Cooper v. State Board of Medical Examiners

CARTER, J.

I dissent.

The majority opinion holds that members of an administrative board may join to make the necessary quorum in deciding a case before it although they were not present at the hearing and thus did not hear the witnesses testify. It is reasoned that such is not necessary for due process if the absent members read the evidence and that the statute does not require it; that “to hear” means only to examine the evidence. I do not question the due process holding, but the statute here by express terms requires the deciding board members to receive the evidence from the witnesses by their auditory and visual faculties.

It should first be noted that this is not a case where a hearing officer made findings and a decision, which were adopted by the board. There was a'hearing officer present to conduct the *255 hearing, but the board itself made the decision on its own without any recommendation by the hearing officer. There are several situations presented. (1) If a contested case is heard by the hearing officer alone, he may make a decision and the board may adopt it. (Gov. Code, § 11517 (b).) That is not this ease. (2) If his decision is not adopted the “agency itself may decide the case upon the record,” (Id., § 11517(c)), with or without taking additional evidence. That was not done here but it is to be noted that even in such circumstances, where “additional oral evidence is introduced before the agency itself no agency member may vote unless he heard the additional oral evidence.” (Id., § 11517(c).) [Emphasis added.] The third situation is the one we have here, and the statute expressly states when the case is heard before the agency itself, that is, not before a hearing officer alone, the officer must assist and advise, but he need not make a decision, and in such case “no member who did not hear the evidence shall vote on the decision.” (Id., § 11517(a).) If he must hear the evidence, it is surely not enough that he merely read it after it has been given. Every definition of “hear” embraces the thought of “to perceive by the ear.” (Webster’s Int. Diet. (2d ed.), p. 1150.) Perceiving by the ear is not receiving a communication by the eye. The other provisions of the administrative procedural law are in full accord with that conclusion. When the “word 1 agency’ alone is used the power to act may be delegated by the agency and wherever the words ‘agency itself’ are used the power to act shall not be delegated. . . .” (Id., § 11500.) [Emphasis added.] In the instant case, words “agency itself” are used. Thus there can be no delegation which in effect there would be if some of the board members could listen to the evidence for the others. And, keeping in mind the meaning of “agency itself,” it is provided: “When the agency itself hears the case the hearing officer shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the agency on matters of law; the agency itself shall exercise all other powers relating to the conduct of the hearing but may delegate any or all of them to the hearing officer ...” (Id., § 11512(b).) [Emphasis added.] Thus, when the power is not delegated to a hearing officer, the board must exercise all powers in conducting the hearing. Hence it must itself exercise the power of receiving personally the evidence, and it must be a quorum that does that. Here there was no quorum of the same members who *256 were personally present at the hearing and received the evidence. Further, in regard to rehearings: “If oral evidence is introduced before the agency itself, no agency member may vote unless he heard the evidence.’.’ (Id., § 11521(b).) [Emphasis added.]

It is no answer to suggest, as does the majority opinion, that, inasmuch as petitioner had a hearing in the trial court, he is not injured, for he was entitled to a determination by the board which had initial jurisdiction. If they had seen and heard the witnesses, they might have imposed a lesser penalty than license revocation.

I cannot agree that the giving of the transfusions was a violation of the law. Petitioner had nothing to do with the diagnosis, medical instruction or treatment of the patient. All that was done by a licensed physician and surgeon, who requested that petitioner perform the mere mechanical act involved in a transfusion. Petitioner was only carrying out the medical orders of a licensed physician. It will be noted that the statute (Bus. & Prof. .Code, §§ 2138, 2394) says that a drugless practitioner may not in treating patients’penetrate the tissue. As we have seen, petitioner was not treating the patient. The licensed physician was doing that. Under these circumstances, the principles enunciated in Chalmers-Francis v. Nelson, 6 Cal.2d 402 [ 57 P.2d 1312 ], where a nurse administered the anesthetic to a patient undergoing an operation, are appropriate. The court said: “The findings, which are amply supported by the testimony in this case, show conclusively that everything which was done by the nurse, Dagmar A. Nelson, in the present instance, and by nurses generally, in the administration of anesthetics, was, and is done under the immediate direction and supervision of the operating surgeon and his assistants. Such method seems to be the uniform practice in operating rooms. There was much testimony as to the recognized practice of permitting nurses to administer anesthetics and hypodermics. One of plaintiffs’ witnesses testified to what seems to be the established and uniformly accepted practice and procedure followed by surgeons and nurses, and that is that it is not diagnosing or prescribing by nurses within the meaning of the Medical Practice Act. We are led further to accept this practice and procedure as established when we consider the evidence of the many surgeons who supported the contention of the defendant nurse, and whose qualifications to testify concerning the practice of medicine in this community and elsewhere were established *257 beyond dispute. That such practice is in accord with the generally accepted rule is borne out by the decided cases. (Frank v. South, 175 Ky. 416 [ 194 S.W. 375 , Ann.Cas. 1918E 682]; Underwood v. Scott, 43 Kan. 714 [ 23 P. 942 ].) While these two cases construe provisions of statute law specifically relating to the practice and duties of registered nurses, they are in agreement with the definitely established rule relating to the subject. (Frank v. South, supra; In re Carpenter’s Estate, 196 Mich. 561 [ 162 N.W. 963 ].)

“Aside from the proposition that nurses in the surgery during the preparation for and progress of an operation are not diagnosing or prescribing within the meaning of the Medical Practice Act, it is the legally established rule that they are but carrying out the orders of the physicians to whose authority they are subject. The surgeon has the power, and therefore the duty, to direct the nurse and her actions during the operation.” [Emphasis added.]

Practicality and common sense must be employed when these statutes are interpreted. Many common practices may be noted which, while technically a violation of the Medical Practice Act, are not so considered. Take, for example, the case of the playground supervisor, or school teacher, who renders first aid to her charges, such as the removal of a splinter which calls for a penetration of tissue; the manicurist who cuts fingernails (tissue); the barber who cuts hair (tissue); the nurse, or even a mere office attendant employed by a doctor who gives hypodermic injections for the prevention of various diseases, or in treatment of different ills, diseases or conditions, where the doctor is not in the same room, or even in the immediate vicinity. While all of the above mentioned acts are technical violations of the Medical Practice Act, reason and common sense tell us that the Legislature in adopting the Medical Practice Act did not intend that any of these acts should constitute a crime.

It would seem to me that the doctor who gives the orders to a person in the category of appellant is equally guilty, if appellant is guilty, of unprofessional conduct. He, too, must be cognizant of the limitations of the license held by such a drugless practitioner or laboratory technician. Nurses and laboratory technicians are taught to give hypodermics, and the intricacies of giving transfusions, and yet, under the holding of this case, are guilty of unprofessional conduct if they *258 carry out orders of a licensed physician in so doing. It is a physical impossibility for a doctor performing an operation to give a transfusion at the same time to a patient who needs it; •it is equally impossible for a doctor to see and give “shots” to every patient who comes to his office for that type of treatment—it is necessary for him to delegate some of his duties to technicians trained to do just that sort of thing. Are we to hold all these trained persons guilty of unprofessional conduct and do nothing about the one who gives the orders, or, are we likewise to hold the physicians who employ them guilty of unprofessional conduct for aiding and abetting an unlicensed person? These technicians earn their livelihood by carrying out the orders of their superiors in the medical field. But because the majority of this court considers that appellant was himself treating the patient when he was only doing what he was told to do by one qualified to tell him to do it, he is guilty of unprofessional conduct and may have his license revoked without a hearing that satisfies the most meager requirements of due process of law. I cannot agree that we are required to place such an unreasonable construction upon the provisions of the Medical Practice Act, or that the State Board of Medical Examiners would have done so had they considered the implications which must flow therefrom.

I would, therefore, reverse the judgment with direction to the trial court to grant the writ of mandate prayed for by petitioner.

Respondents’ and appellant’s petitions for a rehearing were denied May 25,1950. Edmonds, J., Carter, J., and Spence, J., voted for a rehearing.