State ex rel. Kassabian v. State Bd. of Medical Examiners

• Decision Date: 07 September 1951
• Docket Number: No. 3667,3667
• Citation: 68 Nev. 455,235 P.2d 327
• Parties: STATE ex rel. KASSABIAN v. STATE BOARD OF MEDICAL EXAMINERS et al.
• Court: Nevada Supreme Court

Page 327

235 P.2d 327

68 Nev. 455

STATE ex rel. KASSABIAN v. STATE BOARD OF MEDICAL EXAMINERS et al.

No. 3667.

Supreme Court of Nevada.

Sept. 7, 1951.

Ralli, Rudiak & Horsey, Las Vegas, and Joseph P. Haller, Reno, for relator.

John R. Ross, Carson City, and Leslie E. Riggins, Reno, for respondents.

MERRILL, Justice.

This is an original proceeding in prohibition challenging jurisdiction of the Board of Medical Examiners of the State of Nevada to proceed to revoke relator's license to practice medicine and surgery.

Relator is a physician and surgeon licensed to practice and practicing in the State of Nevada since 1922. Respondents constitute a state board appointed by the governor pursuant to statute, the members being 'reputable practicing physicians, who have in a regular manner obtained the degree of doctor of medicine from some legally chartered medical institution in the United States or Canada, and who shall have been actually engaged in the practice of medicine in the State of Nevada.' Sec. 4107.02 N.C.L.1929, Supp.1943-1949.

On November 16, 1950 relator after jury trial was convicted of the felony of criminal abortion and was sentenced to serve from one to five years in the state penitentiary as a consequence. An appeal was taken from said judgment which appeal is now pending before this court.

On January 11, 1951 a complaint was filed before respondent board charging relator with unprofessional conduct as defined in the medical practice act 'in that he * * * did procure and/or abet in procuring a criminal abortion, in the manner following: * * *.' The complaint then sets forth the facts of the alleged criminal act of which relator had been found guilty in the criminal action. Written notice of the charges and of the hearing thereon was duly served on relator. An answer was filed by him denying the acts of abortion, admitting that he had treated said patient but alleging that she was not then pregnant and had been treated for veneral disease, cervicitis, Bartholinitis and retroflexion of the uterus.

Section 15 of the medical practice act being § 4107.15 N.C.L.1929, Supp.1943-1949, specifically defines the term 'unprofessional conduct.' Included within that definition are the following:

'Procuring, or aiding or abetting in procuring, criminal abortion;

* * *

* * *

'Conviction of any offense involving moral turpitude, or the conviction of a felony. The record of the conviction shall be conclusive evidence of unprofessional conduct.'

Section 16 of the act, being § 4107.16 N.C.L.1929, Supp.1943-1949, provides procedure for hearings before the Board of Medical Examiners upon charges of unprofessional conduct. The section provides for filing of a sworn complaint, the serving of written notice of the charges upon the accused at least twenty days before the date fixed for hearing, and further provides: '* * * The person charged shall be given a full and fair trial by the board, with the right to be heard and appear in person and by counsel and to present witnesses. The secretary or president of the board shall have power to issue subpenas for the attendance of witnesses. The secretary or president shall also have the power to administer the oath to all witnesses at such hearing. If, after hearing the said charges it appears to the satisfaction of the board that the person is guilty as charged, the board shall revoke the certificate of such person either permanently or temporarily, and by its order suspend the said person from the practice of medicine within this state either permanently or temporarily in the discretion of said board. The board may likewise after finding the person guilty as charged place him on probation. The secretary of the board in all cases of revocation or suspension or probation shall enter in his records the fact of such revocation or suspension or probation and shall within five days notify the county recorder of the county in which the person's certificate has been recorded. In all cases where a certificate is revoked or suspended or a person placed on probation a transcript of the proceedings before the board, and the findings and order of said board, shall be filed within thirty days with the clerk of the district court of the county in which the certificate to practice has been recorded; and any person whose certificate has been revoked or suspended or who has been placed on probation may, within sixty days after filing of said certified copies of said transcript, findings and order, petition said district court to review the said proceedings, findings and order of said board and to reverse or modify the same, and upon such review the burden shall be upon the petitioner to show wherein such order of said board is erroneous or unlawful. When sixty days shall have elapsed after the filing of said order and findings, if no petition for review has been filed, the judge of the district court shall make its order affirming the decision of the board. Until the same is modified or reversed, as herein provided, the revocation or suspension or probation of such certificate and the right to practice thereunder shall be and become effective on the date the said secretary certifies such fact of the decision and order of the board to the county recorder of the county in which the person's certificate has been recorded.'

On April 2, 1951 the hearing commenced before the board. On April 4, 1951 the board handed down its decision and order as follows:

'The Board has carefully considered all of the proof presented in this particular hearing. It is the unanimous decision of the Board that the evidence produced is sufficient to sustain the charges made in the Complaint. It is therefore the decision and judgment of the Board of Medical Examiners of the State of Nevada that Levon G. Kassabian be, and he is hereby, found and adjudged to be guilty of the unprofessional conduct as defined by Section 15 of Chapter 169 of the 1949 Statutes of Nevada, being Section 15 of the Medical Practice Act.

'It is further order of the Board that, by reason of the said Levon G. Kassabian being found guilty of the charges of unprofessional conduct as made against him in the Complaint on file herein, the medical license heretofore granted to Levon G. Kassabian by the Board of Medical Examiners of the State of Nevada be, and it is hereby, revoked.'

Relator thereupon applied to this court for writ of prohibition.

On April 16, 1951 an alternative writ was issued prohibiting respondents from certifying the board's decision and order to the recorder of Clark County and from enforcement thereof until further order of this court. It now appears that the decision and order of the board was certified to the county recorder prior to service of the alternative writ.

The first question for our consideration is as to the propriety of prohibition upon these facts. It is apparent that that writ cannot lie. The respondent board has fully discharged its functions in the matter and there are no judicial acts remaining unperformed which this court by prohibition could restrain. All that remains is the ministerial act of enforcement. State ex rel. Scrugham v. Sixth Judicial District Court, 43 Nev. 320, 184 P. 1023.

Under these circumstances the courts of California have adopted a view with which we are in accord. Where the record before the court presents a case for consideration as under a writ of certiorari, there is no reason why the court should not give such relief as the record warrants notwithstanding the petitioner, in seeking prohibition, has sought the wrong relief. Van Hoosear v. Railroad Commission, 189 Cal. 228, 207 P. 903; Traffic Truck Sales Co. v. Justice's Court, 192 Cal. 377, 220 P. 306; Finn v. Butler, 195 Cal. 759, 235 P. 992; A. G. Col Co. v. Superior Court, 196 Cal. 604, 238 P. 926.

We are satisfied that procedurally certiorari would have been the appropriate remedy. The actions of the board were judicial or at least quasi-judicial in character. The statutory remedy of review, considering the statute's provision against supersedeas or stay of execution, is inadequate. Van Heukelom v. Board of Chiropractic Examiners, 67 Nev. ----, 224 P.2d 313. We have before us a complete record of the board's actions and of the evidence upon which it proceeded to act. We shall, accordingly, view this proceeding as one in certiorari and shall upon that basis proceed to review the actions of the board. Instead of confining ourselves to a consideration of whether the board is about to proceed in excess of its jurisdiction, we shall consider whether it has already so proceeded.

Relator first attacks as unconstitutional the final provision of section 16 establishing the effective date of the order of revocation of license. He contends that this provision eliminates all right of supersedeas or stay of execution and that without such right the revocation of license is a taking of property and liberty without due process of law. In support of this contention he cites Porter v. Investors Syndicate, 286 U.S. 461, 52 S.Ct. 617, 76 L.Ed. 1226, affirmed 287 U.S. 346, 53 S.Ct. 132, 77 L.Ed. 354; Pacific Telephone and Telegraph Co. v. Kuykendall, 265 U.S. 196, 44 S.Ct. 553, 68 L.Ed. 975; Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659; Scripps-Howard Radio, Inc., v. Federal Communications Commission, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229; Montana Power Co. v. Public Service Commission, D.C., 12 F.Supp. 946.

These decisions dealt respectively with administrative action looking towards protection of the public from fraud and unsafe investments (Blue Sky Laws); protection of the public from imposition of unfair utility rates; protection of the public interest in adequate radio coverage. In each instance the party asserting lack of due process showed clearly that in the absence of supersedeas, irreparable loss of property would result pending appellate action even should such action...