State Bd. of Registration for Healing Arts v. Masters

• Decision Date: 09 July 1974
• Docket Number: No. KCD,KCD
• Citation: 512 S.W.2d 150
• Parties: STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent, v. Luther A. MASTERS, D.O., Appellant. 26200.
• Court: Missouri Court of Appeals

Page 150

512 S.W.2d 150

STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent, v. Luther A. MASTERS, D.O., Appellant.

No. KCD 26200.

Missouri Court of Appeals, Kansas City District.

July 9, 1974.

Thomas D. Graham, Jefferson City, for appellant; Graham & Hawkins, Jefferson City, James E. Spain, Briney, Welborn & Spain, Bloomfield, of counsel.

John C. Danforth, Jefferson City, Atty. Gen. of Missouri, Albert J. Stephan, Jr., St. Louis, for respondent.

WILLIAM J. MARSH, Special Judge.

Luther A. Masters, an osteopathic physician, appeals from the judgment of the circuit court of Cole County reversing the decision of the Administrative Hearing Commission which ordered the State Board of Registration for the Healing Arts to 'issue a license to Dr. Masters and to renew Dr Masters' annual registration certificate forthwith upon receipt of the proper renewal fee' and which further ordered the Board not to take action to revoke probation previously granted appellant by the Board without first affording appellant a full evidentiary hearing and the right to have his attorney cross-examine adverse witnesses and to call witnesses in his own behalf, within the remaining period of probation. We have jurisdiction. Mo.Const. Art. V, § 3, V.A.M.S.; § 536.140 (all statutory references are to RSMo 1969, unless otherwise indicated); Bittiker v. State Board of Registration for Healing Arts, 404 S.W.2d 402, 404(1) (Mo.App.1966).

A chronology of the actions by and involving appellant, respondent (hereinafter referred to as Board), the Administrative Hearing Commission (hereinafter referred to as Commission) and the trial court is reasonably necessary for a comprehension of the issues thus presented and our decision here.

At the time of the first action hereinafter described, appellant was licensed by and registered with the Board as a physician and surgeon in accordance with Chapter 334, RSMo. On December 8, 1969, following a hearing had before it on February 26 and 27, 1969, at which appellant appeared personally and by attorney, the Commission found, concluded and decided that appellant was guilty of unprofessional and dishonorable conduct when, in a period from September 29, 1967 through May 20, 1968, appellant rendered professional treatment on eight separate occasions to three separate patients while he was under the influence of drugs and his faculties were thereby impaired and when he unlawfully carried a concealed weapon (a pistol) upon or about his person on two separate occasions. The acting Hearing Commissioner was of the opinion that appellant was capable of rehabilitation and recommended that the Board place appellant on probation upon such terms and conditions as the Board determined appropriate and conducive to appellant's rehabilitation. This action was originally commenced upon complaint filed with the Commission under the style and number of State Board of Registration for the Healing Arts v. Luther A. Masters, D.O., Cause No. 68019.

The Board held a hearing in this cause on January 17, 1970 to determine the issue of what disciplinary action or measure was appropriate in this case. Appellant appeared personally and by attorney at this hearing. On January 23, 1970, the Board issued its order which revoked appellant's license, stayed execution of the order of revocation and placed appellant on probation for a period of five years on the following terms and conditions:

1. That respondent shall obey the laws of the State of Missouri, the United States, the several states and all political subdivisions thereof.

2. That respondent shall obey all laws and regulations promulgated by duly constituted authority relating to the practice of the healing arts and conduct himself at all times as an honorable practitioner of his profession.

3. That, during the period of probation hereby ordered, respondent shall not take, ingest, nor administer to himself any legend drug or medication except upon prescription or written order of another duly licensed physician. The term 'legend drug or medication' as used herein shall mean drugs available to the general public only upon prescription of a licensed physician.

4. That, during the period of probation hereby ordered and commencing with July of 1970, respondent shall apply in writing during the months of July and January of each year to the Executive Secretary of the Board to appear before the Board, present himself at such meeting or at any other time to be examined upon his qualifications other than academic to continue in the practice of the healing arts 5. That respondent shall within thirty (30) days of the date hereof acknowledge in writing that he understands and accepts all of the foregoing terms and conditions and that upon breach of any such terms and conditions, the probation hereby granted may be withdrawn after notice to respondent and respondent's failure to show cause why such action should not be taken.

6. That if respondent shall fulfill all terms and conditions of this probation, the Board will entertain an application filed after the expiration of the period of probation hereby ordered to restore respondent to permanent and unconditional licensure.

On February 18, 1970, appellant acknowledged under oath that he received the order of the Board and understood and accepted, without reservation, each and every condition thereof and that he understood that his failure to comply fully with each of the terms and the conditions of his probation may result in the withdrawal of his probation and execution of the order of revocation of his license. No petition for judicial review of the decision of the Commission or of the disciplinary order of the Board was filed in any circuit court having jurisdiction within thirty days after January 23, 1970.

On or about May 29, 1971, appellant mailed the Board his application for annual registration for the fiscal year July 1, 1971 to June 30, 1972, on a form provided by the Board, together with a money order for the statutory ten dollars fee. The Board did not accept appellant's application and money order nor did it issue a certificate of registration for the forthcoming year for reasons which will become readily apparent.

On or about June 3, 1971, in Cause No. 68019, the Board issued, and appellant received, its order to appellant to show cause why appellant's probation should not be withdrawn and its January 23, 1970 order revoking appellant's license be executed. The order set out the first two numbered conditions of appellant's probation and alleged that 'Whereas, the State Board of Registration for the Healing Arts has been informed that on July 12, 1970, respondent at Senath, Dunklin County, Missouri, did unlawfully sell a quantity of potent drugs, to-wit, 180 amphetamine capsules to Leon Phillips without legitimate medical need therefor and after having been advised that said capsules were being purchased by the said Leon Phillips for resale, * * *.' It later appeared that the Board did not become aware of the basis for its allegations until some time in April 1971.

On June 26, 1971, in Cause No. 68019, the Board conducted a hearing on its show cause order at the time and place it stated. Appellant appeared in person but without an attorney. Very early in the proceedings, appellant stated he was acting as his own attorney.

At this hearing, Leon Phillips was identified as a special agent for the Federal Bureau of Narcotics and Dangerous Drugs. His testimony and evidence was essentially to the effect that sometime prior to July 12, 1970, his agency had received information that appellant was selling various amphetamines for non-medical use; that on July 12, 1970 he, another agent and an informant went to appellant's office at Senath and that he and informant entered appellant's office where they waited to see appellant; that upon Phillips and the informant being admitted in the appellant's private office, Phillips and appellant entered into a discussion in which the subject matter was 'pills'; that Phillips informed appellant he was not taking pills but wanted them to sell and suggested appellant write five prescriptions for pills under forged names; that appellant refused this procedure but gave Phillips a physical, although Phillips said there was nothing wrong with him and suggested he give Phillips a prescription for Phillips' wife; that Phillips' wife was not present and that she was not nor had she ever been a patient of appellant; that appellant wrote Phillips' name and address and the results of his physical examination and that Phillips' wife was in good health but suffered from chronic fatigue on a patient's record card, and at the conclusion of the transaction, appellant dispensed Phillips and the informant a quantity of capsules and tablets from appellant's dispensary and that Phillips paid appellant for his and the informant's physical examinations and capsules and tablets. Phillips testified that he sent the capsules to 'our lab in Chicago, Illinois' and that the contents of the capsules included amphetamine and drugs in the barbiturate family.

Appellant stated that he had an attorney whom he had tried to call the night before this hearing and again on the morning of the hearing. He stated that he had consulted with an attorney and that he was testifying against that attorney's advice '* * * because I absolutely am sure that I have no difficulty in proving the testimony this agent gave is in error.'

Appellant was asked if he would like to examine Phillips. He responded affirmatively and stated that he had Phillips' (patient) record. He then stated that he would have to ask for an attorney 'with such testimony as this from a federal agent.' He then again stated that he had an attorney who was supposed to have been at the hearing, and declined to direct any questions to Phillips when asked if he had any.

Appellant stated, 'I have other witnesses here who will repudiate this man's testimony.'...