Brennan v. State Board of Medical Examiners

SHINN, P. J.

Proceeding in mandamus to compel respondents, State Board of Medical Examiners and its mem

[194]

tiers, to cancel the order of the board revoking petitioner’s license to practice as a chiropodist and placing him on probation for a five-year period, during which time the revocation of his license was to be suspended. The petition was filed in the superior court; an alternative writ was issued. The respondents filed an answer and the cause was set down for trial. Upon the trial, judgment was entered denying the peremptory writ. Petitioner appeals from that judgment.

Appellant, Dr. Robert L. Brennan, a licensed chiropodist, was accused by the State Board of Medical Examiners and found guilty, as charged, of unprofessional conduct in that he had violated the provisions of sections 2139 and 2378 of the Business and Professions Code.

Section 2139, Business and Professions Code, reads as follows: “The certificate to practice Chiropody authorizes the holder to practice Chiropody. As used in this chapter: Chiropody means the diagnosis, medical, surgical, mechanical, manipulative, and electrical treatment of the human foot, including the nonsurgieal treatment of the muscles and tendons of the leg governing the functions of the foot. No Chiropodist shall do any amputation or use an anesthetic other than local.” Section 2378 provides that unprofessional conduct is that which violates or attempts to violate directly or indirectly any provision of chapter 5, division 2, of the Business and Professions Code.

The only question presented on this appeal is whether there is evidence to sustain the finding of the trial court that the conduct of Dr. Brennan transgressed the limited certificate issued to him as a licensed chiropodist and constituted unprofessional conduct within the meaning of the section. The trial court found that the oral treatment prescribed by appellant and the hypodermic injection administered by him was “not . . . for the treatment of the human foot nor the treatment of the muscles or the tendons of the leg governing the functions of the foot, as provided in section 2139 of the Business and Professions Code.” It is our opinion that the record is devoid of evidence to support this finding.