Shakin v. Board of Medical Examiners

• Decision Date: 05 September 1967
• Citation: 254 Cal.App.2d 102,23 A.L.R.3d 1398,62 Cal.Rptr. 274
• Court: California Court of Appeals Court of Appeals
• Parties: , 23 A.L.R.3d 1398 William Lloyd SHAKIN, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant andRespondent. Civ. 30951.

Page 274

62 Cal.Rptr. 274

254 Cal.App.2d 102, 23 A.L.R.3d 1398

William Lloyd SHAKIN, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant andRespondent.

Civ. 30951.

Court of Appeal, Second District, Division 1, California.

Sept. 5, 1967.

Rehearing Denied Oct. 4, 1967.

Hearing Denied Nov. 1, 1967.

Marks & Schneider and Burton Marks, Beverly Hills, for appellant.

Thomas C. Lynch, Atty. Gen., and Henry Lewin, Deputy Atty. Gen., for respondent.

FOURT, Associate Justice.

This is an appeal from a judgment denying Doctor William Shakin's petition for a writ of mandate directing the Board of Medical Examiners of the State of California (hereinafter sometimes referred to as the Board) to vacate and annul its order revoking the doctor's license to practice medicine and surgery in the State of California and to reinstate said license

On January 29, 1965, an accusation was filed by the executive secretary of the Board charging appellant with unprofessional conduct as grounds for disciplinary action. The accusation, in substance, charged the doctor with (a) conviction of a felony, the violation of a state statute regulating narcotics; (b) using narcotics and dangerous drugs--regulated by statute--to the extent and in such manner as to be dangerous to himself and to the public; (c) selling similar narcotics, without making a record of the sales, to a male addict who was not a patient and did not receive them in the regular course of the doctor's practice; (d) prescribing, furnishing and administering to himself morphine, a norcotic drug regulated by statute.

The doctor filed a notice of defense, requesting a hearing, and on March 2, 1965, he appeared without counsel before the Board and a hearing officer. Because it appeared that the doctor had misunderstood the nature of the proceeding and his right to counsel, the Board, after hearing both oral and documentary evidence in support of the charges, voted to continue the matter and to assign the case to a hearing officer. Accordingly, on June 28, 1965, a new hearing was held before a different hearing officer, and on that occasion the doctor appeared in person and with counsel. On or about July 8, 1965, the hearing officer filed with the Board his proposed decision, which the Board, on July 23, 1965, adopted as its decision to become effective on August 23, 1965. That decision provided that 'The certificate to practice medicine and surgery in the State of California heretofore issued to respondent William Lloyd Shakin, M.D. is hereby revoked on each cause for disciplinary action established.'

On August 23, 1965, the doctor filed in the Los Angeles Superior Court a petition for writ of mandate (Code Civ.Proc., § 1094.5) to compel the reinstatement of his license and on January 28, 1966, filed an amendment to his petition adding a second cause of action and raising for the first time the affirmative defense of entrapment. At the hearing on March 25, 1966, the court admitted into evidence the transcripts and exhibits of the administrative hearings but denied appellant's motion to reopen the case and to present additional evidence on entrapment. On May 27, 1966, the court rendered its order and memorandum of decision denying appellant's petition and on August 16, 1966, rendered its judgment, including findings of fact and conclusions of law.

Appellant makes numerous contentions. He first claims that the trial court erred in finding the administrative proceedings regular in the light of the following alleged defects: (a) the administrative hearing did not conform to Administrative Procedure Act requirements (Gov.Code, § 11517); (b) appellant was denied due process because he had no opportunity to present, and the Board wilfully suppressed, evidence of entrapment; (c) appellant was denied the right to cross-examine the officer who filed the police report and testified at the March 2nd hearing; (b) the Board based its decision on Ex parte evidence, i.e., the officer's testimony at the March 2nd hearing; (e) appellant's extrajudicial admissions were used as the basis of the Board's decision in violation of his constitutional rights; and (f) appellant's admissions were allowed to prove the corpus delicti of certain charges. In addition, appellant contends that it was error for the trial court to refuse to receive evidence of entrapment, that the court's findings of fact were unsupported by competent evidence, and that the court should have remanded the case to the Board for reconsideration of the penalty. Each of appellant's contentions is without merit.

At his first hearing on March 2, 1965, appellant appeared in person and without counsel before the Board in open session. At that time he was advised that he had the right to have an attorney, to cross-examine any witnesses called to testify against him, and to offer evidence on his own behalf. In support of the charge concerning the doctor's earlier narcotics conviction, a certified copy of the judgment, the probation officer's report, and psychiatric evaluations by two doctors were received in evidence. With respect to the charge that appellant sold and did not record the sales of narcotics to an addict, the testimony of Officer Booth Shaw was received. He testified, in substance, that he met the doctor in Gardena and they then discussed their use of narcotics; at the officer's request appellant on several occasions thereafter sold him narcotics. He further testified in some detail to conversations in which appellant had related facts concerning his own use of drugs. Following this testimony appellant requested a continuance to obtain an attorney on the grounds that he had not understood that evidence would be presented to prove the charge of self-use of narcotics and dangerous drugs. He made no attempt to cross-examine the witness. Although appellant subsequently withdrew his request, the Board voted to continue the matter and assign it to a hearing officer.

On June 28, 1965, the second hearing was held before a hearing officer of the Office of Administrative Procedure, appellant appearing with counsel. At that time counsel for appellant entered a stipulation with the Board whereby the doctor admitted as true his conviction of the felony sale of narcotics; his personal use of narcotics and dangerous drugs for a one-year period ending on or about August, 1962; that on or about January, 1964, he did self-prescribe and administer morphine and Demerol; and that he sold narcotics to an addict outside the regular conduct of his profession and without making records of such sales. Following the acceptance of this stipulation the Board's attorney rested, reserving the right to call appellant to the stand.

The doctor then introduced the testimony of a psychiatrist who originally had been contacted to render an opinion with respect to appellant's probation and sentence hearing in superior court following his narcotics conviction. The psychiatrist testified that appellant regularly had used large doses of narcotics since the age of 17, but that he believed appellant had taken none since the latter part of 1964. At this hearing a probation officer also testified, based upon his report, that appellant's problem was principally medical rather than criminal.

Appellant, who testified in his own behalf, said that he received his D.O. degree from the College of Osteopathic Physicians and Surgeons in Los Angeles in 1956 and in 1962 received his M.D. degree because of the amalgamation of these disciplines under the law. After a one-year internship, he opened his own office where he practiced until August, 1962. He separated from his wife in late 1961 and thereafter sought psychiatric help because his personality was disintegrating and he was taking many vacations from his practice. He had begun to take narcotics on his own prescription to enhance his sexual relations with his wife, and he continued this practice while he was under psychiatric treatment. Finally, he became a patient in a mental hospital and a conservator was appointed for his estate who closed his office, collected his disability insurance and made support payments therefrom to his wife and two children. Although his license, which had been suspended during his illness, was restored in September, 1963, he had lost his incentive and lived as a recluse in an apartment in Hollywood until approximately November, 1964, without resuming the practice of medicine. He spent his time gambling in Gardena card parlors, and when he ran out of money he spent his time in the bowling alley where he met Officer Shaw.

Appellant first sold narcotics to Officer Shaw because he was completely broke and needed the money for daily living. Although he admitted that to dispense narcotics to an addict or a former addict is not good medical practice, he sold narcotics to Officer Shaw, believing him to be a former addict who was cured and wanted narcotics for his addicted wife. He also occasionally self-administered narcotics, however, and he admitted recognizing similar hypodermic marks on the arms and hands of Officer Shaw which would indicate that he might be a current user. Confronted with statements he purportedly made to Officer Shaw concerning his own use of narcotic drugs, appellant testified in self-defense that he had told the officer many untrue facts because he wished to appear to be 'one of the boys' in order to avoid suspicion in the course of his sales of drugs. Although appellant denied he was ever addicted to narcotics, he admitted that he had a drug problem. His practice of medicine, which he resumed on November 15, 1964, disintegrated once more when he was forced to file a petition in bankruptcy on May 18, 1965.

Appellant's contention that the Board held a 'hybrid hearing' not specifically sanctioned by section 11517 of the Government Code and thus violating the Administrative Procedure Act cannot be sustained. The Board...