Whitlow v. State Board of Medical Examiners

VALLÉE, J.

Appeal from a judgment directing the Board of Medical Examiners to vacate its order revoking petitioner’s license to practice medicine, to reconsider his ease, and to receive and consider additional evidence.

On March 19,1951, the Board of Medical Examiners revoked the license of Joseph Edwin Whitlow to practice medicine.

[672]

Whitlow was not represented by counsel in the proceeding. The board found that Whitlow had been convicted of three violations of section 11.165 of the Health and Safety Code in the Superior Court of the County of Ventura, thereby subjecting him to discipline under section 2384 of the Business and Professions Code, and that, he had violated section 11163 of the Health and Safety Code in that he had issued prescriptions for narcotics to certain individuals not in the regular course of his practice, thereby subjecting him to discipline under section 2391.5 of the Business and Professions Code.

Whitlow then sought a writ of mandate in the Superior Court of the County of Los Angeles. While that proceeding was pending before Judge Alfred L. Bartlett the Superior Court of the County of Ventura vacated the judgment of conviction of violating section 11165. This order was affirmed on appeal.

(People

v.

Whitlow,

113 Cal.App.2d 804 [249 P.2d 35].) Judge Bartlett heard the proceeding in mandamus, made findings of fact and conclusions of law, and rendered judgment. He found it was improper for the board to have considered the conviction; it was improper for the board to have considered any evidence relative to the alleged conviction; he could not determine whether the consideration of that evidence may have affected the decision of the board concerning the alleged violations of section 2391.5 of the Business and Professions Code; the matter should be returned to the board for further consideration, omitting the conviction from its consideration. Judge Bartlett further found that in view of the fact he had determined the matter of the alleged charges of violating section 11163 of the Health and Safety Code should be reconsidered by the board, he made no findings of fact concerning those charges. He also found: “[E]xcept as set out herein, neither the Hearing Officer nor the Board acted arbitrarily nor capriciously and did not commit any abuse of discretion.” Judge Bartlett concluded: “The court having concluded that said matter should be reconsidered by the Board, the Court makes no determination concerning the charges of violating Section 2391.5 of the Business and Professions Code.”