Stevenson v. State Bd. of Medical Examiners

• Decision Date: 10 August 1970
• Citation: Stevenson v. State Bd. of Medical Examiners, 88 Cal.Rptr. 815, 10 Cal.App.3d 433 (Cal. App. 1970)
• Parties: George C. STEVENSON, M.D., Petitioner and Appellant. v. STATE BOARD OF MEDICAL EXAMINERS and Wallace W. Thompson, Executive Secretary of said Board, et al., Respondents. Civ. 12019.
• Court: California Court of Appeals

Page 815

88 Cal.Rptr. 815

10 Cal.App.3d 433

George C. STEVENSON, M.D., Petitioner and Appellant. v. STATE BOARD OF MEDICAL EXAMINERS and Wallace W. Thompson, Executive Secretary of said Board, et al., Respondents.

Civ. 12019.

Court of Appeal, Third District, California.

Aug. 10, 1970.

Jerrald K. Pickering, Redding, for petitioner and appellant.

Thomas C. Lynch, Atty. Gen., by Raymond Momboisse, Deputy Atty. Gen., Secramento, for respondents.

JANES, Associate Justice.

Appellant, a licensed physician and surgeon, appeals from a judgment denying his second amended petition for writ of mandamus and writ of prohibition. Respondents are the State Board of Medical Examiners (hereinafter, the 'board'), its executive secretary, and a district review committee of the board (Bus. & Prof.Code, §§ 2123--2124.3). The judgment was entered after respondents' general demurrer to the amended petition was sustained without leave to again amend.

This appeal presents issues concerning the availability of prehearing depositions in an administrative disciplinary proceeding, the board's prerogatives in ordering such depositions to be taken, and the adequacy of appellant's showing for such an order. Pending appeal, the disciplinary proceeding involving appellant has been taken off calendar by stipulation of the parties.

The executive secretary, in his official capacity, commenced the initial proceeding by filing with the board an accusation against appellant containing two charges of unprofessional conduct. The first charge was that, during 1965 and 1966, appellant employed an unlicensed practitioner (one Roger Whittaker) in the practice of medicine and surgery, or that he aided or abetted Whittaker in such practice. (Bus. & Prof.Code, § 2392.) Seven instances were specified wherein, at a hospital in Redding, Whittaker was alleged to have cut burrholes in the skulls of patients, or to have done suturing or removed sutures. The second charge was in substance a restatement of the aiding and abetting portion of the first charge, but invoked two additional code sections (Bus. & Prof.Code, §§ 2141, 2361). ¹

Appellant's notice of defense, as amended, admitted that Whittaker was his employee in 1965 and 1966, and contained miscellaneous denials and objections. It is appellant's affirmative defenses which concern us here. As to the seven instances of Whittaker's conduct specified in the accusation, appellant alleged that three were emergency situations (Bus. & Prof.Code, § 2144). He claimed that 'the mere removal of sutures is not the practice of medicine as defined by the Business and Professions Code * * * or any other code of conduct.' He urged that his employment of Whittaker was 'in no capacity other than in a form which he in good faith felt was a standard medical practice within the intent and the standard of the medical community. * * *' Another allegation contended the accusation was 'the result of a malicious conspiracy' participated in by unspecified medical licensees who practiced in the Redding area. These conspirators allegedly had accused appellant 'through the executive secretary' of the board in hopes either of having him lose his license or of forcing him to leave Redding. Another affirmative defense averred that findings in support of the accusation would involve an ex post facto standard of guilt. Finally, appellant alleged that his 'use of unlicensed personnel to help him in certain phases of his practice of medicine' was no more than was being done by other unnamed medical licensees in Redding and elsewhere in California. He claimed that the accusation against him was discriminatory because, although these 'other licensed medical doctors and surgeons were also using unlicensed personnel * * * to aid them in their practicing medicine,' the other physicians had not been accused by the board. Hence appellant asserted he was being denied equal protection of the law as guaranteed by the Fourteenth Amendment.

After filing his notice of defense, appellant presented to the board a petition requesting that agency to issue subpoenas for the taking of prehearing depositions of 16 Redding physicians, four medical doctors elsewhere in the state, and one whose address was in North Carolina, as well as the deposition of a hospital administrator in Redding. The petition was purportedly executed pursuant to Government Code section 11511. ² It alleged that all but three of these prospective deponents lived more than 150 miles from Sacramento, the place set for the disciplinary hearing. It stated that those 19 persons could not be compelled to attend the hearing without great expense to appellant (Gov.Code, § 11510, subd. (b)) and loss of depondents' time.

1] The petition filed with the board requested that the subpoenas designate Redding as the place the depositions would be taken. It gave the names and addresses of the 22 individuals and averred: 'Each of the medical doctors listed * * * can give material testimony in this matter In either one or all of the following particulars; * * *' (Emphasis added.) There then followed an outline of the anticipated testimony. That outline did not indicate which deponents would testify to any particular portion of the subject matter. The first two items on the outline were: '(a) To establish by practice specifically what the definition of the practice of medicine is. (b) What constitutes unprofessional conduct within the meaning of the medical profession. * * *' Those initial two items could not comprise material testimony, as to which a showing is required by section 11511. (See fn. 2, supra, p. 4.)

The practice in the profession could not establish the standard exacted by law. (Crees v. California State Board of Medical Examiners (1963) 213 Cal.App.2d 195, 207--208, 28 Cal.Rptr. 621; Jacobsen v. Board of Chiropractic Examiners (1959) 169 Cal.App.2d 389, 395, 337 P.2d 233.) Although the term 'the practice of medicine' is not defined as such by statute, the conduct referred to in Business and Professions Code sections 2137, 2141, and 2392 adequately describes it. Similarly, 'unprofessional conduct' finds illustration in sections 2361 and 2392 of the same code.

2] Appellant's blanket allegation to the board that each prospective deponent could testify 'in either one or all' of the respects shown in the submitted outline failed to show the materiality of Any testimony, since it might just as easily have been referring to the immaterial first two items in the outline. Consequently, we omit recitation of the remaining items of anticipated testimony which appellant included in the petition filed with the board. The ambiguity of the petition rendered it patently insufficient to comply with Government Code section 11511.

After respondent board declined to issue the requested subpoenas for the taking of prehearing depositions, appellant filed in superior court his petition for writs of mandate and prohibition to compel such issuance and to stay the disciplinary proceedings until the depositions were completed. The court issued an order to show cause and temporary stay.

Respondents' general demurrers to the first superior court petition, as well as to an initial amendment thereof, were sustained with leave to amend, and appellant thereafter filed his second amended petition. The second amended petition alleged, Inter alia, that the doctors he wished to subpoena for depositions represented 'roughly 25%' of the doctors in Redding, that it would disrupt the orderly practice of medicine in Redding to subpoena such a large number of physicians to the hearing itself, and that some of them 'could always avoid testifying on the basis of emergency or urgency of practice.' The second amended petition listed the names and addresses of the 16 Redding doctors, the four elsewhere in California, the one in North Carolina, and the hospital administrator in Redding. In contrast to his petition before the board, appellant's second amended petition stated without ambiguity what he anticipated showing by the deposition of each of those 22 persons. Such anticipated testimony, with few exceptions, was to show either the conspiracy alleged as an affirmative defense or that there was a common practice among California physicians of employing unlicensed personnel in the practice of medicine.

As heretofore stated, the general demurrer of respondents to the second amended petition was sustained without leave to amend, and the judgment followed.

3] Appellant first contends that, under Government Code section 11511 (fn. 2, supra, p. 4), the board had a ministerial duty to issue...