# Board of Medical Examiners v. Buck

> Oregon Supreme Court · June 6, 1951 · 192 Or. 66

URL: https://www.frixlaw.com/law-library/cases/9610612

## Case

- **Full name:** In the Matter of the Proceedings for the Revocation of the License of George H. Buck to Practice Medicine and Surgery in the State of Oregon. BOARD OF MEDICAL EXAMINERS OF THE STATE OF OREGON v. GEORGE H. BUCK
- **Court:** Oregon Supreme Court
- **Decided:** June 6, 1951
- **Citations:** 192 Or. 66; 232 P.2d 791; 1951 Ore. LEXIS 230
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Brand
- **Judges:** Brand, Rossman, Hay
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9610612

## Opinion text

BRAND, C. J.
A complaint was filed with the Secretary of the Board of Medical Examiners against the defendant Dr. George H. Buck, seeking the revocation of his license to practice medicine and surgery. After a hearing, the Board revoked the license. The defendant appealed to the circuit court which reversed the order of revocation and directed the Board to reinstate the defendant as a duly licensed physician and surgeon. The Board appeals.
The original complaint was filed on 25 September 1946. It contained 13 alleged causes of complaint separately stated. In each instance the act complained of was alleged to have occurred “during a period approximately between the 10th day of October, 1943, and the 18th day of October, 1943”. The amended complaint was filed on 13 December 1946. It contained 14 alleged causes of complaint, separately stated. In each instance the act complained of was alleged to have occurred “during a period approximately between the 2nd day of October, 1943, and the 19th day of October, 1943”. Although the methods employed, and the ensuing results, are variously stated in the 27 alleged causes of complaint, nevertheless, they are all based upon the same general charge, namely, the causing of an abortion by operation upon, or treatment, of one Frances Rasmussen. In some instances, the death of the child, and in others, the death of the mother, is alleged. In the *70 circuit court the issue was determined solely upon the pleading. It was held that none of the counts in the original or in the amended complaint state facts constituting sufficient ground for the revocation of the license. The court made a special finding to the effect that the Board of Medical Examiners had no jurisdiction to determine any matter alleged in the 14th charge of the amended complaint, because that complaint was not filed within three years from the date of the alleged act.
The Board of Medical Examiners exists by virtue of the provisions of Title 54, Chapter 9, O.C.L.A., as amended. The statute provides in part as follows:
‘ ‘ The board shall have the following powers, in addition to the powers otherwise granted in this chapter, and shall have all powers necessary or proper to carry granted powers into effect:
“(a) To make such rules and regulations not inconsistent with the laws of this state as shall be deemed necessary or proper to carry out the lawful powers and duties of the board.
“ (b) To make such rules and regulations as may be necessary or proper to determine the qualifications of applicants for licensure to practice medicine and surgery in the state of Oregon, and to establish educational, moral and professional standards for such applicants, subject to laws of this state.
it* * *
“ (h) To refuse to issue licenses and to suspend or revoke licenses to practice medicine and surgery within the state of Oregon in accordance with the provisions of this chapter and the rules and regulations of the board.
((* * *
1 ‘ (k) To investigate any alleged violation of this act and bring to the attention of the proper district attorney any alleged violation of the act.
*71 “(1) To enforce the provisions of this chapter and to exercise general supervision over the practice of medicine and surgery within the state of Oregon. * * *” O.C.L.A., § 54-913.
“The board may refuse to grant a license to any applicant who desires to practice medicine and surgery in this state or may suspend or revoke such licenses for any of the following reasons:
“(a) Unprofessional or dishonorable conduct;
“(b) The procuring or aiding or abetting in procuring an abortion unless such is done for the relief of a woman whose health appears in peril because of her pregnant condition after due consultation with another duly licensed medical physician and surgeon;
U® * ®
“(i) Conviction of any offense for which the punishment may be incarceration in a state penitentiary or in a federal prison; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence;
“* * *” O.C.L.A., § 54-931.
“When used in this act, the following terms will have the following meanings, unless otherwise limited:
i Í * * ®
“ ‘Unprofessional or dishonorable conduct’ shall mean such conduct as would not be indulged in by an ethical physician and surgeon, under all the circumstances, taking into consideration the good of the patient, and the public, the time and place.
“ ‘Abortion’ shall mean the expulsion of the foetus at a period of uterogestation so early that it has not acquired the power of sustaining an independent life; provided it shall be conclusively presumed for the purpose of this statute that the foetus has not acquired such power earlier than one hundred fifty (150) days after gestation, and a disputable presumption of lack of such power shall *72 arise if the expulsion take place earlier than two hundred forty (240) days after gestation.
“* * #” Ó.C.L.A., § 54-901.
In addition to the substantive rules as above set forth, the statute also prescribes rules of procedure: The statute provides that a complaint seeking revocation of a license “shall not be filed later than three years from the date that the act complained of was committed by such licensee.” It will be observed that the original complaint was filed within three years from the time of the alleged offense but that the amended complaint was not.
We now direct our attention to the only issue presented, namely, the sufficiency of the pleadings. We shall outline in detail the allegations of the first count in the original complaint and then summarize the differences as they appear in the succeeding 12 counts thereof. Count I: It is alleged that the defendant was a licensed physician and surgeon. This allegation is repeated in the succeeding counts.
“II
“That the said George H. Buck within the City of Portland, Multnomah County, Oregon, did, during a period approximately between the 10th day of October, 1943, and the 18th day of October, 1943, procure and perform an abortion upon one France's Basmussen, who was then and there in a pregnant condition.
“Ill
“That the health of the said Frances Basmussen was not in peril because of her pregnant condition, and that the said George H. Buck did not duly consult with another duly licensed medical physician and surgeon prior to performing said abortion.
*73 “IV
“That the said conduct on the part of the said George H. Buck was and is contrary to the laws of the State of Oregon, and particularly Section 54-931, O.C.L.A.”
All succeeding counts reiterate the allegation of paragraph IV. The second count alleges:
“That the said George H. Buck is guilty of unprofessional and dishonorable conduct in that he did, within the City of Portland, Multnomah County, Oregon, during a period approximately between the 10th day of October, 1943, and the 18th day of October, 1943, perform an operation upon one Prances Rasmussen, or upon the child with which she was then and there pregnant, the exact kind and nature of which operation is unknown to complainant, which resulted in the death of the child with which the said Prances Rasmussen was then and there pregnant.”
The third count differs from the corresponding paragraph of the second count in that the charge is that the defendant did administer to and treat Prances Rasmussen or the child with which she was then and there pregnant in such a manner as to result in the death of the child. The fourth count alleges that the operation was performed wilfully. The fifth count is like the corresponding paragraph of the third count except that it alleges that the treatment was wilful. The sixth count alleges that the defendant’s operation was negligently performed, resulting in the death of the child. The seventh count alleges that the treatment was negligent, resulting in the death of the child. The eighth count alleges unprofessional conduct and the performing of an operation upon Prances Rasmussen or upon the child, which resulted in the death of Prances Rasmussen. The ninth count alleges unprofessional *74 and dishonorable conduct in treating Frances Rasmussen or the child, resulting in the death of Frances Rasmussen. The tenth count alleges unprofessional conduct by the wilful performing of an operation upon Frances Rasmussen or the child, causing the death of Frances Rasmussen. The eleventh count is like the corresponding paragraph of the ninth count except that the act is charged as wilfully done. The twelfth count charges unprofessional and dishonorable conduct and the negligent performing of an operation upon Frances Rasmussen or upon the child, resulting in the death of Frances Rasmussen. The thirteenth count resembles the twelfth count except that the charge is negligently administering to and treating Frances Rasmussen. The allegations of the first thirteen counts of the amended complaint are substantially identical to the corresponding counts of the original complaint except for the fact that the dates within which the acts are alleged to have occurred are in each case stated to be “approximately between the 2nd day of October, 1943 and the 19th day of October, 1943” instead of “between the 10th day of October, 1943, and the 18th day of October, 1943” as stated in the original complaint. The fourteenth count of the amended complaint alleges:
“That the said George H. Buck is guilty of unprofessional and dishonorable conduct in that he did, within the City of Portland, Multnomah County, Oregon, during a period approximately between the 2nd day of October, 1943, and the 19th day of October, 1943, operate, administer to or treat one Frances Rasmussen in such a manner as to cause the premature expulsion of the foetus with which the said Frances Rasmussen was then and there pregnant.”
*75 The only question for our determination relates to the sufficiency of the complaint, but whether a pleading should be liberally or strictly construed by this court may be influenced by the record below. We will briefly review that situation. The original complaint was filed on 25 September 1946 and was served upon the defendant, together with a notice of time and place of hearing. The record fails to show any appearance or answer by the defendant as to the original complaint. On the day appointed for the hearing, to wit, on 13 December 1946, an amended complaint was filed, to the filing of which no objection was made. However, the defendant moved to strike from the amended complaint certain irrelevant matter concerning proceedings of a similar nature which had previously been brought against the defendant. Those allegations were stricken by the Board.
On the same day the defendant filed a general denial of the charges. No demurrer was filed at any time, but in the course of the trial before the Board, counsel for the defendant objected to the admission of any evidence in the following language:
“MR. MEANS: * * * I, at this time, wish to object to the admission of any evidence on causes of complaint 2 to 14, inclusive, on the ground and for the reason that they state no sufficient cause there for the consideration or action of this Board.”
The objection was overruled. No challenge was made to the first count of the amended complaint. It will be recalled that the original complaint charged that the defendant’s acts were committed “approximately between the 10th day of October, 1943, and the 18th day of October, 1943”. At the close of the testimony before the Board, counsel (for the Board) moved that the complaint be amended to conform to the testi *76 mony of Dr. Buck that the dates between which the treatment was administered were the 2nd day of October and the 19th day of October, 1943. Upon inquiry, counsel for the defendant stated that he had no objection to the amendment and it was made. The findings of the Board followed the allegations of the amended complaint. On the appeal to the circuit court, the record fails to show the filing of any motion or demurrer by the defendant, but an order extending the time to file briefs refers to a motion by the defendant to quash the complaint and dismiss the proceedings on the ground that the complaint stated only conclusions of law; on the further ground that the Board had no authority to authorize the filing of an amended complaint and that the amended complaint contains a cause of action not included in the original complaint, and also upon the general ground that the Board was without jurisdiction. At no time did the defendant request the Board to exercise its statutory power “to require that the complaint be made more definite and certain.” O.C.L.A., §54-932.
The defendant makes the following contentions: ‘ ‘ The license to practice medicine is a valuable property right, and the statutes authorizing revocation of license to practice medicine must be strictly followed, said statutes are highly penal and must be construed in the physician’s favor.” The courts are not in accord as to whether the right to practice medicine should be classed as a property right or as a privilege. Horton v. Clark, 316 Mo. 770 , 293 S.W. 362 .
In Semler v. Oregon State Board of Dental Examiners et al, 148 Or. 50 , 34 P. 2d 311 , this court said:
“* * * We conclude then that, while the right of the plaintiff to practice his profession is a *77 valuable one and is in the nature of a property right of which he cannot be arbitrarily deprived, it is, nevertheless, a privilege subordinate to the duty of the state to enact reasonable laws to protect the public health and safety. ’ ’
From an early decision under the authorship of a distinguished judge of this court, we quote the following :
; although it draws a conclusion that the defendant was concerned in procuring a criminal abortion, it does not state facts sufficient to authorize the court to make the same deduction that the action of the defendant was criminal. For instance, an intent to destroy the child is an element of the crime defined in Section 1900, L. O. L., and another element is that the death of the child or of the mother must be produced by means of the administration of the medicine, drug or other substance or by the employment of the instruments or other means mentioned in the statute. * * *”
It is apparent that the decision in this case is out of harmony with the numerous cases previously cited. In any event, the Eisen case is clearly distin *93 guishable from the case at bar. The statute in its present form makes no reference to criminal abortion as did the statute in the Eisen case, nor did the earlier statute contain the provisions found in O.C.L.A., § 54-932 and quoted supra. Under the provisions of the present statute and the authorities cited we hold that the first count of the original complaint was good. We find it unnecessary to consider the sufficiency of the remaining twelve counts of the original complaint. The complaint, as a whole, does merit one comment, however. Strict rules of pleading in common-law cases may require that each count of a complaint shall be tested separately from the others. In cases before a medical board in which strict rules of pleading need not be followed, and in which the essential requirement is that the charge shall be described with reasonable certainty in order to enable the defendant to prepare his defense, it would appear that the court or board might consider the allegations of the entire amended complaint in determining whether or not the defendant has received the requisite notice of the charge. Viewing the complaint thus, it is clear that each count of the original complaint referred to the same general act, namely, the procuring of an abortion upon the same person, and that the defendant was duly notified that, either by the performing of an operation or by the administering of treatment, the defendant procured an abortion upon a pregnant woman, to wit, upon Prances Rasmussen, resulting in the death of the child and the death of the mother. It is clear that all of the counts of the amended complaint relate to the same act, which was the basis of the charge in the original complaint. As we have indicated, the first count of the amended complaint wTas identical to the first count of the original *94 complaint, except as to the specification of the dates within which the act occurred. This enlargement by amendment cannot be construed as authorizing proof of any act other than that charged in the original complaint. It will not impose an undue strain upon judicial notice to hold that it would be impossible for a doctor, between the 2nd and 19th days of October, 1943, to abort the same woman more than once, especially if the act resulted in the death of both mother and child. We conclude that no new cause of action is set forth in the amended complaint. Elliott v. Mosgrove, 162 Or. 507 , 91 P. 2d 852 , 93 P. 2d 1070 ; Ross v. Robinson, 174 Or. 25 , 147 P. 2d 204 .
The defendant contends that the Board was without jurisdiction to consider the amended complaint because it was filed “later than three years from the date that the act complained of was committed”. O.C.L.A., § 54-932 (b). The rule is well stated in Ross v. Robinson, supra, as follows:
“Is is a general rule that ‘an amendment of a pleading will take effect by relation and thus relieve against the bar of an intervening limitation if the identity of the cause of action is still substantially the same, but that the limitation will prevail if under the guise of an amendment there is the substitution of a new cause of action in place of another wholly different.’ ”
To the same effect see Fox v. Ungar, 164 Or. 226 , 98 P. 2d 717 ; Richardson v. Investment Co., 124 Or. 569 , 264 P. 458 , 265 P. 1117 ; Keadle v. Padden, 143 Or. 350 , 20 P. 2d 403 , 22 P. 2d 892 .
Since the practice before the Board is to conform as nearly as practical to equity suits, O.C.L.A., § 54-932 (1), and since the amended complaint adds no new cause of action, it should be held to relate back to the *95 date of the filing of the original complaint. The cases cited on this point were actions at law, but the same rule is undoubtedly applicable to such suits in equity as may be subject to the statute of limitations. Work v. County Nat. Bank & Trust Co. of Santa Barbara, 4 Cal. 2d 532, 51 P. 2d 90 . Since the amended complaint added no new cause of action, we are authorized to apply the rule which prevails, both in legal and equitable proceedings, and we therefore hold that the amended complaint took effect by relation as of the date of the commencement of the action. The three-year limitation does not bar these proceedings. We hold that the amended complaint describes the charge against the defendant with reasonable certainty, and states grounds, which, if proven, would authorize the revocation of the license. The trial court erred in ruling to the contrary. The judgment is reversed and the cause is remanded to the circuit court with directions to proceed with the trial of the appeal as provided in O.C.L.A., § 54-933.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9610612. Public record. Not legal advice.