MAGIT v. BOARD OF MEDICAL EXAMINERS OF STATE OF CALIFORNIA

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

Jack MAGIT, Petitioner and Respondent, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF CALIFORNIA, Defendant and Appellant. *

Civ. 24981.

Decided: July 18, 1961

Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Warren H. Deering, Deputy Atty. Gen., for appellant. Mitchell, Silberberg & Knupp, Arthur Groman and Allen Kaufman, Los Angeles, for respondent.

The Board of Medical Examiners revoked petitioner's license to practice medicine and surgery in the State of California. Petitioner secured a judgment which granted a peremptory writ of mandate annulling the Board's order. This is an appeal by the Board from that judgment.

An accusation was filed with the Board charging petitioner with two counts1 of unprofessional conduct under section 23922 of the Business and Professions Code, together with sections 21413 and 23784 of the same code. (All code references will be to the Business and Professions Code unless otherwise stated.) Section 2392 states that it is unprofessional conduct for a licensed physician and surgeon (hereafter called physician) to employ, aid or abet an unlicensed person in the practice of any system or mode of treating the sick or afflicted. Section 2141 makes it a misdemeanor for one to practice or hold himself out as practicing medicine without holding a certificate, and section 2378 deems it unprofessional conduct for a licensed physician to assist in or abet the violation or to conspire to violate section 2141.

The charges grow out of these facts: Petitioner is a licensed physician, and is a director of the corporation which owns and operates a hospital in Beverly Hills. He is also chief anesthesiologist at the hospital. One of his functions has been the recruiting of assistants for the hospital's department of anesthesiology. The hospital is not approved for the training of interns within the exemption of section 2147.5. During the period between March of 1956 and July of 1958 petitioner employed three persons unlicensed in any of the healing arts—Francisco Rios, Luciano Celori and Ahmet Ozbey—to serve as anesthetists. These three persons were doctors of medicine with specialized training in anesthesia, and they were all highly competent anesthetists.5 During this period these three persons administered spinal,6 epidural7 and general8 anesthetics to patients in the hospital, with the knowledge and authorization of petitioner. The administration of a spinal or epidural anesthetic involves the insertion of a hypodermic needle between the bones of the spine. When the needle enters the spinal canal the anesthetic is considered ‘spinal’. If it is merely inserted into the space between the spinal canal and the bones of the spinal column it is considered ‘epidural’. A 2 1/2 inch needle is used. It is inserted about 1 1/2 inches in the administration of an epidural anesthetic and less than a centimeter further for a spinal. To determine whether the needle is in the spinal canal or the epidural space it is necessary to observe the end of the needle which is opposite the end inserted (the syringe is not attached at the time of insertion). If there is a large onrush of spinal fluid out of the needle then the needle is in the spinal canal, and it then becomes necessary either to give a spinal or remove the needle and give a general anesthetic. An epidural can then no longer be given safely. Whether or not the needle is in the spinal canal is important in determining how much anesthetic to use. Too great an amount may result in paralysis. With respect to the spinal, it is necessary that the needle not be inserted too high in the spinal column, where the spinal cord is still present. See Seneris v. Haas, 45 Cal.2d 811, 816 et seq., 291 P.2d 915, 53 A.L.R.2d 124.

Based upon these facts, petitioner is charged with employing, aiding, assisting or abetting the three men in the practice of medicine. It is not disputed that Rios, Ozbey and Celori administered the anesthetics as charged,9 nor is it disputed that petitioner aided and abetted them in and employed them to administer spinal, epidural and general anesthetics.10 Although counsel have argued a number of subsidiary questions, the basic issue is whether the acts complained of, when performed by persons totally unlicensed in the healing arts, constitute a violation of sections 2141 and 2392.

It will be noted that sections 2141 and 2392 do not use the phrase ‘practice of medicine’.11 The act prohibited is the practice of any mode of treating the sick or afflicted and the diagnosing or treating or operating for or the prescribing for any ailment by an unlicensed person. There is no substantial question with respect to any of these except whether the acts in question constitute ‘treatment’ within the meaning of the statute.12 We believe that the administration of anesthetics is so much a part of the surgical procedure, so intimately connected with and linked to the operation of which it is an integral portion that it must be considered as ‘treatment’. We are not alone in this view. In Order of United Commercial Travelers of America v. Shane, 8 Cir., 64 F.2d 55, 59, it was stated: ‘We think the administration of the drug [an anesthetic] must be placed in the category of medical or surgical treatment.’ State v. Catellier, 63 Wyo. 123, 179 P.2d 203, involved a manslaughter prosecution of a chiropodist. He had given sodium pentothal, a general anesthetic administered by needle, to induce unconsciousness in order to set a shoulder. The opinion stated: ‘We think we can take judicial notice of the fact that the administration of a general anesthetic may entail danger to a patient,’ and ‘[T]he cases as a whole indicate that the administration [of an anesthetic] is a part of the practice of medicine, and we think that is the general understanding.’ Also: ‘The administration of the anesthetic in connection with the setting of the shoulder was, we think, part of the remedy applied by him.’ (Emphasis added.) 179 P.2d at page 218. In Fuller v. Board of Medical Examiners, 14 Cal.App.2d 734, 741, 59 P.2d 171, 174 it was stated: ‘The right to administer anesthetics which produce local or general insensibility to pain, or drugs which may produce total or semi-unconsciousness, or otherwise affect the nervous system, should be withheld not only from all persons who are not highly skilled in the knowledge of and use of said drugs, but also from persons who are not of good moral character.’ See also Painless Parker v. Board of Dental Exam., 216 Cal. 285, 295, 14 P.2d 67. In People v. Nunn, 65 Cal.App.2d 188, 150 P.2d 476, an osteopath was prosecuted for conspiracy to violate the Medical Practice Act by working with and aiding a chiropractor to perform acts which only a licensed physician may do. The conviction was affirmed. Although the chiropractor performed many prohibited acts in addition to the administration of anesthetics, the opinion lays some stress on that point. At page 190 of the opinion in 65 Cal.App.2d, at page 478 of 150 P.2d, it was said: ‘Nunn [the osteopath] witnessed Navarre's [the chiropractor] application of ethyl chloride; observed his injections of atropine preliminary to the operations * * * and knew the Navarre had no license to administer the anesthetic, apply the hypodermic needle or give any drug that comes within the materia medica.’

‘Treatment’ has been defined as ‘the application of some supposed curative agency to the person seeking relief.’ People v. Ratledge, 172 Cal. 401, 156 P. 455, 456. In an apparent literal interpretation of this definition, there is some authority for the proposition that since an anesthetic itself does not purport to cure, it is merely preparatory and not treatment. Frank v. South, 175 Ky. 416, 194 S.W. 375, 380; Beile v. Travelers' Protective Ass'n, 155 Mo.App. 629, 135 S.W. 497, 502. However, the balance of authority and the weight of reason indicate a contrary conclusion. Of course not all procedures which precede the application of the curative agency need be performed by a licensed practitioner. But those which are sufficiently dangerous and difficult so as to require the judgment, skill, and moral character of which only the license to practice the healing arts can give us a reasonable assurance must be considered ‘treatment’ within the meaning of sections 2392 and 2141. At least the administration of spinal and epidural anesthetics fall within this class. Aside from the case authority cited above, there is medical authority which also is persuasive of this conclusion. In his treatise on spinal anesthesia, Dr. Dillon states: ‘When spinal anesthesia is administered without full appreciation of the consequence that may follow, the results may be prejudicial to both the patient's welfare and to his life. * * * It is absolutely essential that any physician undertaking the administration of spinal anesthesia be thoroughly familiar with the anatomy of the spinal column and spinal cord * * *. It is equally essential that he be familiar with the alterations that occur * * * following interruption of the sympathetic nerve supply * * * and know how to cope with these alterations. * * * Spinal anesthesia should not be attempted by anyone who is not completely competent in the management of all types of general anesthetic techniques.'13 On epidural anesthesia, Dr. Dillon has this to say: ‘One of the reasons why the epidural technic of anesthesia has not been popular with anesthesiologists * * * is the increased risk of inadvertently producing massive spinal anesthesia due to penetration of the dura by the needle during the injection of the anesthetic solution.'14 See also, Seneris v. Haas, supra, for testimony relating to the complications of spinal anesthesia. Furthermore, when the ‘treatment’ involved requires the penetration of tissue (as by the insertion of a needle), a physician's and surgeon's certificate is required, not merely a license to practice one of the other healing arts. Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 217 P.2d 630, 18 A.L.R.2d 593—drugless practitioner gave transfusion in treatment of syphilis; Newhouse v. Board of Osteopathic Examiners, 159 Cal.App.2d 728, 324 P.2d 687—chiropractor used sutures to bind a laceration; People v. Mangiagli, 97 Cal.App.2d Supp. 935, 218 P.2d 1025—chiropractor gave a transfusion and injected ‘liver extract’ by needle; King v. Board of Medical Examiners, 65 Cal.App.2d 644, 151 P.2d 282, which involved the taking of a blood sample from an ear lobe by a drugless practitioner, was distinguished on the ground that the blood was not taken in the treatment of a disease; Brown v. Guy, 144 Cal.App.2d 659, 666, 301 P.2d 413—chiropractor injected ozone in the treatment of a disease; In re Hartman, 10 Cal.App.2d 213, 51 P.2d 1104—chiropractor used hypodermic; Harris v. State, 229 Miss. 755, 92 So.2d 217—chiropractor used hypodermic. See also, 21 Ops.Cal.Atty.Gen. 230, where the opinion is rendered that it is a violation of section 2141 for one not a licensed physician to perform a spinal puncture by which fluid is withdrawn from the spinal canal.15

Petitioner's principal contention is founded upon the holding in Chalmers-Francis v. Nelson, 6 Cal.2d 402, 57 P.2d 1312. In that case two physicians brought an action to enjoin a licensed and registered nurse employed by the defendant hospital from administering general anesthetics in connection with operations at the hospital, on the ground that such activities constitute the illegal practice of medicine under the Medical Practice Act. In holding for defendants, the opinion stated 6 Cal.2d at page 404, 57 P.2d at page 1313: ‘The findings, which are amply supported by the testimony in this case, show conclusively that everything which was done by the nurse, Dagmar A. Nelson, in the present instance, and by nurses generally, in the administration of anesthetics, was and is done under the immediate direction and supervision of the operating surgeon and his assistants. Such method seems to be the uniform practice in operating rooms. There was much testimony as to the recognized practice of permitting nurses to administer anesthetics and hypodermics. One of the plaintiffs' witnesses testified to what seems to be the established and uniformly accepted practice and procedure followed by surgeons and nurses, and that is that it is not diagnosing nor prescribing by the nurses within the meaning of the Medical Practice Act. We are led further to accept this practice and procedure as established when we consider the evidence of the many surgeons who supported the contention of the defendant nurse, and whose qualifications to testify concerning the practice of medicine in this community and elsewhere were established beyond dispute. That such practice is in accord with the generally accepted rule is borne out by the decided cases. [citations.] * * * Aside from the proposition that nurses in the surgery during the preparation for and progress of an operation are not diagnosing or prescribing within the meaning of the Medical Practice Act, it is the legally established rule that they are but carrying out the orders of the physicians to whose authority they are subject. The surgeon has the power, and therefore the duty, to direct the nurse and her actions during the operation. [Citations.]’

Petitioner seeks too much from this decision. He argues that since a nurse may administer anesthetics (general) under the Chalmers-Francis case, and a nurse may not practice medicine (sections 2726 and 2761), ‘a fortiori, the administration of anesthetics does not constitute the practice of medicine.’ But a reading of the portion of the Chalmers-Francis opinion cited above (which portion contains substantially all that was said on the subject) reveals two clear concepts which stand as the raison d'etre underlying the decision: (1) The nurse's services were rendered under ‘the immediate and direct supervision of the operating surgeon’ and (2) this was the ‘established and uniformly accepted practice.’ See also, Frank v. South, supra; Cook v. Coleman, 90 W.Va. 748, 111 S.E. 750. In analyzing the Chalmers-Francis, Frank and Cook cases just cited, the Iowa Attorney General rendered the opinion that, ‘While these cases merely hold that administration of anesthetics by a licensed nurse is not the unlicensed practice of medicine where done under the direction and supervision of a licensed practitioner of medicine * * *, they are important in that they seem to incidentally also recognize the principle that the practice of nursing and the practice of medicine occupy overlapping fields of activity, and that while many acts ordinarily performed by a nurse constitute the practice of medicine in an abstract sense, these same acts become the proper function of a nurse when performed under the supervision and direction of a physician.’ Iowa, Report of Attorney General, 1946 at p. 191. The validity of this analysis will be more apparent if we examine the function of supervision.16

The practice of medicine has been said to consist of three things. First the physician must adjudge the ‘nature, character, and symptoms of the disease;’ second, he must determine the proper remedy for it; third, he must apply a remedy to the disease. Frank v. South, supra, 194 S.W. at pages 377–378; Underwood v. Scott, 43 Kan. 714, 23 P. 942. When the remedy consists of a physical act done upon the body of the patient, the training of the physician is utilized in two respects: He exercises judgment and mechanical skill. Supervision by a physician has two theoretical functions: To relieve the actor of the necessity of exercising judgment; and to ensure the exercise of skill to the extent that the physical motion of the actor may be controlled. Chalmers-Francis v. Nelson, supra, 6 Cal.2d at pages 404–405, 57 P.2d at page 1313; Frank v. South, supra, 194 S.W. at page 378. It follows that when the activity is such that supervision can afford us a minimum assurance of proper judgment and skill, the activity should not be considered the practice of medicine when supervised. But it is equally clear that when the activity is so delicate that supervision cannot adequately relieve the actor of the responsibility of exercising judgment and skill, and when it is attended by a substantial degree of physical danger, the activity ought to be considered to be ‘treatment’ within the California statutes and prohibited to those not licensed to treat the sick or afflicted. We think the activities of the three men herein fall within this latter class. The cases which have held that it is not improper for a licensed nurse to administer anesthetics (Chalmers-Francis v. Nelson, supra—general inhalation; Frank v. South, supra—not clear from opinion but presumably general; Cook v. Coleman, supra—either; In re Carpenter's Estate, 196 Mich. 561, 162 N.W. 963—dictum) may be rationalized on the ground that although some small degree of judgment may be left to the actor because it is not possible to supervise every minute aspect of the activity, the nurse's licensed status gives us at least a minimum assurance of the training and moral character required for that particular act (sections 2736(1), 2761 and 2762). But a person completely unlicensed in the healing arts, with training and character which have been subjected to the scrutiny of his employer only, should not be permitted to perform such delicate and dangerous functions as the administration of spinal and epidural anesthetics.17 Such a rule may deprive us of the services of some very competent people, but the risk involved is too great.

With respect to custom (the second cornerstone of the Chalmers-Francis decision), the court found herein that ‘at all times mentioned in the accusation herein, and prior thereto, in the State of California and in other parts of the United States, it was a common and recognized practice for licensed physicians to authorize and permit persons not licensed as physicians to administer anesthetics.’ It would appear that custom may be taken into account in determining whether a particular act may be considered treatment within the meaning of the statute. Chalmers-Francis v. Nelson, supra; Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 251, 217 P.2d 630, 18 A.L.R.2d 593. But the above finding is not sufficiently explicit in two respects. First, it finds it customary to use ‘persons not licensed as physicians.’ Nurses are persons ‘not licensed as physicians' and to this extent the finding is probably correct. Secondly, it finds it customary for these people to administer ‘anesthetics'. According to the Chalmers-Francis case this is true with respect to general anesthetics. But in the absence of a finding that persons totally unlicensed in the healing arts may customarily administer not only general but spinal and epidural anesthetics, petitioner cannot avail himself of the defense of custom. Nor can such a finding be implied, because it would not be supported by the evidence.18 For these reasons, the essential findings of the Board being supported by the evidence,19 and its decision (that the code sections were violated) being supported by these findings, its determination in this regard should not have been upset by the trial court.

Petitioner argues that ‘a holding that the administration of anesthetics constitutes the practice of medicine would violate due process,’ in view of the fact that ‘such conduct is not considered the practice of medicine when measured by common understanding and practices.’ Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S.Ct. 703, 708, 95 L.Ed. 886, is cited for the proposition that the test of constitutionality is ‘whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ Our attention is then called to the trial court's finding that it is the recognized practice for licensed physicians to authorize and permit persons not licensed as physicians to administer anesthetics. As already pointed out, this approach begs the question. There is no substantial evidence indicating a common practice whereby persons totally unlicensed in the healing arts are permitted to administer spinal and epidural anesthetics.20 Further, the nature of ‘treatment’ has been discussed over and over again in our judicial decisions. And in Howson v. Board of Medical Examiners, 128 Cal.App. 35, 37, 16 P.2d 693, 694, the opinion answers the contention that the predecessor of section 2392 was unconstitutional by stating that ‘every person of common knowledge knows what ‘treating the sick or afflicted’ means.' See also, Newhouse v. Bd. of Osteopathic Examiners, supra, 159 Cal.App.2d at pages 734–735, 324 P.2d at pages 691–692. McPheeters v. Board of Medical Examiners, 103 Cal.App. 297, 284 P. 938, 939, cited by petitioner, dealt with the phrase ‘willful betrayal of professional secrets.’ It is not inconsistent with the result herein. The same is true of McMurtry v. State Board of Medical Examiners, 180 Cal.App.2d 760, 4 Cal.Rptr. 910, wherein the word ‘habitual’ was construed to mean ‘frequent’, and was found to be too vague, and also Drucker v. State Bd. of Med. Examiners, 143 Cal.App.2d 702, 300 P.2d 197 and Randall v. Board of Medical Examiners, 110 Cal.App. 61, 293 P. 790. Nor is petitioner aided by the numerous quotations cited from medical texts. Not one suggests that totally unlicensed persons may administer spinal and epidural anesthetics.

Petitioner argues that the Board's findings do not support its decision. But the findings that Rios, Ozbey and Celori were not licensed, that petitioner knew it, and that they administered general, spinal and epidural anesthetics in the course of operative procedures support the decision with respect to the employing of, aiding and abetting unlicensed persons in the treatment of the sick or afflicted. It is also contended that the Board's findings were not supported by the evidence. But the trial court also found in accordance with the essential findings just mentioned. It is also claimed that the Board's failure to find in accordance with paragraph XIII of the accusation, to the effect that the three men diagnosed and treated the sick and afflicted with petitioner's knowledge, authorization and permission, invalidates its decision. This allegation, phrased in the language of the statutes, would amount to a conclusion of law, and it was not necessary to so find in light of the finding that they administered spinal and epidural anesthetics with petitioner's knowledge, authorization and permission. The Board did conclude that section 2392, together with sections 2141 and 2378, was violated.

Petitioner was also charged with having introduced the three unlicensed men as doctors of medicine licensed to practice in the State of California. This charge was apparently made on the theory that such acts constitute a violation of sections 2141 and 2378. Section 2141 makes it unlawful for one to hold himself out as practicing any system or mode of treating the sick or afflicted without a license, and section 2378 makes it unprofessional conduct to aid or abet the violation or to conspire to violate section 2141. The Board found that petitioner introduced them as doctors of medicine, omitting the words of the accusation, ‘licensed to practice in the State of California.’ The trial court merely negatived the language of the accusation, finding that petitioner did not introduce them as doctors of medicine licensed to practice in the State of California. The only evidence on the subject sustains the trial court's finding. Dr. Frieden, when asked whether he recalled how Celori was introduced to him by petitioner, answered, ‘Specifically? I can't recall the exact words, except that he introduced me to Dr. Celori, his associate, and he was going to give the anesthetic.’ Other testimony reveals that he addressed them as Doctor, and referred to them as such; all three were introduced in the same manner, ‘Dr. Celori, or Dr. Ozbey.’ Nowhere is it disputed by the Board that these three men, graduates of medical schools, were entitled to be referred to orally as ‘Doctor.’ Section 2142 prohibits the use of the word doctor and its abbreviation only in ‘any sign, business card, letterhead or in an advertisement.’ Regardless, petitioner was not charged with a violation of section 2142. See Cooper v. State Bd. of Medical Examiners, supra, 35 Cal.2d at page 248, 217 P.2d at page 634. Thus it is clear that the three men were not introduced as doctors of medicine licensed to practice in California as charged, but only as ‘Dr. Celori’, etc., an appellation to which we must assume they were entitled.

But it was also found by the Board that petitioner ‘further represented to other members of the staff, employees, patients and the public as a whole that Rios, Celori and Ozbey were doctors of medicine duly licensed to practice medicine and surgery in the State of California by permitting [them] to sign operative records, posting the names of said persons on schedules of operations to be performed and as being doctors available for emergency calls, and further permitting [them] to write preoperative orders for the preparation of the patients for surgery.’ It is our opinion that the allegation charging petitioner with introducing the three of them as licensed physicians did not afford him with notice of these last mentioned matters sufficient to satisfy the requirements of due process, and a reading of the record does not disclose that this defect was remedied in the course of the proceedings. ‘In cases before a medical board * * * [t]he essential requirement is that the charge shall be described with reasonable certainty in order to enable the defendant to prepare his defense * * *.’ Board of Medical Examiners v. Buck, 192 Or. 66, 93, 232 P.2d 791, 802. In criminal proceedings, to which this proceeding bears a close analogy, ‘a material variance between the indictment and the proof as to the manner, means, or instrumentalities by which the offense was committed is fatal.’ Emphasis added. Wharton, Criminal Law and Procedure (1957) §§ 2057, 2060. The allegation herein was defective in that its high degree of specificity failed to give petitioner adequate notice so that he might prepare his defense with respect to the other matters found. Almost squarely in point is N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682. The complaint therein charged the company with a violation of section 8(3) of the Labor Relations Act, 29 U.S.C.A. § 158(3) in that it had improperly discharged certain employees. On appeal, it was contended by the Board that although the evidence did not support the charge, a finding that the company offered re-employment conditioned upon membership in a specific union was also a violation of section 8(3). The contention was disposed of summarily by the opinion with the statement that the finding ‘is irrelevant to any issue in the cause.’ 306 U.S. at page 346, 59 S.Ct. at page 515. See also, People v. Schuster, 122 Cal.App.Supp. 790, 10 P.2d 204; People v. Wolin, 119 Cal.App.Supp. 770, 2 P.2d 60; People v. Cook, 148 Cal. 334, 340, 83 P. 43; People v. Fagan, 98 Cal. 230, 33 P. 60. Since the Board chose to allege a specific violation, it was incumbent upon it to prove that violation, and it failed to do so.

The order of the Board must then rest on the violations relating to the administration of anesthetics by Rios, Celori and Ozbey. However, the Board concluded that petitioner's violation of section 2392, prohibiting the employing of, aiding or abetting an unlicensed person in the treatment of the sick or afflicted, was sufficient to warrant the revocation of his license. Although the penalty seems unduly harsh in light of the novelty of the exact fact situation involved, that determination is the exclusive province of the Board. Black v. State Personnel Board, 136 Cal.App.2d 904, 289 P.2d 863; Newman v. Board of Civil Service Com'rs, 140 Cal.App.2d 907, 296 P.2d 41; Thayer v. Board of Osteopathic Examiners, 157 Cal.App.2d 4, 320 P.2d 28.

Petitioner argues, however, that the trial court's finding that he acted in good faith21 constitutes an absolute defense to the violation. He cites Sautter v. Contractors' State License Board, 124 Cal.App.2d 149, 268 P.2d 139; State Bar of California v. Rollinson, 213 Cal. 36, 1 P.2d 428; and In re Jung, 13 Cal.2d 199, 88 P.2d 679. All three cases involved discipline for the making of false statements in the application for a license. In all three cases it was held that the discipline was not warranted because of the good faith of the applicants in that they did not know that their statements were false at the time they were made. The very gist of the offense was found lacking. In the case at bar petitioner knew that the three men were unlicensed when he hired them to administer anesthesia. What he did not know, or claims not to have known, is that the activities for which these men were employed could not lawfully be performed by them, and this does not constitute a defense. In People v. Aresen, 91 Cal.App.2d 26, 35, 204 P.2d 389, 957, defendant was convicted of selling a security without a permit. His defense was that he acted under advice of counsel and did not know that the instrument he was selling constituted a security. The defense was properly rejected.

Also cited by petitioner is Arden v. State Bar, 52 Cal.2d 310, 319, 341 P.2d 6. The question there involved was whether an attorney might lawfully represent both parties to an adoption, even with the consent of both. The question was stated to be a highly debatable one, for which prominent secondary authority could be found on both sides. It was said to be improper to discipline an attorney for violation of a claimed principle that is so highly debatable. But in the case at bar we can find no authority whatever for the proposition that totally unlicensed persons may administer the anesthetics with which we are concerned, and, as demonstrated above, there is substantial authority indicating a contrary rule.

For these reasons there was no abuse of discretion on the part of the Board and its decision and order must be upheld. Garfield v. Board of Medical Examiners, 99 Cal.App.2d 219, 221 P.2d 705; Newhouse v. Board of Osteopathic Examiners, supra; Cooper v. Board of Medical Examiners, supra.

The judgment is reversed.

FOOTNOTES

1.  The counts were not separately stated as such, but were set forth in separate paragraphs in the accusation. No objection was raised.

FN2. Section 2392 of the Business and Professions Code reads as follows: ‘The employing, directly or indirectly, of any suspended or unlicensed practitioner in the practice of any system or mode of treating the sick or afflicted or the aiding or abetting of any unlicensed person to practice any system or mode of treating the sick or afflicted constitutes unprofessional conduct within the meaning of this chapter.’.  FN2. Section 2392 of the Business and Professions Code reads as follows: ‘The employing, directly or indirectly, of any suspended or unlicensed practitioner in the practice of any system or mode of treating the sick or afflicted or the aiding or abetting of any unlicensed person to practice any system or mode of treating the sick or afflicted constitutes unprofessional conduct within the meaning of this chapter.’

3.  Section 2141 of the B. & P. Code reads as follows: ‘Any person, who practices or attempts to practice, or who advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this State, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition of any person, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, is guilty of a misdemeanor.’

4.  Section 2378 of the B. & P. Code reads as follows: ‘The violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision or term of this chapter constitutes unprofessional conduct within the meaning of this chapter.’

5.  The trial court so found. Supporting this finding is testimony of one physician that he thought Osbey and Celori were very good anesthetists, and that he liked them as well as any he had ever had; the investigator for the Board of Medical Examiners testified that Celori graduated from a medical school in Italy, had been in the United States since 1952, had served one year as an intern in New York, and that he had studied two years of anesthesia in Philadelphia; he said that Ozbey was apparently a graduate of a school of medicine in Istanbul, having interned for a year and a half at The Children's Hospital in San Francisco, and six months at Hollywood Presbyterian, and that he had studied anesthesiology at Mercy Hospital in Ohio; another physician testified that Celori was an excellent anesthetist and became very proficient in it, and still another physician testified that Rios was an excellent anesthetist.

6.  Spinal anesthesia, characterized by failure of nervous conduction in the spinal cord, is produced by injection of an anesthetic underneath the dura matter of the cord. Webster's New International Dictionary, 2d Ed.

7.  ‘The term epidural means situated upon or outside the dura matter. Epidural anesthesia, then, means that the local anesthetic agent is deposited in the epidural space and acts on the nerve fibers as they pass beyond their dural investments.’ Hale, ‘Anesthesiology’ (1954), p. 478.

8.  General anesthesia, as from inhalation of ether, affects the entire body, causing loss of consciousness. Webster's New International Dictionary, 2d Ed.

9.  Petitioner quarrels with the form of the Board's finding on this point, suggesting that it is deficient in not pointing out which anesthetic was administered to which patient, and in that it contains first names and dates not in evidence. The finding is adequate in that it determines the crucial question whether these anesthetics were administered by the three men. Petitioner does not dispute the trial court's finding on this point.

10.  In arguing that the Board's findings do not support its decision and order, petitioner points out that findings IV and VIII of the Board, to the effect that the three anesthetists were unlicensed in any of the healing arts and that petitioner knew it, are inadequate in themselves in that there is no mention of aiding or abetting. But it was found that petitioner employed the three men ‘to assist him in the practice of medicine’ (a legal conclusion, but it is sufficient on the point of employment), and it was also found that these men administered anesthetics with the knowledge, authorization and permission of petitioner. Petitioner impliedly concedes this point when he states in his brief that ‘there was no finding that Dr. Magit aided or abetted any activity by Drs. Rios, Celori, and Ozbey other than in the administration of anesthetics.’ (Emphasis added.) In point are Newhouse v. Board of Osteopathic Examiners, 159 Cal.App.2d 728, 324 P.2d 687 and Garfield v. Board of Medical Examiners, 99 Cal.App.2d 219, 221 P.2d 705. Bley v. Board of Dental Examiners, 120 Cal.App. 426, 7 P.2d 1053, is inapposite. That case merely holds that the sole allegation that A permitted B, an unlicensed person, to have the use of a dental office to practice dentistry, is insufficient to support a conclusion of aiding or abetting. Allegations of knowledge and connection with the building were lacking.

11.  See notes 2 and 3 supra.

12.  It was charged in the accusation before the Board that the three men ‘diagnosed’ with petitioner's knowledge, authorization, and permission. However the Board did not so find, and the trial court found the allegation to be untrue. There is no evidence in the record to support the allegation.

13.  ‘Spinal Anesthesia’ by John B. Dillon, M.D., pp. 3–5 (1958).

14.  Hale, note 7 supra, at p. 482.

15.  Petitioner's counsel informs us that the American College of Surgeons, in its Manual of Hospital Standardization, ‘expressly’ sanctions the administration of anesthetics by persons who are not physicians. But when we read the passage quoted, we find: ‘1. Department. There shall be an organized department on anesthesia under the direct supervision of a competent medical anesthetist. 2. Personnel. An adequate staff of competent assistants, qualified to administer anesthetics, shall be available to carry on the work of the department.’ A reading of the quote makes it clear that there is no express sanction.

16.  With respect to supervision, the Board found merely that petitioner frequently was not present when the anesthetic was given, not that the three men were unsupervised by the attending physician. There is much testimony on the subject but it is not conclusive. Regardless, the trial court found that at no time did Rios, Ozbey or Celori, with petitioner's knowledge, authorization and consent, administer anesthetics in the absence of supervision by licensed physicians. For the purposes of this decision supervision may be assumed.

17.  Dr. Esnard, a witness for petitioner, testified that in his opinion there would be times when one who was attempting to give an epidural ‘might be constrained to know whether he was given an epidural or spinal.’

18.  Dr. Esnard, when asked by counsel for petitioner whether he was ‘aware of the practice in the State of California and elsewhere in the United States of using persons other than licensed M.D.'s to administer anesthetics', could only answer that: (1) At the University hospital in Baltimore a very large percentage of ‘the anesthesia’ was rendered by registered nurses; (2) a similar situation prevailed at Johns Hopkins, across town; (3) an Army nurse anesthetist who had worked for petitioner's hospital secured employment elsewhere in town as an anesthetist; (4) other than the use of nurses he hadn't know of any such practice. When asked whether these people gave spinal and epidural as well as general anesthetics, Dr. Esnard said he could not remember. Dr. Lordan, also a witness for petitioner, testified only that he was under the impression that a graduate nurse can give anesthesia under the law, but that he was not familiar with the custom generally. He also related instances in which registered nurses gave ‘anesthesia’ (unspecified type), including that of Dagmar Nelson, of the Chalmers-Francis case. Petitioner testified as to the administration of ‘anesthesia’ by nurses at two Los Angeles hospitals. He also testified that Rios gave ‘anesthetics' at Queen of Angels. But Rios was an intern there, and Queen of Angels is a hospital qualified to use interns. Petitioner also testified that the unlicensed persons he had seen gave all types of anesthetics, including spinal. But when pressed he could think of no one but Rios and a ‘chap from the East * * * back in '54 or '53’. Even the affidavit signed by doctors submitted by petitioner with his petition for reconsideration by the Board studiously avoids stating that it is common practice for persons totally unlicensed in the healing arts to administer spinal and epidural anesthetics.

19.  See notes 9 and 10, supra. The Board's findings to the effect that petitioner employed the three men ‘to assist [him] in the practice of medicine’ are conclusions of law, but they are not necessary to the result. The trial court found that petitioner did not employ these people to assist him in the practice of medicine. It was also found that they did not ‘treat’ the sick or afflicted. These, too, are obviously conclusions of law inconsistent with the court's other findings. Petitioner argues that if the findings are insufficient, so is the accusation, for that is the language used by it. But petitioner was adequately advised of the charge against him by more specific allegations in the accusation relating to the administration of anesthetics.

20.  See note 18, supra.

21.  Finding XVIII reads as follows: ‘At all times mentioned in the accusation herein, and prior and subsequent thereto, petitioner acted in the utmost good faith in connection with the foregoing matters; prior to his authorizing and permitting the said Francisco Gomez Rios, Luciano Celori and Ahmet Ozbey, or any of them, to administer anesthetics, he received an opinion from the attorney for the said Hospital that the practice of authorizing and permitting persons not licensed as physicians to administer anesthetics was not illegal; petitioner relied thereon in good faith, and was justified in relying thereon; petitioner, at all times mentioned in the accusation herein, and prior and subsequent thereto, believed that the said practice was not illegal, and further believed that the said practice was in conformity with common and recognized practice in the State of California and in other parts of the United States; upon learning for the first time that the said practice was considered illegal by respondent, petitioner immediately terminated the said practice, and he has ever since said time refrained from the said practice.’

FOX, Presiding Justice.

ASHBURN, J., and McMURRAY, J. pro tem., concur.

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