Bogart v. Board of Medical Examiners

DORAN, J.

As set forth in the petition, on December 17, 1945, the respondent board issued a Physician’s and Surgeon’s Certificate to petitioner; on July 8, 1949, complaint was filed charging petitioner with having committed an abortion upon the person of one Gayle Rubin, and on August 16, 1949, said board, after a hearing, found petitioner guilty and revoked the license to practice medicine in the State of California.

On September 28, 1949, petitioner filed in the superior court a petition for writ of mandate to review the administrative order hereinbefore mentioned, which writ was denied on May 10, 1950. From this judgment petitioner has appealed, alleging that “the accusation and complaint failed to state facts sufficient to constitute a cause for disciplinary action,” and that “said accusation was so indefinite and uncertain ... as to the alleged means or method of conduct of petitioner that she was unable to properly prepare her defense; that a demurrer to the accusation was overruled by said respondent board.” Petitioner further claims that the board’s finding of

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guilt “is not supported by any evidence whatsoever . . . and is contrary to law.”

It is alleged that “The issuance of a writ of supersedeas or stay, pursuant to section 1094.5(f), Code of Civil Procedure is necessary to protect petitioner’s rights to bring this appeal.” In this connection it is averred that since the board’s order revokes petitioner’s certificate to practice medicine which order will become effective before the appeal can be heard and determined, petitioner “will suffer great financial detriment” by reason of a loss of patients, “even though this court may see fit to reverse the trial court.” It is further stated “That it is not against the public interest to permit the petitioner to continue to practice, pending the outcome of this appeal.”

Objecting to the issuance of supersedeas as prayed for by petitioner, respondents point out that since petitioner is also licensed to practice medicine and surgery by the State Board of Osteopathic Examiners, which license has not been revoked, petitioner can still continue practice, and hence that there is no necessity for a writ of supersedeas.

Petitioner filed no answer to the objections of respondent; the petition for writ of supersedeas was denied by the appellate court. A petition for a rehearing was then filed explaining that no answer to the objections had been filed because “this petitioner was under the belief that there was no provision in law to answer said objections of respondents.”