Sherman v. McEntire
| Decision Date | 22 April 1947 |
| Docket Number | 7004 |
| Citation | 111 Utah 348,179 P.2d 796 |
| Court | Utah Supreme Court |
| Parties | SHERMAN v. McENTIRE |
Appeal from District Court, Third District, Salt Lake County; Joseph G. Jeppson, Judge.
Proceeding by Hal W. Sherman against W. R. McEntire, director of registration in the Department of Registration of the State of Utah, by appeal to district court from an order revoking plaintiff's license to practice medicine. From a judgment affirming the order of revocation, plaintiff appeals.
Reversed and remanded with instructions.
Arthur H. Nielsen and F. Ray Brown, both of Salt Lake City, for appellant.
Grover A. Giles, Atty. Gen., and Calvin Rampton, of Salt Lake City for respondent.
This is an appeal from a judgment of the Third Judicial District Court affirming an order of the Director of the Department of Registration of the State of Utah revoking appellant's license to practice medicine within this state.
On a complaint filed with the Department of Registration, appellant was accused of being guilty of "unprofessional conduct" as defined in Sec. 79-9-18, U. C. A. 1943, in that he advised a certain woman that she was pregnant; that she could not successfully bear a child and that she could be treated only by the performance of an abortion which he proposed to perform, whereas in fact said woman was a normal woman and could in fact successfully give birth to a child. The above section in so far as is material here reads as follows:
A hearing was held before a Board of Physicians on the complaint against appellant and the Board found him guilty of "unprofessional conduct" and recommended that his license to practice medicine be revoked. From the order of the Director of Registration revoking his license, appellant herein appealed to the District Court wherein the matter was tried anew.
In the trial before the District Court evidence was introduced by way of depositions of the complaining witnesses, a young married couple, that appellant was consulted by them to determine whether the wife was pregnant. That after he examined her he advised them that he was unable to tell whether she was pregnant but that he would give her a test consisting of a series of three daily injections which would enable him to definitely determine her condition. He advised her that because of her physical build if the test proved she was pregnant he would perform an abortion on her because she would not be able to successfully give birth to a child. The young wife submitted to the injections for two successive days and then did not visit appellant again. In the meantime, the husband who was serving in the army and stationed at Camp Kearns, which was near Salt Lake City, spoke to the medical officer there about his wife's condition and this officer advised him to take her to Dr. McLennan, at that time a professor of Obstetrics and Gynecology at the University of Utah Medical School. This the husband did and Dr. McLennan examined the wife. From this examination it was the opinion of Dr. McLennan that although it was impossible to be certain at that time, there was no physical appearance of pregnancy, but that in the event that she should be pregnant there was no physical malformation which would prevent her bearing a child to a successful birth. Later it was learned that the wife was not pregnant at the times she consulted appellant and Dr. McLennan.
Appellant denied that he had offered to perform an abortion on the wife although she had requested it and in corroboration of his testimony he introduced a deposition of a witness who said she was listening outside the doctor's door at the time the complaining witness was consulting him and that she heard the conversation between the doctor whom she knew and whose voice she recognized and a woman unknown to her; that this woman was asking the doctor to perform an abortion on her but that he refused. The court as the trier of the facts evidently chose not to believe this witness as it affirmed the order of the Director of the Department of Registration revoking appellant's license to practice medicine.
It is appellant's contention that even if all the evidence adverse to him were taken as true, that nevertheless, the facts so proved were insufficient...
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