Mintz, In re

• Decision Date: 20 February 1963
• Citation: 233 Or. 441,378 P.2d 945
• Parties: In the Matter of the Proceedings for the Revocation of the License of Harold Howard MINTZ, M.D. to Practice Medicine and Surgery in the State of Oregon. BOARD OF MEDICAL EXAMINERS of the State of Oregon, Appellant, v. Harold Howard MINTZ, Respondent.
• Court: Oregon Supreme Court

Page 945

378 P.2d 945

233 Or. 441

In the Matter of the Proceedings for the Revocation of the License of Harold Howard MINTZ, M.D. to Practice Medicine and Surgery in the State of Oregon BOARD OF MEDICAL EXAMINERS of the State of Oregon, Appellant, v. Harold Howard MINTZ, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 4, 1963.

Decided Feb. 20, 1963.

Arthur G. Higgs, Asst. Atty. Gen., Portland, argued the cause for appellant. With him on the briefs was Robert Y. Thornton, Atty. Gen., Salem.

Harold Banta, Baker, argued and cause for respondent. On the brief were Banta, Silven, Horton & Young, Baker.

Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE and LUSK, JJ.

O'CONNELL, Justice.

This is an appeal from a decree of the circuit court of Multnomah county setting aside an order of the Board of Medical Examiners revoking defendant's license to practice medicine in Oregon.

The medical investigator of the Board of Medical Examiners filed with the board a complaint in which it was alleged that defendant represented to Mrs. Leroy Mills and Mrs. Phyllis Fogel that he would perform abortions upon each of them for fees varying from $15 to $25; that he administered drugs to them for the purpose of performing an abortion, and that this conduct was contrary to the provisions of ORS 677.190 which sets forth the grounds for the revocation of a medical license. ¹

After a hearing the board made written findings of fact which adopted substantially all of the charges contained in the complaint and concluded from these findings that defendant's acts constituted 'unprofessional and dishonorable conduct and was and is contrary to the laws of the State of Oregon, particularly § 677.190(1) Oregon Revised Statutes.' The board then entered its order revoking defendant's license.

Defendant then appealed to the circuit court for Multnomah county. The court held that the board's complaint failed to state sufficient grounds for action in that the representation by a physician that he would commit an abortion upon a patient could not constitute 'unprofessional or dishonorable conduct' within the meaning of ORS 677.190(1) unless the board had previously adopted rules and regulations specifically defining such conduct as unprofessional or dishonorable. ² The court also found that the evidence was insufficient to sustain the board's findings as there was 'no evidence to prove that the treatment of the doctor would tend or that the appellant intended to cause an abortion.' ³ The court set aside the board's order revoking defendant's license and ordered the reinstatement of his license. The board appeals. ⁴

We find nothing in the medical practice act (chapter 677) or in the history of the legislation which formed it supporting the lower court's conclusion that the legislature intended ORS 677.010(L) to be inoperative until the board made rules and regulations further defining 'unprofessional or dishonorable conduct.' ⁵

There is authority for the proposition that a prior formulation of specific standards by the administrative agency is necessary where the grounds for suspension or revocation is cast in broad terms. Sometimes this result is predicated upon the violation of a constitutional right to 'due process' and sometimes upon the theory that there is an invalid delegation of legislative power. ⁶ The contrary view has been taken. The leading case on the point is Matter of Bell v. Board of Regents, 295 N.Y 101, 65 N.E.2d 184, 163 A.L.R. 900 (1946). In that case the state medical practices act specified certain acts of misconduct. It then provided that a license to practice dentistry could be revoked, suspended or annulled upon a showing "that the dentist has been otherwise or in any other way guilty of unprofessional conduct." (295 N.Y. at p. 105, 65 N.E.2d at p. 186, 163 A.L.R. 900.) The court held, with two judges dissenting, that the promulgation of rules specifying the acts which would constitute unprofessional conduct was not a condition precedent to the board's right to revoke a license. The court rejected the licensee's argument that the statute was fatally vague. The court adopted the view expressed in an earlier case that 'the standards of conduct generally accepted by practitioners in the State of New York are not so indefinite that they cannot be determined by qualified persons. They are part of the ethics of the profession and 'what is generally called the 'ethics' of the profession is but the concensus of expert opinion as to the necessity of such standards.' * * * [Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 612, 55 S.Ct. 570, 572, 79 L.Ed. 1086].' (295 N.Y. at 110, 65 N.E.2d at 189.)

We agree with the view expressed by the court in the Bell case, supra, first in regarding the prior promulgation of rules as unnecessary under the circumstances, and secondly in treating 'unprofessional conduct' as an adequate standard. We have previously held that the failure to specify in a statute the standards circumscribing administrative actions is not necessarily fatal. ⁷ It may be advisable for the legislature or the administrative agency to set out specific adjudicatory standards in some instances. ⁸ But this does not mean that a statute must always set out the precise instances under which it is to be operative. No matter how specific the standard or standards are stated, there is almost always a penumbra which requires the administrative agency to exercise a judgment as to whether the facts before it fall within or outside the legislative design. And delegated power to decide may be in such vague terms that it is impossible to discern the legislative policy behind the statute.

But the statute here is not that vague. Admittedly, the term 'unprofessional conduct' does not have precise contours circumscribing its meaning. The limits between good and bad professional conduct can never be marked off by a definite line of cleavage. And the variety of forms which unprofessional conduct may take makes it infeasible to attempt to specify in a statute or regulation all of the acts which come within the meaning of the term. The fact that it is impossible to catalogue all of the types of professional misconduct is the very reason for setting up the statutory standard in broad terms of evaluating to the board the function of evaluating the conduct in each case. The language in Old Republic Life Insurance Company v. Wikler, 9 N.Y.2d 524, 215 N.Y.S.2d 481, 486-487, 175 N.E.2d 147, 151 (1961) is appropriate:

'* * * In view of the need for practicality and flexibility in laying down standards in areas involving administrative detail and complexity (see, e. g., City of Utica v. Water Pollution Control Bd., 5 N.Y.2d 164, 169, 182 N.Y.S.2d 584, 587, 156 N.E.2d 301, 304), it may not be said that the present standards are either so vague or otherwise inadequate as to amount to an unconstitutional delegation of legislative power.'

The board's discretion is not without controls. As was noted above, the standards are those which are accepted by the practitioners in the community. The standard must be ascertained through expert opinion; except where the standard is clear as it is in the present case. The act of procuring an abortion contrary to the provisions of ORS 677.190(2) is clearly unprofessional conduct. ⁹ The charge against defendant is that he 'did administer * * * drugs or substances * * * for the purpose of performing an abortion * * *.' The lower court held that this did not charge defendant with the act of procuring an abortion but only with a mere offer or attempt to commit an abortion. Conceding that the charge is so limited, we are of the opinion that the conduct described is of such a nature that the board was warranted in regarding it as a violation of medical ethics and that it was not necessary to elicit expert opinion outside of the board to support the conclusion.

The lower court further held that there was no legal evidence to support the action of the board. As noted earlier, ORS 677.210(6)(b) provides that the court may reverse the order of the board if 'There is no legal evidence to support the action of the board.' We construe the term 'legal evidence' to mean substantial evidence in this context. ¹⁰ Such evidence appears in the record. It is undisputed that Mrs. Mills and Mrs. Fogel made calls to defendant's office for medical consultation and treatment. Each came for two separate series of treatments. Both women testified that at the time of these visits they were pregnant and that the purpose of seeking defendant's services was to induce a miscarriage. At least one of these pregnancies was confirmed by an independent physician. Both testified that defendant agreed to give them shots for the purpose of inducing a miscarriage. Mrs. Mills testified that in administering the shot defendant used substances from two containers, one a bottle and the other a capsule. According to her testimony, defendant in each instance threw the bottle in the wastebasket but put the capsule in his pocket. Defendant testified that the drug administered was prostigmin and that it was given simply as a test for pregnancy. Prostigmin is a clear white substance, yet Mrs. Mills testified that the contents of the capsule were yellow, a color closer to that of ergot than prostigmin. The prosecution contends that the purpose of administering the drugs was to induce a miscarriage. The evidence indicated that if in addition to prostigmin the drug ergot were also administered the combination of the two drugs could induce a miscarriage. Although there was testimony that the quantity of ergot necessary to abort would be a dose lethal to the mother in many cases, a pathologist testified that the combination would produce the type of symptoms experienced by these women such as excessive saliva, flushed face, bulging eyes, expanding and tingling ribs and stomach sickness. He also said that...