Hewitt v. Board of Medical Examiners (1906) · DecisionDepot

Hewitt v. Board of Medical Examiners

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Feb 1, 1906 No. S.F. No. 4414.Published

Before: Lorigan

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Holding. The court held that the statutory provision authorizing the revocation of a physician's license for making "grossly improbable statements" is void for being unconstitutionally vague, uncertain, and indefinite. Because the statute failed to define the prohibited conduct, it failed to provide a standard by which a practitioner could conform their behavior or by which the board could objectively adjudicate violations.

Issues

Whether the statutory provision authorizing the revocation of a medical license for "grossly improbable statements" is void for uncertainty and indefiniteness.
Whether the board of medical examiners acted within its jurisdiction in revoking a physician's license based on an unconstitutionally vague statute.

Disposition. annulled

Quotations verified verbatim against the opinion

“The right which a person possesses under the constitution and the laws to practice his profession as a physician and surgeon cannot be made to depend upon a provision of a statute as vague, uncertain, and indefinite”

Synopsis

APPLICATION for Writ of Certiorari to annul an order of the State Board of Medical Examiners.

The facts are stated in the opinion of the court.

LORIGAN, J.

This is an original proceeding in

certiorari

to annul an order of the board of medical examiners of this state revoking the certificate of petitioner authorizing her to practice medicine and surgery. The legislature in 1901 (Stats. 1901, p. 56, c. 51) passed an act for the regulation of the practice of medicine and surgery and for the appointment

[591]

of a board of medical examiners in the matter of such regulation. Various powers are conferred upon the state board under the act, among others the power to revoke the certificate of a physician or surgeon for “unprofessional conduct,” and the act undertakes to declare what shall constitute “unprofessional conduct” so as to warrant such revocation. It specifies seven particulars in which the conduct of a physician shall be deemed unprofessional. Six of these designate precise and specific acts, the commission of which shall be deemed unprofessional, and as to the seventh (designated in the act as the fourth), it is provided that “all advertising of medical business in which grossly improbable statements are made” shall also constitute unprofessional conduct.

On April 26, 1905, petitioner was engaged in the practice of medicine and surgery in the city of Los Angeles under and by virtue of a certificate issued to her by the board of managers of the Eclectic Medical Society of this state, and on that date a complaint was filed against her before the state board of examiners charging her with unprofessional conduct in advertising medical business in which grossly improbable statements appeared,—namely, in* advertising in the Times, a public journal in Los Angeles, the following: “Cancer Cured. The Mrs. S. J. Bridge Remedy, the only sure cure known in the world”—with notice to call at her office in said city and investigate. Upon a hearing before said board, the petitioner appearing, answering, and contesting the charge, an order was entered by the board on August 18, 1905, revoking her certificate. Petitioner by this proceeding in

certiorari

seeks to annul the order of said board, and the ground that the board was without jurisdiction to make it under the particular provision relating to unprofessional conduct, to which we have heretofore referred, and under which it assumed to act in doing so.

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upon a medical board to revoke the license of a physician is granted upon the authority of the legislature to legislate in the interest of public health, safety, and morals, there is nothing in the terms of this provision authorizing the board to revoke a certificate to practice medicine on account of the publication of “grossly improbable statements,” from which it can be even inferred that any of these considerations prompted the legislative mind in conferring the power of revocation upon the board, or that any of them are to be taken into consideration by that body in determining whether a given statement is “grossly improbable” or not.. Under this provision the penalty of forfeiture of a physician’s license is not made to depend upon falsity in fact of any matter contained in a statement or knowledge on the part of the physician that it is false, or for the reason that it was intended or had a tendency to deceive the public or to impose upon credulous or ignorant persons, and so be harmful and injurious to public morals, health, and safety. It is a matter of no moment under the provision of the act, and is entirely immaterial whether the statement is true or false, beneficial or injurious. If, in the opinion of the board, the statement is “grossly improbable,” the certificate to practice is to be revoked. The right of the physician to be secure in his privilege of practicing his profession is thus made to depend not upon any definition which the law furnishes him as to what shall constitute “grossly improbable statements,” but upon the determination of the board after the statement is made and simply upon its opinion of its improbability. No definite standard is furnished by the law under this provision whereby a physician with any safety can advertise his medical business; nor is there any definite rule declared whereby after such advertisement is had the board of medical examiners shall be controlled in determining its probability or improbability. The physician is not advised what statements he may make which will not be deemed “grossly improbable” by the board. No rule is provided whereby he can tell whether the publication he makes will bring him within the ban of the provision or not. The advertisement in connection with his medical business may be made in entirely good faith; the statement may be of such a character that it involves no moral delinquency on the part of the physician, nor in any degree tends

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Synopsis

LORIGAN, J.

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