Thrasher v. Board of Medical Examiners

California Court of Appeal Oct 30, 1919 No. Civ. No. 2876.Published

Before: Richards

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Holding. The court held that the Board of Medical Examiners erred by relying on inadmissible hearsay evidence to establish an essential element of the charge against the respondent, thereby exceeding its jurisdiction. Because the respondent denied the hearsay accusations, they did not constitute an admission, and the board's order revoking the respondent's medical license was properly annulled.

Issues

Whether the Board of Medical Examiners is restricted to hearing only proper evidence in its proceedings.
Whether hearsay evidence is admissible in proceedings before the Board of Medical Examiners.
Whether a dying declaration is admissible in a proceeding to revoke a medical license.
Whether an accused's denial of an accusation renders the accusation inadmissible as an admission.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We have no doubt that the principle enunciated in these cases is to be given full application to hearings before the Board of Medical Examiners, in view of the language of the statute above quoted, which limits the power of said board to the hearing only of “such proper evidence as may be adduced before it.””

“That it was not admissible in this particular proceeding as a dying declaration the authorities seem uniform and clear, holding that such declarations are inadmissible except in criminal cases of homicide, and never in civil actions or proceedings.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. . Thomas F. Graham, Judge.

The facts are stated in the opinion of the court.

RICHARDS, J.

This is an appeal from a judgment of the superior court made and entered upon the hearing- of a writ of review, setting aside and annulling an order of the Board of Medical Examiners of the state of California purporting to find and adjudge the respondent guilty of unprofessional conduct, and to revoke his license to practice medicine in this state.

The respondent was charged before said Board of Medical Examiners with unprofessional conduct under the first subdivision of section 14 of the Medical Practice Act, which provides that such unprofessional conduct shall consist in “the procuring or aiding or abetting or attempting or agreeing or offering to procure a criminal abortion.” The respondent appeared before said board upon said charge and a hearing was had, during the course of which certain essential evidence in support of said charge was admitted over the objection of respondent as to its competency. At the conclusion of the hearing the said board adjudged the respondent guilty of the said charge, and ordered his license to practice medicine revoked. Thereupon the respondent applied for a writ of review to the superior court which, upon the hearing on said writ, annulled the said judgment and order of the Board of Medical Examiners, whereupon the latter have prosecuted this appeal.

[1]

The chief contention of the respondent at the hearing upon said writ and also upon this appeal is that the Board of Medical Examiners received in evidence over his objection certain hearsay evidence which was not admissible under the rules with regard to the admission of evidence by which said Board of Medical Examiners must be governed in proceedings before it. Section 14 of the Medical Practice Act, as amended in 1915 (Stats. 1915, pp. 196, 197), provides in respect to

[28]

such cases that “If the charges on their face be deemed sufficient by the board, and issue be joined thereon by answer, the board shall proceed to determine the matter, and to that end shall hear such proper evidence as may be adduced before it.” In the case of

Englebretson

Industrial Acc. Com.,

Thrasher v. Board of Medical Examiners

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Synopsis

RICHARDS, J.

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