McMurtry v. Board of Medical Examiners

• Decision Date: 09 May 1960
• Citation: 4 Cal.Rptr. 910,180 Cal.App.2d 760
• Court: California Court of Appeals Court of Appeals
• Parties: Milton S. McMURTRY, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Respondent. Civ. 6042.

Page 910

4 Cal.Rptr. 910

180 Cal.App.2d 760

Milton S. McMURTRY, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Respondent.

Civ. 6042.

District Court of Appeal, Fourth District, California.

May 9, 1960.

Rehearing Denied May 27, 1960.

Hearing Denied July 6, 1960.

Burke & LaRue and Oren, McCartney, Sells & Edman, Fresno, for appellant.

Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., and W. B. Thayer, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

This an appeal from the judgment in a mandamus proceeding affirming an order of the respondent, Board of Medical Examiners, revoking the certificate of petitioner, Milton S. McMurtry, to practice medicine.

Petitioner was charged with unprofessional conduct in three counts, i. e., (1) failing to report certain named habitual users of narcotics as required by Section 11425 of the Health & Safety Code; (2) failing to make and keep records of the dispensation of narcotics as required by Section 11225 of that code; and (3) prescribing narcotics for and furnishing narcotics to certain named persons who were addicts and who were not under his treatment for a pathology or condition other than narcotic addiction, in violation of Sections 11163 and 11164 of the Health & Safety Code. Under the provisions of the Business & Professions Code, violations of the aforesaid sections of the Health & Safety Code constitute unprofessional conduct authorizing the suspension or revocation of a certificate to practice medicine. Secs. 2361, 2391, 2391.5, Bus. & Prof.Code. After a hearing, as prescribed by law, the Board of Medical Examiners found the charges contained in counts 1 and 2 to be true; found the charges contained in count 3 to be untrue; and revoked petitioner's certificate to practice medicine in the State of California. Thereupon these proceedings in mandamus were instituted to review the aforesaid order pursuant to section 1094.5 of the Code of Civil Procedure. The matter was heard upon a transcript of the proceedings before the Board of Medical Examiners including the evidence produced, the findings made and the order entered thereon.

Petitioner, a licensed medical doctor, prescribed narcotics for three of his patients who were named in the foregoing accusations, between April 12, 1954 and April 19, 1956. To the first of such, a man, prescriptions were given over a period of two years on 48 separate occasions; to the second, a woman, prescriptions were given over a five month period on 24 separate occasions; and to the third, another man, prescriptions were given over a period of four months on 33 separate occasions. The issuance of these prescriptions was established through a reporting system which requires a person filling the same to send a copy thereof to the State Division of Narcotic Enforcement. The last of these prescriptions was issued to each of these patients shortly before petitioner voluntarily surrendered his narcotic license on April 19, 1956. During the time the three named patients were treated by petitioner they had a pathology necessitating the use of narcotics to relieve them from pain. The first was suffering from a kidney condition; the second patient was suffering from a kidney infection; and the third patient was a victim of cancer, which claimed his life on August 30, 1957.

The Board found that none of these patients was an addict but that each of them was an habitual user of narcotics within the meaning of Section 11425 of the Health & Safety Code, which requires a physician prescribing a narcotic to an habitual user to report that fact to the State Division of Narcotic Enforcement. Previous to the treatment by petitioner, the second patient had been reported as an habitual user by one doctor and the third patient had been reported as an habitual user by fifteen doctors. It is not disputed that petitioner did not report either of these three patients as an habitual user.

Section 11425 of the Health & Safety Code provides:

'A physician prescribing or furnishing a narcotic to an habitual user shall within five days after first prescribing or furnishing the narcotic personally report in writing by registered mail, over his signature, to the State Division.

'The report shall contain all of the following:

'(a) Name of the patient.

'(b) Address of patient.

'(c) Character of the injury or ailment.

'(d) Quantity and kind of narcotic used.

'(e) A statement as to whether or not the patient is an addict.'

The trial court found: (1) 'That the decision of the Board of Medical Examiners of the State of California in this matter is supported by the findings of the Board; that the findings of the Board are supported by the weight of the evidence;' and also (2) that 'Respondents'--undoubtedly meaning 'petitioner'--prescribed narcotics to the three named persons 'who were then and there habitual users of narcotics' and did not report the information required by the aforesaid code section, including a statement as to whether or not they were addicts.

Petitioner contends that Section 11425 of the Health & Safety Code is unconstitutional and void because the obligation imposed thereby is not defined with certainty; that the phrase 'habitual user' is vague, indefinite and uncertain; and that any proceeding to revoke his license which is based on an alleged violation of the aforesaid code section does not comply with the requirements of due process of law.

It is well settled that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322; People v. McCaughan, 49 Cal.2d 409, 414, 317 P.2d 974; In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364. This principle applies not only to statutes of a penal nature but also to those prescribing a standard of conduct which is the subject of administrative regulation. Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L.R.A.,N.S., 896; In re Peppers, 189 Cal. 682; Drucker v. State Board of Med. Examiners, 143 Cal.App.2d 702, 300 P.2d 197. The language used in such legislation 'must be befinite enough to provide a standard of conduct' for those whose activities are prescribed as well as a standard by which the agencies called upon to apply it can ascertain compliance therewith. People v. McCaughan, 49 Cal.2d 409, 414, 317 P.2d 974, 977. Approved rules by which to judge the sufficiency of a statute in the premises have been applied in numerous decisions, i. e., the words used in the statute should be 'well enough known to enable those persons within its purview to understand and correctly apply them.' (People v. Nunn, 46 Cal.2d 460, 467, 296 P.2d 813, 817); words of long usage, or which have an established or ascertainable meaning in the profession or industry involved, or those which have been given a definite and restrictive interpretation by the courts, or the meaning of which may be determined from a fund of human knowledge and experience, will meet the test of certainty (In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364; People v. McCaughan, 49 Cal.2d 409, 414, 317 P.2d 974; People v. Building Maintenance, etc., Ass'n, 41 Cal.2d 719, 725, 264 P.2d 31; In re Leach, 215 Cal. 536, 545, 12 P.2d 3); if the words used may be made reasonably certain by reference to the common law, to the legislative history of the statute involved, or to the purpose of that statute, the legislation will be sustained (In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364; People v. McCaughan, 49 Cal.2d 409, 414, 317 P.2d 974; Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 740, 227 P.2d 449); and a standard fixed by language which is reasonably certain, judged by the foregoing rules, meets the test of due process 'notwithstanding an element of degree in the definition as to which estimates might differ.' (Connally v. General Const. Co., 269 U.S. 385 [46 S.Ct. 126, 128, 70 L.Ed. 322]; Lorenson v. Superior Court, 35 Cal.2d 49, 60, 216 P.2d 859.) A prohibitory statute will be upheld even though the acts which it prohibits are defined in vague terms, 'if it requires an adequately defined specific intent'. People v. McCaughan, 49 Cal.2d 409, 414, 317 P.2d 974, 977.

The phrase 'habitual user' as applied in the statute under consideration without doubt refers to an 'habitual user of narcotics'. The term 'habitual', especially when referring to the use of drugs, involves the concept of habit. In Webster's International Dictionary, Second Edition, Unabridged, 'habitual' is defined as follows:

'Of the nature of a habit; according to habit; established by, or repeated by force of, habit * * *. Doing, practicing, or acting in some manner by force of habit.'

In that same work the term 'habit' is defined as:

'An aptitude or inclination for some action, acquired by frequent repetition and showing itself in increased facility of performance or in decreased power of resistance; as, the opium habit.'

A medical dictionary defines 'habit' as:

'The result of an impulse passing through a certain set of neurons, then synapses many times; a motor pattern executed with facility because of constant repetitions * * *. Habit, words pert. to: * * * addict, addiction state * * *';

and defines 'habituation' as an 'act of becoming accustomed to anything from frequent use.' (Taber's Cyclopedic Medical Dictionary, Revised Sixth Edition.)

The substance of many definitional decisions on the subject is that an act which is done habitually is an act which is done as a result of habit. Mahone v. Mahone, 19 Cal. 626, 628; Illinois Bankers Life Ass'n v. Theodore, 47 Ariz. 314, 55 P.2d 806, 811; Ring v. Ring, 112 Ga. 854, 38 S.E. 330, 332; Blunk v. Blunk, 327 Ill.App. 666, 64 N.E.2d 787; Short v. Morrison, 159 La. 193, 105 So. 286, 288; McLanahan...