PATTY v. BOARD OF MEDICAL EXAMINERS

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Court of Appeal, Second District, Division 1, California.

Frank M. PATTY, M.C., Plaintiff and Respondent, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Appellant.

Civ. 38796.

Decided: August 22, 1972

Evelle J. Younger, Atty. Gen., and John M. Huntington, Deputy Atty. Gen., for defendant and appellant. Allan F. Grossman, Los Angeles, for plaintiff and respondent.

Appellant Board of Medical Examiners of the State of California (‘Board’) appeals from judgment of the superior court granting petition for writ of mandate to respondent Frank M. Patty, doctor of medicine, whose certificate had been suspended by the Board for illegally prescribing narcotics and restricted dangerous drugs.

FACTS

Acting on a complaint by the son of an elderly patient that Dr. Patty had prescribed narcotics for the patient in excessive amounts, the Department of Professional and Vocational Standards (‘Department’; the investigative and enforcement arm of the Board) decided to inquire further. An investigator communicated with the State Bureau of Narcotics to determine the number of prescriptions written by the doctor in the recent past, with the Los Angeles Police Department and the Federal Bureau of Narcotics Enforcement to ascertain whether he had a criminal record for drug violation, and with nearby pharmacies to determine if they had filled an inordinately large number of his narcotics and dangerous drug prescriptions, all with negative results. Nevertheless, the investigator persisted.

An undercover operative (a 20-year-old female model, singer and actress who worked part time for the Department) was employed to visit the doctor, purportedly as a patient, for the purpose of attempting to obtain a prescription for dangerous drugs.

On 4 January 1968, the operative visited the doctor's office with a request for ‘medication.’ She testified that when he asked what was wrong with her, she replied, ‘Nothing,’ adding she had come because she wanted a prescription for ‘whites.’ The doctor asked what ‘whites' were and she replied they were ‘dexies,’ by which he understood her to be referring to dexedrine tablets. Not familiar with the drug, the doctor tried unsuccessfully to find it in a pharmaceutical reference work and finally called a druggist to determine its manufacturer. The operative testified she told him the reason for wanting the pills was to ‘get high,’ and he then gave her a prescription for 100 tablets. She paid the receptionist $10 for the appointment and went to a pharmacy to have the prescription filled.

On 10 January, a second operative accompanied the first to the doctor's office where the latter made another request for 100 dexedrine tablets and for a prescription for 100 tablets of Empirin Compound with codeine. The second operative, regularly employed as a deputy sheriff, gave a false name and also requested and received prescriptions for 100 amphetamine tablets and for 100 tablets of Empirin with codeine. They each paid the receptionist $10.

On 7 March, the second operative visited the office with a third woman, regularly employed as a policewoman by the City of Glendale. The third operative gave a false name and described herself as an actress. On this occasion and on the thirteenth, nineteenth, twenty-sixth and twenty-ninth days of March, each obtained prescriptions for dexedrine tablets and Empirin tablets with codeine. The doctor received $10 from each operative for each visit.

On 29 March, at the request of two operatives, the investigator himself was admitted to the office where he requested ‘uppers' (amphetamines) and ‘perc’ (Percodan, a narcotic) for the purpose of ‘getting some kicks.’ He received prescriptions for 100 amphetamine and 100 Empirin tablets with codeine, paying $10 for the visit.

On 9 April, the investigator returned to the doctor's office to obtain a renewal of the two prescriptions as well as renewals for the second and third operatives, paying $30.

Dr. Patty was charged with unprofessional conduct for prescribing dangerous drugs without a prior physical examination or medical indication therefor (Bus. & Prof.Code, § 2399.5) and for prescribing narcotics to persons not under treatment for a pathology or condition (Health & Saf.Code, § 11163). A hearing officer sitting for the Board of Medical Examiners found 17 violations of the former and 16 violations of the latter section and recommended the doctor's certificate be revoked but that the revocation be stayed pending five years' probation. The officer's proposed decision was adopted by the Board and the doctor sought writ of mandate for review of the Board's decision. The superior court determined the Board's findings were supported by substantial evidence in the proceeding before the hearing officer, but concluded Dr. Patty had been entrapped by the conduct of the investigator and his three operatives.

CONTENTIONS

The Board contends: (1) the doctrine of entrapment is not applicable to administrative proceedings; and (2) in any event there is no substantial evidence supporting the trial judge's finding of entrapment.

DISCUSSION

Entrapment is ‘the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.’ (People v. Lindsey (1949) 91 Cal.App.2d 914, 205 P.2d 1114.) It is an affirmative defense to a criminal charge. The essential elements include a lack of criminal intent by the defendant prior to his contact with the officer coupled with persuasion, inducement or allurement by the officer, resulting in a criminal act which otherwise would not have been committed. (See Note, The Defense of Entrapment in California (1968) 20 Hastings L.J. 825.) The term ‘officer’ includes not only police officers but also private persons working with the police as informers. (See People v. Perez (1965) 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934.) The doctrine of entrapment discourages illegal or unjust schemes designed to foster rather than to prevent and detect crime. (See People v. Benford (1959) 53 Cal.2d 1, 345 P.2d 928.)

The applicability of the defense of entrapment in an administrative proceeding to determine whether a professional license or certificate should be revoked or suspended is unclear under the laws of this state. (Compare Whitlow v. Board of Medical Examiners (1967) 248 Cal.App.2d 478, 56 Cal.Rptr. 525 with Shakin v. Board of Medical Examiners (1967) 254 Cal.App.2d 102, 62 Cal.Rptr. 274 and United Liquors v. Dept. of Alc. Bev. Control (1963) 218 Cal.App.2d 450, 32 Cal.Rptr. 603.) Nor have other jurisdictions satisfactorily resolved the issue, either assuming without deciding that the defense is applicable (see, e. g., In re Reiter (1953) 173 Pa.Super. 552, 98 A.2d 465), or simply asserting, without thorough discussion that it should apply in administrative proceedings for the same reasons it applies elsewhere (Langdon v. Bd. of Liquor Control (1954) 98 Ohio App. 535, 130 N.E.2d 430).

Conceding the unsettled state of the law, the superior court to allow Dr. Patty to assert the entrapment doctrine. However, we conclude the defense should not be extended to an administrative proceeding to determine the alleged malfeasance of a medical doctor.

An administrative proceeding to consider revocation or suspension if a license is not a criminal action but rather is a mechanism by which the licensee may be removed from his profession for incompetence or dishonesty. We are mindful that a disciplinary proceeding before the state Board of Medical Examiners has a punitive character calling for procedural safeguards. (See Shively v. Stewart (1966) 65 Cal.2d 475, 55 Cal.Rptr. 217, 421 P.2d 65.) However, we are not here confronted by a due process question but rather by the attempted use of a substantive defense in justification for misconduct.

Dr. Patty's knowing complicity in the acts charged is unjustifiable. The high calling of medical practice demands that its members remain above the temptations to which Dr. Patty succumbed, even though the acts would not have been committed but for the planning and persuasion of the investigator. While instinctive sympathy reaches out to the doctor now before us, we find his conduct no less grievous by reason of his seducer's having been a government agent rather than a drug addict.1

In so holding, we do not condone surrepetitious inquiry when straightforward investigation will serve as well. If our free society is to survive, the use of undercover agents, particularly agents provocateurs, must be avoided except where necessary to safeguard vital social interests from serious threat of harm. Nor do we hold that the licensing authority should not consider the investigative inducements placed before the licensee when it considers the gravity of the misconduct or the severity of the measures necessary to protect the public from its recurrence.

Dr. Patty raises several contentions with regard to the conduct of the administrative proceedings and the severity of the terms of suspension of his certificate by the Board, urging these as alternative grounds for upholding the judgment. However, we believe them to be without merit.

Judgment is reversed.

While conceding the scholarship and logic of the majority opinion, I am compelled by the weight of nation-wide authority, the apparent trend of California precedent, and considerations of policy to dissent.

Because I believe that the defense of entrapment was available to respondent in the proceeding to revoke his license to practice medicine, some amplification of the factual support for the trial court's finding of entrapment over that recited in the majority opinion is required. Frank Patty, M.D., respondent in the case at bench, after service in the military became the first black graduate of his medical school and was licensed to practice medicine in California in 1951. His medical career was exemplary and unblemished until the incidents which led to the actions of the appellant board, and his services to the community and the medical profession were notable. Dr. Patty became ill in the latter part of the year 1967 but continued to work and see patients. Shortly after January 1, 1968, Xavier Suazo, an investigator for the appellant board, received a complaint that Dr. Patty had been prescribing unusually large amounts of narcotics and hypnotics to an elderly patient. Suazo's investigation proved the complaint to be false. Calling upon Patricia Wolf, a sometime ‘actress, model, and hostess' and her roommates who were his ‘part-time investigators,’ Suazo pursued further the possibility that Dr. Patty might in some fashion commit an infraction. He instructed at least one of them that her job ‘consisted mainly of working doctors and going to doctors' offices for various reasons, one being to obtain prescriptions for narcotics or dangerous drugs and, another, to purchase dangerous drugs.’ The part-time investigators were paid by Suazo at the rate of $10 per visit. When approached by part-time investigator Patricia Wolf for the first time an January 4, 1968, and asked for ‘whites' or ‘dexies,’ Dr. Patty did not know what she was talking about and was unable to write the prescription she requested until after he had called a pharmacy. Dr. Patty suffered an acute myocardial infarction on January 7 but continued to see patients contrary to his doctor's orders. Patricia Wolf and a second part-time investigator secured prescriptions on January 10. On January 13, Dr. Patty was hospitalized, returning to his office on March 4. Promptly on March 7, the part-time investigators were again knocking on his door to receive prescriptions. While four separate persons were given prescriptions by Dr. Patty, each was either introduced by Patricia Wolf or by another part-time investigator who in turn had been introduced by her, and each was a board employee.

The board initiated disciplinary proceedings to revoke Dr. Patty's license to practice medicine based solely upon his actions in prescribing for board employees. Dr. Patty asserted the defense of entrapment before the board while also contending that the charges were untrue because of medical indications calling for the prescriptions. The board rejected the defense and placed Dr. Patty on probation, conditioning its grant upon his being suspended from practice for six months, and his reinstatement after that period upon the successful results of an examination of medical knowledge.1

I conclude, as did the trial judge, that the defense of entrapment is available to respondent in the case at bench. I conclude, also, that substantial evidence supports the independent judgment of the trial court that respondent was in fact entrapped.

The majority opinion correctly states that no square holding of any California reviewing court rules that the defense of entrapment is or is not available in an administrative proceeding to revoke a license to practice a profession, trade, or privilege. The great weight of authority in other states, however, is that the defense is available. (CONNECTICUT: Jones v. Dental Commission of Connecticut (1929) 109 Conn. 73, 145 A. 570, revocation of license of dental technician; FLORIDA: Peters v. Brown et al. (Fla. 1951) 55 So.2d 334, injunction against unlawful practice of dentistry; ILLINOIS: In re Horwitz (1953) 360 Ill. 313, 196 N.E. 208, disbarment of attorney; Roberts v. Illinois Liquor Control Commission (1965) 58 Ill.App.2d 171, 206 N.E.2d 799, revocation of liquor license; NEVADA: In re Davidson (1947) 64 Nev. 514, 186 P.2d 354, disbarment of attorney; OHIO: Langdon v. Board of Liquor Control (1954) 98 Ohio App. 535, 130 N.E.2d 430, revocation of liquor license; PENNSYLVANIA: In re Najaka (1940) 35 Luz.Leg.Reg.Rep. 17, revocation of liquor license; In re Feeko's Liquor License (1955) 45 Luz.Leg.Reg.Rep. 243, revocation of liquor license; Pa. Game Commission v. Wargo (1956), 7 Dist. & Co. R.2d 25, 46 Luz.Leg.Reg.Rep. 36, revocation of hunting license.)2

While a New York decision has held that entrapment was not available as a defense in an administrative proceeding (State Com'n Human Rights v. Harvey Properties (1966) 50 Misc.2d 672, 271 N.Y.S.2d 365), the case was decided at a time when entrapment was not available as a defense to a criminal proceeding in New York. (People v. Williams (1963) 38 Mich.2d 80, 237 N.Y.S.2d 527; cf. New York Penal Law § 3540 effective September 1, 1967.) A New Mexico decision has also held the defense of entrapment unavailable in a proceeding to revoke a liquor license but is rationalized substantially on the basis that the defense would not be available in that state in a criminal proceeding not involving criminal intent. (Kearns v. Aragon (1958) 65 N.M. 119, 333 P.2d 607.) Missouri holds that the defense of entrapment is not available on a forfeiture proceeding nominally civil in nature. (State v. Ward (1951) 361 Mo. 1236, 239 S.W.2d 313, but cf. contra California rule in People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96–97, 41 Cal.Rptr. 290, 396 P.2d 706.) The Louisiana Supreme Court has stated, ‘[W]e are inclined to view entrapment as a defense only against a criminal charge . . .’ while holding that in any event no entrapment was shown in a disciplinary proceeding against a doctor. (Knight v. Louisiana State Board of Medical Exam. (La.App. 1968) 211 So.2d 433, 438.)

With the exception of dictum in a Louisiana decision and a holding in Missouri disallowing the defense of entrapment by applying a rigid civil-criminal dichotomy disapproved in California (People v. One 1960 Cadillac Coupe, supra), I have found no out-of-state authority contra to what appears from other states that have considered the legal issue before us. The weight of the out-of-state authority that the defense of entrapment is available to the respondent in an administrative proceeding to revoke his license is, to me, highly persuasive.

Analysis of California decisions leads to the conclusion that this state does not depart from the virtually unanimous view of our sister states which have considered the problem. In Whitlow v. Board of Medical Examiners (1967) 248 Cal.App.2d 478, 489, 56 Cal.Rptr. 525, the Court of Appeal recognized the availability of the defense of entrapment in a proceeding suspending a physician's right to practice for illegally prescribing drugs but found that the defense was not established. In Shakin v. Board of Medical Examiners (1967) 254 Cal.App.2d 102, 109, 62 Cal.Rptr. 274, 281, the Court of Appeal, dealing with a similar situation, declared that ‘the application of [the] doctrine [of entrapment] to the field of administrative law remains in doubt’ while finding that the facts of entrapment were not established. The foundation of the statement in Shakin is suspect, however. It relies upon language originating in United Liquors v. Dept. of Alc. Bev. Control (1963) 218 Cal.App.2d 450, 454, 32 Cal.Rptr. 603, followed without analysis in Harris v. Alcoholic Bev. Control Appeals Bd. (1966) 245 Cal.App.2d 919, 924, 54 Cal.Rptr. 346. United Liquors declared the rule of entrapment to be of doubtful applicability in administrative proceedings solely on the basis that the proceeding were civil and not criminal in nature. (218 Cal.App.2d at p. 454.) That rationale has since been rejected by our Supreme Court in People v. One 1960 Cadillac Coupe, supra, 62 Cal.2d 92, 96–97, 41 Cal.Rptr. 290, 396 P.2d 706. Again in Shively v. Stewart, 65 Cal.2d 475, 55 Cal.Rptr. 217, 421 P.2d 65, the Supreme Court, in discussing the availability of the equivalent of criminal discovery in a proceeding to revoke or suspend a physician's license to practice, states: ‘A disciplinary proceeding has a punitive character [although not criminal in nature], for the agency can prohibit an accused from practicing his profession.’ (65 Cal.2d at p. 480, 55 Cal.Rptr. at p. 220, 421 P.2d at p. 68.) The high court again rejected the United Liquors rationale in Parrish v. Civil Service Commission, 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223, noting that there, as here, the acts argued to result only in civil consequences could also be the basis of a criminal charge. (66 Cal.2d at pp. 265–266, 57 Cal.Rptr. 623, 425 P.2d 223.) In Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 75, 64 Cal.Rptr. 785, 791, 435 P.2d 553, 559, the court states: ‘The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection.’

The rationale of Shakin having been rejected by our Supreme Court, the language of Whitlow is the more persuasive. (Molinari, California Administrative Process: A Synthesis Updated, 10 Santa Clara Lawyer 274.)

Other California precedent supports the conclusion that the doctrine of entrapment is available as a defense in a proceeding to revoke or suspend a physician's license to practice. The defense of entrapment in this state stems from the same root as the exclusionary rule which bars illegally obtained evidence from a criminal trial. (People v. Benford, 53 Cal.2d 1, 345 P.2d 928.) While dictum in Court of Appeal decisions is in conflict with respect to the applicability of the exclusionary rule in administrative proceedings to revoke a license (cf. Elder v. Board of Medical Examiners, 241 Cal.App.2d 246, 260, 50 Cal.Rptr. 304, and Borror v. Department of Investment, 15 Cal.App.3d 531, 542, 92 Cal. Rptr. 525, 531,3 with Pierce v. Board of Nursing, etc. Registration, 255 Cal.App.2d 463, 466, 63 Cal.Rptr. 107, 109),4 there is a stronger reason to apply the rule of entrapment in an administrative proceeding than there is to apply the rule of exclusion of illegally obtained evidence in either a criminal or administrative action. Both the exclusionary rule and the doctrine of entrapment exist to deter 'ignoble' executive conduct—in the case of the exclusionary rule, violations of rights of privacy; and in the case of entrapment, ‘unjust [executive] schemes designed to foster rather than prevent and detect crime’ (People v. Benford, supra, 53 Cal.2d at p. 9, 345 P.2d at p. 933). The deterrent effect of the exclusionary rule is, however, much diluted because its sanction of the bar of evidence does not act directly upon the person whose conduct was illegal but rather upon society in general by denying it is interest in the conviction of persons guilty of crime. (Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 Univ. of Chicago Law Review 665.) Conversely, the doctrine of entrapment is a direct deterrent to improper activity by an administrative agency. Unlike a police department which detects or investigates crime based upon citizens' complaints and then presents the results of its investigation to an unbiased prosecutor for evaluation and to an impartial court for trial, the board here acts as prosecuting witness, policeman, prosecutor, jury, judge, and executioner of professional careers. (Shively v. Stewart, supra, 65 Cal.2d 475, 479–480, 55 Cal.Rptr. 217, 421 P.2d 65; In re Horwitz, 360 Ill. 313, 196 N.E. 208.) A rule of entrapment applied in administrative proceeding acts directly against the board and achieves the deterrent purpose by denying to the administrative agency the benefit of its own improper conduct. There is no dilution of purpose since the sanction is applied against the wrongdoer and not against society as it is in the exclusionary rule. There is no societal interest in the conversion by entrapment of an innocent person into a wrongdoer so that it is the entrapping agency alone which suffers. It would be a paradox indeed to apply the criminal exclusionary rule, which at best is a partial palliative, while not applying the doctrine of entrapment in administrative proceedings where its declared deterrent purpose will be virtually totally served.

The policy argument underlying the majority opinion has unquestionable logic. There is strong reason to protect the public safety from depredations of unscrupulous practitioners of medicine. Counter arguments of policy, equally strong or stronger, are also present, however. Assuming the need to protect against improper prescribing of drugs by physicians, action of state agents to induce a physician who had not thought of the idea to become a drug pusher runs counter to the need. When the court permits an agency to proceed by entrapment, it encourages it to make cases the easy way rather than to expend its resources upon the apprehension of persons already violating the law but who may be more difficult to catch. The application of the doctrine of entrapment tends to prevent instances of discriminatory enforcement by administrative agencies which are essentially political bodies working with no real supervision or responsibility to any other branch of government. It is, after all, hard to conceive that Investigator Suazo would have turned loose his dolls to ‘work a doctor’ who was politically or socially powerful.

I therefore dissent from the holding of the majority opinion that the doctrine of entrapment is not available to respondent in the case at bench.

Substantial evidence supports the finding of the trial court that respondent was in fact entrapped. That determination is one to be made by the trial court, independent of findings by the administrative agency. It must be sustained by us if supported by substantial evidence in the record. (Moran v. Board of Medical Examiners, 32 Cal.2d 301, 196 P.2d 20; Whitlow v. Board of Medical Examiners, 248 Cal.App.2d 478, 483, 56 Cal.Rptr. 525.) Here there is that substantial evidence. Entrapment exists where the intent to commit the crime originates in the mind of the state agency rather than in the mind of the person who commits the act (People v. Benford, supra, 53 Cal.2d at p. 10, 345 P.2d 928), and is not negatived as a matter of law by susceptibility of the suspect to suggestion by agents of the state. (People v. Goree, 240 Cal.App.2d 304, 310–311, 49 Cal.Rptr. 392.) Here, the trial court could infer from Dr. Patty's unfamiliarity with ‘whites' or ‘dexies,’ when the state agent first approached him, that the intent to prescribe illegally originated in the mind of the agent. The inference is supported also by the instruction from Suazo to one of his operators. She was not told to investigate whether the suspect would accept an opportunity to prescribe drugs illegally. Rather, she was told to ‘work doctors' to obtain illegal prescriptions, a virtual directive to entrap.

I would affirm the judgment of the trial court.

FOOTNOTES

1.  ‘. . . To please no one will I prescribe a deadly drug . . . If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot.’ (Hippocratic Oath, Fifth Century, B.C)

1.  The severity of the penalty imposed seems an abuse of the board's discretion in view of the uncontradicted evidence of mitigation (Yokov v. Board of Medical Examiners, 68 Cal.2d 67, 64 Cal.Rptr. 785, 435 P.2d 553). The condition to reinstatement that respondent pass an examination may be similarly illegal. (See Friday v. State Bar, 23 Cal.2d 501, 508–509, 144 P.2d 564.)

2.  While in some of the cited cases the court found that the facts of entrapment were not established, later decisions in the same jurisdiction treat those cases as establishing the rule for which it is here cited (see e. g. Jones v. Dental Commission of Connecticut, 109 Conn. 73, 76, 145 A. 570, discussed in State v. Marquardt, 139 Conn. 1, 89 A.2d 219; In re Davidson, 64 Nev. 514, 186 P.2d 354, discussed in Adams v. State, 81 Nev. 524, 407 P.2d 169, and State v. Busscher, 81 Nev. 587, 407 P.2d 715, 716).

3.  ‘[I]n the area of search and seizure the exclusionary rule has been assumed to be applicable in an administrative proceeding where the proceeding contemplates the deprivation of one's liberty or property.’

4.  ‘We do not wish to intimate a belief that [the exclusionary rule] appl[ies] in administrative proceedings, . . .’

CLARK, Associate Justice.

LILLIE, acting P. J., concurs.

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