Magit v. Board of Medical Examiners of State of California

        FOX, Presiding Justice.

        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 counts of unprofessional conduct under section 2392 of the Business and Professions Code, together with sections 2141 and 2378 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 counts were not separately stated as such, but were set forth in separate paragraphs in the accusation. No objection was raised.

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.'

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.'

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.'

        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. During this period these three persons administered spinal, epidural and

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.

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.

'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.

Seneris v. Haas,

        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, nor is it disputed that petitioner aided and abetted them in and employed them to administer spinal, epidural and general anesthetics. 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.

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.

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.

        It will be noted that sections 2141 and 2392 do not use the phrase 'practice of medicine'. 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

See notes 2 and 3 supra.

Order of United Commercial Travelers of America v. Shane, 8 Cir., State v. Catellier, Fuller v. Board of Medical Examiners, Painless Parker v. Board of Dental Exam., People v. Nunn,

        '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

Cooper v. State Bd. of Medical Examiners, Newhouse v. Board of Osteopathic Examiners, People v. Mangiagli, King v. Board of Medical Examiners, Brown v. Guy, In re Hartman, Harris v. State,

        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         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.

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.

        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 Frank v. South,

In re Carpenter's Estate,

        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. For these reasons, the

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.

        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. 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 Drucker v. State Bd. of Med. Examiners,

See note 18, supra.

Randall v. Board of Medical Examiners,

        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 Board of Medical Examiners v. Buck,

N. L. R. B. v. Sands Mfg. Co., People v. Schuster, People v. Wolin, People v. Cook, People v. Fagan,

        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 faith constitutes an absolute defense to the violation. Sautter v. Contractors' State License Board,

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.'

State Bar of California v. Rollinson, In re Jung, People v. Aresen,

        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.

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

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.