O'Reilly v. Board of Medical Examiners

• Citation: 58 Cal.Rptr. 7,426 P.2d 167,66 Cal.2d 381
• Court: United States State Supreme Court (California)
• Decision Date: 19 April 1967
• Parties: , 426 P.2d 167 P. S. O'REILLY, Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant andRespondent. L.A. 29354. In Bank

Page 7

58 Cal.Rptr. 7

66 Cal.2d 381, 426 P.2d 167

P. S. O'REILLY, Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant andRespondent.

L.A. 29354.

Supreme Court of California,

In Bank.

April 19, 1967.

Rehearing Denied May 17, 1967.

Kirtland & Packard, Richard L. Kirkland, Los Angeles, Walter N. Anderson, Manhattan Beach, and Ellis J. Horvitz, Los Angeles, for plaintiff and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Stephen H. Silver and Conrad Lee Klein, Deputy Attys. Gen., for defendant and respondent.

TRAYNOR, Chief Justice.

Plaintiff P. S. O'Reilly appeals from a judgment denying his petition for a writ of mandate to set aside an order of the Board of Medical Examiners.

On September 12, 1962, an accusation was filed with the Board of Osteopathic Examiners charging plaintiff with two violations Plaintiff then sought review of the board's order in the superior court. The court found that the proceedings of the medical board were within its jurisdiction, that the board's decision was supported by its findings, that the findings were supported by the weight of competent evidence, and that the penalty imposed was not an abuse of discretion. Accordingly, it denied relief.

                [426 P.2d 169]  of Business and Professions Code section 2392. 1  A hearing officer from the Office of Administrative Procedure held hearings on October 10 and December 20, 1962, and on March 11, 1963, filed a proposed decision finding cause for disciplinary action under section 2392.  He recommended that plaintiff's license be revoked but that execution be stayed on the condition that plaintiff be placed on probation for five years and suspended from practice for 90 days.  While the proceeding was pending plaintiff elected to become a licentiate of the Board of Medical Examiners (see Bus. & Prof.Code, § 2396) and that board renewed his physician's and surgeon's certificate on January 18, 1963.  Thereafter, on January 22, 1964, the Board of Medical Examiners ratified the proceedings before the Board of Osteopathic Examiners and adopted the decision of the hearing officer
                

We note at the outset that there is no merit in plaintiff's contention that he was denied due process when the medical board assessed the penalty against him on the basis of proceedings initiated before the osteopathc board. The matter was transferred to the Board of Medical Examiners after plaintiff had elected to cease being licensed by the osteopathic board and to become a licentiate of the medical board. '(D)ue process is not interested in mere technical formalism. It is the substance that is determinative of whether due process has been afforded.' (Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 245, 217 P.2d 630, 632, 18 A.L.R.2d 593.) The medical board ratified the prior actions of the osteopathic board, which complied fully with the procedures set forth in Government Code sections 11503, 11505, and 11509. ² Plaintiff was not injured by the transfer. To refile the accusation would have been an idle act, and to require the hearing officer to rehear the case would have been needlessly wasteful.

The first charge of unprofessional conduct concerned plaintiff's employment of Dr. Daniel Sanchez and Dr. Morimitsu Ohnishi, who were not licensed to practice medicine in California. Dr. Sanchez is a citizen of Mexico and received his medical degree there. Dr. Ohnishi is a citizen of Japan, where he received his medical degree and is a professor of medicine. Both doctors came to the United States under an exchange-visitor program, authorized by the United States Information and Educational Exchange Act of 1948, to serve as trainees in general and traumatic surgery. The Department of State had designated plaintiff's California Emergency Hospital as an exchange-visitor program to provide training in general and traumatic surgery for qualified foreign medical students and had appointed plaintiff as the responsible officer of the program. The parties stipulated that on Plaintiff contends that the board cannot discipline him for these activities, since they were undertaken pursuant to the federal exchange-visitor program. He asserts that the supremacy clause of the United States Constitution (art. VI, cl. 2) precludes enforcement of the state licensing laws in this case, on the ground that such enforcement would interfere with the federal exchange program. We do not agree with plaintiff's contention.

[426 P.2d 170] August 21, 1959, plaintiff aided and abetted Dr. Ohnishi in giving anesthetics to a patient and aided and abetted Dr. Sanchez in assisting in surgery upon the patient. From the foregoing facts the board concluded that plaintiff violated section 2392 by employing and aiding and abetting Dr. Ohnishi and Dr. Sanchez in the unlicensed practice of medicine.

Since a state law that is incompatible with federal law cannot be enforced (United States v. Pink, 315 U.S. 203, 230--232, 62 S.Ct. 552, 86 L.Ed. 796; United States v. Belmont, 301 U.S. 324, 331--332, 57 S.Ct. 758, 81 L.Ed. 1134), the controlling question is whether section 2392 is incompatible with the federal program.

The exchange-visitor program was established by the United States Information and Educational Exchange Act of 1948 (62 Stat. 6). ³ Congress declared its purpose to be 'to promote a better understanding of the United States in other countries, and to increase mutual understanding between the people of the United States and the people of other countries' by, among other things, establishing an interchange of persons, knowledge and skill. (See 62 Stat. 6, § 2.) The Secretary of State was authorized to provide for the interchange between the United States and other countries of students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill. (See 62 Stat. 7, § 201.) The Secretary was directed to use 'existing reputable agencies,' preferably private rather than governmental, in setting up the program for foreign visitors. (See 62 Stat. 7, 14, §§ 201, 1005.) In addition he was empowered to prescribe and enforce the conditions under which the foreign visitors were to be admitted to this country. (See 62 Stat. 7, § 201.)

Pursuant to this delegation of authority, the Secretary established different classes of exchange-visitor programs, including programs sponsored by hospitals and related institutions. (See 22 C.F.R. § 63.3(c)(1).) Under the regulations those who wish to sponsor a program must apply to the Secretary for approval, and in reviewing the application the Secretary considers professional organizations' appraisal of the quality of a particular program. (See 22 C.F.R. §§ 63.2(a), 63.3(a).) The Secretary also can revoke the approval for sufficient cause including failure to maintain educational standards established by competent professional agencies. (See 22 C.F.R. § 63.3(b).) Once approved, the sponsor has the primary responsibility for recruiting exchange visitors and must provide them with a form specifying the purpose, direction and condition of the visit. (See 22 C.F.R. § 63.4.) This form enables the visitor to obtain his visa from the American consul in his native country.

Dr. O'Reilly applied for approval as a sponsor of an exchange-visitor program and in support of his application filed letters from the American College of Osteopathic Surgeons and the American Osteopathic Association attesting to the nature and quality of his hospital program. The Secretary designated plaintiff as a sponsor of a program to provide training in general and traumatic surgery for qualified foreign medical students and a three-year course in clinical laboratory for qualified foreign students. Thereafter, plaintiff recruited Drs. Ohnishi and Sanchez to participate in his program as trainees in traumatic and reconstructive There can be no question that to conduct the exchange program in compliance with the state medical regulation would frustrate to some extent the program's foreign policy objectives. Effective practical training in general and traumatic surgery requires some treatment of patients. (See §§ 2147, 2147.5, which authorize under-graduate and post-graduate medical students to perform medical functions in the course of their study.) Such treatment would be permissible if the foreign doctor were licensed in California (see § 2193) or if the program were conducted under the auspices of an approved medical school in compliance with the detailed requirements of sections 2147.5 and 2147.6. Either of these alternatives, however, would impose burdens on the foreign visitors that might be out of proportion to the benefits that they could expect to receive under the limited exchange programs contemplated under the federal statute. Either alternative would also expose the foreign visitor to rejection by the state board for various reasons. Although it thus appears that to comply with state law a foreign visitor must either refrain from practicing medicine or comply with burdensome state regulations, we do not believe that the federal statute supersedes state regulation

[426 P.2d 171] surgery with special emphasis in reconstruction of the hand and forearm.

The basic problem is one of accommodating the foreign policy objectives of the exchange programs with the interests of the patients who might be treated by the visiting doctors. Congress has the power to make this accommodation even though the power to regulate the practice of medicine is ordinarily committed to the states. (Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446, 69 L.Ed. 819; cf. Sperry v. State of Florida, 373 U.S. 379, 385, 83 S.Ct. 1322, 10 L.Ed.2d 428.) It cannot be lightly assumed, however, that in establishing the exchange program, Congress intended to deprive patients of the protection of state regulation. Had it so intended, we are convinced that it would have provided an effective alternative to protect...