Yakov v. Board of Medical Examiners

• Decision Date: 11 January 1968
• Citation: 68 Cal.2d 67,64 Cal.Rptr. 785,435 P.2d 553
• Parties: , 435 P.2d 553 Alexis George YAKOV, Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS, Defendant and Appellant. Sec. 7810.
• Court: California Supreme Court

Page 785

64 Cal.Rptr. 785

68 Cal.2d 67, 435 P.2d 553

Alexis George YAKOV, Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS, Defendant and Appellant.

Sec. 7810.

Supreme Court of California In Bank.

Jan. 11, 1968.

As Modified on Denial of Rehearing Feb. 8, 1968.

Thomas C. Lynch, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Hubert O. Bower and Wilbur B. Thayer, Deputy Attys. Gen., for defendant and appellant.

Miller, Ford & O'Neal and Charles J. Miller, Sacramento, for plaintiff and respondent.

TOBRINER, Justice.

Subsequent to Dr. Yakov's conviction on nine counts of violation of section 4227 of the Business and Professions Code (furnishing dangerous drugs without a prescription), the Board of Medical Examiners filed a statement of charges, alleging Inter alia that the doctor was guilty of conduct involving moral turpitude. After a hearing in which the doctor represented himself, the board adopted the hearing officer's proposed decision revoking Dr. Yakov's medical certificate.

Dr. Yakov then petitioned the Superior Court of Sacramento County for a writ of mandate under section 1094.5 of the Code of Civil Procedure. That court concluded that the finding of moral turpitude was not sustained by the weight of the evidence. Because of the impossibility of determining the extent to which the board's finding of moral turpitude contributed to its decision, the trial judge annulled the order, remanding the cause to the board for redetermination of the penalty.

On the board's appeal to this court, the question centers on the propriety of the trial court's holding that the weight of the evidence does not support a finding of moral turpitude. As we shall explain, in this type of case the trial court's duty is to undertake an independent review of the evidence; our function on appellate review is solely to decide whether credible, competent evidence supports that court's judgment. Since the record contains facts which sustain the decision that the doctor's conduct did not involve moral turpitude, we must affirm.

On June 12, 1963, Virginia Duran, a state agent posing as a patient, went to Dr. Yakov's office for treatment and purchased a supply of amphetamine sufficient for two months' weight control treatment. Acceding to agent Duran's repeated requests, Dr. Yakov also sold her a four-month supply on June 19, a five-month month supply on June 25, an eleven-month supply on July 2, and a fifteen-month supply on July 10. Dr. Yakov sold to Jeannie Moffat, also a state agent under orders to pose as a patient and attempt to induce the doctor to sell her large quantities of weight reducing pills, a three-month supply of amphetamine on May 16, 1963, a two-month supply on June 5, a three-month supply on June 12, and a ten-month supply on June 26. On July 10, Dr. Yakov sold a six-month supply to Alice Orr, also in the employ of the state. ¹

Admitting these facts, Dr. Yakov testified that at no other time had he ever sold a patient more than a one-month supply of amphetamine. About 500 of his patients signed a statement to the effect that none had ever received more than a one-month supply. Although the board apparently attempted to find a regular patient of Dr. Yakov who would testify to the contrary, none was produced at the hearing.

The three state agents testified that, although Dr. Yakov sometimes weighed them, he did not take their blood pressure or otherwise examine them. Dr. Yakov responded that, pursuant to his general practice, he gave all of them a physical examination. Moreover, several of his patients testified that the doctor had always examined them before prescribing pills. The doctor conceded, however, that Moffat had asked for, and been given, pills for two of her friends whom he had not examined.

Dr. Yakov testified that the pills which he dispensed were no more dangerous than coffee or Coca Cola. Citing a reference work to the effect that amphetamine is not habit-forming, the doctor attested that his patients could stop taking the pills at will. Several of his patients testified to cessation of the use of the pills for extended periods of time. The strongest evidence to the contrary consisted of a statement by a chemist agent with the Bureau of Narcotics Enforcement that, although amphetamine was not narcotic, it was habit-forming in the same sense as cigarettes.

Dr. Yakov testified that he practiced in a neighborhood of poor people, devoted his life to the underprivileged, and had never sent a bill to a patient. Explaining that he began to sell these weight-reducing drugs only when his patients complained of the high drugstore charge, he stated that he sold the pills at one-half that price. Some patients testified that the charges for Dr. Yakov's services, including the pills, amounted to substantially less than those of other doctors.

On this evidence the superior court rejected, as not sustained by the weight of the evidence, the medical board's finding of moral turpitude. ² The court's opinion stated: 'Petitioner has engaged in the practice of medicine of medicine (sic) for twenty-six (26) years, during which period of time he has had no disciplinary action or complaints against him. He minimizes in his own mind the theory that the drugs he dispensed were 'dangerous', comparing them to coffee, coco (sic) cola, etc. The record falls short of showing a profit motive in Petitioner's conduct--and there is much credence to Petitioner's contention that his conduct was prompted by affirmative action of Respondent's agents. Not a single instance of any violation is shown except those mintioned.'

In reviewing this matter, the settled rule of Moran v. State Board of Medical Examiners (1948) 32 Cal.2d 301, 196 P.2d 20, requires us to sustain the trial court's decision if it is supported by credible, competent evidence. In Moran, the Board of Medical Examiners, having found the doctor to be guilty of unprofessional conduct for prescribing narcotics, suspended his medical certificate for a year. Upon review of the board's order, the superior court, solely on the basis of the evidence introduced before the board, rendered factual findings in favor of petitioner and ordered the decision annulled. Affirming the judgment of the superior court, this court held that the trial court was 'authorized by law to exercise its independent judgment on the evidence' and that 'the ultimate power of decision rests with the trial court.' (32 Cal.2d at 308, 196 P.2d at 25.) Since its inception in 1948, the Moran rule has been consistently applied to describe the scope of review of decisions not only by the Board of Medical Examiners ³ but also by other statewide administrative agencies that are without constitutional authority to exercise judicial powers. ⁴

As we stated in Moran, supra, 32 Cal.2d 301, 308, 196 P.2d 20, 25, quoting from Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183: "'In reviewing the evidence * * * all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. * * * When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court."' 'The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury's verdict.' (Estate of Bristol (1943) 23 Cal.2d 221, 223, 143 P.2d 689, 690; Moran v. Board of Medical Examiners, supra, 32 cal.2d 301, 308, 196 P.2d 20.) Thus, pursuant to Moran, the question before this court turns upon whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court's conclusion that the weight of the evidence does not show Dr. Yakov to be guilty of conduct involving moral turpitude.

We recognize that juristic definitions of moral turpitude have been general. For example, this court has defined moral turpitude as 'an act of baseness, vilenss or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man. * * *' (In re Boyd (1957) 48 Cal.2d 69, 70, 307 P.2d 625.) ⁵ Other than specifying that conduct involving fraud, perjury, and intentional dishonesty for personal gain falls within these broad definitions (Hallinan v. Committee of Bar Examiners, supra, 65 Cal.2d 447, 459, 55 Cal.Rptr. 228, 421 P.2d 76; In re Hallinan (1954) 43 Cal.2d 243, 247, 272 P.2d 768), the courts have not narrowed the inquiry by promulgating more specific definitions. Accordingly, we must focus on the general question whether the totality of the facts as found by the trial court, which we must accept under Moran, indicates such disregard by Dr. Yakov for the welfare of his patients as to demonstrate 'baseness, vileness or depravity.' ⁶

The record supports the trial court's conclusion that Dr. Yakov did not prescribe the drugs for a personal profit motive; that his personal motivation was benign rather than evil. The motivation of the doctor crucially affects any finding of his moral turpitude. Thus in Hallinan v. Committee of Bar Examiners, supra, 65 Cal.2d 447, 461, 55 Cal.Rptr. 228, 239, 421 P.2d 76, 87, this court held that whether 'activities involve moral turpitude is dependent upon the * * * motivation of the violator.' We shall point out in more detail the elements of Dr. Yakov's motivation.

Both Dr. Yakov and his patients testified to the fact that he sought to assist them through the practice of selling pills at amounts substantially below the drugstore price. The board failed to introduce any evidence that the doctor enjoyed an inordinate, or indeed any, profit from his sales at the lower price. The board did not prove, or attempt to show, that the doctor's motive was evil.

Dr. Yakov's testimony reveals that, although he recognized potential danger from any drug used incorrectly, ...