Patty v. Board of Medical Examiners
| Decision Date | 22 August 1972 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Frank M. PATTY, M.C., Plaintiff and Respondent, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Appellant. Civ. 38796. |
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.
Appellant Board of Medical Examiners of the State of California ('Board') appeals from judgment of the superior court granting petition for writ of mandate to respondent Frank M. Patty, doctor of medicine, whose certificate had been suspended by the Board for illegally prescribing narcotics and restricted dangerous drugs.
Acting on a complaint by the son of an elderly patient that Dr. Patty had prescribed narcotics for the patient in excessive amounts, the Department of Professional and Vocational Standards ('Department'; the investigative and enforcement arm of the Board) decided to inquire further. An investigator communicated with the State Bureau of Narcotics to determine the number of prescriptions written by the doctor in the recent past, with the Los Angeles Police Department and the Federal Bureau of Narcotics Enforcement to ascertain whether he had a criminal record for drug violation, and with nearby pharmacies to determine if they had filled an inordinately large number of his narcotics and dangerous drug prescriptions, all with negative results. Nevertheless, the investigator persisted.
An undercover operative (a 20-year-old female model, singer and actress who worked part time for the Department) was employed to visit the doctor, purportedly as a patient, for the purpose of attempting to obtain a prescription for dangerous drugs.
On 4 January 1968, the operative visited the doctor's office with a request for 'medication.' She testified that when he asked what was wrong with her, she replied, 'Nothing,' adding she had come because she wanted a prescription for 'whites.' The doctor asked what 'whites' were and she replied they were 'dexies,' by which he understood her to be referring to dexedrine tablets. Not familiar with the drug, the doctor tried unsuccessfully to find it in a pharmaceutical reference work and finally called a druggist to determine its manufacturer. The operative testified she told him the reason for wanting the pills was to 'get high,' and he then gave her a prescription for 100 tablets. She paid the receptionist $10 for the appointment and went to a pharmacy to have the prescription filled.
On 10 January, a second operative accompanied the first to the doctor's office where the latter made another request for 100 dexedrine tablets and for a prescription for 100 tablets of Empirin Compound with codeine. The second operative, regularly employed as a deputy sheriff, gave a false name and also requested and received prescriptions for 100 amphetamine tablets and for 100 tablets of Empirin with codeine. They each paid the receptionist $10.
On 7 March, the second operative visited the office with a third woman, regularly employed as a policewoman by the City of Glendale. The third operative gave a false name and described herself as an actress. On this occasion and on the thirteenth, nineteenth, twenty-sixth and twenty-ninth days of March, each obtained prescriptions for dexedrine tablets and Empirin tablets with codeine. The doctor received $10 from each operative for each visit.
On 29 March, at the request of two operatives, the investigator himself was admitted to the office where he requested 'uppers' (amphetamines) and 'perc' (Percodan, a narcotic) for the purpose of 'getting some kicks.' He received prescriptions for 100 amphetamine and 100 Empirin tablets with codeine, paying $10 for the visit.
On 9 April, the investigator returned to the doctor's office to obtain a renewal of the two prescriptions as well as renewals for the second and third operatives, paying $30.
Dr. Patty was charged with unprofessional conduct for prescribing dangerous drugs without a prior physical examination or medical indication therefor (Bus. & Prof.Code, § 2399.5) and for prescribing narcotics to persons not under treatment for a pathology or condition (Health & Saf.Code, § 11163). A hearing officer sitting for the Board of Medical Examiners found 17 violations of the former and 16 violations of the latter section and recommended the doctor's certificate be revoked but that the revocation be stayed pending five years' probation. The officer's proposed decision was adopted by the Board and the doctor sought writ of mandate for review of the Board's decision. The superior court determined the Board's findings were supported by substantial evidence in the proceeding before the hearing officer, but concluded Dr. Patty had been entrapped by the conduct of the investigator and his three operatives.
The Board contends: (1) the doctrine of entrapment is not applicable to administrative proceedings; and (2) in any event there is no substantial evidence supporting the trial judge's finding of entrapment.
Entrapment is 'the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.' (People v. Lindsey (1949) 91 Cal.App.2d 914, 205 P.2d 1114.) It is an affirmative defense to a criminal charge. The essential elements include a lack of criminal intent by the defendant prior to his contact with the officer coupled with persuasion, inducement or allurement by the officer, resulting in a criminal act which otherwise would not have been committed. (See Note, The Defense of Entrapment in California (1968) 20 Hastings L.J. 825.) The term 'officer' includes not only police officers but also private persons working with the police as informers. (See People v. Perez (1965) 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934.) The doctrine of entrapment discourages illegal or unjust schemes designed to foster rather than to prevent and detect crime. (See People v. Benford (1959) 53 Cal.2d 1, 345 P.2d 928.)
The applicability of the defense of entrapment in an administrative proceeding to determine whether a professional license or certificate should be revoked or suspended is unclear under the laws of this state. (Compare Whitlow v. Board of Medical Examiners (1967) 248 Cal.App.2d 478, 56 Cal.Rptr. 525 with Shakin v. Board of Medical Examiners (1967) 254 Cal.App.2d 102, 62 Cal.Rptr. 274 and United Liquors v. Dept. of Alc. Bev. Control (1963) 218 Cal.App.2d 450, 32 Cal.Rptr. 603.) Nor have other jurisdictions satisfactorily resolved the issue, either assuming without deciding that the defense is applicable (see, e. g., In re Reiter (1953) 173 Pa.Super. 552, 98 A.2d 465), or simply asserting, without thorough discussion that it should apply in administrative proceedings for the same reasons it applies elsewhere (Langdon v. Bd. of Liquor Control (1954) 98 Ohio App. 535, 130 N.E.2d 430).
Conceding the unsettled state of the law, the superior court to allow Dr. Patty to assert the entrapment doctrine. However, we conclude the defense should not be extended to an administrative proceeding to determine the alleged malfeasance of a medical doctor.
An administrative proceeding to consider revocation or suspension if a license is not a criminal action but rather is a mechanism by which the licensee may be removed from his profession for incompetence or dishonesty. We are mindful that a disciplinary proceeding before the state Board of Medical Examiners has a punitive character calling for procedural safeguards. (See Shively v. Stewart (1966) 65 Cal.2d 475, 55 Cal.Rptr. 217, 421 P.2d 65.) However, we are not here confronted by a due process question but rather by the attempted use of a substantive defense in justification for misconduct.
Dr. Patty's knowing complicity in the acts charged is unjustifiable. The high calling of medical practice demands that its members remain above the temptations to which Dr. Patty succumbed, even though the acts would not have been committed but for the planning and persuasion of the investigator. While instinctive sympathy reaches out to the doctor now before us, we find his conduct no less grievous by reason of his seducer's having been a government agent rather than a drug addict. 1
In so holding, we do not condone surrepetitious inquiry when straightforward investigation will serve as well. If our free society is to survive, the use of undercover agents, particularly agents provocateurs, must be avoided except where necessary to safeguard vital social interests from serious threat of harm. Nor do we hold that the licensing authority should not consider the investigative inducements placed before the licensee when it considers the gravity of the misconduct or the severity of the measures necessary to protect the public from its recurrence.
Dr. Patty raises several contentions with regard to the conduct of the administrative proceedings and the severity of the terms of suspension of his certificate by the Board, urging these as alternative grounds for upholding the judgment. However, we believe them to be without merit.
Judgment is reversed.
While conceding the scholarship and logic of the majority opinion, I am compelled by the weight of nation-wide authority, the apparent trend of California precedent, and considerations of policy to dissent.
Because I believe that the defense of entrapment was available to respondent in the proceeding to revoke his license to practice medicine, some amplification of the factual support for the trial court's finding of entrapment over that recited in the majority...
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