McDaniel v. New Mexico Bd. of Medical Examiners

• Decision Date: 02 August 1974
• Docket Number: No. 9798,9798
• Citation: 525 P.2d 374,86 N.M. 447,1974 NMSC 62
• Parties: Joseph C. McDANIEL, Petitioner-Appellee and Cross-Appellant, v. NEW MEXICO BOARD OF MEDICAL EXAMINERS, Respondent-Appellant and Cross-Appellee.
• Court: New Mexico Supreme Court

Page 374

525 P.2d 374

86 N.M. 447

Joseph C. McDANIEL, Petitioner-Appellee and Cross-Appellant, v. NEW MEXICO BOARD OF MEDICAL EXAMINERS, Respondent-Appellant and Cross-Appellee.

No. 9798.

Supreme Court of New Mexico.

Aug. 2, 1974.

Rehearing Denied Aug. 19, 1974.

Howard F. Houk, Albuquerque, for respondent-appellant.

George P. Jones III, Albuquerque, for petitioner-appellee.

OPINION

STEPHENSON, Justice.

This appeal arises out of a judgment entered on an appeal by appellee to the District Court of Bernalillo County from two decisions and an order of the Board of Medical Examiners, (the Board), revoking the license of the appellee to practice medicine in New Mexico. The lower court, after considering the record of the proceedings before the Board, entered its judgment reversing the decisions and order of the Board. The Board appeals.

In July of 1970, pursuant to a Notice of Contemplated Action filed by the Board against the appellee under the provisions of the Uniform Licensing Act (§§ 67--26--1 to 67--26--31, N.M.S.A.1953), the appellee appeared before the Board and admitted that he had illegally and falsely prescribed, for the alleged use of another, the dangerous and habit-forming drug Demerol, when in truth and in fact the prescriptions were intended for his own use. He also admitted that he had habitually and excessively used Demerol; whereupon the Board found the appellee guilty of unprofessional conduct, entered its decision revoking his license to practice medicine, reinstated said license, and placed him on probation upon certain terms and conditions included among which were:

'a. Respondent (appellee) shall at all times comply with all of the laws of the United States, the State of New Mexico and its political subdivisions, and the rules and regulations and orders of the Board of Medical Examiners.

'c. During the period of this indefinite probation, respondent shall continue under psychiatric observation and treatment of Warren T. Brown, M.D., or some other psychiatrist acceptable to the Board, and except as authorized by said psychiatrist, he shall not take or have in his possession any dangerous drugs. * * *'

Thereafter, pursuant to an Order to Show Cause filed by the Board as to why appellee's license to practice medicine should not be revoked because of his having violated the terms of his probation, a hearing was held. In August 1972, the Board made findings of fact and conclusions of law and entered its decision, finding appellee to have violated the terms and conditions of his probation, and entered an order revoking appellee's license to practice medicine.

Appellee appealed to the District Court of Bernalillo County. The district court ultimately entered a judgment reversing the decisions and order of the Board, concluding as a matter of law that substantial rights of the appellee had been prejudiced because the Board's findings, inferences, conclusions, and decisions were unsupported by substantial evidence on the entire record and were arbitrary.

The court based its reversal of the Board's decision on the lack of sufficient evidence upon which to establish its findings:

(1) that the use of Ritalin was dangerous in the manner form prescribed, or taken, by Dr. McDaniel,

(2) that classification by statute, or otherwise, of Ritalin as a dangerous drug was known or should have been known to Dr. McDaniel,

(3) that Dr. McDaniel violated any supervisory instructions of Dr. Brown.

This appeal followed.

The court below in its review of the Board's actions was governed by § 67--26--20, N.M.S.A.1953. The first paragraph of that statute provides in part:

'Scope of Review.--Upon the review of any board decision under the Uniform Licensing Act * * *. The court may affirm the decision of the board or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: in violation of constitutional provisions; or in excess of the statutory authority or jurisdiction of the board; or made upon unlawful procedure; or affected by other error or law; or unsupported by substantial evidence on the entire record as submitted; or arbitrary or capricious.'

The court may not substitute its judgment for that of the board. In Llano, Inc. v. Southern Union Gas Company, 75 N.M. 7, 399 P.2d 646 (1964) it is stated:

'This court has consistently held that on appeals from administrative bodies the questions to be answered by the court are questions of law and are restricted to whether the administrative body acted fraudulently, arbitrarily or capriciously, whether the order was supported by substantial evidence and, generally, whether the action of the administrative body was within the scope of its authority. The district court may not substitute its judgment for that of the administrative body.'

In Moyston v. New Mexico Public Service Commission, 76 N.M. 146, 412 P.2d 840 (1966), this court observed:

'The power of the trial court to review and overturn an administrative body's decision is stated in Ferguson-Steere Motor Co. v. State Corporation Commission, 63 N.M. 137, 314 P.2d 894:

'* * * It is well settled in this state that it is not the province of the trial court to re-try a case brought before it on appeal from an administrative body or agency or to substitute its judgment for that of the agency, but the trial court is limited to a determination of whether the administrative agency's action was legal or reasonable. If the trial court did substitute its judgment and discretion for that of the Commission, the trial court erred and its judgment must be reversed. On the other hand, the courts are vested with the power and authority to set aside an order of such agency if it is unreasonable, unlawful, arbitrary, capricious, or not supported by evidence. * * *"

To the same effect also see Seidenberg v. New Mexico Board of Medical Examiners, 80 N.M. 135, 452 P.2d 469 (1969); Hardin v. State Tax Commission, 78 N.M. 477, 432 P.2d 833 (1967); S.I.C. Finance-Loans of Menaul, Inc. v. Upton, 75 N.M. 780, 411 P.2d 755 (1966); Ingram v. Malone Farms, Inc., 72 N.M. 256, 382 P.2d 981 (1963); Continental Oil Co. v. Oil Conservation Com'n, 70 N.M. 310, 373 P.2d 809 (1962); Johnson v. Sanchez, 67 N.M. 41, 351 P.2d 449 (1960).

As to what constitutes 'arbitrary and capricious action' by an administrative board, the case of Smith v. Hollenbeck, 48 Wash.2d 461, 294 P.2d 921 (1956) states:

'Arbitrary and capricious action on the part of an administrative agency has been defined as willful and unreasonable action, without consideration and in disregard of facts or circumstances. Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be relieved that an erroneous conclusion has been reached.'

Also to be taken into account is § 67--26--11, N.M.S.A.1953 which provides in part:

'* * * Boards may utilize their experience, technical competence and specialized knowledge in the evaluation of evidence presented to them. * * *'

The Board naturally contends that the district court erred in holding its decision to be unsupported by substantial evidence. There is really no dispute about the appellee's actions. These matters were largely admitted. In this respect the Board found:

'That the respondent, Joseph C. McDaniel, M.D., * * * for a period of time, from February 7, 1972, up through July 20, 1972, * * * illegally and falsely prescribed for the alleged use of Mrs. Elizabeth Burns, or Mrs. E. Burns, 1821 Sue Drive, Birmingham, Alabama, approximately 1410 Ritalin 20-mg. tablets, when in truth and in fact the prescription for said * * * Schedule II drug Ritalin was not prescribed for the sole use of Mrs. Burns, in that respondent, according to his own admission, kept for his own use approximately 500 of the said Ritalin tablets without the knowledge or consent of his psychiatrist, Warren T. Brown, M.D., and without said psychiatrist's having authorized or prescribed said * * * drug Ritalin for the personal use of the respondent.

In essence, the argument centers on whether there was substantial evidence that Ritalin is a 'dangerous drug.' Indeed, under the quoted terms of appellee's probation and the undisputed evidence bearing upon appellee's actions, this is the question upon which the issues of this appeal turn.

The original hearing dealt to some degree with the nature and characteristics of Ritalin, which seems to be a proprietary name for menthylphenidate. After entry of the Board's first decision, the case was remanded to the Board at the behest of appellee for the purpose, inter alia, of permitting 'evidence as to any narcotic or dangerous qualities of the drug Ritalin.' Following that hearing, the Board affirmed its prior decision and, as to Ritalin, found:

'That the drug Ritalin is a dangerous drug, in that its use may result in psychological or physical dependence. While the taking of said drug does elevate moods, withdrawal from the drug, once dependence is established, can be difficult and can be accompanied by severe depression. The drug Ritalin is available only on a prescription by a doctor duly registered and authorized to write such a prescription under the law and regulations of the Federal Bureau of Narcotics and Dangerous Drugs.

'The Board further finds that said respondent was not authorized to write prescriptions for the dangerous drug Ritalin, it being designated as a Schedule II drug under the Controlled Substances Act of both Federal and state governments.'

We will not repeat our oft-stated criteria for determining whether a finding is supported by substantial evidence. For a statement of the rule in an opinion upon an appeal from the actions of an administrative body, see Rinker v. State Corporation Commission, 84 N.M. 626, 506 P.2d 783 (1973). Upon reading the...