Rose v. State Bd. of Registration for Healing Arts

• Decision Date: 13 December 1965
• Docket Number: No. 51207,No. 1,51207,1
• Citation: 397 S.W.2d 570
• Parties: Paul H. ROSE, Appellant, Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent
• Court: Missouri Supreme Court

Page 570

397 S.W.2d 570

Paul H. ROSE, Appellant, Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.

No. 51207.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 10, 1966.

Morris A. Shenker, Murry L. Randall, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.

HIGGINS, Commissioner.

Paul H. Rose, an osteopath in Hermann, Missouri, had his license to practice the healing arts revoked by the Respondent Board and the revocation was affirmed by the circuit court. He alleged in his petition for review and contends on this appeal that the board's procedure under Section 334.100, V.A.M.S., violated Article I, Section 10 of the Missouri Constitution and the Fourteenth Amendment to the United States Constitution in that the same agency both prosecuted and decided the case and such procedure deprived him of due process of law. We have jurisdiction because constitutionality of a legislative act has been thus challenged, Article V, Section 3, Constitution of Missouri 1945, V.A.M.S., and respondent's motion to transfer for lack of jurisdiction is overruled.

On October 29, 1963, a written notice was served on Paul H. Rose personally, which directed him to appear at a hearing before the State Board of Registration for the Healing Arts on November 23, 1963, in Jefferson City, Missouri. Appellant appeared in person and by counsel and a hearing was conducted pursuant to and on the five charges contained in the notice: (1) that from November 1, 1962 to February 18, 1963, he was addicted to habitual use of narcotic drugs; (2), (3), and (4) that on November 6, 1962, November 26, 1962, and December 31, 1962, he executed a false document in connection with the practice of his profession in that he executed a prescription for narcotic drugs purportedly for the use of a named patient without intending that said narcotic drugs would be used by or for the benefit of the said patient; and (5) that he solicited patronage by causing a certain advertisement to be published in the Hermann, Missouri, newspaper; and whether, if such charges or any of them be true, his license to practice should be revoked.

On January 25, 1964, the board entered its findings of fact, conclusions of law, and order. It found that Paul H. Rose had committed the acts as described in charges (2), (3), (4), and (5) of the notice; concluded that the commission of such acts constituted unprofessional and dishonorable conduct within the meaning of Section 334.100, V.A.M.S., and ordered revocation of the license of Paul H. Rose on charges (2), (3), (4), and (5), and each of them. Charge (1) was withdrawn. Appellant's petition for review came on for hearing November 2, 1964, and on December 7, 1964, the circuit court affirmed the order of revocation.

At the hearing before the board, Ernest H. Hall, agent in charge of the St. Louis branch of the Federal Bureau of Narcotics, testified that he and agent Edwin L. Stamm interviewed Paul H. Rose on March 1, 1963, at his office in Hermann. The visit was a result of a call from Clarence Berlener, a druggist in Hermann, who had some suspicious in connection with Rose's narcotic prescriptions, and was also a result of a letter received from Mr. Hailey (John A. Hailey, Executive Secretary of respondent). The interview lasted for an hour and a half or two hours during which Rose stated that he began using drugs in November 1962, and that by the latter part of November he was using approximately two tablets of Dilaudid, 1/16th grain, together with two c.c. of an injective narcotic solution about twice a day. He continued using narcotics through December, January (1963), and February, but not over two to three injections per day. In January he had curtailed his use of drugs to the point he felt he was not an addict and not in need of treatment. He mentioned the use of morphine and atropine in addition to Dilaudid which is a derivative of opium. Rose also stated that he obtained the drugs in the names of various patients; that they were obtained by prescriptions, all of which were filled at Berlener's Rexall Drugstore, and that fifty per cent of all his narcotic prescriptions were for his personal use. During the interview Rose surrendered his narcotics supply and his federal narcotics license and executed a letter which recited '* * * failure to comply with the Federal Narcotics Laws and regulations by diverting portions of my narcotic stock to my personal use * * *.' The testimony of agent Stamm was substantially the same as that of agent Hall.

Clarence Berlener testified that he was the only pharmacist and operated the only drugstore in Hermann. He began filling narcotics prescriptions executed by Rose in November 1962, and 'I showed him the narcotics that we had and if he needed it for a patient or if he had to go like these night calls, these cancer patients, if he wanted to take it in his bag, if he would come and write a prescription for a person, for a legitimate amount, he could get it. That is, a does.' He got to a point in January 1963 when he would not fill any more prescriptions for Rose. The witness identified three prescriptions: Exhibit 5A dated November 6, 1962, executed by Rose for (Virginia) Bossman for five 2 c.c. ampules of Demerol (a narcotic) which Rose took with him; Exhibit 5B dated November 26, 1962, executed by Rose for Betty Hoeman for one 30 c.c. ampule of morphine and atropine picked up by Rose; Exhibit 5C dated December 31, 1962, executed by Rose for Stuart LeBrell for 40 tablets of Dilaudid, 1/16th grain, picked up by Rose.

Mrs. Virginia Bossman testified that Dr. Rose had treated members of her family as early as October 1962, but that the first time he treated or prescribed for her was January 15, 1963. As to the charge (2) prescription, she was asked: 'Q. Now, directing your attention to about the 6th of November, last year, 1962, I will ask you if you had any medicines prescribed for you at that time, or if you took any medicines on the recommendation of a physician? A. No. I did not.'

Mrs. Betty Hoeman testified that she became acquainted with Dr. Rose in October 1962 when he came to practice in Hermann with her employer, Dr. Jeter. She admitted a dislike for Dr. Rose. Dr. Rose treated her for facial infection with a penicillin drug in December 1962, and gave her an injection for immunity to infectious hepatitis on November 21, 1962. As to the charge (3) prescription, she was asked: 'Now, directing your attention to the 26th day of November, or let's say several days thereafter, during that period of November 26 and the few days immediately following, did you receive any medication of any kind during that period, let's say from the 26th of November until the 30th of November? A. At that time I believe I was taking the oral penicillin tablets. I just can't recall exactly whether I had stopped taking them or whether I still was, but that was the only--do you mean outside of the regular thyroid tablets that I take every day? That was a pre-existing condition, Dr. Rose had nothing whatsoever to do with that. Q. All right. Did you receive any injections during that period? A. No.'

Stuart LeBrell, the patient mentioned in the charge (4) prescription, was asked: 'Q. Have you ever seen Dr. Rose in a professional capacity, have you ever seen him in a situation where you have been a patient? A. No. Q. Have you ever gone to Dr. Rose for any kind of medical advice or treatment? A. No, none whatsoever. * * * Q. Have you ever gotten a prescription from him, any medication? A. No, nothing professionally from him at all.'

Mrs. Stuart LeBrell testified also as to the charge (4) prescription and was asked: 'Q. * * * Has Dr. Rose ever brought any drugs or medication to your home for use of yourself? A. No, sir. Q. To your knowledge, has he ever brought any drugs or medication of any kind to your home for use of anyone in your family? A. No, sir.'

Dr. Rose denied that he used drugs and stated that he placed unused portions of patients' prescriptions in his bag for supplies. He stated that he understood this from Dr. Jeter and Mr. Berlener to be the way both for handling prescriptions and obtaining bag supplies. He said that the Bossman prescription was for bag supplies; that the Hoeman prescription was to relieve her infectious sinus condition; and that the Stuart LeBrell prescription was intended for Mrs. LeBrell, in which case he gave her twenty tablets and put the remainder in his bag.

Appellant's first point is his contention that the proceedings under Section 334.100, V.A.M.S., deprived him of constitutional due process. He argues that because the charges were instituted, heard, and determined by the board, '(t)he Board thus acted in both prosecution and judiciary functions,' and that '(n)o procedure could so clearly breach due process.'

Responsibility and authority in connection with refusal, suspension, and revocation of licenses of physicians and surgeons have been delegated by the General Assembly to the State Board of Registration for the Healing Arts by Section 334.100, V.A.M.S., and that section also sets forth the grounds and procedure for such actions. It provides in pertinent part:

'1. The board * * * may, on its own information or on complaint of any persons, * * * revoke or suspend a license * * * for like causes as hereinafter provided. * * * (t)he following specifications shall be deemed unprofessional and dishonorable conduct within the meaning of this section: * * *

'(5) Addiction to a drug habit; * * *

'(8) Knowingly making, or causing to be made, * * * a false statement in any birth, death or other certificate or document executed in connection with the practice of his profession;

'(9) Soliciting patronage in person or by agents or representatives, or by any other means or manner,...