Rilcoff v. State Board of Medical Examiners

DORAN, Acting P. J. This is an appeal from a judgment denying a writ of mandate and recalling an alternative writ of mandate theretofore issued in a proceeding brought against respondent Board of Medical Examiners of the State of California to secure a review of the suspension of appellant’s physician’s and surgeon’s certificate by said board.

The record reveals that appellant was, and had been since April 15, 1945, the Medical Director of the Kern General Hospital and the Public Health Director of Kern County. In February, 1947, an accusation was filed with the Board of Medical Examiners of the State of California “charging appellant with employing certain unlicensed practitioners in the practice of medicine and aiding and abetting an unlicensed practitioner in the practice of medicine. ’ ’ The hearing before the board lasted several days. There appears to have been no dispute as to the facts. As stated by appellant’s counsel at the hearing, quoting from the record:

“Mr. Petrini (appellant's counsel) : But I mean there has been no effort in this case to deny the fact these doctors were employed at the hospital. There has been no effort to deny that—where is the accusation? Just take one at a time. There has been no effort to deny any of these specific allegations of fact. I suppose in this case of Victoria Pruett something was done. The record shows it was done. Somebody claims it was practicing medicine. We claim it was not practicing medicine. We have the Patterson case. Somebody says certain things were done and they call it practicing medicine. There is no denial of that. All the testimony is to the effect that specific factual matters are true.” But,

“Mr. Petrini: Well, Mr. Flynn, there has been no dispute about that. There is no dispute these specific things were done at the hospital; there is no dispute on that. There is no contention these specific things were not done.

“Mr. Hutchinson: Then I have been laboring under a misapprehension.

“Mr. Petrini: No, you have not been laboring under a misapprehension. Our defense of these things is two: First, there is a serious question as to whether or not anything Doctor Rhodes did constituted practicing medicine. We do not deny the specific things that he did and the specific allegations or detail of things he did. That is the first defense.”

The board found in part:

"That during the period specified opposite their respective names the respondent selected, appointed, continued the [605]