McPheeters v. Board of Medical Examiners

TYLER, P. J.

Appeal from a judgment of the Superior Court annulling and setting aside a judgment and order of the Board of Medical Examiners of the State of California, revoking the license of respondent herein to practice medicine and surgery.

The complaint filed with the clerk of the Board of Medical Examiners alleged that respondent had been guilty of unprofessional conduct in violating section 14, subdivision 2 (Stats. 1913, p. 732), and acts amendatory thereof, authorizing the revocation of the license of a physician for unprofessional conduct. This section is commonly known as the Medical Practice Act. It declares “unprofessional conduct” to mean “the willful betraying of a professional secret.” The misconduct complained of by the hoard consisted- in the writing of certain letters by respondent to 'a young lady who had formerly been employed in his office as -an assistant, and who was acquainted with his patients and familiar with their ailments and' physical disabilities. These letters reveal the fact that respondent and his former office assistant were on very intimate terms with each other. Some of the letters contained the information that the ac

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cused had performed operations of an ordinary character upon certain of his patients and they described the condition of such patients and the nature of the operations. Another letter revealed the information that a particular patient, who was contemplating marriage, had made certain inquiries concerning sex relations generally, with which she was apparently unfamiliar. Respondent described in this letter the nature of the inquiries and the knowledge he was able to impart to her upon the subject. The charges made were not filed or pressed by any of the persons whose secrets are alleged to have been wilfully betrayed, but were filed by the Medical Examiners who acquired possession of the letters after the death of the recipient. The letters contained nothing which would in any manner tend to disgrace, embarrass or incriminate any of the patients, as they referred to ordinary operations, one of which was the delivery of a 'child. It was stipulated at the hearing before the board that the patients would not, if called to testify, make any objection whatsoever to the disclosures made by the accused. Under all of the facts, the trial court was of the opinion that no evidence was adduced at the trial of respondent before the board proving or tending to prove that he was guilty of unprofessional conduct in wilfully betraying any professional secrets. It was the further opinion of the court that the portion of the statute upon which said accusation was based is contrary and repugnant to and in violation of section 1, article I, and section 13, article I, of the Constitution of the state of California, and that it was likewise violative of section 1, article XIV of the Constitution of the United States. Assuming that portion of the act in question to be constitutional, we are of the opinion that the acts complained of do not come within the ban of the statute. The phrase “willful betrayal of professional secrets" cannot be held to apply to any and all disclosures that a physician may intentionally make. If this were so, it would be a transgression under the act to divulge the fact that a patient was suffering from a bruise or fracture or of one of the many common diseases that human flesh is heir to. The statute is, in its nature, penal and such laws are to be strictly construed in favor of an accused. Nothing is regarded as intended that is not within the letter as well as the spirit of the act; nothing that is