Matter of Tompkins v. Board of Regents

This appeal presents the question as to whether a doctor who prescribes narcotic drugs for an addict, with the sole purpose of satisfying the addiction and without a legitimate medical end, is thereby guilty of "fraud or deceit in the practice of medicine" (Education Law, § 6514, subd. 2, par. [a]) and subject to discipline by the Board of Regents.

After a proceeding pursuant to section 6515 of the Education Law the board had determined that respondent was guilty of "fraud or deceit" under the statute and ordered the suspension of his license for six months. In reversing that determination "on the law and facts" the Appellate Division has posed another question as to the scope of review of the evidence in proceedings under article 78 of the Civil Practice Act.

Respondent was a general practitioner. During the summer and fall of 1944, he was treating Harry Stevens, who had come to him as a patient in July. Stevens then had told the doctor of suffering for seven years from bronchitis and pulmonary tuberculosis, and that other physicians had prescribed for him morphine and dilaudid (a similar narcotic). During the period from July to December, respondent issued to Stevens forty-six prescriptions at intervals of two to twelve days for a total of 12.5 grains of dilaudid and 582.5 grains of morphine sulphate. Upon eleven occasions Stevens received two prescriptions for morphine sulphate on the same day; and on October 25th he received three. By November, the doctor was aware that Stevens was a morphine addict, yet continued to prescribe the drug for him without consideration of that fact.

During August and September, 1944, respondent issued three prescriptions for morphine sulphate to a man named Zisk who had come to him claiming to be in severe pain from a kidney ailment. He refused Zisk further prescriptions after recognizing that his story was false. Zisk, a known addict, informed the Federal Bureau of Narcotics that he had purchased prescriptions for narcotics from the doctor. The bureau undertook an investigation and John Cross, an agent, visited the village in which respondent practiced to check the prescriptions filed in the local drugstores. On November 6th, James Succo, an addict who was employed as an informer by the bureau, was brought to the village and visited the doctor. He told respondent that he was a merchant seaman whose ship had been sunk in a North Atlantic convoy; that a wound on his face had been received in an automobile accident; that he was a narcotic addict and desired a prescription for morphine. Succo received a prescription, for which he paid $5, and upon six other occasions he was sold a prescription for 100 quarter grains each. About a week after the last prescription the doctor told Succo that he could have no more. In explaining those prescriptions respondent said that Succo had attributed his addiction to war injuries and that, moved by patriotic sympathy, he had given the prescriptions and had urged Succo to take smaller amounts in each dose.

On December 5th Succo brought to the doctor's office Schlossberg, an agent of the bureau, whom he introduced as a friend who desired morphine. Schlossberg told the doctor his name was "Salsbury" and that he was an addict. After pointing out that his own supply of narcotics was limited and that frequent prescriptions might arouse the Federal authorities, respondent sold Schlossberg a prescription. Schlossberg later obtained two more prescriptions. The doctor did not examine Schlossberg, and explained that Succo's introduction of the man as a fellow seaman led him to assume that the two were similar cases.

Cross visited respondent on November 16th, said that he had become a narcotics addict while working in a carnival and desired some morphine. He testified to the following colloquy between the doctor and himself: "He said, `What is the matter with you?' I said, `Nothing, I am addicted.' He said, `I will have to treat you for something, kidney colic.' I said, `There is nothing wrong, I am addicted.' He said, `If the federal men come around they will pick me up and I can show I treated you for something.'" Cross then received a prescription for 60 quarter grains of morphine sulphate, and another for 100 quarter grains on December 7th.

The doctor, admitting that he believed Cross to be an addict, explained those prescriptions by the fact that the latter appeared to be a gentleman.

On each of the five prescriptions for Schlossberg and Cross the doctor wrote "Diag: Renal Colic," although he had examined neither of these men. In explanation he testified that a druggist had told him a diagnosis was required on prescriptions for narcotics, and that renal colic was the first thing that had occurred to him, perhaps because it indicates extreme pain.

In the disciplinary proceedings here under review respondent was charged with "fraud or deceit in the practice of medicine", an offense for which the Board of Regents may revoke or suspend his license or impose other discipline (Education Law, § 6514, subd. 2). The order of suspension rests upon findings that the prescriptions for Stevens, Succo, Schlossberg and Cross were issued without justifiable medical purpose and with the intent to satisfy their addiction, and were not written "in good faith and in the course of his regular professional practice". The charges relating to the Zisk prescriptions were dismissed.

Insofar as the court below has reversed the determination of the board upon the facts, its action is inconsistent with the well-settled principle that the courts may review such decisions for errors of law alone (Matter of Friedel v. Board ofRegents, 296 N.Y. 347; Matter of Weinstein v. Board ofRegents, 292 N.Y. 682; Education Law, § 6515, subd. 5; Civ. Prac. Act, § 1296, subd. 7). Properly stated, the question before that court was not whether the record would "convince" one of the facts found by the board, as indicated in the opinion, but whether a reasonable man might so find. (See Matter of StorkRestaurant v. Boland, 282 N.Y. 256, 274.)

So considered, we cannot say that the record does not contain substantial evidence in support of the findings adopted by the board. Respondent conceded that he believed all four men to be addicts, and admitted that he never examined Schlossberg or Cross. After learning of Stevens' addiction the doctor "prescribed to get rid of him" and not to relieve the physical effects of his habit. Clearest indication of conscious wrongdoing, and of intent to conceal it, appears from the inscription "renal colic" upon the five prescriptions for Schlossberg and Cross.

Can we say that issuance of prescriptions for narcotics under such circumstances constitutes "fraud or deceit" within the meaning of section 6514? That question has been complicated in this case by two other statutes to which the parties have referred. The first is the Harrison Narcotic Act (U.S. Code, tit. 26, §§ 2550 et seq.), which imposes a Federal tax upon certain drugs, including morphine, produced, imported or sold in the United States. To insure compliance, the statute provides that a domestic sale or transfer of any such drug is unlawful unless made upon a special order form, or upon the prescription of a physician (U.S. Code, tit. 26, § 2554). It has been held that a physician violates the statute in prescribing narcotics merely to satisfy addiction (Webb v. United States,249 U.S. 96), and that no offense is committed by prescribing a moderate amount of drugs to relieve the physical consequences of addiction (Linder v. United States, 268 U.S. 5).

The second statute is the Uniform Narcotic Drug Act (Public Health Law, §§ 420-448). It provides that a physician may prescribe narcotics only "in good faith and in the course of his professional practice" (§ 427). To obtain such drugs through fraud or subterfuge, and to "make or utter any false or forged prescription", are violations of the act (§ 438, subds. 1, 5) punishable as misdemeanors (Penal Law, § 1751-a). Under both State and Federal law pharmacists are required to keep prescriptions for narcotics on file for two years, readily available for law enforcement officers (Public Health Law, § 429, subds. 3, 5; U.S. Code, tit. 26, § 2554, subd. [c], par. [2]).

Throughout this proceeding respondent has contended that the charges against him in effect alleged a violation of the Harrison Act. The board has maintained that the charges reflect offenses under sections 427 and 438 of the Public Health Law, insofar as any statute is involved other than section 6514. On this head we agree with the Appellate Division that our consideration must be restricted to the charge of "fraud or deceit" under section 6514 and the scope of that provision.

With respect to those terms respondent apparently contends that they import the material elements of the analogous tort concept, whereby liability for fraud is predicated upon willful and conscious misrepresentation which misleads another to his detriment (see Eaton, Cole Burnham Co. v. Avery, 83 N.Y. 31). In that sense it is urged that there is no proof of respondent's intent to defraud anyone. The board insists that the terms "fraud or deceit in the practice of medicine" are equivalent in meaning to "unprofessional conduct", which is a ground for discipline in other professions than medicine (e.g., Judiciary Law, § 90, subd. 2 [attorneys]; Education Law, § 6613 [dentists]).

Both contentions are wide of the mark. The words "fraud or deceit" must be read in light of their traditional meaning in the law (Matter of Cowles v. Board of Regents, 266 App. Div. 629,633, affd. 292 N.Y. 650) and cannot be synonymous with "unprofessional conduct" — a term which may signify activity quite unlike fraud in the customary sense. (Cf. Matter of Bell v. Board of Regents, 295 N.Y. 101.)

The decisions under paragraph (a) of subdivision 2 of section 6514 have not expressly considered the meaning of the terms, but all of the cases disclose behavior which may be characterized as intentional misrepresentation or concealment of fact (e.g.,Matter of O'Neill v. Board of Regents, 272 App. Div. 1086;Matter of Siegal v. Board of Regents, 270 App. Div. 783;Matter of Hutschnecker v. Board of Regents, 269 App. Div. 891, affd. 295 N.Y. 558; Matter of Gilbert [Cole], 266 App. Div. 894). Since the statute is not concerned with private rights, it should not be construed to require that anyone actually has been misled, so long as the intent is present. Thus, in Matter of Gilbert (supra), a doctor had made a clandestine operation and surreptitiously dismembered a corpse in order to conceal a crime. His offense was complete when those acts had been done for an obvious purpose.

The issuance of a prescription for narcotic drugs to an addict without proper medical basis is clearly an act which is calculated to deceive those whose legitimate concern is the enforcement of the laws controlling trade in and consumption of narcotics. Such a prescription is more than a direction to the pharmacist. It plays an integral part in the system of control and, if not a true prescription, may throw that system awry. It is clear that respondent was conscious of those facts, and therefore we must hold that his conduct constituted "fraud or deceit" under section 6514.

The doctor's hitherto unblemished record, his generous contributions to public service, and his excellent reputation in the community, are persuasively set forth by the court below. Although those factors cannot outweigh the clear indication that he knew the nature of his acts, they should be significant to the board in exercising its broad discretion to frame the appropriate discipline, for the offense and for the offender. While exercise of that discretion is beyond our power to review, those considerations will be open to the board upon remittitur.

The order of the Appellate Division should be reversed, the determination of the Board of Regents annulled, and the matter remitted to the Board of Regents for further proceedings not inconsistent with the opinion herein, with costs in this court and in the Appellate Division to the appellant.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.

Order reversed, etc.