Whitlow v. Bd. of Med. Exam'rs

The appeal is from a judgment denying a petition of Joseph E. Whitlow for a writ of mandate annulling an order of the State Board of Medical Examiners suspending appellant’s certificate for the practice of medicine and surgery. The order placed appellant on probation for five years, one of the -conditions of probation being that appellant desist from the practice of medicine and surgery for 180 days. Execution of the order of suspension has been stayed pending the determination of the instant proceeding.

On January 28, 1963, invoking the authority of the board to revoke or suspend certificates of licensees for unprofessional conduct conferred by sections 2360 and 2361 of the Business and Professions Code, the executive secretary of the board filed an accusation against appellant of unprofessional conduct in the issuance of prescriptions for dangerous drugs in violation of section 2399.5 of the Business and Professions Code, which at that time defined as unprofessional conduct the issuance of prescriptions for dangerous drugs “without either prior examination of the patient or medical indication thereof.” (In 1965 the word “therefor” was substituted in place of the word “thereof”.)

It was alleged in the accusation that between February 23d and July 17th of 1962 appellant prescribed separately 30 and 100 tablets of Pentobarbital for D. A. Lyons, for Jack Berg 100 tablets of Dilantin and separate prescriptions on separate occasions of 200 and 300 tablets of Seconal and 100 tablets of Pereodan; for Sandra Frank on each of five separate occasions 100 tablets of Seconal; for Gene Ashton on each of three occasions 100 tablets of Seconal; for Vicki Popov 100 tablets of Seconal; for Ginny Johnson 100 tablets of Seconal; for Edward A. Rogers 100 tablets of Seconal and for Archie Allen 23 prescriptions amounting to 1170 tablets of Doriden. The true names of Gene Ashton, Vicki Popov and Ginny Johnson were respectively Eugene Dague, Vicki Ammons and Virginia Johnson.

In due time a hearing was had before a hearing officer. At the time of the commencement of the hearing, upon motion of the Attorney General, the charges relating to Jack Berg were

We consider first the contention of appellant that section 2399.5 is confusing, probably meaningless and therefore unenforceable. Appellant says “the meaning of the language ‘or medical indication thereof’ following ‘prior examination’ cannot be ascertained.” This criticism of the language of the section and its meaning was decided adversely to the contention of appellant in Sunseri v. Board of Medical Examiners, 224 Cal.App.2d 309 , 313 [ 36 Cal.Rptr. 553 ], in which it was said; “Nor do we find any fatal ambiguity in that part of the statute which, in reference to prescribing dangerous drugs,

The next contention to be considered is that the findings of the board and the court do not support the judgment.

The court found that the hearing officer found that the petitioner prescribed Seconal for Sandra Frank on five occasions, for Eugene Dague on three occasions, for Vicki Ammons on one occasion and for Virginia Johnson on one occasion without a prior examination of said persons for whom he was prescribing and without medical indication thereof. The court also found “the Order and Decision of the Board is supported by its Findings; each and all of its Findings are supported by competent evidence and by the weight of that evidence.” The court also found: “That each of the Prescriptions found to have been issued by Petitioner by the Finding of Respondent was issued and sold by Petitioner to each person without any medical examination or medical indication of the need thereof, and with knowledge that the said drugs thus prescribed were not reasonably necessary to the health of the person for whom it was prescribed nor to the treatment of any morbidity.

“That Petitioner did, after becoming aware that said persons for whom he prescribed and issued the Prescriptions for said Seconal were sent to him by Respondent and that Disciplinary Proceedings would be taken by Respondent, willfully prepare false medical records of and as to the said

Appellant refers to findings that each of the four persons was sent to him for the purpose of determining whether he would issue prescriptions for Seconal or narcotics; that appellant in each instance observed, talked to and met with each of said persons; appellant believed and relied upon the statements made by each of said persons at the time of their visits and that the prescriptions in each instance were issued in form required by law, and appellant then says “it is impossible to ascertain how the hearing officer or the court could have found that the prescriptions were issued without medical indication thereof. ’ ’ The findings quoted above are specific as to the actions of appellant which constituted the unprofessional conduct charged. They fully support the order of the board and the judgment.

The next contention is that there was insufficient evidence that appellant was remiss in the performance of his duties before he issued the prescriptions. We consider this contention under the rules applicable to the functions of the trial court and of this court upon appeal. It was the duty of the trial court to make its own independent determination and findings of the material facts; our duty is to determine whether the facts found by the trial court have sufficient support in the evidence. (Moran v. Board of Medical Examiners, 32 Cal.2d 301 [ 196 P.2d 20 ].)

Appellant is a general practitioner practicing in the City of Ventura in Ventura County; Sandra Frank was a part-time employee of the board as an investigator; in that capacity she was active and industrious, having already investigated 20 or 25 eases in a year and a half; she was paid on a per case basis; Eugene Bague was a senior special investigator for the state; Vicki Ammons and Virginia Johnson were secretaries in the office of the District Attorney of Ventura County; Lyons was an investigator for the Department of Professional Standards.

It is the contention of appellant that from mere observation he could and did detect in the patients nervousness, restlessness, and other conditions requiring sedation; that there was no contrary evidence and it is argued that there was uncontradicted testimony of appellant that he did ascertain that, as to each of his patients, there was medical indication justifying the use of Seconal. The record does not bear out these contentions.

Appellant placed upon his records data as to the temperature, pulse, respiration, and blood pressure of the patients as of the times of their various visits. No such tests had been made. Appellant’s explanation was that he made the entries later to fill in the records and that while he had not made any of the tests, the data he recorded would be those of normal persons. None of the entries so made indicated any illness of the patients or any need for the drugs.

Appellant testified to the circumstances in which he issued each of the prescriptions. There is no necessity for an extended statement of the explanation he gave. It did not differ in substance from the testimony of the other witnesses. He testified that he observed the appearance and manners of the patients. Sandra was always loquacious, jabbering and constantly laughing. He did not inquire of them whether they were ill; he merely observed what appeared to be nervousness and restlessness in their actions; he considered the actions he had observed and issued the prescriptions because in his judgment Seconal could do them no harm and might be beneficial. Seconal in his opinion was proper medication for nervousness, worry and sleeplessness. He refused to give Sandra a prescription for a narcotic, and did not prescribe narcotics or have anything to do with them.

The findings which were adverse to appellant can only mean that the finders of fact believed that appellant did not make a sincere and honest effort to determine whether the conditions of the several patients were such as to reasonably require the treatment which he prescribed. It is all too clear that Sandra had gained the confidence of appellant and that he was more concerned with pleasing her by prescribing for her and her friends than in rendering them any needed medical service.

The additions which appellant made to his records to show examinations which he had not made led the court to believe that appellant was conscious of the inadequacy of his efforts

Appellant maintains that he was found guilty by the trial judge of wrongful conduct of which he was not accused, namely, of making false entries in his records to show he had made examinations of the patients when no examinations had been made. This contention is not based upon any finding or conclusion of the court, but upon remarks made by the judge in stating his reasons for the tentative conclusions he had reached. In brief, the court stated that the decisive question was the good faith of the doctor, and that the court would have found him guiltless had it not been that he made false entries respecting examinations. Copies of some of the records were brought to light during the cross-examination of the doctor. He stated they were made for his own use and, perhaps, after he had received notice of the accusation. The court viewed this action as the preparation of false evidence which so affected the doctor’s credibility as to taint his entire testimony and cast serious doubt upon his good faith. That was one way of looking at the matter. Upon the other hand, there was no evidence that the doctor ever intended to use the records as evidence that he had made the examinations as indicated. In fact we are at a loss to understand why he made the false additions. The records in question were placed in evidence and we have examined those relating to several of the patients. As the doctor interviewed the patients he made notes. There were entries on the card of Ginny Johnson August 30th “Diagnosis (1) Insomnia & (2) Anxiety neurosis, Extreme nervousness, Sleeplessness. ’ ’ On the card of Vicki Popov August 9th were entries “nerves & sleeplessness. Diagnosis (1) Anxiety neurosis & Sleeplessness. Insomnia. Extreme nervousness & anxiety.” On the card of Ashton, September 4th, 1962, were entries “Very nervous and unable to relax or sleep without a hypnotic. Appears jittery and frequently changes body position. . . . Diagnosis Insomnia & anxiety neurosis.” Two other cards of Ashton’s were quite similar. The card of Sandra Prank of August 30th had entries “Nervous-sleepless. Jittery, fidgety, nervous high strung. Needs sedation. Needs to sleep. Diagnosis Insomnia, anxiety. Sandra Prank asked for Dolophine Rx. Rx No Sale. N.C. No. Rx.” Sandra’s cards of July 24th, July 28th and June 21st were all about the same as the one of August 30th except for the request for Dolophine.

Another contention is that appellant was deprived of a fair trial by the conduct of the Attorney General consisting of objections during the cross-examination of Sandra and during the examination of the witnesses for appellant on the grounds that the questions were leading and suggestive and assumed facts not in evidence. It is argued that the Attorney General completely dominated the hearing officer and materially influenced his decision. It is clear that there was considerable misconception on the part of the Attorney General and the hearing officer as to the latitude permitted in cross-examination. The record also discloses a multitude of interruptions and arguments by the Attorney General which were uncalled for and certainly distracting. The hearing officer could have

It is also contended that a witness, King, an investigator for the district attorney, was permitted to give hearsay testimony. King sat in a car listening to transmissions from electronic equipment carried on the persons or in the effects of the several witnesses while they were in the doctor’s office. King caused transcripts to be made of recordings of conversations on August 9th, August 30th and September 4th and these were received in evidence. He produced what purported to be a transcript of a conversation he heard June 21st when Lyons and Sandra were in the doctor’s office. Only about 60 percent of the transmission was intelligible and King completed a transcript from his recollection. He was asked by the Attorney General to make use of the transcript and to relate the conversation he had heard. It was apparent to defense counsel that in preparing the transcript King had added descriptions of the movements of the persons in the office which he could not have observed from his position in the car. Objection was made that the testimony would be based in part upon a transmission of a conversation that was to a great extent unintelligible and that it would include statements that could not have been within the personal knowledge of King. The objection was overruled and, using the transcript, the witness testified to facts of which he could have had no personal knowledge and to what he had added to the transcript from memory. This is the hearsay testimony which appellant contends was erroneously admitted. The objection was to the entirety of the testimony sought to be elicited from the witness, not merely to the parts which would be hearsay. In overruling the objection the hearing officer stated correctly that the objection went to the weight of the testimony, rather than to its admissibility. We need not discuss the rule that in administrative hearings more freedom in the receipt of evidence is permitted than in court trials. The facts to which King testified were also in evidence through the testimony of the witnesses who had participated in the conversations. And

A further contention is that the procedure prescribed by sections 11513, 11517, 11518, 11519 and 11521 of the Government Code, under which the instant proceedings were conducted, is violative of appellant’s rights under the California Constitution and the Fourteenth Amendment of the United States Constitution. Appellant insists that he had a constitutional right to a trial de novo as if the issues had never been determined by the board. He does not question that the procedure followed was that prescribed by Dare v. Board of Medical Examiners, 21 Cal.2d 790 [ 136 P.2d 304 ], approved in later cases. Manifestly, we cannot agree with this claim of unconstitutionality. It is also urged that appellant was denied due process for the reason that “A board investigates, signs a complaint, furnishes the witnesses and hears the ease through a civil service hearing officer,” and that “it does not hear the evidence or read the transcript or even obtain a summary of the evidence” and hence “can make no informed decision based on professional experience and the evidence.” Nevertheless, says appellant, “the findings of the board come before the court with a strong presumption of correctness,” (as held in Dare). These arguments, were considered in Cooper v. State Board of Medical Examiners, 35 Cal.2d 242 [ 217 P.2d 630 , 18 A.L.R2d 593 ], and were decided contrary to the contentions of appellant. There was no deprivation of due process in this respect.

Appellant also contends that he was entrapped by the agents of the board into issuing the prescriptions. We do not believe that the facts found by the board and the court sustain this defense as a matter of law. The witnesses Lyons, Frank and Dague were acting as agents of the board, as previously stated; Sandra enlisted the assistance of Ammons and Johnson. The purpose of these witnesses was to obtain prescriptions for drugs. Sandra endeavored to obtain a prescription for Dolophine, a narcotic, but the others sought only prescriptions for Seconal.

It should be noted that the issuance of the prescriptions was not of itself in violation of section 2399.5; the unprofessional conduct charged was their issuance without an examination or medical indication of need for the drug. There is therefore a fundamental difference between the acts charged against appellant and the acts proved in the cases in which a

It has been stated over and over again that the defense of entrapment is not available to one who is shown to have been willing to commit an offense when given the opportunity.

There was, of course, a false representation that the witnesses intended to make personal use of the drug but this falsehood suggested the need for an examination or medical indication that Seconal would be proper treatment; it furnished no reason for appellant to prescribe the drug without ascertaining the medical need for it. The effective deception that was practiced upon appellant was the concealment of the fact that the pretended patients were state agents or assistants of the agents carrying recording equipment for the purpose of obtaining evidence to be used against him. The law does not concern itself with the morality or ethics of such trickery. Upon the contrary, it encourages and deems to be admirable the use by law enforcement agencies of methods in the apprehension of offenders which in the minds of all just men are considered dishonorable and abhorent. Support for this statement will be found in the opinion in People v. Braddock, 41 Cal.2d 794 [ 264 P.2d 521 ], Upon the facts proved it is clear that appellant was seduced in a truly professional manner but we cannot say as a matter of law that he was entrapped in a legal sense of that term.

It is also contended that the penalty imposed was so severe

Much can be found in the record which speaks in favor of appellant. He is a general practitioner in Ventura, ministering to the people of this community at the rate of 25 to 30 per day. Many of his patients were charged by $1.00 per visit; others paid nothing. He bore an honorable record and as far as shown his reputation was without a blemish. He scorned the use of habit-forming drugs and refused to prescribe a narcotic for Sandra despite her pleading. He did not like for his friend Sandra and her friends to use Seconal and expressed himself as worried over their using it. But they wanted it and, as he testified, he thought it would do them no harm and might be helpful. It is easy to imagine that this elderly doctor who chose to make himself useful in a small community with little hope of fame or fortune would find it difficult to refuse the request of a friend, even against his better judgment. We cannot believe that either the board or the court failed to take into consideration the honorable character of the elderly doctor and his enviable career as a member of his profession.

Appellant argues that in Magit the Supreme Court, while stating the rule, departed from it and determined what the penalty should be. We do not so understand the opinion. The certificate of the accused physician had been revoked for permitting competent but unlicensed physicians to administer anaesthetics, a practice which was commonly followed by physicians and was generally believed to be legal and in accord with current court decisions. The physician had acted in good faith. The judgment was reversed and the matter was remanded for reconsideration of the penalty. The court’s statement that probation would appear to be a proper punishment was not the fixing of the penalty but merely a reason for the holding that revocation was an abuse of discretion. Morris v. Board of Medical Examiners, supra, 230 Calo.App.2d 704; Cooper v. State Board of Medical Examiners, supra, 35 Cal.2d 242 and Bonham v. McConnell, 45 Cal.2d 304 [ 288 P.2d 502 ], cited by appellant, held only that the courts will annul and remand for reconsideration of the penalty provisions of an order which are found to be so out of proportion to the proved offense or breach of duty as to constitute an abuse of discretion.

Upon a consideration of the entire record and the claims of error we are unable to discover wherein appellant was deprived of a fair trial.

No doubt the court would have been justified in sustaining

The judgment is affirmed.

Ford, P. J., and Cobey, J., concurred.

A petition for a rehearing was denied March 6, 1967, and appellant’s petition for a hearing by the Supreme Court was denied April 5, 1967. Mosk, J., did not participate therein.