Patty v. Board of Medical Examiners

• Decision Date: 19 April 1973
• Docket Number: No. 30076,30076
• Citation: 61 A.L.R.3d 342,508 P.2d 1121,9 Cal.3d 356,107 Cal.Rptr. 473
• Court: California Supreme Court
• Parties: , 508 P.2d 1121, 61 A.L.R.3d 342 Frank M. PATTY, Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS, Defendant and Appellant. L.A. In Bank

Page 473

107 Cal.Rptr. 473

9 Cal.3d 356, 508 P.2d 1121, 61 A.L.R.3d 342

Frank M. PATTY, Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS, Defendant and Appellant.

L.A. No. 30076.

Supreme Court of California,

In Bank.

April 19, 1973.

Evelle J. Younger, Atty. Gen., and John M. Huntington, Deputy Atty. Gen., for defendant and appellant.

Allan F. Grossman, Los Angeles, for plaintiff and respondent.

Ellis J. Horvitz, Los Angeles, as amicus curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

In this case we must determine whether the defense of entrapment is applicable to a disciplinary proceeding of the Board of Medical Examiners of the State of California (hereinafter 'Board'). After unsuccessfully asserting such an entrapment defense in an administrative hearing before the Board, plaintiff, Dr. Frank Patty, sought review of the administrative decision by writ of mandate in the superior court. (Code Civ.Proc., § 1094.5.) Upon conducting an independent review of the evidence, the trial court sustained the doctor's challenge to the Board's decision, concluding both that the defense of entrapment is generally available in administrative disciplinary proceedings and also that, under the facts of the instant case, Dr. Patty had indeed been entrapped by the investigators of the Board. The Board now appeals from the adverse judgment of the superior court.

For the reasons discussed below, we affirm the trial court judgment. As we point out, the majority of our sister states which have passed on the legal question at issue recognize entrapment as a defense in administrative disciplinary proceedings, and we have concluded that this weight of authority rests on a firm foundation of sound public policy. As we shall explain, the purposes underlying the recognition of an entrapment defense--the preservation of the dignity of the legal process and of public confidence in it--are as applicable to the conduct of adminstrative proceedings as to criminal trials; administrative officials, no less than police or other law enforcement officers, subvert the fair administration of justice when, instead of pursuing legitimate methods of prevention and detection of crime, they apprehend wrongdoers through schemes designed to foster or induce the commission of criminal conduct. Accordingly, we now hold that an individual may raise the defense of entrapment in an administrative proceeding at which his right to practice a profession or business is at stake.

We further conclude that in the instant case the trial court's finding that Dr. Patty was in fact entrapped is supported by substantial evidence and must be sustained. Although the evidence before the Board discloses a series of occasions on which plaintiff, in the absence of a proper medical basis, prescribed restricted drugs for several ostensible 'patients,' the record also reveals that prior to the time Dr. Patty was solicited by the Board's undercover investigators, the physician's professional record had been exemplary. Based on the investigators' own extensive testimony of their operating tactics, discussed below, we believe the trial court could properly find that plaintiff was lured into his course of unprofessional conduct by state agents and that the doctor had no preexisting intent promiscuously to issue prescriptions for restricted drugs. Under these circumstances, the trial court's decision must be sustained. ¹

We begin with a short history of Dr. Patty and of the facts of the case. Dr. Patty, 59 years of age, was the first black graduate of his medical school, receiving his license to practice in 1951. Prior to the acts which are charged against him in the instant case, no disciplinary action of any kind for unprofessional conduct had ever been brought against him; indeed, his professional activities over his lengthy career had been in all respects exemplary. As of the date of the trial court's decision, Dr. Patty was on the staff of the Hollywood Community Hospital, Community Hospital of Los Angeles, and Los Angeles County Hospital. His record of good works in the community included volunteer service to the Y.M.C.A. and active participation in the affairs of his church.

Shortly after January 1, 1968, Xavier Suazo, an investigator for the Board, received a complaint that Dr. Patty had been prescribing unusually large amounts of narcotics to an elderly patient. An investigation of local, state and federal narcotic bureau files and local pharmacy records proved the complaint to be false. Nevertheless, calling upon Patricia Wolf (a sometime 'actress, model and hostess') and her roommates, who were his part-time investigators, Suazo pursued further the possibility that Dr. Patty might in some fashion commit a narcotics offense. He instructed at least one of the young women that her job 'consisted mainly of working doctors and going to doctors' offices for various reasons, one being to obtain prescriptions for narcotics or dangerous drugs.'

In late 1967 Dr. Patty became ill but continued to work and see patients; on January 4, 1968, Wolf visited his office, purportedly as a patient, with a request for 'medication.' When asked what was wrong with her, Wolf replied 'nothing,' adding she wanted a prescription for 'whites' or 'dexies.' The doctor did not know what she was talking about and was unable to write a prescription until after he had called a pharmacy. The doctor then issued a prescription for 100 tablets of amphetamine sulfate (a drug similar to Dexidrine). Wolf testified that on this occasion she told Dr. Patty that she wanted 'dexies to get high.'

Dr. Patty suffered an acute myocardial infarction on January 7, but, contrary to his doctor's orders, continued to see patients. Wolf and a second part-time female investigator, introduced as a friend of Wolf's, returned to the office on January 10, requested and secured prescriptions for amphetamine sulfate and Empirin Compound with codeine. On January 13, Dr. Patty was hospitalized, returning to his office on March 4. Promptly, on March 7, the second operative introduced a third part-time investigator. On this occasion and on the 13th, 19th and 26th of March the operatives obtained prescriptions for amphetamine sulfate and Empirin; Dr. Patty received $10 for each visit, his standard charge.

On March 29, two of the operatives introduced investigator Suazo, who requested amphetamines and 'perc' (Percodan, a narcotic) for the purpose of 'getting some kicks.' Dr. Patty refused to prescribe percodin, but did write a prescription for amphetamine sulfate and Empirin. Although Dr. Patty thus gave prescriptions to four different persons, each of them had been introduced to him by Patricia Wolf or by another part-time investigator who, in turn, had been introduced by her. Each of these individuals was, of course, a Board operative or investigator.

On this evidence the superior court rejected the Board's finding that the investigation should be upheld because it had been a 'fair hunt between fair hunter and fair game.' Applying the 'origin of intent' test of entrapment, the court found that Dr. Patty did not have a preconceived intent to issue prescriptions for dangerous drugs, ² but had been lured and induced into that unprofessional conduct 'by the persuasive powers of young women who were employed to ensnare him' at a time when his judgment was 'seriously impaired, possibly because he was ill.'

The court found as to Wolf's visit of January 4: 'The visit to Petitioner's office by Wolf on January 4, 1968, did not furnish an occasion or opportunity for Petitioner to choose to act on a pre-existing criminal intent to issue prescriptions for either dangerous drugs or narcotics in violation of the law; and, on the contrary, the purpose of Wolf's original visit was to induce Petitioner to perform an unlawful act in the absence of any pre-existing intent on the part of Petitioner to violate the law.'

The court rendered the following findings as to Dr. Patty's illness and the operatives' subsequent visits: 'On January 8, 1968, and prior to the visit of Wolf and Krieger to Petitioner's office on January 10, 1968, Petitioner had become ill, suffering from fatigue, instability and severe chest pain, and Petitioner was hospitalized from January 13 until February 2, 1968, for a condition diagnosed as 'acute myocardial infarction' and 'coronary artheroscleosis.' ( ) Both Krieger and Dalton were aware that Petitioner had been ill, but they appeared at his office on March 7, 1968, three days after Petitioner returned to his practice against the advice of his own physician, and Krieger then expressed her sympathy for Petitioner's, having suffered an illness which had incapacitated him.'

The court found a preconceived plan of entrapment, stating, 'Petitioner was entrapped by Wolf on January 4, 1968, into the unlawful act of violating Section 2399.5 of the Business and Professions Code and Wolf's conduct in so entrapping Petitioner was the commencement of a preconceived plan in which Krieger, Dalton and Suazo also participated.'

Holding that the defense of entrapment is available in an administrative proceeding, the court rendered the following conclusions of law: 'On grounds of repugnancy to good morals, it is entrapment to lure a person into the commission of a crime he did not himself intend to commit, and this is especially so where the one who induces the commission of the offense is an officer of the law. ( ) Inasmuch as Petitioner's wrongdoing was not the result of a pre-existing intent on his part to engage in unprofessional conduct, and inasmuch as the origin of the intent was in the mind of Suazo, an investigative officer for the State, Petitioner's defense of entrapment is available to him, not in the view that Petitioner as an accused party may go free but that the government cannot be permitted to contend that he is guilty of a crime where government officials are the instigators of Peti...