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District Court of Appeal, First District, Division 2, California.


Civ. 13253.

Decided: January 30, 1947

Robert W. Kenny, Atty. Gen., State of California, and J. Albert Hutchinson, Deputy Atty. Gen., for appellant. Lionel Browne, of San Francisco, for respondents.

This case is a companion to the cases of Mann v. Board of Medical Examiners, etc., et al., Cal.App., 176 P.2d 708 and Burroughs v. Board of Medical Examiners, etc., et al., Cal.App., 176 P.2d 715.   All three were tried together and on the same record.   Each of them is an appeal from a judgment in a mandate proceeding.

In the Mann and Burroughs cases applications for direct reciprocity certificates to practice medicine and surgery were denied and the Superior Court by a peremptory writ directed the board to grant them.

This case differs from the other two, in that the respondent applied only for the right to take a written examination looking to the issuance of a license to practice medicine and surgery.   His application was denied and he obtained a peremptory writ directing that an examination be given.   From that judgment the board took this appeal.

The respondent's case, unlike the other two, was not based on the reciprocity provisions of the medical practice act, nor could it have been, for the reason that he never had been admitted to practice anywhere.   His application was filed under that part of the act entitled “The Physician's and Surgeon's Application” (sections 2190–2195, Business and Professions Code) and “Examinations” (sections 2280–2293).

The respondent graduated from Chicago Medical School with the degree of doctor of medicine in 1944 after a four-year course in medicine and surgery.   He testified before the board that he was then, in July, serving his internship in Mary's Help Hospital in San Francisco, which would not be completed until the following September.

On July 10, 1945, after an informal hearing before the board (as in the Mann case) the board made its order denying the application on the same ground as that stated in the Mann and Burroughs cases.

This case was tried on the same theory as that on which the other two cases were presented, namely, that the granting of reciprocity certificates to nine doctors who were graduates of respondent's school amounted to a nullification of any formal action taken by the board disapproving the school, and a de facto approval of the school and that therefore the requirement of the statute had been met.   In the Mann opinion, where the facts common to all three cases are stated, that question is fully discussed.

The court's findings were substantially the same as those in the Mann case.   As this case depends entirely on the finding that the school had been approved, which finding is held in the Mann case to have been unsupported by the evidence, the judgment herein must be reversed for the reasons given and on the authorities cited in the Mann opinion.

Everything said in the Mann opinion respecting further proceedings or other remedies open to respondent applies with equal force to this case.

The judgment is reversed with the direction to the Superior Court to dismiss the proceeding.

GOODELL, Justice.

NOURSE, P.J., and DOOLING, J., concur.

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