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


Civ. 15993, 16027.

Decided: December 19, 1947

Joseph Scott, of Los Angeles (Cuthbert J. Scott, of Los Angeles, of counsel), for petitioner. Fred N. Howser, Atty. Gen., and J. Albert Hutchinson, Deputy Atty. Gen., for respondents and appellants.

Petitioner is a university graduate. Having been licensed to practice medicine in Louisiana and having served as a medical officer in the United States Navy, from which he was retired in 1943 for physical disability, he was in February, 1944, upon a reciprocity basis licensed as a physician and surgeon by the state board of medical examiners. In September of that year he commenced his private practice in Monterey county and there continued until the suspension of his license on August 19, 1946, for having prescribed narcotics to three addicts in violation of section 2391, Business and Professions Code. The addicts were one woman, herein referred to as Mrs. S, and two men, G and H. Dissatisfied with the decision petitioner filed this action for a writ of mandate against the board and its ten members individually, herein referred to as members, who with the board are referred to collectively as appellants, demanding that the order of suspension be annulled. Following a trial upon the amended petition, the alternative writ, the answer and the transcript of the disciplinary proceedings before the board, the trial court made findings favorable to petitioner's contentions and by its judgment ordered appellants to set aside and annul their action in suspending petitioner's certificate and to reinstate him as a licensed physician and surgeon. Contending that such judgment is not warranted by the law or the facts appellants bring this appeal.

The evidence established before the board and submitted to the court below is substantially as follows:

Petitioner continued the private practice of medicine in Monterey county until his suspension on August 19, 1946. He had been practicing thirteen months when he was first consulted by Mrs. S on October 13, 1945. He then gave her face one injection of novocaine and one of alcohol. Between that day and December 11 he delivered to Mrs. S 18 prescriptions for morphine sulphate, a total of 480 doses of one-half grain each, and prescribed a hypodermic syringe for its injection into her body because she complained of the taste and asked for the syringe. From her complaints, case history and a physical examination he diagnosed her disease as trifacial neuralgia or tic douloureux. He observed a muscular tic in the left side of her face which was the only objective symptom. She had severe pains in her extremities and in her body. It was his first case of tic douloureux. Within eleven days after her first call he learned from the letter of an eastern dentist who had treated her that she was a confirmed morphine addict. He made no attempt to get her committed other than to ask the county hospital whether she might obtain treatments there. Failing in this, he continued his morphine prescriptions at the rate of about ten doses daily. He communicated with Las Encinas, a privately owned hospital at Pasadena, requesting her admission for treatment for addiction. Upon her rejection for lack of a vacancy he continued to prescribe the drug in larger amounts. On November 21 he prescribed 40 doses. After getting 20 doses on November 23 she obtained 40 on November 26, 60 doses on November 30, 60 on December 5, and 20 doses on December 11.

Doctor Moulton was requested to visit Mrs. S at the home of her sister in San Mateo on December 16, 1945. He found no objective symptom of gall bladder ailment of which she at first complained nor of tic douloureux, or other incurable disease. After being closely questioned by Doctor Moulton she finally confessed that she was an addict and that her trouble was her need for morphine. He observed at her home that she had empty tubes labeled ‘20 tablets, half grain morphine’ and empty morphine surretes. He gave her no treatment but caused her to be moved to the Alexander Sanitarium.

Doctor Alden was the consulting psychiatrist at that institution. Using the nurses' notes and the findings of other members of the medical staff he conversed with Mrs. S and concluded that she was suffering from withdrawal of narcotics. Although such withdrawal resulted in severe bodily pains, she received only one and a half grains during her stay. Doctor Alden testified that the necessity for treatment for any other infirmity or disease was not indicated.

In the case of Mr. G petitioner prescribed morphine sulphate for him from October 22 to November 23, a total of 180 doses. He was suffering from asthma. He told petitioner on his first call ‘how much morphine he was using’ and had used ‘for a long time,’ from which petitioner said he concluded it was a sufficient quantity to make the man an addict. The only remedy for the asthma he gave Mr. G was ‘some vitamin C’ and to alleviate the choking petitioner also gave him adrenalin and morphine. He kept neither a chart nor a history on the case. Doctor Fraser testified that the unfortunate man was accused in late January, 1946, of an intemperate use of narcotics; that as medical examiners for the courts he and Doctor Beardslee examined the addict and found that he had suffered from asthma for some time; that he told them he had suffered from asthma so severely that doctors had given him narcotics with the result that whenever he had an attack he felt he could not endure it without the use of narcotics. Whether to give the man 20 half-grain doses of morphine sulphate for use during a week was necessary the witness would not say, but he was positive that it had no therapeutic effect and admitted that the drug is recognized by some physicians as a proper prescription for the alleviation of chronic asthma.

The case of Mr. H is not to be overlooked. On September 18, 1945, the petitioner telephoned the division of narcotic enforcement inquiring relative to H who was at that time in petitioner's office requesting morphine sulphate for a ‘heart condition.’ Although he suspected H of being an addict he prescribed 20 fourth-grain tablets of morphine sulphate. He thereupon requested the information in the files of the division concerning H. The evidence was that on September 28 and again on November 10 petitioner prescribed 20 doses third-grain pantopon for H notwithstanding his suspicion of the latter's addiction. He testified that H had complained of spinal arthritis and that he had prescribed the narcotics because of the man's extreme pain.

Upon this evidence the board ordered that petitioner's certificate to practice medicine and surgery be suspended for one year and that thereafter he be on probation for five years during which he shall not acquire or prescribe narcotics or obtain a federal nacotic permit. Upon the petition for writ of mandate and appellants' return the board's action was reviewed by the court below.

The court found in accordance with petitioner's allegation that the board's findings to the effect that petitioner's treatment of the three addicts was not emergency treatment is not supported by the weight of the evidence, but on the contrary that the preponderance of evidence before the board shows that petitioner's treatment of such individuals was emergency treatment and that their condition at all times was complicated by the presence of an incurable disease. From such finding the court concluded that petitioner has been arbitrarily denied the right and privilege to practice medicine and surgery in this state by reason of the action of appellants in suspending his privilege to practice his profession, and that the action of appellants was arbitrary in that they have prejudicially abused their legal discretion in suspending his certificate. The ensuing judgment ordered appellants to ‘set aside, rescind and annul their action in suspending petitioner's certificate * * * and to reinstate said petitioner as a physician and surgeon * * * and to restore the petitioner's certificate to practice medicine and surgery in California.’

Petitioner admitted that the three parties treated were known to be addicts; that after having such knowledge he repeatedly prescribed morphine for S and G. But he contended that his practice was correct for the reason that in the cases of the last two addiction was complicated by the presence of an incurable disease, while in the case of H he was discharged as soon as his addiction was established. Appellants contended that there were no symptoms of an incurable disease in either case and that petitioner continued to defy the law despite the fact that there was no objective symptom of such disease.

With these contentions and the record of the proceedings before the board the matter was submitted to the superior court with the results reported above. The question for this court's decision is whether the evidence was such as to warrant the superior court's conclusion that the findings of the board, to wit, that the treatments of the three addicts were not emergency treatments and that the addictions of the parties were not complicated by the presence of incurable diseases was unjustified. The record shows that the board had before it substantial proof to warrant the suspension of petitioner's license to practice medicine. For that reason the finding of the trial court was not justified.

The following are the provisions of the Health and Safety Code relating to the administration of narcotics: ‘Except in the regular practice of his profession, no person shall prescribe, administer, or furnish, a narcotic to or for any person who is not under his treatment for a pathology or condition other than narcotic addiction, except as provided in this division.’ Section 11163. ‘Every person who issues a prescription, or administers or dispenses a narcotic shall make a record that, as to the transaction, shows all of the following: (a) The name and address of the patient. (b) The date. (c) The character and quantity of narcotics involved. (d) The pathology and purpose for which the prescription is issued, or the narcotic administered, prescribed, or dispensed.’ Section 11225. ‘Any narcotic employed in treating an addict for addiction shall be administered by a physician, or by a registered nurse acting under his instruction.’ Section 11390. ‘No person shall treat an addict for addiction except in one of the following: (a) An institution approved by the Board of Medical Examiners, and where the patient is kept under restraint and control. (b) A city or county jail. (c) A State prison. (d) A State narcotic hospital. (e) A State hospital. This section does not apply during emergency treatment or where the patient's addiction is complicated by the presence of incurable disease, serious accident, or injury.’ Section 11391. ‘A physician treating an addict for addiction shall not prescribe for or furnish an addict more than any one of the following amounts of narcotics during each of the first fifteen days of such treatment: (a) Eight grains of opium. (b) Four grains of morphine.’ Section 11392. ‘After fifteen days of treatment the physician shall not prescribe for or furnish to the addict more than any one of the following amounts of narcotics during each day of such treatment: (a) Four grains of opium. (b) Two grains of morphine.’ Section 11393. ‘At the end of thirty days from the first treatment, the prescribing or furnishing of narcotics shall be discontinued.’ Section 11–394. ‘The physician treating an addict for addiction shall within five days after the first treatment report by registered mail, over his signature, to the State division, stating the name and address of the patient, and the name and quantities of narcotics prescribed. The report shall state the progress of the patient under the treatment. The physician shall in the same manner further report on the fifteenth day of the treatment and on the thirtieth day of the treatment, and thereafter shall make such further reports as are requested in writing by the State division.’ Section 11395. It is to be borne in mind that sections 11390 to 11395 relate to the ‘Treatment of Addicts for Addiction,’ however, they emphasize the hostility of the State to the use of opium and morphine and the necessity for strict observance of kindred regulations. The violation of the statutes against prescribing and administering narcotics involves moral turpitude (Business and Professions Code, sec. 2383) and is unprofessional conduct. Brainard v. State Board of Medical Examiners, 68 Cal.App.2d 591, 593, 157 P.2d 7.

Under the statutes petitioner as a practicing physician was permitted to prescribe narcotics as a part of his treatment for a disease, ailment, injury or infirmity other than addiction, if he in good faith believed that such disease or ailment required the application of a narcotic (section 11330); or he might prescribe its use in an emergency treatment of a patient whose addiction was complicated ‘by the presence of an incurable disease, serious accident or injury, or the infirmities attendant upon age.’ Business and Professions Code, sec. 2391. However, the burden of proving that all or one of such conditions existed at the time of his treatments of the three addicts was upon petitioner. Code Civ.Proc., sec. 1981; People v. Moronati, 70 Cal.App. 17, 21, 232 P. 991; People v. Agnew, 16 Cal.2d 655, 663, 107 P.2d 601. Such doctrine derives from the ‘rule of convenience’ and is ubiquitously applied. People v. Osaki, 209 Cal. 169, 191, 286 P. 1025, 1035. The significance of this rule will be emphasized as the reasons for the judgment are further explored.

The direct evidence consists of (1) the testimony of Inspector Creighton who had found petitioner most cooperative; (2) the testimony of petitioner's mother who had observed all three of the addicts and had seen that they were suffering on the occasions of their consulting petitioner; (3) the testimony of petitioner who had examined the three patients. From his examination he found Mrs. S suffering severe pain in her side, head, face and abdomen. He gave her narcotics to control her pain; he was treating her for tic douloureux and trifacial neuralgia which after becoming chronic are difficult to control. She claimed to have had gall bladder trouble. He did not know that she was a veteran user of narcotics. She had a frequent muscular tic or spasm on the entire left side of the face. She supplied him with the names and addresses of her former doctors with whom petitioner communicated. He received a reply from a dentist in Cincinnati who had given her ‘a left infra orbital injection for tic in 1928, which she says was successful for six years. She now asks that I give you this information in the hope you will make another injection for her. She was then and is still * * * an addict.’ After his application to Las Encinas in October he repeated his request in early November, with the same result. But he continued to prescribe the morphine sulphate for her until the ides of December.

He found Mr. G. to be suffering from an acute asthmatic attack. This addict's spells of choking would recur regularly. Petitioner first administered adrenalin without effect. Then he tried Vitamin C and morphine which ‘seemed to control his symptoms.’ He repeated the dose every two or three days. During 31 days he prescribed 180 doses of one-half grain each of morphine sulphate. He testified that he found that H had spinal arthritis; that he prescribed the narcotic ‘because of extreme pain and suffering’; that he did not consider H an addict although he was suspicious; that he believed all three of the named patients were pathological.

The foregoing is substantially the total of the evidence of the first class, and the only direct evidence that sheds any light upon the honest intentions and good faith of petitioner in his contention that his prescriptions of the morphine were to alleviate the pain of his patients suffering from incurable diseases. Evidently because it was the only direct evidence on the point that petitioner prescribed the morphine in good faith as a part of his professional service, the learned trial judge annulled the board's order cancelling petitioner's license.

But there was other proof upon that issue, to wit, the circumstantial evidence from which incriminating inferences may be drawn: (1) The excessively large number of doses given to S and G knowing that they were addicts. Although he knew that Mrs. S should be hospitalized for her addiction and attempted to gain her admittance into Las Encinas he continued to prescribe the generous dosage to her for six weeks after that institution had rejected her and notwithstanding her refusal to enter the county hospital. Such prescriptions were clear violations of section 11391, supra, from which an inference of guilt might be fairly deduced and an adverse finding made under section 2391, Business and Professions Code. (2) He prescribed 180 doses for Mr. G for his asthma knowing that G was an addict and that morphine had no curative qualities. See section 11393, supra. He told a special agent that the only reason G had to have morphine was his addiction; that he ‘did not know how many prescriptions' he wrote for him. Nor did he keep a record or history of his case. ‘I was sure he was an addict when he first came to me, but I wrote prescriptions for him for narcotics.’ After having already prescribed 100 doses for G, on November 13 he reported him as an addict to the division of narcotic enforcement giving his name, age, address, and dose: one and a half grains of morphine sulphate daily. (3) A similar report was made on November 15 with reference to Mrs. S after having already prescribed 180 doses for her subsequent to October 13. His failure to keep records and to make reports on both of these parties constituted violations of section 11395 and sufficed to justify the inferences of violations of that statute. (4) He prescribed twice for H, suspicious that he was an addict, before dismissing him. (5) He delayed reporting his prescriptions to the division of narcotic enforcement ‘for equite some time.’ (6) As further light upon his intent, petitioner prescribed for a Mrs. Peabody, not mentioned in either count of the accusation, after being apprised by the division of her addiction. She claimed to suffer from arthritis, gall stones and spinal arthritis. He gave her ‘20 dilaudid, one half grains.’ (7) In order to have a supply for his office he wrote prescriptions for morphine for his mother who served as his nurse.

The board was not only entitled, but was required, to consider such circumstances in determining whether petitioner acted in good faith and honestly believed that each of the addicts in question was suffering from incurable disease as well as from addiction. While the testimony of petitioner was direct and although he was the only person who could testify as to the thoughts he entertained, yet the circumstances particularized by him as well as those given by Doctors Moulton and Alden and by the special agents of the board, and his persistency in prescribing morphine for addicts when it could serve no purpose save that of gratifying appetites for the narcotic—these circumstances justify the inference of unprofessional conduct on the part of petitioner. And if in the minds of the members of the board such inferences outweighed the direct testimony of petitioner, the board was acting within its lawful discretion in suspending his license.

It is elemental that the findings of a jury will not be upset by a reviewing court if there is any substantial evidence to support them. With what greater reason should the findings of an experienced administrative body be allowed to stand, especially when made after a full and formal hearing upon matters ‘involving technical and scientific evidence.’ Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 86, 87 P.2d 848, 854; McDonough v. Goodcell, 13 Cal.2d 741, 746, 91 P.2d 1035, 123 A.L.R. 1205; Whitten v. California State Board of Optometry, 8 Cal.2d 444, 446, 65 P.2d 1296, 115 A.L.R. 1. The board members knew as a scientific fact that the diseases claimed by the addicts were not incurable and that morphine has no therapeutic value. Also, as experienced physicians they knew that no emergency treatment was involved. ‘Emergency’ connotes a sudden or unexpected situation demanding immediate action. (Oxford English Dictionary.) There was nothing sudden about the condition of any addict involved. They were all chronic users of narcotics. Petitioner's claim of good faith has slender support in view of his repeated prescriptions to S and G without pretending to examine them and without promptly reporting his acts as required by statute. People v. Kinsley, 118 Cal.App. 593, 601, 5 P.2d 938. If he did not act in good faith in prescribing the drug he violated the law (ibid), and the board was constituted to determine that very question.

The determination by the learned trial judge that the board's finding, to wit, that the ministrations and prescriptions by petitioner were not emergency treatments, is not supported by the weight of the evidence received by the board and was an unjustified invasion by the court of the province of that administrative tribunal. There was substantial evidence to support the board's finding and its judgment should not have been set aside.

Petitioner assigns as error in case 16027 the trial court's order disallowing the item of $117 paid to the board's phonographic reporter for the transcript of the disciplinary proceeding. In view of our decision in cause 15993 that the judgment of the board should be upheld in suspending petitioner, it follows that he is not entitled to recover any costs incurred in the purchase of the transcript of the board's proceedings.

The judgment in cause 15993 is reversed with instructions to enter judgment denying the peremptory writ of mandate. The order in cause 16027 retaxing costs at $31.60 is affirmed.

I concur in the order reversing the judgment of the trial court in case No. 15993 for the sole reason that petitioner failed to apply to the trial court for a judicial review within thirty days after the medical board could have made an order for reconsideration of his case. (Sec.11523, Government Code.) Also I concur in affirming the order disallowing petitioner's costs in the sum of $117.

Petitioner, by requesting the phonographic reporter to prepare a transcript of the record, did not meet the requirements of section 11523 of the Government Code which extends the time for judicial review when petitioner has requested the agency to prepare and deliver to him all or part of the record. The phonographic reporter is not the agency or any part thereof. Section 11523 of the Government Code reads in part as follows: ‘Where petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record the time within which a petition may be filed shall be extended until five days after its delivery to him.’

Since the board's decision was made August 16, 1946, the time for seeking judicial review expired thirty days later on September 15, 1946, in view of the fact that petitioner had not acquired additional time by requesting the agency to prepare for him all or any part of the record.

MOORE, Presiding Justice.

WILSON, J., concurs.

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