Savelli v. Board of Medical Examiners

This is an appeal from a judgment denying a writ of mandate to compel respondent to permit appellant to take the written examination for a license as a physician and surgeon.

Appellant filed an application with respondent for a written examination for a physician’s and surgeon’s certificate. The application was denied on the ground that appellant was not a graduate of a medical school approved by respondent. Appellant thereupon requested a hearing before respondent, and a hearing was had before a hearing officer on a statement of issues filed pursuant to the Administrative Procedure Act^[1] (Gov.Code, §§ 11370 to 11528, inch). Appellant was the sole witness at this hearing, and testified as follows: that he was then a licensed drugless practitioner; that he was licensed as a pharmacist in 1928 and practiced as such until 1935 when he enrolled at a college for drugless practitioners; that he was trained in an approved course of instruction totalling 3,234 hours, and was examined and licensed in 1939 as a drugless practitioner; that he then entered the practice of the profession of drugless practitioner; that in 1951, pursuant to a legislative enactment in 1949 which allowed a drugless practitioner who had 5 years or more of experience to go back to school and complete the necessary courses required for a physician’s and surgeon’s certificate in a recognized school, he enrolled at Western College of Medicine^[2] (hereinafter called Western), where he took the courses specified in section

Respondent elected not to cross-examine appellant. It did, however, offer in evidence 9 exhibits which were admitted in evidence without objection. Aside from the pleadings incident to the hearing these consisted of appellant’s application and respondent’s aforementioned letter of rejection, a previous application filed in 1952; the letter rejecting said application, and the decision of respondent board in the proceeding entitled “In the Matter of the Statement of Issues against Western College of Medicine, Respondent, No. A-44,” (hereinafter referred to as exhibit 9). Respondent thereafter made and filed its decision denying appellant’s application on the ground that he was not able to present satisfactory evidence that he had complied with the requirements of section 2290 of the Business and Professions Code^[4] of the State of California.^[5]

Appellant sought a judicial review of the administrative proceedings by filing a petition for writ of mandate in the superior court. By said petition appellant sought a review of respondent’s order denying his application to take the subject

The trial court made and filed its findings of fact and conclusions of law. It was not, howevér, required to make findings of fact because it was not acting de novo, but was required to determine whether the findings of respondent board were supported by substantial evidence in the light of the whole record. Where the substantial evidence rule applies the trial judge does not independently weigh the evidence and make his own findings, but determines a question of law, i.e., whether the evidence is légally sufficient and like questions enumerated in Code of Civil Procedure section 1094.5. (Rudolph v. Athletic Com., 177 Cal.App.2d 1 , 6-8 [ 1 Cal.Rptr. 898 ].) The instant case is one brought pursuant to the provisions of section 2174, which, insofar as here material, provides as follows: “If any school is disapproved by the board or any applicant for examination is rejected by it, then the school or the applicant may commence an action in the superior court against the board to compel it to approve the school or to admit the applicant to examination. ... In such an action the court shall proceed under section 1094.5 of the Code of Civil Procedure; provided, however, that the court may not exercise an independent judg

Section 2174 does not authorize a trial court to exercise its independent judgment on the evidence but confines the hearing before such court to the record made before the board. (Lay v. State Board of Osteopathic Examiners, supra, at p. 359.) Its function, therefore, is to determine whether there is substantial evidence before the board to support its findings in the light of the whole record. (Le Strange v. City of Berkeley, 210 Cal.App.2d 313 , 320-321 [ 26 Cal.Rptr. 550 ]; Code Civ. Proc., §1094.5, subd. (e).) Accordingly, in ihe ease at bench, the trial court should have reviewed the evidence adduced before respondent board and the findings made by it in the same fashion that an appellate court reviews the findings of trial courts. The function of an appellate court is to determine -whether the evidence, viewed in the light most favorable to the respondent, sustains the findings subject to review, resolving any reasonable doubts in favor of those findings. (Le Strange v. City of Berkeley, supra, at p. 321.) In making this determination the appellate court must resolve all conflicts in the evidence in favor of the judgment or decision of the tribunal below and indulge in all legitimate and reasonable inferences to support it. (Harris v. Alcoholic Beverage Control Appeals Board, 212 Cal.App. 2d 106 , 113 [ 28 Cal.Rptr. 74 ]; DeMartim v. Department of Alcoholic Beverage Control, 215 Cal.App.2d 787 , 799 [ 30 Cal. Rptr. 668 ].) Insofar as the appellate court itself is concerned, the substantial evidence rule obtains whether it is reviewing the findings of the trial court where the latter has exercised independent judgment, or whether the findings involve the decision of an agency or board where the trial court is not authorized by law to exercise its independent

The erroneous exercise of independent judgment by the trial court in the case at bench in no way inhibits our scope of review. (Harris v. Alcoholic Beverage Control Appeals Board, supra, at p. 113; DeMartini v. Department of Alcoholic Beverage Control, supra, at p. 798.) It should be here noted, however, that no additional evidence was proffered or adduced in the court below. Therefore, the evidence considered by the trial court was the same as that weighed by respondent board. Accordingly, even if we were called upon to review the record before the trial court in the light of the substantial evidence rule we would be considering the same record as that before both respondent and the court below. Moreover, even though the trial court did weigh the evidence no prejudice is suffered by appellant if the result reached was necessarily an affirmance of the sufficiency of the evidence to support respondent’s findings. (Rudolph v. Athletic Com., supra, 177 Cal.App.2d 1 , 8.)

Our review being confined to the record of the proceedings before respondent, we must look to its findings and decision.^[10] Respondent board found that appellant had filed the two subject applications for a physician’s and surgeon’s certificate wherein he certified that he was a drugless practitioner for five years and that he attended Western from September 4, 1951, to July 5, 1952; that said applications were each denied on the basis that he did not show thereon that he had completed the additional courses required in section 2290 in a school approved by the board; and that in its decision effective February 28, 1957, respondent had denied Western’s application for approval on the ground that Western failed to meet the requirements of section 2290. The decision in the instant proceedings states that [p]ursuant to the foregoing findings of fact” the issues presented are determined as follows: “Respondent [appellant] has not been able to present satisfactory evidence that he has complied with the requirements of section 2290 . . . for entitlement to take the written examination for a physician’s and surgeon’s certificate (Class A) and therefore his application ought to be denied.”

Respondent’s decision rests upon the ground that appellant has not complied with the provisions of section 2290. This conclusion is based upon the finding that Western was not an approved school. Having determined the issue relative to appellant’s attendance at an approved school adversely to him, respondent apparently found it unnecessary to make specific findings on the other issues. Prom the briefs of the parties it is apparent that the sole issue for determination with respect to appellant’s qualifications is whether he attended a school approved by respondent. The parties apparently assume that appellant has established his qualifications in all other respects. Suffice it to say, in the light of principles hereinabove stated, a proper determination that Western was not an approved school would support the "denial of appellant’s application, and would make unnecessary a finding on the other issues. As we have already pointed out, it was appellant’s burden to prove that he took the required courses at a school approved by the board.^[13] At the hearing

Section 2191, requiring certain premedical educational requirements, is not applicable to drugless practitioners who have conducted a legally licensed practice for a period of five years or more and who have successfully completed the courses of professional instruction required by section 2290 “in a recognized school.” (§ 2191.6.) It is convenient to note here that appellant contends that the language “courses of professional instruction required by section 2290 of this code in a recognized school” contained in section 2191.6, enacted in 1949, modifies and supersedes the language “in a school approved by the board” in section 2290, enacted in 1937. It is appellant’s position that although Western may not be an approved school it is nevertheless a recognized school. Appellant fails to point out the distinction between a “recognized” and an “approved” school, and we are unable to perceive any. Suffice it to say, section 2191.6 is specifically referable by its provisions to section 2191 providing for premedical educational requirements, while section 2290 has

Section 2192 provides for the courses and curriculum of resident instruction generally required of physicians and surgeons. We are of the opinion, however, that this section does not apply to persons who hold a drugless practitioner’s certificate who seek a physician’s and surgeon’s certificate pursuant to section 2290. We are impelled to this conclusion by the plain language of section 2290 which provides that the resident course of professional instruction required of such an applicant is that which was required of such a practitioner for the issuance of a drugless practitioner’s certificate.^[15] Section 2290 must, however, be read in conjunction with section 2191. Accordingly, a licensed drugless practitioner who has practiced less than five years must, before he is eligible to take the physician’s and surgeon’s examination, show not only that he has taken the additional courses prescribed by section 2290 at an approved school, but also that he has completed the premedical educational requirements specified in section 2191.^[16] In the case of such a practitioner who has practiced more than five years, all that he need show, in order to be eligible for such examination, is that he has successfully completed the additional courses prescribed in section 2290 at an approved school. Upon an analysis of the pertinent code sections, particularly section 2290, we are persuaded that respondent board may approve a school which offers only the additional courses required of a drug-less practitioner who seeks admission to a physician’s and surgeon’s examination under section 2290, but does not offer the complete course of resident professional instruction required of physicians and surgeons, i.e., that required by sections 2191 and 2192. (See 17 Ops. Cal. Atty. Gen. 197.) Accordingly, a school offering the additional resident courses prescribed by section 2290 is entitled under section 2173 to

In the ease at bench appellant sought to take the examination and to establish that Western was an approved school upon evidence that he was a licensed drugless practitioner for over five years and that from September 4, 1951, to July 5, 1952, he took the courses specified in section 2290 at Western. Respondent, on the other hand, introduced evidence by way of exhibit 9 to prove that Western was not an approved school when appellant took said courses. According to exhibit 9 Western filed an application for approval on May 17, 1950; hearings were had on said application; and a decision was made on January 24, 1957, effective February 28, 1957, disapproving said application on the ground that Western failed to meet the requirements of section 2290. Exhibit 9 contains a recital of the findings of fact upon which the disapproval was based. It is apparent from a reading of these findings, which we set out in the footnote,^[17]

The conclusion reached by us is consistent with the holdings of the Mann and Lay cases upon which appellant strongly relies. Mann held, in a proceeding to compel the issuance of a reciprocity certificate, that petitioner, a graduate of an out-of-state school, had failed to sustain his burden of proving that his school had been approved. The important holding in Mann is that under section 2174 the applicant himself may seek to have the school attended by him approved by the board as of the time when he had attended it. It should also be noted that at the time of the Mann decision the evidence presented in an action pursuant to section 2174 was as in a trial de novo.^[18] The Lay case, following the principles laid down in Mann, held that upon the record made before the board, in a proceeding brought pursuant to section 2174 as it now reads, the applicant’s school had been entitled to approval during the time of her matriculation. The reviewing court there upheld the superior court’s determination that the respondent board had prejudicially abused its discretion in finding that the school, during the time the applicant had attended it, had not been approved, “without anything more. . . .” (P. 359; italics added.)

Although appellant alleged in his petition that his constitutional rights have been violated, no denial of any constitutional right or discriminatory action against him is shown. Appellant contends that the “approval” power of the board is void because nowhere does the code define or delineate any standard or criterion of determining approval or disapproval. The use of the words “approved” and “approval” appear not only in the provisions of the Business and Professions Code relating to the subject of medicine (§§ 2012, 2168, subd. (b), 2168.5, 2171, 2173 and 2192), but also in provisions dealing with other occupations licensed by this state.^[19] The state has the plenary