Wilkins, In re

• Decision Date: 17 April 1978
• Docket Number: No. 39,39
• Court: North Carolina Supreme Court
• Parties: In re Gordon M. WILKINS, M. D.

Page 829

242 S.E.2d 829

294 N.C. 528

In re Gordon M. WILKINS, M. D.

No. 39.

Supreme Court of North Carolina.

April 17, 1978.

Smith, Anderson, Blount & Mitchell by John H. Anderson and Henry A. Mitchell, Jr., Raleigh, for Board of Medical Examiners of the State of North Carolina.

Chambers, Stein, Ferguson & Becton by James E. Ferguson, II, and James C. Fuller, Jr., Charlotte, for respondent.

LAKE, Justice.

By G.S. 90-1, the Medical Society of the State of North Carolina is declared to be a body politic and corporate. By G.S. 90-2, the Board of Medical Examiners of the State of North Carolina, herein called the Board, was established "in order to properly regulate the practice of medicine and surgery." The Board consists of seven regularly graduated physicians appointed by the Medical Society. G.S. 90-3. In addition to its authority and duty to examine applicants for license to practice medicine or surgery in this State, conferred upon it by G.S. 90-9, the Board is authorized by G.S. 90-14 to "revoke and rescind any license granted by it." This statute, which was rewritten in 1977, provided at the time of the matters involved in this appeal:

"The Board shall have the power to revoke and rescind any license granted by it, when, after due notice and hearing, it shall find that any physician licensed by it * * * has been guilty of any unprofessional or dishonorable conduct unworthy of, and affecting, the practice of his profession, or has been convicted in any court, state or federal, of any felony or other criminal offense involving moral turpitude * * *. The findings and actions of the Board of Medical Examiners in revoking or rescinding and refusing to issue licenses under this section, shall be subject to review upon appeal to the superior court, as hereinafter provided in this Article. The Board of Medical Examiners may, in its discretion, and upon such terms and conditions and for such period of time as it may prescribe, restore a license so revoked and rescinded."

G.S. 90-14.1 prescribes the notice to be given to a licensee of a hearing convened to consider the revocation or recision of his license. It is not contended that the provisions of this statute were not fully complied with in this instance. G.S. 90-14.6 provides that at such hearing the admissibility of evidence is governed by the rules applicable to civil actions. In the present instance, it is not contended that any incompetent evidence was admitted or any competent evidence rejected. The scope of judicial review of an order of the Board revoking a license is set forth in G.S. 90-14.10, which provides:

"Upon the review of the Board's decision revoking or suspending a license, the case shall be heard by the judge without a jury, upon the record, except that in cases of alleged omissions or errors in the record, testimony thereon may be taken by the court. The court may affirm the decision of the Board or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the accused physician have been prejudiced because the findings or decisions of the Board are in violation of substantive or procedural law, or are not supported by competent, material, and substantial evidence admissible under this Article, or are arbitrary or capricious. At any time after the notice of appeal has been filed, the court may remand the case to the Board for the hearing of any additional evidence which is material and is not cumulative and which could not reasonably have been presented at the hearing before the Board." (Emphasis added.)

G.S. 90-14.11 provides for appeal to the Supreme Court of North Carolina under rules of procedure applicable in other civil cases.

In 1974, the respondent was convicted in the Superior Court of Mecklenburg County of a felony the making of a false and fraudulent proof of loss, including a false medical bill and a false physician's report, for filing with an insurance company in relation to an automobile accident. No appeal was taken from that conviction and the resulting judgment thereon. G.S. 90-14, as it then read, expressly authorized the Board to revoke and rescind his license to practice medicine in this State, upon proof of such conviction, without any qualification or suspension of such revocation. The respondent does not dispute that authority in the present proceeding. Instead of doing so, the Board revoked the respondent's license but suspended such order of revocation, thus giving the respondent a second chance. One of the conditions of such suspension of that order of revocation was that, for five years, the respondent "remain of good behavior and conduct his practice of medicine in accordance with proper professional and ethical standards." No judicial review of that order of the Board was requested by the respondent. Nothing in the record indicates any request by him for clarification of its terms.

That order of the Board was entered 23 October 1974. The record of the hearing before the Board in the present proceeding contains clear evidence that, less than two weeks after that order was issued by the Board, the respondent wrote a prescription for Didrex at the request of a complete stranger, with no physical examination of him, no taking of his medical history and no questions as to any symptoms, aches or pains experienced by such person. According to the testimony of Prillaman, the stranger so requesting and receiving this prescription from the respondent, he gave the respondent no reason for desiring such prescription except that he was a truck driver and needed something to keep him awake.

Didrex is not listed by that name in the Controlled Substances Act, G.S. 90-86 et seq. That is a manufacturer's trade name. It is also known as Speed. Its chemical name is Benzphetamine Hydrochloride. This being its chemical composition, it is a Schedule II controlled substance according to the provisions of G.S. 90-90(c) which states:

"The following controlled substances are included in this schedule:

* * *

* * *

"(c) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system unless specifically exempted or listed in another schedule (which is not the case with Didrex):

"1. Amphetamine, its salts, optical isomers, and salts of its optical isomers.

* * *

* * * "3. Methamphetamine, including its salts, isomers and salts of isomers."

G.S. 90-90 also provides:

"This schedule (Schedule II) includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that a substance comes within this schedule, the North Carolina Drug Authority shall find: a high potential for abuse ; currently accepted medical use in the United States, or currently accepted medical use with severe restrictions; and the abuse of the substance may lead to severe psychic or physical dependence." (Emphasis added.)

The record before us contains clear evidence that this was not an isolated, accidental oversight or mistake in judgment. The evidence, if true, as the Board obviously believed it to be, shows that within the next three and a half months the respondent, under virtually identical circumstances, gave to persons not medically examined by him, either physically or by questions, and whose medical histories and whose current conditions, symptoms or complaints were completely unknown to him, three other prescriptions for Didrex, two for Desoxyn and two for Butacaps.

Desoxyn and Butacaps are also controlled substances. "Desoxyn is a trade name used by Abbott Laboratories, North Chicago, Illinois, for Methamphetamine Hydrochloride." State v. Newton, 21 N.C.App. 384, 386, 204 S.E.2d 724, 725 (1974). It is, and at the time the respondent so prescribed it was, a Schedule II controlled substance and, like Didrex, a highly dangerous drug. Butacaps, or Butasol capsules, are Butabarbital, also a controlled substance, apparently somewhat less dangerous than Didrex and Desoxyn.

Judicial review of a revocation of license by order of the Board does not authorize the reviewing court to substitute its discretion for that of the Board. G.S. 90-14.10 provides that the court "may reverse or modify the decision (of the Board) if the substantial rights of the accused physician have been prejudiced because the findings or decisions of the Board are in violation of substantive or procedural law, or are not supported by competent, material, and substantial evidence admissible under this Article, or are arbitrary or capricious."

Clearly, the findings of the Board that the respondent wrote the above mentioned prescriptions "without determining whether or not such drugs were necessary for the treatment of any ailment or disease and not for any legitimate medical purpose and not in the course of a legitimate practice of medicine," are supported by evidence in the record, although contradicted by the testimony of the respondent, himself. The findings of the Board, so supported, are conclusive upon judicial review of the Board's order. See, In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975), which involved judicial review of an order of the comparable Board of Law Examiners rejecting an applicant for license, and which cited in support of this pronouncement Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957), and Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).

Upon these findings of fact, the Board concluded that the conduct of the respondent, so found, constituted a violation of the laws of North Carolina, constituted dishonorable and unprofessional conduct affecting the practice of medicine and also constituted a failure to comply with the terms and conditions upon which the Board had suspended its 1974 order revoking ...