Marlo v. State Board of Medical Examiners of Departmentof Professional Standards

• Decision Date: 18 July 1952
• Citation: 246 P.2d 69,112 Cal.App.2d 276
• Court: California Court of Appeals Court of Appeals
• Parties: MARLO v. STATE BOARD OF MEDICAL EXAMINERS OF DEPARTMENT OF PROFESSIONAL STANDARDS et al. Civ. 18776.

Page 69

246 P.2d 69

112 Cal.App.2d 276

MARLO v. STATE BOARD OF MEDICAL EXAMINERS OF DEPARTMENT OF PROFESSIONAL STANDARDS et al.

Civ. 18776.

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

July 18, 1952.

Hearing Denied Sept. 11, 1952.

Morris Lavine and Ralph N. Highsmith, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Bayard Rhone, Gilbert Harelson, Howard S. Goldin, Deputy Attys. Gen., for respondents.

MOORE, Presiding Justice.

Dr. Marlo was accused before respondent of having violated section 2377 of the Business and Professions Code. That statute declares procuring or aiding or attempting to procure a criminal abortion constitutes unprofessional conduct. The State Board of Medical Examiners tried the issues created by such accusation and appellant's 'notice of defense,' Gov't Code, sec. 11506, convicted him and made an order revoking his license to practice medicine. His petition for reconsideration having been granted and a further hearing had, and other evidence and argument heard, the Board rendered its decision and made the same order of conviction and of revocation of license. A third attempt to obtain a rehearing having failed, appellant instituted his action in mandamuns for a review of the administrative proceedings. Following a trial, the court made and filed its findings denying appellant relief. Upon Dr. Marlo's petition, the case was reopened and further proceedings were had. But in the end a peremptory writ was denied.

Appellant now demands a reversal on the grounds that (1) the complaint filed against him does not state a cause of action; (2) Government Code sections 11505 and 11506 are 'inherently unconstitutional'; (3) the evidence is insufficient to support the findings; (4) the court erred in the admission and inclusion of evidence.

The contention that the accusation fails to state a cause of action is based upon the theory that the complaint is not in conformity with section 11503 of the Government Code. That section provides in part that the accusation 'shall not consist merely of charges phrased in the language' of the statutes or rules which the defendant is alleged to have violated. It is argued that the accusation does not comply with that provision in that it does not apprise the accused physician of the charge intended to be lodged against him and hence offends the guaranty of due process of law.

Such contention flies in the face of the instrument itself. From its allegations he knew precisely the violation of which he was accused. In 'ordinary and concise language' he is charged with having performed an abortion on a specified date. It informed the accused of the general location where the act was committed, the name of the female victim of the assault and a declaration that the abortion was not necessary to preserve the woman's life. But conceding, arguendo, the correctness of appellant's criticism of the complaint, he is not foreclosed from raising an objection to the form since he failed to assert this point in his 'notice of defense' or in any other document prior to this appeal. Section 11506 of the Government Code provides that such a failure to object to the form of the accusation 'on the ground that it is so indefinite or uncertain that he [the accused] cannot identify the transaction or prepare his defense' shall operate as a waiver of all objections to the form of the accusation.

The next assignment of error is that sections 11503, 11505 and 11506 are 'inherently unconstitutional' and in violation of the due process clause of the Fourteenth amendment to the Constitution of the United States 'in that they fail to set out a procedure which enables the accused to come in and defend against it at the time of hearing.' No sound argument, however, is advanced as to why these statutes contravene the judicial concept of due process of law. A persuasive argument cannot be made. The cited sections are a part of the Administrative Procedure Act. They first provide for initiation of proceedings to suspend or revoke a license by the filing and serving a verified accusation against the person concerned. With the complaint shall be included a notice that he may request a hearing by filing a notice of defense. Sec. 11505. Section 11506 requires the accused to file a notice of defense, including a request for a hearing, objections to the accusation and any new defensive matter. Such notice performs essentially the office of an answer and demurrer in the ordinary civil action. Accordingly, since such statutes provide for proper notice and hearing in connection with the revocation or suspension of a license they are in harmony with fundamental principles of due process and impervious to attack on constitutional grounds. Brecheen v. Riley, 187 Cal. 121, 124-125, 200 P. 1024; Suckow v. Alderson, 182 Cal. 247, 250, 187 P. 965.

The chief contention made is that the evidence is not sufficient to support the Board's determination that appellant performed the acts charged in the accusation. The record discloses no support for such assertion. There is ample evidence that on or about February 1, 1949, appellant performed a criminal abortion upon the person of a young lady whom we shall refer to as Barbara.

While it must be conceded that the denials of appellant, the testimony of his expert witness, and the proofs that Barbara and her escort were not in El Monte on the fifth day of February, 1949, were persuasive, yet the proof adduced by the State in substantiation of the complaint is ample, when adopted by the trial court, to justify a finding of appellant's guilt. Barbara was clear, emphatic and intelligent. She had consulted Dr. Harker, her own physician, in her home town of Oxnard, about January 15th with vague complaints as to her health. She told him she might be pregnant; her last preceding menstrual period was on December 5. A Friedman test for pregnancy was then performed at the laboratory of St. John's Hospital at Oxnard. Dr. Harker received the report of the test in a few days and informed his patient that it was strongly positive.

On February 4 Barbara left Oxnard by train for Santa Ana where she met Vic Williams, a serviceman with whom she had kept company and who was then stationed in that city. Williams drove her to El Monte where the couple engaged accommodations at a motel on the main street of the town, either the Rose Garden or the Rose Bowl motel. At about midafternoon she and Williams drove to the nearby El Monte Hospital. Barbara entered the building alone and asked to see the doctor. No questions were asked and she was told to be seated. At approximately 4:45 p. m. appellant came out and invited her to enter his office. She informed him that she was pregnant and desired an abortion. After inquiring as to the probable length of her pregnancy, appellant made an examination. In response to her inquiry as to whether anything could be done, he told her to return the next day at 9:00 a. m. when he would perform an operation, and to bring $250. When she said that she could raise only $200, the doctor agreed to...