Thayer v. Board of Osteopathic Examiners

ASHBURN, J.

Petitioner appeals from judgment denying peremptory writ of mandate after sustaining without leave a demurrer to the petition. The Board of Osteopathic Examiners revoked petitioner’s license to practice after finding to be true charges (1) that he employed and aided and abetted an unlicensed person, one Rosenberg, “in the practice of a system or mode of treatment of the sick or afflicted” in 73 different instances in violation of section 2392, Business and Professions Code, and (2) that he signed a death certificate representing that he had attended a decedent whom he had never seen, forbidden by section 2411 of said code.

At the beginning of the hearing, conducted by a full board of five practicing physicians and a hearing officer, the hearing officer summarized the charges of the accusation, whereupon counsel for the board stated: “I have consulted with Mr. Bryant in this matter, and he informs me that he has discussed the matter thoroughly with Dr. Thayer, and Dr. Thayer is willing at this time to stipulate to the truth of the allegations of the accusation as set forth; is that correct?” Counsel for appellant replied in the affirmative. The hearing officer then ascertained from Dr. Thayer that he had heard the stipulation, had him define the word “stipulation,” which he did correctly, and asked if he agreed with the statement that had been made. Appellant said he did, and then the following

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occurred: “Hearing Officer: Do you understand that the legal effect of this stipulation will be that the facts as stated are proved, that no other evidence will be needed to prove any of the facts? Dr. Thayer: Yes, sir. Hearing Officer: And do you further understand that based upon this stipulation alone, your license to practice may be suspended or revoked? Dr. Thayer: Yes, sir. Hearing Officer: And with that knowledge, do you desire that the stipulation be accepted? Dr. Thayer: Yes, sir.” The stipulation was then accepted by the hearing officer. Counsel for the board rested and petitioner was produced as a witness in his own behalf. His counsel in this court asserts that the stipulation was thereafter disregarded and that the evidence established its untruth because it showed petitioner to be innocent of the charges. An examination of the record does not sustain this assertion.

Counsel for respondent argues that the additional evidence was produced by way of mitigation under the sanction of section 11520, Government Code: “. . . Nothing herein shall be construed to deprive the respondent of the right to make any showing by way of mitigation.” We find this to be a proper appraisal of the transcript. The following passages attest this fact: “Q. Now, there are numerous patients that you have admitted that have either directly or indirectly been treated by Dr. Rosenberg through you; in other words, the stipulation that we have entered into admits that indirectly, at least, you allowed Dr. Rosenberg to treat persons. Now, that indirection is through the employment and your relationships with him; is that correct? Through the hospital and the Clinic. A. Yes. Q. Did Dr. Rosenberg accompany you upon calls? A. In the respect to wishing to gain additional clinical experience, he requested to be allowed to accompany myself on deliveries and I acceded to that request. . . . Q. And the reason that you have made the admission is that in some functions, in your opinion, you indirectly allowed him to exceed the functions for which he was employed; is that the basis of your admission? A. Yes, sir.”