Elder v. Board of Medical Examiners

The Board of Medical Examiners of the State of California, hereinafter referred to as “the board,” has appealed from a judgment rendered and entered following a hearing on a petition for writ of mandate filed in the superior court by Harry M. Elder, M.D., hereinafter referred to as

The judgment provides that it is ordered, adjudged and decreed “that the ruling of the respondent Board revoking the petitioner’s license is an abuse of discretion and it is : hereby vacated, annulled and set aside and that this matter is hereby remanded to the State Board of Medical Examiners with the direction that any evidence procured or any information obtained as the result of the illegal search and seizure or by misrepresentation not be received in said hearing. ” This judgment follows the recitals contained in conclusions of law which were signed and filed the same day. These conclusions in turn are predicated upon findings of fact, if they may be so termed, which read as follows: “IV. It is true that respondent prejudicially abused its discretion in said proceeding upon said accusation of petitioner in that respondent had proceeded without and in excess of its jurisdiction; that respondent has not proceeded in the manner required by law in the institution and conduct of said proceeding upon said accusation of the petitioner; it is further true that petitioner was not afforded a fair trial in the hearing upon said accusation.

“V. It is true that the decision of the respondent Board is contrary to law and is not based on competent legal evidence.

“VI. It is true that respondent Board failed to follow the procedure provided by law and denied petitioner a fair trial. It is further true that the evidence introduced at the hearing was the result of unlawful search and seizure (while petitioner was outside the United States) when the agents of respondent Board arrested the office nurse of petitioner (charging her with unlawfully practicing medicine and she was found not guilty of this charge) and seized all of petitioner’s patients’ records which are confidential and protected under the laws of the State of California; and it is further true that at the time of the seizure of the patients’ records, respondent Board and its agents did not have any search warrant therefor. It is true that the evidence introduced by respondent was the result of the unlawful search and seizure of petitioner’s records.

“VII. It is true that the evidence presented by respondent Board was produced and obtained as a result of the unlawful search and seizure of petitioner’s records. ’ ’

The board seeks an affirmance of its order, and contends on this appeal that the evidence at the hearing before the board sustains its decision and order; and that the record fails to

In an effort to show that the privilege had been waived in part there was offered in support of the accusation a transcript of a hearing before the State Board of Pharmacy containing testimony of petitioner in which he identified 51 “Patients Financial Record Cards” as representing records of patients for whom the pharmacist in question had refilled Methedrine prescriptions during the period from August 4 to August 25, 1962, while the petitioner was away. The cards were received in evidence without objection in those proceedings. The hearing officer refused to admit the transcript, or the record cards, and they were marked for identification only. Thereafter, over petitioner’s objection that it was too general, there was read into the record petitioner’s prior testimony to the effect that the common factor for the prescription of 20 mg ampules of Methedrine for the patients reflected in the 51 record cards was that they were “mostly either alcoholics or drug addicts, narcotic addicts. ’ ’ However, a second attempt to get in the record cards which had been made a matter of public record in the prior action was unsuccessful.

In the meantime, arrangements had been made to dispense with the presence of the pharmacists. After some equivocation it was finally stipulated as follows: “. . . that if the pharmacists responded to the subpoenas duces tecum issued by the Board of Medical Examiners, that their records would show that Dr. Elder prescribed and they dispensed Methedrine ampules for the persons listed in . . . Schedule A in the accusation and for the persons listed in . . . Schedule B. It is further stipulated that if the pharmacists responded to said subpoenas that their records would show that Dr. Elder prescribed and the pharmacists dispensed Percodan and Empirin Compound with codeine for the persons listed in Schedule C. Nothing in this stipulation shall be construed as admitting the truth of the charging allegations of the accusation, nor shall it be construed as a waiver of the physician-patient relationship. ’ ’

Examination of petitioner’s nurse proceeded along general lines without specific reference to particular patients. On the advice of counsel she refused to answer the following question: “Could you tell us what the patients—the Methedrine patients [which she had separated in her files for convenience] . . . were being treated for?” She testified that they did not have the situation at petitioner’s office where patients

She testified that she would not know whether any of petitioner’s patients were narcotic addicts; that she was never told that some of his patients were narcotic addicts; and that she never told anyone they were narcotic addicts or that they were being treated for addiction and alcoholism. She stated that she had noted abscesses on some of the patients in treatment but did not know the cause. She admitted that she had taken histories including some which revealed past narcotic addiction. Attempts to elicit the names of these patients was forestalled by petitioner’s successful assertion of the patient’s privilege.

The nurse further testified that on a couple of occasions she had prepared lists of Methedrine patients at petitioner’s request so he could check names with enforcement agencies or other doctors; and identified certain lists as comprising part prepared by herself and part received in the mail. She stated that certain entries on the lists were in her handwriting. The hearing officer had the lists marked for identification but refused to admit them in evidence because of petitioner’s claim

An inspector of the San Francisco police department, who had been with the narcotics bureau of that department for 14 years, testified that he was familiar with and had arrested narcotic addicts, that he was familiar with the signs that would indicate a person to be a narcotic addict, and that he had discussed narcotic addicts with other officers and checked records concerning them. He identified nine individuals on Schedule A and five individuals on Schedule B as addicts or habitues. He was unable to fix the time of addiction as being within the respective dates charged in the accusation, but stated that they were habitual addicts; that a very small proportion of them changed their habits and those that changed them permanently were buried; that he had known periods of time when given individuals were not using narcotics because they were imprisoned; that he would not classify persons as addicts at a particular time if they were not currently using any narcotics; that the addict is psychologically bound forever, there is always a residual element in his mind that he cannot get rid of. Petitioner’s objection to this witness’ characterization of the named individuals as addicts on the grounds that it failed to show the time at which such status existed was overruled.

Another inspector with five years’ experience in the same bureau testified that as operator of the Nalline Clinic he had administered a test to one individual on Schedule A who had 77 needle stabs in different parts of the arms on April 30, 1961, and that there was a positive reaction which indicated that he was under the influence of a narcotic at that time. He also reported positive tests on two individuals named in Schedule B, of which one was administered a year and one-half prior to the period in question. Petitioner’s motion to strike the testimony concerning the latter test was denied.

A narcotic agent with the Bureau of Narcotic Enforcement of the State Department of Justice stated that in his 18 years’ experience he had familiarized himself with narcotic addicts, bad occasion to arrest them and had discussed them with other officers and reviewed reports about them. He testified that he had separately arrested and secured the conviction of two of the individuals named on Schedule 0 for a stolen prescription and fictitious address, respectively, in connection with narcotic

A field supervisor of agents for the State Bureau of Narcotic Enforcement, whose qualifications were admitted by petitioner, testified that he knew 17, possibly 19, specific individuals on Schedule A, 5 on Schedule B, and one on Schedule C as narcotic addicts; and that he knew 6 on A, 6 on B, and one on C as users of narcotics. At the request of petitioner he defined his distinction as follows: “In my interpretation of the law anyone who uses narcotics illegally is therefore an addict. However, the individuals who I called addicts are those who use it compellingly and must use it to maintain a normal appearance or feeling of normality. ’ ’

There was also received in evidence commitment papers for an individual named in Schedule A, who was also otherwise identified as an addict. These papers showed a discharge and certificate of competency as of July 3, 1962. Other documentary evidence reflects a commitment October 10, 1960, for

Over the objection of petitioner, written waivers of privilege were presented for one individual on Schedule A and two on Schedule B. Copies of their record cards were thereupon received in evidence, and the first patient’s card reflects in part “Began Demeral Morphine .. . main-last fix July 20, 1962 4 demeral tablets one dose gets sick on heroin Habits $30-40 daily . . . ” A new patient on July 24, 1962, he received a prescription for Methedrine to be taken three times a day. The card for one patient on Schedule B reflects a first visit on May 29, 1962, with a recorded history and symptoms which reflects in part “Heroin a few times Morphine for past year . . . none for 4 months Methedrine for 4 months—Methedrine-spinstops craving for alcohol or narcotics.” Methedrine three times daily was prescribed, refilled June 15, July 11, reduced to twice daily August 1, and refilled August 17, during petitioner’s absence for three times daily. The other first appeared July 23, 1962, with a history which reflects “Heroin habit at age 16—1958—to Sept. 1961 $10-$15 habit Last fix Sept. 1961. Gets depressed—feels tired Vag. addict—Probation 1 year 1-2 daily Meth. stops craving.” Methedrine twice a day was prescribed and was refilled during petitioner’s absence on August 22, 1962.

A Contra Costa County deputy sheriff testified that in February 1963, when he made inquiry about a patient listed in Schedule A the nurse advised that “he was under treatment for addiction.” The witness could not say whether addiction was for Methedrine or narcotics. An Alameda sheriff’s detective was more specific. His telephone inquiry concerning an individual on Schedule A in March 1963 produced a statement from someone representing himself as petitioner that he was treating that individual for narcotics addition and had prescribed Methedrine to be taken by liquid injection because the majority of narcotic addicts have a fetish about using the needle.

A newspaper reporter testified that in the week preceding the hearing before the board he interviewed petitioner at his attorney’s office at the latter’s request. Petitioner related that he was treating addicts and former addicts with Methedrine; that the first patient had come to him about three years previously after a doctor who had been prescribing Methedrine had

Finally a portion of a transcript of another Board of Pharmacy hearing was offered and received. It reflects testimony of petitioner as to arrangements made for refilling Methedrine prescriptions in his absence.

At this point petitioner’s attorney addressed the board as follows; ‘1 One, I want to address myself to a general motion for dismissal. I’ll call Your Honor’s attention to the fact that Your Honor, over my objections, admitted certain things in evidence, regardless of the question of search and seizure. . . . Your Honor has ruled that my motion to strike the testimony of Mr. Smith on unlawful search and seizure—you denied that . . . and denied it in each instance where I made the motion. I don’t have the transcript, so I don’t have them all.” The same point is found more articulately stated in petitioner’s petition for writ of mandate as follows: “all of the evidence introduced at the hearing was the result of unlawful search and seizure when the agents of respondent board arrested the office nurse of petitioner and seized all of his patients’ records, which are confidential and protected under the laws of the State of California; that at the time of the seizure of the records, respondent Board and its agents did not have any warrant therefor.” Finally, it is expressed in

The applicability of the exclusionary rule of the criminal law to the license revocation proceedings is undetermined

The hearing officer ruled that the policy of excluding evidence seized by an unlawful search and seizure (People v. Cahan (1955) 44 Cal.2d 434 , 445 [ 282 P.2d 905 , 50 A.L.R.2d 513 ]) did not apply to administrative hearings, at least where there was some right to inspect and investigate the business of a licensee. (See Cooley v. State Board of Funeral Directors & Embalmers (1956) 141 Cal.App.2d 293 , 298 [ 296 P.2d 588 ].) The question was postulated but not decided in Thorp v. Department of Alcoholic Beverage Control (1959) 175 Cal.App.2d 489 , 492 [ 346 P.2d 433 ]. Since the trial court pronounced judgment the Supreme Court in People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ], applied the rule to proceedings for forfeiture of property. The following language appears to bear out the foresight of the trial judge in this case who ruled that it was erroneous for the hearing officer to rule as outlined above. 11 The People also contend that, conceding the unlawfulness of the seizure, the exclusionary rule should not be applied in a car-forfeiture ease, as the action is civil in nature. Whatever the label which may be attached to the proceeding, it is apparent that the purpose of the forfeiture is deterrent in nature and that there is a close identity to the aims and objectives of criminal law enforcement. On policy the same exclusionary rules should apply to improper state conduct whether the proceeding contemplates the deprivation of one’s liberty or property. (See People v. Cahan, 44 Cal.2d 434 , 445 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].) ” (62 Cal.2d at pp. 96-97.)

In view of the foregoing it will be assumed herein that the exclusionary rule will apply to an administrative hearing where the proceeding contemplates the deprivation of a license which is recognized as a property right, as is the right to practice medicine. (See Hewitt v. State Board of Medical Examiners (1906) 148 Cal. 590 , 592 [ 84 P. 39 , 113 Am.St.Rep. 315 , 7 Ann. Cas. 750, 3 L.R.A. N.S. 896 ].)

This assumption, however, does not establish the other postulates of the trial court’s decision. The record must be examined to determine whether the adoption of an assumed erroneous legal theory by the hearing officer occasioned any

The officers asked the nurse at the time of her arrest where the records were of the patients who had received authorization for Methedrine during the period of petitioner’s absence. She indicated some which were loose on top of a desk adjoining hers, said that was part of them and that the others were in a metal filing cabinet on a shelf lower down. According to the nurse, they just came in, arrested her, took the records and a list of Methedrine patients, which she had prepared at petitioner’s request, out of the office and monitored off all the conversations. She was very upset and shaken and could not recall the questions addressed to her or her answers.

The investigator testified that on the following day and for some time on a couple of occasions during the following week he had occasion to go through the cards that were contained in the metal filing cabinet; that he initialed most, if not all of the records subsequent to the time they were picked up; and that he read all of them that related to people who were using Methedrine.

From the evidence developed in this case it is obvious that the practice of refilling the prescriptions which was followed in petitioner’s absence was of questionable legality. Section 2141 of the Business and Professions Code makes it a misdemeanor to prescribe for an ailment, etc., without having at the time of so doing a valid unrevoked certificate to practice medicine. The provisions of section 4036 of that code, which defines a prescription, do not include a nurse as among those designated to prescribe or write a prescription; and section 4227 prohibits the furnishing of a dangerous drug without a prescription. It is true that section 4229, which then provided, “No prescription for any dangerous drug may be refilled except upon authorization of the prescriber which may be

On the record, therefore, there is nothing to sustain any implication from the trial court’s finding that the filing of the complaint and the issuance and execution of a warrant against the nurse was other than bona fide. The arrest being valid the search attendant thereto was lawful. “Defendant unavailingly argues that here the police officers had ample time to procure a search warrant and therefore such warrant was required in order to validate the search and seizure of the incriminating evidence at the time of his arrest. (Trupiano v. United States, 334 U.S. 699 , 708 [ 68 S.Ct. 1229 , 92 L.Ed. 1663 ].) In United States v. Rabinowitz, 339 U.S. 56 [ 70 S.Ct. 430 , 94 L.Ed. 653 ], it was held that a search of the defendant’s premises incident to his lawful arrest at those premises was not unreasonable. In so concluding, the court in the Rabinowitz case further said at page 66: ‘To the extent that Trupiano v. United States, 334 U.S. 699 [ 68 S.Ct. 1229 , 92 L.Ed. 1663 ], requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that ease is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. ’ ’’ (People v. Winston (1956) 46 Cal.2d 151 , 162-163 [ 293 P.2d 40 ]; and see Ker v. California (1963) 374 U.S. 23 , 41 [ 83 S.Ct. 1623 , 10 L.Ed.2d 726 ] and People v. Chapman (1962) 207 Cal.App.2d 557 , 571 [ 24 Cal.Rptr. 568 ] ; Thorp v. Department of Alcoholic Beverage Control, supra, 175 Cal.App.2d 489 , 492.)

The instant case differs from People v. Schaumloffel (1959) 53 Cal.2d 96 [ 346 P.2d 393 ] and Yonchar v. Superior Court (1961) 193 Cal.App.2d 135 [ 14 Cal.Rptr. 93 ]. In each of those cases it was recognized that it was proper to take evidence connected with the offense for which the arrest was made, but

Petitioner’s contention that it is unlawful to seize his records from his nurse overlooks the undisputed fact that he left her in control of his office and instructed her to use the records in connection with the activities for which she was arrested. There is no constitutional prohibition which precludes using against the principal evidence which has been legally seized from an agent to whom has been entrusted its possession and control. (Marron v. United States (1927) 275 U.S. 192 , 198 [ 48 S.Ct. 74 , 72 L.Ed. 231 ].)

Petitioner also relies on authorities which suggest that “mere evidence” cannot be the subject of seizure in any event. (Abel v. United States (1960) 362 U.S. 217 , 234 [ 80 S.Ct. 683 , 4 L.Ed.2d 668 ]; Harris v. United States (1947) 331 U.S. 145 , 154 [ 67 S.Ct. 1098 , 91 L.Ed. 1399 ]; and Gouled v. United States (1921) 255 U.S. 298 , 309 [ 41 S.Ct. 261 , 65 L.Ed. 467 ].) The recent case of People v. Thayer (1965) 63 Cal.2d 635 [ 47 Cal.Rptr. 780 , 408 P.2d 108 ] reviews the foregoing cases and concludes: “We hold that the mere evidence rule is not a constitutional standard and has no application in California.” (63 Cal.2d at p. 642.) The remaining conclusions of the court are also pertinent here: ‘1 Even if the mere evidence rule were a constitutional standard, it would not require the exclusion of Dr. Thayer’s medical care records, for they were the instruments of crime. The employees testified that they used the records to draw up the fraudulent statements. In some cases Dr. Thayer placed wavy lines on the records to indicate that false billings were to be made. Under the circumstances, these records were more instrumental in the commission of the crime than were the utility bills and ledger in Marron v. United States, supra, 275 U.S. 192 , and the code books in Abel v. United States, supra, 362 U.S. 217 . (See also Matthews v. Correa (2d Cir. 1943) 135 F.2d 534 ; Landau v. United States Attorney (2d Cir. 1946) 82 F.2d 285 , cert. den. 298 U.S. 665 [ 56 S.Ct. 747 , 80 L.Ed. 1389 ].) Finally, it should be noted that there are some opinions that construe Gouled v United States to protect privacy by preserving private papers, such as a personal diary, from any seizure. (Davis v. United

The documents seized at the time of the arrest of the nurse were not received in evidence at the hearing

If it be assumed the records were unlawfully seized, the fact remains that they were apparently in the possession of petitioner at the time of the hearing when they were produced pursuant to subpoena. The board asserts that petitioner failed to object to the admission of evidence upon the grounds now asserted. The record, however, shows that the point was in fact raised.

The first suggestion of unlawful search or seizure was made in the course of the original argument on privilege as an objection to reference to or the admission in evidence of petitioner’s patient record cards. Counsel for petitioner stated: - ‘ ‘ the other violation based on the basic rights of the individual is the manner in which they got the records ...” and again “if you called somebody who illegally went in there and got those records, I’m sure you’d also have some other objections from me which I haven’t yet reached. ’ ’

When the nurse was interrogated concerning a list of Methedrine patients she had prepared, counsel stated: “I’ll tell you in advance I’ve got an objection to your introducing that list ... I want to know how you got the list ... I want to examine Mr. Smith on voir dire before we go into this. They walked in there, you know, ... we need a search warrant in this country.” Argument preceded without permitting petitioner to show the circumstances under which the list and

When the investigator commenced to testify concerning the records taken at the time of the nurse’s arrest, petitioner’s counsel stated, “I’m going to move it all be stricken unless this man had a search warrant”; and he subsequently so moved.

Finally, in connection with the motion to dismiss it was urged: “My motion that there was an illegal search and seizure . . . should have been sustained.” In argument petitioner’s counsel also asserted: “Not only were the records so seized inadmissible in evidence against Petitioner—but also any evidence gained by the police through investigations based solely upon the information contained in these records. ’ ’

A review of the evidence outlined above reflects that all of the patients’ record cards were excluded with the exception of three, hereinafter discussed, for which consents were allegedly received from the patients. The investigator who reviewed the seized cards was permitted to testify to their general content. If this was error because of the tainted nature of his source, it was hardly prejudicial because his testimony that the cards reflected the palliative effect of Methedrine was cumulative to other admissions of petitioner which were properly in the record, and, as will be demonstrated, the testimony of petitioner himself.

Some reference, as noted above, was made to the lists of Methedrine patients which also are alleged to have been wrongfully seized. The record reflects that petitioner was not objecting to the admission of the comments written on the lists, and in fact stipulated that the notations could be admitted. The lists themselves, however, were excluded.

The evidence admitted was not the tainted fruit of the documents which had been seized

At the hearing before the superior court, the learned trial judge posed the question: ‘ ‘ Suppose . . . from that information they got illegally, they received information which was put into the record, would that make any difference?” He

The court’s decision was expressed at the final hearing on the matter as follows: “I want this case remanded, because, one, in my judgment the records seized as the result of the arrest of the nurse, the records of Dr. Elder, was illegal. Two, the Court holds that evidence illegally seized cannot be admissible in an administrative proceeding, penal in nature such as this. Three, the case is remanded, that the case will be tried on that theory because it is obvious from this record, the whole record in this case, that this whole matter was tried on the theory that it doesn’t make any difference in an administrative proceeding whether evidence is illegally seized or not, that evidence can be used to take away a man’s license.”

This decision as so expressed and as set forth in the trial court’s findings of fact and conclusions of law cannot be reconciled with the record in the case. It has been demonstrated that there are no particular items of evidence which were before the board, and which it should exclude according to the attached mandate of the superior court. On the other hand, if the record in fact revealed that all or a substantial part of the evidence which was introduced was the fruit of an illegal search and seizure, the proceedings for revocation should have been dismissed.

The principle which petitioner apparently contends should be applied is reviewed in People v. Bilderbach (1965) 62 Cal.2d 757 [ 44 Cal.Rptr. 313 , 401 P.2d 921 ], wherein it is stated: ‘ ‘ That the prosecutor may not profit directly or indirectly from an illegal search has been the keystone of the rule including illegally obtained evidence.” (62 Cal.2d at p. 763,

If it be assumed that these rules apply to proceedings of this nature the question resolves itself into a determination of whether the knowledge of the facts is gained from an independent source. In Nardone v. United States (1939) 308 U.S. 338 [ 60 S.Ct. 266 , 84 L.Ed. 307 ], the court dealt with the mechanics of resolving this question in a case where there had been illegal wire tapping in violation of a federal statute. The opinion recites: “Sophisticated argument may prove a causal connection between information obtained through illicit wiretapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation—fair to the intendment of § 605 [of 47 U.S.C.], but fair also to the purposes of the criminal law—ought to be within the reach of experienced trial judges. The burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample oppor

In the instant ease there is complete absence of an attempt to prove “that a substantial portion of the case against him was a fruit of the poisonous tree, ’ ’ and no timely steps were taken to exclude the evidence which in fact was presented. The evidence of the names of persons for whom petitioner prescribed was available from a source independent of his records, to wit, the prescription records of the pharmacists. Petitioner made no attempt to show that the use of these records was tainted by the seizure at the time of the arrest, but in fact stipulated, without reserving the objection now urged, that the pharmacists would testify to the prescriptions for those named in the accusation. The general objection presently asserted was not timely because, as has heen set forth, it was

It is concluded that the record neither specifically nor generally sustains the trial court’s findings “that the evidence introduced at the hearing was the result of unlawful search and seizure. ’ ’

There was no prejudicial error in receiving the patients’ waivers and admitting their record cards

The judgment of the trial court in remanding the proceedings to the board not only directed the board to disregard any evidence or information obtained as the result of illegal search and seizure, but also proscribed use of any evidence obtained by misrepresentation. No finding of fact was made in this regard, but the conclusion is apparently predicated upon the statements of counsel for petitioner and an affidavit filed in connection with the petition for writ of mandate.

The issue raised by the petition is stated as follows: “Petitioner was not afforded a fair trial in . . . that during the hearing on June 18 and 19, 1963 agents of the respondent board went to three patients of petitioner; namely, Morris Sisneros, Peter Robert Blonkenf eld and Anthony De Piero and falsely and fraudulently represented to all three patients that they were representing petitioner and that petitioner requested them to authorize the release of their medical records to the respondent and relying on said false and fraudulent representations did sign the authorizations for the release of said records.”

The petition for writ of mandate was filed July 23, 1963, and an alternative writ issued returnable August 19, 1963. The board’s return was filed September 10th, and apparently arrangements were made for filing points and authorities with the court. On October 30th, petitioner filed an affidavit of Blonkenf eld which supported the allegations of the petition. No effort was made to present evidence as to the other two individuals from whom waivers of privilege had been secured despite the fact that the final hearing on the petition was not held until January 31st of the following year. Although petitioner attempted to explain his failure to go into the question at the hearing before the board on the grounds that the board desired to finish the hearing, the record does not reflect any request to the board to go into the matter but in fact only an expression of the desire of petitioner’s counsel to conclude the proceedings on the second day of the hearing.

Since the evidence does not permit findings and conclusions contrary to those made by the board, the alternative writ should be discharged

The question remains as to the disposition to be made of the case. The grounds set forth in the petition include: 1 ‘ The decision is contrary to the evidence and without support in the record.” The law prescribes: “Where it is claimed that the findings are not supported by the evidence, in eases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. ...” (Code Civ. Proc., § 1094.5, subd. (c); and see Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74 , 80 [ 17 Cal.Rptr. 488 , 366 P.2d 816 ]; Cooper v. State Board of Medical Examiners (1950) 35 Cal.2d 242 , 246 [ 217 P.2d 630 , 18 A.L.R.2d 593 ]; and Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301 , 308 [ 196 P.2d 20 ].) Petitioner has not had this review. The contentions which he successfully urged in the points and authorities filed with the trial court were those adopted by it in its judgment. It would appear proper to return the case to that court for a review of the evidence. Magit, however, indicates that where the evidence compels findings showing a violation of the provisions of law governing the practice of medicine, and the resulting unprofessional conduct which subjects the licensee to disciplinary action, a judgment of the superior court embodying contrary findings must be reversed. (57 Cal.2d at pp. 80-87.) Therefore, the evidence in this case must be examined to determine whether there is in fact a conflict to be independently weighed by the trial court.

The evidence produced by the board ■ has been set forth above. The evidence presented by petitioner consisted of letters of character reference and by his own testimony. The latter is embroidered with a categorical general denial that he ever knowingly or intentionally or wilfully treated a narcotic addict, either in his office or any other place, and specific denials as to each and all of the individuals named as addicts

He further stated; “the reason for prescribing the Methedrine ampules is to relieve the depression that these people go into. One of the chief reasons for a person craving heroin after he’s away from it any length of time is he runs into some psychological or emotional or economic problem, and he straightaway has a desire to return to his former habits, to use heroin, particularly, as an escape. And you see' it is this great psychological dependency on it that gives him his craving. If we can substitute something that will relieve his depression, and that depression sounds like a fairly innocuous word, but

He explained the prescription for ampules rather than pills as follows: “Well, the reason for that is that during an addict’s acquiring and maintaining his habit, he develops a ritualistic fetish for the needle. He becomes nee'dle happy, or they call it ‘behind the needle, ’ and they like the ritual of preparing whatever they’re going to take, whether it’s Methedrine or a narcotic or distilled water or some of them will just use a needle just to be using it. It’s a type of fetish that they develop, and I’m sure it’s more a psychological thing than physical, and I’m sure that the doses of Methedrine tablets could solve their depression as well as the needle, but they prefer the needle, and I don’t see what difference it makes how they take it. ’ ’

He confirmed that he had instructed the nurse to refill the prescriptions in the manner she testified to, after he was unable to find a doctor who would see and prescribe for “these people. ’ ’

In discussing dosage petitioner stated: “I think that the most effective dose is three ampules a day, the highest effective dose except in a few cases where their heroin addiction was tremendous, and then on four a day. I’ve had some patients tell me, who have been on a one-hundred-fifty to one-hundred-dollars-a-day habit, that any time a patient takes more than four ampules a day he’s looking for extra kicks that he doesn’t need, ... I check it with the family or with somebody else as to how many they are taking a day. I try to talk to members of the family to watch them because the tendency of the drug addict is to overdose in anything they take. If they take aspirin, they’ll take half a bottle. They’re not content with ordinary doses because their system seems to have developed an affinity for these things. Q. Do you think, then, that in giving these large doses that you are really treating them medically? Or should you, in order to obtain a proper therapeutic response, get the dose down to what is used in normal therapeutics. A. That’s what I try to do. I try to get them down as much as possible, to get them down to five a day, four a day, three a day, two a day, and finally get them off of it entirely, and keep them from reverting to going out on the street and buying it or trying to look around for heroin or some other drug to take. I try to figure out for each individual

That the treatment was to substitute the dangerous drug for the narcotic drug is further evidenced by the following: “ Q. Would not, then, this be a direct treatment to continue their habituation to some drug or other? A. Well, I think they are going to be habituated to some drug or other, no matter what you do, and if the medical profession turns their back on these people, what are they going to do ? ”

The following exchange throws further light on the nature of the infirmity for which petitioner was prescribing: “Q. But individually, in this very venturesome area, did you consider that you were really advancing the knowledge of the treatment of addicts? A. Yes, sir. I feel that this method, if other physicians would take this up and help these people and really help them, rather than to make a racket out of it as some doctors have done, give them all they want without any attempt to help them or treat them or any attempt to be friendly with them or work with them—I think that they’re lost. There may be some better method developed than Methedrine. I read an article from Seattle that coenzyme that they’re using—this probably will answer the physical craving, coenzyme injection, but I doubt if it will help the psychic part. And this illness is certainly a psychosomatic illness. And I’ve had—I’ve talked with—during this time I’ve been in court and talked with different attorneys, and from what information I could get I was doing nothing illegal.” As also does the following statement: “An addict that’s on his full capacity of his addiction cannot work. He's absolutely no use to himself or society, and he’s a burden on his family and society. But if you will give him something that will not injure Mm in proper dosage, then he has a substitute habit that he can work with, that he can be part of the community with. He can hold a job. ”

Petitioner’s statements tend to show that he was proceeding in good faith to give these admitted “ex-addicts” a substitute for their bodies’ physical reaction to the termination of the administration of narcotic drugs in the belief that he was restoring them to a useful place in society. There is also evidence which tends to show that he was capitalizing from the unfortunates ’ need for a palliative for their habit by charging for prescriptions and refills with a minimum, if any, physical examination or attempt to test and reduce the dosage. It is not for this court to determine whether or not he was a Dr. Dooley or Dr. Schweitzer for the addicted denizens of the pavement jungle, or whether there are better methods of treating narcotic addicts than those which are provided by law. By his own admissions he has set up a course of treatment for those who admittedly have all the characteristics of addicts as defined in law and medicine.

Since the evidence in the record admits of only the findings and conclusions arrived at by the board they must be sustained.

The judgment is reversed with directions to the trial court to deny the petition and to discharge the alternative writ.

Sullivan, P. J., and Molinari, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied May 25, 1966. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.