connection with operations under the immediate direction and supervision of the operating surgeon and his assistants.

At the time of the Chalmers-Francis case the statutes provided for the licensing of nurses but did not define or restrict their functions. In the absence of a statutory definition the court looked to the existing custom and practice concerning the administration of anesthetics by nurses. It has generally been recognized that the functions of nurses and physicians overlap to some extent, and a licensed nurse, when acting under the direction and supervision of a licensed physician, is permitted to perform certain tasks which, without such direction and supervision, would constitute the illegal practice of medicine or surgery. ⁵ No custom concerning the giving of anesthetics by persons other than licensed nurses was considered in the opinion, and the court did not discuss whether the administration of anesthetics by nurses or...