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Court of Appeal, Second District, Division 4, California.

P.S. O'REILLY, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.

Civ. 29096.

Decided: December 02, 1966

Kirtland & Packard, Richard L. Kirtland, Los Angeles, Walter N. Anderson, Manhattan Beach, and Ellis J. Horvitz, Los Angeles, for petitioner and appellant. Thomas C. Lynch, Atty. Gen., and Stephen H. Silver, Deputy Atty. Gen., for defendant and respondent.

Disciplinary proceedings were brought before the Board of Osteopathic Examiners of the State of California against Dr. O'Reilly.   After some of the initial proceedings, the board transferred the proceedings to a hearing officer.   The hearing officer recommended to the board that Dr. O'Reilly be placed on five years probation and be suspended from practice for ninety days.   Pursuant to Business and Professions Code section 2396 Dr. O'Reilly became licensed by the Board of Medical Examiners.   Proceedings were transferred to the Board of Medical Examiners;  that board adopted the decision and penalty of the hearing officer.   Dr. O'Reilly's petition for reconsideration of the decision was denied.

Dr. O'Reilly filed a petition for alternative and peremptory writs of mandate in the superior court pursuant to Code of Civil Procedure section 1094.5.  An alternative writ of mandate was issued, a stay order was granted, and the matter proceeded to trial.   Judgment was entered discharging the alternative writ, petitioner's motion for a new trial was denied, and this appeal followed.

Dr. O'Reilly was charged with employing Daniel Sanchez and M. Ohnishi, unlicensed persons, in the practice of medicine, and in employing William Thomas Duffy, an unlicensed person, in the practice of medicine under Business and Professions Code section 2382 (conviction of a felony or of any offense involving moral turpitude), and section 2392 (employment of or aiding and abetting a suspended or unlicensed practitioner).   The hearing officer found that cause for disciplinary proceedings did exist under Business and Professions Code section 2392 and no cause existed under Business and Professions Code section 2383.   No finding was made that Dr. O'Reilly aided and abetted Mr. Duffy although it was found that he did employ Mr. Duffy, who had diagnosed and treated a Mrs. Gowdy.   It was also found that Dr. O'Reilly employed, aided and abetted Dr. Sanchez and Dr. Ohnishi.

Dr. O'Reilly, a licensed physician and surgeon in the State of California, owned and operated a hospital in Glendale that was registered by the American Osteopathic Association.   Pursuant to an Exchange–Visitor Program established under the United States Information and Educational Exchange Act of 1948 (62 Stat. 6),1 Dr. O'Reilly was designated by the State Department to act as a responsible officer for the Exchange-Visitor Program.   The Department of State described the program as follows:

‘A program to provide (1) training in general and traumatic surgery at the California Emergency Hospital for qualified foreign medical students and (2) a three year course in clinical laboratory for qualified foreign students, to make it possible for such students to obtain training in the United States in their respective fields, in the general interests of international exchange in the arts and sciences.‘

Dr. Ohnishi, a licensed medical doctor in Japan and instructor of surgery in Chiba University, and Dr. Sanchez, a licensed medical doctor in Mexico employed by the Kaiser Foundation facility, were admitted under the Exchange–Visitor Program to receive training under Dr. O'Reilly's supervision ‘in traumatic and reconstructive surgery, with special emphasis on reconstruction of the hand and forearm.‘  Neither of these doctors held any healing arts license in California.   It was stipulated that Dr. O'Reilly complied with the federal regulations and that he was present at all times that Dr. Ohnishi and Dr. Sanchez assisted him.   Dr.Ohnishi gave anesthetics and Dr. Sanchez assisted in surgery on a patient, Mr. Inghram.

Beatrice Gowdy testified that a Mr. Duffy was the only person who treated her at plaintiff's hospital for a knee injury, except for some limited treatment by an unidentified teenager.   The treatment by Mr. Duffy consisted of x-ray, heat treatment, diathermy, sound waves and an ace bandage applied to the knee.   Dr. O'Reilly testified that, when he hired Mr. Duffy as a male nurse, Mr. Duffy agreed in writing not to call himself doctor, not to permit himself to be called doctor, and to never render treatment without first being instructed to do so by the doctor on duty.   Dr. O'Reilly testified that he had no knowledge that the agreement with Duffy was being violated;  Dr. O'Reilly also stated that (contrary to the testimony of Mrs. Gowdy) he saw Mrs. Gowdy several times and treated her knee injury himself.   He stated that Mrs. Gowdy was going to sue the bus company and wanted to build up a record of treatments but that he advised her that her knee did not require prolonged treatment.   Mrs. Gowdy also testified to the following:  Before she saw Mr. Duffy for the first time an employee said to her, “The doctor will be right with you.”   A few minutes later William Duffy entered alone in a white uniform with a stethoscope in his pocket and identified himself as ‘Dr. Duffy.‘   After examining and diagnosing Mrs. Gowdy, Mr. Duffy explained Mrs. Gowdy's condition to her husband over the telephone.   He proceeded to give her heat treatments, and in subsequent visits, he treated her with diathermy and bandages.

Appellant argues that the federal Exchange–Visitor Program, an instrument of United States foreign policy, is in conflict with Business and Professions Code section 2193 subdivision (d);  he asserts that, by virtue of the Supremacy Clause of the United States Constitution, the United States statutes prevail over local law, and therefore a finding that Dr. O'Reilly was guilty of unprofessional conduct as to Drs. Ohnishi and Sanchez was improper.   Appellant also argues that thereis insufficient evidence to support the verdict that Dr. O'Reilly aided and abetted Dr. Ohnishi or Dr. Sanchez in the unlawful practice of medicine;  that, since Dr. O'Reilly acted in good faith in complying with the exchange program, he cannot be guilty of unprofessional conduct;  that the evidence is insufficient to support the finding that Dr. O'Reilly employed William Duffy to practice medicine;  and finally that it was improper for the Board of Medical Examiners to assess a penalty in connection with an accusation initiated by the Board of Osteopathic Examiners.


 The Supremacy Clause of the Constitution, art. VI, clause 2, does not preclude a finding that Dr. O'Reilly was guilty of unprofessional conduct in connection with the charges pertaining to Drs. Ohnishi and Sanchez.   Where there is a conflict between state law and federal law, federal law prevails.  (Free v. Bland (1962) 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d 180;  Public Utilities Comm. of State of Cal. v. United States (1958) 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470.)   However, a federal regulation will not be deemed preemptive of state regulatory power in the absence of persuasive reasons “either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained (citation).”  (Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 141–142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248, 257.)   The Florida Lime case also held that the test of whether state regulation must give way to federal regulation is whether both regulations may be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objects.   Where there is no actual conflict, the court will conclude that Congress intended that state law will be harmoniously applied with federal law.  (Head v. New Mexico Board of Examiners (1963) 374 U.S. 424, 431–432, 83 S.Ct. 1759, 10 L.Ed.2d 983.)   Further, Congress, by its silence, may be indicating a purpose to let state regulation be imposed on federal regulations.  (Retail Clerks, etc. v. Schermerhorn (1963) 375 U.S. 96, 103–104, 84 S.Ct. 219, 11 L.Ed.2d 179.)

The federal program as applied to Dr. O'Reilly's hospital was described by the Department of State as follows:

‘A program to provide (1) training in general and traumatic surgery at the California Emergency Hospital for qualified foreign medical students and (2) a three-year course in clinical laboratory for qualified foreign students, to make it possible for such students to obtain training in the United States in their respective fields, in the general interests of international exchange in the arts and sciences.‘  (Emphasis added.)

There were also federal regulations discussing trainees who were to be admitted for practical training in a specialized field of knowledge and skill in a nonacademic institution.

 We can see no clear conflict between the state regulations and the Exchange-Visitor Program as described by the Department of State.   It is possible for the foreign exchange doctors to receive training while doing acts that fall short of the practice of medicine, or by doing acts that comply with the government regulation.   Appellant states that section 2193 of the Business and Professions Code requires that the applicants from foreign medical schools spend two years here before being eligible for licensing.   Appellant argues that spending a lengthy period in the United States is inconsistent with the purposes of the federal program.   However, since it is possible for foreign doctors to come to the United States and learn skills and acquire knowledge while training and studying in a manner that does not require a license, there is no clear conflict between the state licensing provision and federal law.

Appellant correctly asserts that Dr. Sanchez and Ohnishi are in the category of trainees rather than students.   But, we fail to see how this aids appellant's argument.   Under the federal program, trainees, rather than students, were admitted to obtain practical training ina specialized field of knowledge and skill in a nonacademic institution or agency.   However, ‘practical training‘ does not necessarily limit itself to the actual practice of medicine.   Again, training may be given in many ways short of actual participation in the field for which one is being trained.

Appellant cites in particular the case of Sperry v. State of Florida ex rel. Florida Bar (1963) 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428.   That case held that a state could not enjoin the plaintiff from practicing patient law even though that plaintiff was not licensed in the state, because the state law conflicted with federal law and federal law prevailed.   However, the Sperry case is clearly distinguished from the case at bench.   First, the Commissioner of Patents was expressly authorized by federal law to authorize nonlawyers to practice before the patent office;  in Dr. O'Reilly's case we have no equivalent express authorization permitting nonlicensed doctors to actually practice medicine;  there is merely the authorization to give practical training.   Secondly, in Sperry, there was a long history of practice by nonlawyers before the patent office, and this practice was recognized by the House Committee on Patents.

The case of Leslie Miller, Inc. v. State of Arkansas (1956) 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231, also relied on heavily by appellant, is also distinguishable from the case at bench.   In the Miller case a construction bid for construction of federal facilities was accepted by the United States;  the State of Arkansas convicted the contractor for not obtaining a state license as required by state law.   The court reversed the conviction on the grounds that the state law conflicted with federal law.   The court said (at page 190, 77 S.Ct. at p. 258, 1 L.Ed.2d at p. 233):  “Mere enumeration of the similar grounds for licensing under the state statute and for finding ‘responsibility’ under the federal statute and regulations is sufficient to indicate conflict between this license requirement which Arkansas places on a federal contractor and the action which congress and the Department of Defense have taken to insure the reliability of persons and companies contracting with the Federal Government.”   Thus, this case is distinguishable because both state and federal government explicitly expressed themselves as to determining exact standards for reliable bidders.   In the case at bench, “practical training” remains unspecific.   Finally, if the state law were followed in the Miller case the federal program as to the contractor would clearly be thwarted;  the federal government could not have the contractor to whom it awarded the contract.   In Dr. O'Reilly's case, the federal government did not explicitly indicate that training could not be given in a way that falls short of actual participation;  since practical training could still be given to Drs. Ohnishi and Sanchez, the federal Exchange–Visitor Program is not inhibited by California law.

 A reading of the federal statute indicates that it was designed chiefly to permit persons to enter the United States and remain here, for one or more of the purposes set forth in section 2 thereof, without undue complications under the immigration laws and, inferentially, to provide economic assistance in connection with such visits.   But the objectives of the act could all be accomplished by visitors who satisfied whatever state regulations might apply to their local conduct.   For example, it could not be contended that a person admitted under the programs to study in a local university need not meet that institution's requirements for admission, nor that he need not comply with its requirements for continuance as an enrollee.   No more here, did the fact that Drs. Sanchez and Ohnishi were admitted for ‘training‘ under the federal program relieve them or Dr. O'Reilly from compliance with California's requirements for admission to a status greater than that of student.   As we point out below, there existed regulations under which, by prior application to the board, a greater status could have been secured, if appellant had felt that essential;  he did not avail himself of that procedure.


 The evidence is sufficient to support the finding that Dr. O'Reilly aided and abetted Dr. Ohnishi and Dr. Sanchez in the unlawful practice of medicine.   A stipulation was entered into at the administrative hearing that appellant aided and abettee Ohnishi and Sanchez in giving anesthetics and assisting in surgery on a patient.   Administering anesthetics and performing surgical acts constitute the performance of medical functions within the meaning of section 2392.2  (See Magit v. Board of Medical Examiners (1961) 57 cal.2d 74, 81, 84, 17 Cal.Rptr. 488, 366 P.2d 816.)

 Appellant correctly asserts that California law does not forbid all persons other than state licensed doctors from engaging in systems or modes of treating the sick.  (Bus. & Prof.Code §§ 2725, 2147, 2147.5 and 2147.6;  Magit v. Board of Medical Examiners, supra (1961) 57 Cal.2d 74, 17 Cal.Rptr. 488, 366 P.2d 816.)   However, as appellant recognized in his brief, in each case approval is required in advance from the Board of Medical Examiners, and the board may, in its discretion, deny the request.   Furthermore, the fact that Dr. O'Reilly supervised the foreign doctors does not relieve Dr. O'Reilly from disciplinary proceedings in this matter.  Magit v. Board of Medical Examiners, supra.)

 Appellant's good faith does not bar respondent from taking disciplinary action.   In the case of Magit v. Board of Medical Examiners, supra (1961) 57 Cal.2d 74, 88, 17 Cal.Rptr. 488, 366 P.2d 816, it was held that “good faith” did not constitute an absolute defense to unprofessional conduct, although it was held that, since Dr. Magit acted in good faith, and in light of other mitigating factors discussed in the opinion, the imposition of the extreme penalty of revocation constituted an abuse of discretion.   The ninety-day suspension and the five-year probation imposed on Dr. O'Reilly is not an extreme penalty and is not an abuse of discretion.  (Also see Harris v. Alcoholic Bev., etc., Appeals Bd. (1965) 62 Cal.2d 589, 43 Cal.Rptr. 633, 400 P.2d 745.)

Appellant contends that the record is insufficient to support the finding that appellant violated section 2392 of the Business and Professions Code as applied to the acts of Mr. Duffy.   Appellant notes in particular that he testified that he had no knowledge that Mr. Duffy violated his instructions, and that there is no evidence to the contrary.   He also argues that there was no finding of aiding and abetting as to Mr. Duffy.   Appellant cites Barrett v. Board of Osteopathic Examiners (1935) 4 Cal.App.2d 135, 40 P.2d 923, in which the court reversed a finding of aiding and abetting on insufficiency of evidence where it appeared that there was no knowledge that an employee hired to entertain and give massages was actually practicing medicine.   Firstly, the Barrett case dealt with aiding and abetting only, and no finding of aiding and abetting was made here.   Secondly, in the case at bench the court could have drawn an inference that Dr. O'Reilly employed Mr. Duffy in the practice of medicine and that he had “knowledge” from the fact that (a) an employee called Mr. Duffy, “Dr. Duffy” and from the fact that (2) Mrs. Gowdy testified that Dr. O'Reilly never even saw her as a patient (although this testimony was contradicted by Dr. O'Reilly).

This case is also distinguishable from Osborne v. Baughman (1927) 85 Cal.App. 224, 259 P. 70, a case relied on by appellant, which held on appeal that it could not be inferred that the dentist had knowledge that his employee was practicing dentistry without a license where the dentist merely heard that the employee had previously been accused of practicing without a license.   The court also said that, even if an inference were justified, the positive, uncontradicted testimony to the contrary would dispel the inference.   However, in the Osborne case, any possible inference was very weak compared to the inference here.   In that case the dentist had not been in the office in which the employee was unlawfully practicing dentistry for several months.   In the case at bench the improper acts occurred many times in the appellant's own hospital and there is no evidence of absence on the part of the appellant.   There was also the inference to be drawn from Mrs. Gowdy's testimony that appellant had never even seen her as a patient.   If appellant did not see her, then clearly someone else did.

 It is the rule that, in reviewing the evidence, all conflicts must be resolved in favor of respondent and all legitimate and reasonable inferences indulged in to uphold the verdict.   Where two or more inferences are possible, the appellate court cannot substitute its own inference for that of the trial court.  (Moran v. State Board of Medical Examiners (1948) 32 Cal.2d 301, 196 P.2d 20;  see also Webster v. Board of Dental Examiners (1941) 17 Cal.2d 534, 110 P.2d 992.)   The lower court believed Mrs. Gowdy, drew inferences from her testimony, and disbelieved Dr. O'Reilly.   We will not substitute other conclusions for those reached by the court below, nor do we see any reason to do so.

Appellant's final contention is that it was improper for the Board of Medical Examiners to assess a penalty against Dr. O'Reilly in connection with an accusation initiated by the Board of Osteopathic Examiners.   Appellant contends that this transfer to the Medical Examiners without notice and without having an opportunity to appear constitutes a denial of due process.

 Appellant does not appear to have been prejudiced by reason of the above procedure.   Respondent merely adopted the decision of the hearing officer.   Appellant received a full hearing before a hearing officer.   Due process requires a fair trial before an impartial tribunal (Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 401, 184 P.2d 323), [questioned on a different point in Strode v. Board of Medical Examiners (1961) 195 Cal.App.2d 291, 296, 15 Cal.Rptr. 879], and it appears that Dr. O'Reilly was treated in a fair and proper manner.

The judgment is affirmed.


1.   The portion of section 2 of the 1948 Act, under which these programs were established, was repealed by Pub.L. 87–256, § 111(a), 75 Stat. 538.

2.   Respondent correctly asserts that appellant cannot raise a defense that the activities of Ohnishi and Sanchez were not medical functions for the first time on judicial review of the administrative decision, but it is our belief upon reading the briefs that appellant has not intended to do so.  (See Harris v. Alcoholic Bev., etc., Appeals Bd. (1961) 197 Cal.App.2d 182, 17 Cal.Rptr. 167.)

KINGSLEY, Justice.

FILES, P.J., and JEFFERSON, J., concur.