Newhouse v. Board of Osteopathic Examiners

• Decision Date: 28 April 1958
• Citation: 159 Cal.App.2d 728,324 P.2d 687
• Parties: George W. NEWHOUSE, Petitioner and Appellant, v. BOARD OF OSTEOPATHIC EXAMINERS of the State of California, Charles E. Atkins, D. O., Its President, Glen D. Cayler, Its Secretary, Eugene C. Darnall, D. O., Russell M. Husted, D. O., and Vincent P. Carroll, D. O., Members of said Board of Osteopathic Examiners of the State of California, Defendants and Respondents. Civ. 22359.
• Court: California Court of Appeals Court of Appeals

Page 687

324 P.2d 687

159 Cal.App.2d 728

George W. NEWHOUSE, Petitioner and Appellant, v. BOARD OF OSTEOPATHIC EXAMINERS of the State of California, Charles E. Atkins, D. O., Its President, Glen D. Cayler, Its Secretary, Eugene C. Darnall, D. O., Russell M. Husted, D. O., and Vincent P. Carroll, D. O., Members of said Board of Osteopathic Examiners of the State of California, Defendants and Respondents.

Civ. 22359.

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

April 28, 1958.

Rehearing Denied May 23, 1958.

Hearing Denied June 25, 1958.

Denison, Dietrich & Anderson, Los Angeles, for appellant.

J. Robert Meserve, Los Angeles, for respondents.

HERNDON, Justice.

Petitioner and appellant, a physician and surgeon licensed by the State Board of Osteopathic Examiners, was found guilty of unprofessional conduct ¹ in proceedings before the board and petitioner's license and certificate to practice was suspended for a period of thirty days. Pursuant to section 1094.5 of the Code of Civil Procedure, appellant petitioned the superior court for a writ of mandate annulling the order of the board. An alternative writ issued, and the matter was heard on the record of the proceedings before the respondent board, including the accusation and exhibits introduced in that proceeding. Petitioner appeals from the ensuing judgment dissolving the alternative writ and denying his petition for a peremptory writ.

The charging portion of the accusation recites: 'That on or about January 15, 1956, at Los Angeles, California, respondent[appellant here] did aid or abet William S. Hendricks in suturing the person of Patient Eva Batiste, a practice of a system or mode of treating the sick or afflicted for which the said William S. Hendricks was not licensed by the State of California, the said Wiliam S. Hendricks not having at the time of so doing, a valid unrevoked certificate or license to practice as a physician or surgeon issued by the Board of Medical Examiners of the State of California or issued by the Board of Osteopathic Examiners of the State of California.'

Dr. Hendricks, a duly licensed chiropractor in the State of California, was a sophomore student at the Los Angeles College of Osteopathic Physicians and Surgeons where he had been sponsored by appellant, Dr. Newhouse. Hendricks had expressed to appellant his desire to attend the delivery of a baby to further his education.

Sometime in June, 1955, Eva Batiste consulted Hendricks for prenatal care for her pregnancy. In the early part of August she developed complications which required her hospitalization, in connection with which she contacted appellant. In November, 1955, she was again hospitalized under the care of appellant. During these hospitalizations, it was determined that appellant would deliver the baby, and that she should make arrangements for delivery with the University Hospital. Although Dr. Hendricks had referred Mrs. Batiste to appellant, separate financial arrangements were made by her with Hendricks and appellant for the services performed by each of them.

On January 15, 1956, at about 12:40 a. m., appellant was notified by the hospital that Mrs. Batiste was ready to deliver. He ordered medication for her, directed that she be prepared for delivery, and then telephoned Hendricks so that the latter could be present for the delivery. Appellant met Hendricks in the parking lot and they entered the hospital together.

In the labor room appellant examined Mrs. Batiste and found she was nearly ready to deliver. He told Mrs. Fries, the nurse in charge of the obstetrical section, that Mr. Batiste should be taken to the delivery room. At that time the only delivery room in the hospital was occupied by another patient in a serious condition so that it was necessary for Mrs. Batiste to be delivered in the labor room on a regular hospital bed.

Shortly thereafter Mrs. Fries notified appellant that Mrs. Batiste was ready to deliver. She explained that the patient in the delivery room required most of her attention and asked if it would be sufficient if she set up the labor room for the delivery in her absence. She then supplied clothing and equipment to the labor room, left the doctors and returned to the delivery room.

When the doctors returned to the labor room, Mrs. Batiste had commenced her delivery. Appellant and Dr. Hendricks testified that the delivery was completed without the assistance of Dr. Hendricks, who merely observed, or of either of the two nurses present in the hospital at that time, whose attentions were occupied by the emergency situation existing in the delivery room.

Following the delivery, the baby was given to Mrs. Fries to be taken to the nursery. Appellant testified that in proceeding with the treatment, he detected an excessive bleeding beyond the normal amount from a laceration about two centimeters long on the left side of the vestibule of the vagina extending to the region of the clitoris. Appellant testified that the area is one of heavy blood supply and the laceration was bleeding profusely. He testified that because of the position of the patient on the bed rather than a delivery table, the location of the laceration with regard to access, and the lack of aseptic conditions, he concluded that he needed assistance to stop the bleeding. Appellant further testified that he asked Mrs. Fries for assistance but was advised of the urgency of the situation in the delivery room and that he had concluded an emergency situation existed when he asked Dr. Hendricks for assistance. Dr. Hendricks testified that he had never had any instruction in his chiropractic school in the use of a suturing needle, and that he had never had one in his hand before.

Both appellant and Dr. Hendricks testified that appellant directed Hendricks to break the suture vial and instructed him as to placing the needle in a holder. According to appellant, he retracted the labia, proximated the edges of the laceration, and showed Dr. Hendricks where to place the needle for inserting a suture. Two sutures in all were taken by Dr. Hendricks, who testified as to the minute direction of his acts by appellant. Dr. Hendricks testified that he attended the delivery solely as an observer and received no fee or emolument for such attendance.

Kathryn M. Jaffke, night supervisor at the University Hospital, testified that she observed Dr. Hendricks insert a suture in the body of Eva Batiste. She testified that she was approximately five or six feet away from Dr. Hendricks at that time and that she observed the incident for approximately four minutes. She testified that appellant at that time was not doing anything and did not have his hands on the patient at the time of the suturing. This testimony was in direct conflict with that of appellant and Dr. Hendricks as to appellant's participation in the operation.

Appellant first contends that the evidence is insufficient to support the finding and conclusion that the appellant was guilty of unprofessional conduct as defined in section 2392 of the Business and Professions Code. Appellant's position is that proof of an isolated instance in which appellant requested and obtained the assistance of an unlicensed practitioner in a non-emergency situation is not and cannot be the aiding and abetting of such person 'to practice any system or mode of treating the sick or afflicted.' (Emphasis added.)

It is not disputed that Dr. Hendricks inserted needles and sutures in the body of a patient, penetrating or severing the tissues of the human body, a procedure for which he was not licensed. See People v. Fowler, 32 Cal.App.2d Supp. 737, 84 P.2d 326; In re Hartman, 10 Cal.App.2d 213, 217, 51 P.2d 1104; People v. Mangiagli, 97 Cal.App.2d Supp. 935, 939, 218 P.2d 1025; People v. Nunn, 65 Cal.App.2d 188, 194, 150 P.2d 476. Nor is it disputed that appellant directed Hendricks in the performance of a procedure for which he was not licensed. It is clear that appellant aided and abetted the acts of Dr. Hendricks. See Anderson v. Board of Medical Examiners, 117 Cal.App. 113, 115, 3 P.2d 344.

But appellant argues that aiding and abetting certain acts does not constitute aiding and abetting the practice of these acts. Appellant supports his argument with a series of citations of cases in which the courts have narrowly construed the terms 'practice' and 'practitioner' where the issue was whether an unlicensed person was practicing medicine. See Chalmers-Francis v. Nelson, 6 Cal.2d 402, 404, 57 P.2d 1312; Cooper v. State Board of Medical Examiners, 35 Cal.2d 242, 256, 217 P.2d 630, 18 A.L.R.2d 593 (dissenting opinion); Pacific Mutual Life Ins. Co. v. Cunningham, D.C.S.D.Fla.1932, 54 F.2d 927. Appellant relies on the construction of the word 'practice' expressed by the Supreme Court in Ex parte Greenall, 153 Cal. 767, 96 P. 804, 805. There the court in construing the statutory predecessor of the Business and Professions Code sections comprising the Medical Practice Act said:

'There was thus given by that act to the term 'practicing medicine or surgery' a definite meaning, corresponding substantially with the popular understanding of the term. When we say that one is practicing medicine or surgery or osteopathy, we ordinarily mean that he § engaged in that line of work as a business, holding himself out as being so engaged, or for a consideration treating those who will accept his professional services, and we would not apply the term ot one who incidently and gratuitously suggests or puts into operation some method of treatment in the case of one who is 'sick or afflicted." Ex parte Greenall, supra, 153 Cal. 767, 769, 96 P. 804; see also, People v. T. Wah Hing, 79 Cal.App. 286, 249 P. 229.

If this were a criminal or disciplinary action against Dr. Hendricks, the citation of Ex parte Greenall, supra, and the argument advanced that an isolated act by an unlicensed person at the direction and under the minute supervision of...