Scott v. Texas State Board of Medical Examiners

• Decision Date: 11 November 1964
• Docket Number: No. A-10105,A-10105
• Citation: 384 S.W.2d 686
• Parties: Daniel William SCOTT, Jr., M.D., Petitioner, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent.
• Court: Texas Supreme Court

Page 686

384 S.W.2d 686

Daniel William SCOTT, Jr., M.D., Petitioner, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent.

No. A-10105.

Supreme Court of Texas.

Nov. 11, 1964.

Rehearing Denied Dec. 31, 1964.

Davis & Gray, Houston, for petitioner.

Waggoner Carr, Atty. Gen., Austin, Malcolm Quick and Wm. Morse, Jr., Asst. Attys. Gen., for respondent.

STEAKLEY, Justice.

Acting under Articles 4505 and 4506, Vernon's Ann.Civ.St., the Texas State Board of Medical Examiners revoked and cancelled the license to practice medicine of Petitioner, Daniel William Scott, Jr., M.D. The order of the Board was as follows:

'On this the 18th day of August, 1962, came on to be heard before the Texas State Board of Medical Examiners, duly in session, a certain complaint filed with the Board on the 26th day of July, 1962, in which it was complained that Deniel William Scott, Jr., M.D., had violated the provisions of Sub-Divisions (4), (5), and (12) of Article 4505, Revised Civil Statutes of Texas, 1925, as amended, such violation being grounds for the cancellation, revocation or suspension of the license to practice medicine in the State of Texas, by Daniel William Scott, Jr., M.D., and the said Daniel William Scott, Jr., M.D., of Houston, Harris County, Texas, having appeared in person and through his Counsel, Mr. William Dorman, and the said charges and complaint having been read, and the evidence on said complaint and charges having been introduced and heard, and after consideration of the charges and evidence, the Board is of the opinion that the charges contained in the complaint are true in so far as said charges relate to prescribing and administering amphetamine, amphetamine derivatives and compounds, barbiturates, barbiturate rate derivatives and compounds, and Class A narcotic drugs to known addicts, and also in so far as said complaint relates to prescribing and administering amphetamine, amphetamine derivatives, and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to patients of Daniel William Scott, Jr., M.D., under conditions which said Daniel William Scott, Jr., M.D., knew or should have known there was no therapeutic need for such patients, therefore

'IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED, that the license to practice medicine within the State of Texas, heretofore held by Daniel William Scott, Jr., M.D., be revoked and cancelled.

'Rendered and entered this 18th day of August, 1962.' (Emphasis added)

The Board recognizes that the findings in the above order do not support a revocation under Subdivisions (5) and (12) of Article 4505. Its position is that the findings that Scott prescribed and administered narcotic drugs to known addicts and, additionally, that Scott prescribed and administered narcotic drugs to his patients when there was no medical need therefor, support the act of revocation of Scott's license under Subdivision (4) of Article 4505 which defines a cause for revocation as '(4) Grossly unprofessional or dishonorable conduct, or (sic-should read of) a character which in the opinion of the Board is likely to deceive or defraud the public.'

Scott appealed the order of cancellation to the district court. The court ruled that the case should be tried pursuant to the appeal provisions of Article 4506 which require that the proceeding on appeal shall be in the nature of a trial de novo as such term is commonly used and intended in an appeal from the justice court to the county court. Under the ruling of the trial court the burden of sustaining its order was placed on the Board. Trial was to a jury. The Board offered evidence to establish that between July 1, 1960, and March 3, 1963, approximately one hundred and five prescriptions for various drugs identified as amphetamine, amphetamine derivatives, amphetamine compounds, barbiturates, burbiturate derivatives, barbiturate compounds, or Class A narcotic drugs were issued by Scott to one Douglas Aitken; that between August 28, 1961, and March 22, 1962, nine similar prescriptions were issued to one Eugene Ansley; and that bewteen November 30, 1961, and August 10, 1962, twenty-eight similar prescriptions were issued to one Paul Ross. Evidence was also offered to establish that each of these individuals was a known drug addict; and, further, that drug prescriptions on a lesser number of occuasions were issued by Scott to other addicts. There was evidence that the recipients of the prescriptions were of disreputable, and in some instances of criminal, character. No evidence was offered by the Board to establish, either by the testimony of its members or other members of the medical profession, that recipients of the prescriptions could not have had a medical need therefor and that the prescriptions did not constitute proper medical treatment.

The jury was instructed 'that a duly licenses medical doctor holding a valid federal narcotic license is legally and medically authorized to prescribe narcotic drugs to his patients, whether or not such partients are known to be addicted to the use of such drugs, if, in the opinion of such medical doctor the giving of such drugs is of therapeutic value in the treatment of such patients.' This instruction comports with the provisions of the Penal Code. ¹

The jury found that Scott prescribed the drugs to persons known to him to be addicted to one or more of them; that Scott in the exercise of ordinary care should have known that the persons for whom he prescribed the drugs were addicted to one or more of them; and that the conduct represented by these respective findings constituted grossly unprofessional and dishonorable conduct of a character likely to deceive or defraud the public.

The trial court, however, granted Scott's motion for judgment non obstante veredicto and entered judgment denying the Board the right to cancel his license. The Court of Civil Appeals reversed and remanded the cause for a new trial. ² It held unconstitutional the appeal provision of Article 4506 as violative of Article II, Section 1, of the Constitution of Texas, Vernon's Ann.St. providing for the division of powers into three departments of Executive, Legislative and Judicial. The remand for a new trial under the substantial evidence rule was stated by the Court of Civil Appeals to be in the interest of justice because the case had not been fully developed. Both Scott and the Board of Medical Examiners have filed Applications for Writ of Error. Each urges for different reasons that the remand of the case by the Court of Civil Appeals was in error, and each seeks a favorable judgment of rendition. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

It is the basic position of Scott that the requirement of Article 4506 for a full de novo trial is constitutional; that the Board failed to discharge its burden of establishing its case against him by competent evidence before the court, particularly in not offering medical and expert evidence to establish that the prescriptions issued by him were not issued in good faith and in response to medical needs; that the findings of the jury will not support a revocation under Subdivision (4) of Article 4505; that the delegation to the Board in Subdivision (4) provides no standard, and is so vague, indefinite and uncertain as to render the Subdivision void for want of due process.

The basic position of the Board is that the Court of Civil Appeals correctly held the appeal provision of Article 4506 unconstitutional and that the case should have been tried under the substantial evidence rule; but that the Court of Civil Appeals erred in failing to hold as a matter of law that its order revoking Scott's license has reasonable support in substantial evidence.

In the enactment of statutes governing the qualifications to practice medicine in Texas, the Legislature is exercising an expressly granted constitutional authority. Article XVI, Section 31, of the Constitution of Texas provides:

'The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any school of medicine.'

The present statutes stem from an Act of the 29th Legislature in 1905 prohibiting malpractice and frauds in the preactice of medicine and providing for revocation by the District Court of the license to practice medicine; ³ and from the Medical Practice Act of 1907. ⁴

Section 11 of the 1907 Act, which became Article 4505 of the 1925 codification, provided that the State Board of Medical Examiners may refuse to admit persons to its examinations or to issue a medical license for various causes, one of which was 'other grossly unprofessional or dishonorable conduct of a character likely to deceive or defraud the public.' ⁵

In 1939 major revisions in the Medical Practice Act were enacted. ⁶ As relevant here, present Subdivision (4) was made a part of Article 4505 and similar language was removed from Article 4507. For the first time there was included the phrase 'which in the opinion of the Board,' so that the subdivision reads '(g)rossly unprofessional or dishonorable conduct (of), a character which in the opinion of the Board is likely to deceive or defraud the public.'

It is to be further noted that the right of revocation of a medical license (as distinguished from a refusal to issue a license initially) was by the 1939 amendments limited to the district courts. But in 1953 ⁷ the Legislature repealed Article 4507 and Article 4506 was amended to invest the Texas State Board of Medical Examiners with authority to cancel, revoke or suspend the license of a practitioner of medicine. The amendment of Article 4506 authorized such action 'upon proof of the violation of the law in any respect with regard thereto, or for any cause for which the Board shall be authorized to refuse to admit persons to its...