REVOCATION AND REINSTATEMENT OF LICENSE TO PRACTICE MEDICINE AND SURGERY

REVOCATION AND REINSTATEMENT OF LICENSE TO PRACTICE MEDICINE AND SURGERY

The use of the words "in this act" when used in an amendatory statute applies to the prior and amended law as well as to the amendatory law.

It was the intention of the legislature, by the enactment of chapter 202, Laws of 1955, to vest in the medical disciplinary board exclusive and absolute authority in the matter of either revoking or reinstating the license of a physician and surgeon regardless of whether the license was revoked for unprofessional conduct before or after the effective date of chapter 202, Laws of 1955.

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                                                                   May 23, 1957

Honorable George C. Starlund
Assistant Director
Department of Licenses
General Administration Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 69

Dear Sir:

            By letter previously acknowledged you have submitted to this office for an official opinion the following questions:

            1. Does the director of the department of licenses have legal authority to reinstate the license of a physician and surgeon whose license, prior to the effective date of chapter 202, Laws of 1955, was revoked on the grounds of unprofessional conduct?

            2. If the answer to the first question is in the negative, does the medical disciplinary board, created by chapter 202, Laws of 1955, have authority to reinstate such a license?

             [[Orig. Op. Page 2]]

            We answer the first question in the negative and the second question in the affirmative.

                                                                     ANALYSIS

            The first law regulating the practice of medicine and surgery in the state of Washington was a part of ch. 6, Laws of 1890.  Section 4, page 116, of this act defines the acts constituting unprofessional conduct by licensed physicians and surgeons.  The next law pertaining to the practice of medicine and surgery was enacted by our legislature as chapter 192, Laws of 1909.  This act makes no reference either by way of repeal or amendment to the previous act of 1890, but since it covers the entire field, it is our opinion that it repealed the 1890 act by implication; at least it superseded that act.

            In § 11, chapter 192, Laws of 1909, the same definition of unprofessional conduct as given in the 1890 law, is included.  This particular provision of the law was codified as § 8397 1/2 in Remington and Ballinger's Code.  Section 1, chapter 65, Laws of 1915, amended § 8397 1/2 of Rem. Bal. Code, but no other portion of the medical act was amended at that time.  Section 1, chapter 65, Laws of 1915, later codified as RCW 18.71.110 remained in effect without change until it was repealed by chapter 202 Laws of 1955.

            A new section defining the acts constituting unprofessional conduct as applied to physicians and surgeons was included in § 3, chapter 202, Laws of 1955, and is now codified as RCW 18.72.030.

            We have made a careful review of the original act of 1890 and the subsequent acts either amending or adding new features to the medical act.  We find no provision in the law as it existed prior to the effective date of chapter 202, Laws of 1955, authorizing either the medical examining board or the director of licenses to reinstate the license of a physician whose license had been revoked on the grounds of unprofessional conduct.  The 1955 legislature evidently noted this lack and provided in § 27, chapter 202, Laws of 1955, the following provision (RCW 18.72.270):

            "The director of licenses shall not issue any license or any renewal thereof to any person whose license has been revoked or suspended by the board, except in conformity  [[Orig. Op. Page 3]] with the terms and conditions of the certificate or order of revocation or suspension, or in conformity with any order of reinstatement issued by the board, or in accordance with the final judgment in any proceeding for review instituted under the provisions of this act."  (Emphasis supplied.)

            Section 38, chapter 202, Laws of 1955 amending (RCW 18.71.120) provides as follows:

            "The director must refuse a certificate to any applicant guilty of unprofessional conduct:  Provided, That any person whose license has been suspended or revoked under the provisions ofthis act may apply to the board for reinstatement at any time and the board may hold hearings on any such petition and may order reinstatement and impose terms and conditions thereof and issue a certificate of reinstatement to the director of licenses."  (Emphasis supplied.)

            Construing these two sections together, it is apparent that in § 27 specific provision is made for an order of reinstatement to be issued by the board as to licenses revoked by the board.  If the words "this act" used in § 38 referred only to licenses revoked by the medical disciplinary board, the section would have no particular meaning or significance.  It would be a mere duplication of the provisions of § 27 of the same act.  Just what the legislature intends when it uses the restrictive words "in this act" may not always be clear.  The question is, does it mean by the use of the words "this act" the chapter that is being immediately enacted, or does it mean to refer to the law as it existed prior to the act?  We conclude that it intends to refer to the act that is being amended.

            Going back to chapter 134, Laws of 1919, we find in § 7 of that act, reading from page 378 of the session laws of 1919, the following:

            "* * * Whenever any holder of a certificate to practice medicine and surgery in this state is guilty of unprofessional conduct, as the same is defined inthis act, and said unprofessional conduct has been brought to the attention of the board * * *" (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            The legislature then outlines the necessary procedures, in the way of notices and hearings, that must be followed in order to revoke a physician's license for unprofessional conduct.

            Chapter 134, Laws of 1919, amends some eleven sections of Rem. Bal. Code, but it does not amend § 8397 1/2 Rem. Bal. Code, and nowhere in chapter 134 is there any language defining the acts which constitute unprofessional conduct on the part of a physician.

            The use of the term "unprofessional conduct as the same is defined in this act" can have meaning only if they refer to chapter 65, Laws of 1915.  It is our opinion that this is exactly what the legislature intended.  Any other interpretation would leave the board of medical examiners or the director of licenses without any legal definition to guide them as to what constituted unprofessional conduct.

            It is therefore our conclusion that when the legislature used the words "this act" in § 38, chapter 202, Laws of 1955, it was referring to a license that had been suspended or revoked under the provisions of medical laws as they existed prior to the enactment of chapter 202, Laws of 1955.  Supporting this conclusion, we cite the case of State v. Buttignoni, 118 Wash. 110.  Reading from page 112 of the opinion, the court said:

            "* * * It is plain that the legislature, using the expression 'this act,' did not refer to the act of 1917 as a separate and independent measure, but thereby referred to initiative measure No. 3, as amended by that act.  * * *"

            Also in the case ofHenry v. McKay, 164 Wash. 526, reading from page 542 of the opinion our court again said:

            "* * * the words 'this act' as used in the amendatory statute do not refer to chapter 113 of the Laws of 1931, but to chapter 130 of the Laws of 1925, * * *"

            The only Washington case that approaches the problem here presented isRussell v. Dibble, 132 Wash. 51.  There the supreme court had before it a case in which the license of a physician and surgeon had been revoked for conduct involving moral turpitude.  The doctor, Mrs. Russell, had  [[Orig. Op. Page 5]] been convicted in state court of procuring an abortion, which constituted a direct violation of the statute defining unprofessional conduct.  She had been convicted in 1915 and was given a full pardon by the governor of the state of Washington in October of 1916.  Mrs. Russell claimed that the effect of the pardon was to restore all her rights as a citizen including the right to practice medicine.  She accordingly applied to the board to reinstate her.  Her first application for reinstatement being filed in the year 1916.  This was denied.  After a lapse of several years she again made an application for reinstatement, which application was again denied.  In June, 1924, she filed a petition in the superior court of King County for a writ of mandate directing the director of licenses, who under the administrative code of 1921, had succeeded to all powers and duties of the medical examining board to reinstate her license.  A demurrer to this petition was filed on behalf of the director of licenses.  The demurrer was overruled and an answer was then filed by the director of licenses.  After the hearing the court entered a mandate ordering the director to restore Mrs. Russell's license to practice as a physician and enjoining the director permanently from interfering with her in the practice of her profession.  An appeal was taken by the director based primarily upon the grounds that Mrs. Russell had an adequate remedy at law by appeal from the order of the board denying her application for reinstatement, and that thus an action in mandamus would not lie.  The court sustained the contentions of the appellant and, with the comment that the demurrer to the petition should have been sustained, reversed the superior court and directed a dismissal of the action.  Reading from page 55 of the opinion, the court said:

            "But we have no doubt that the board of examiners, during its regime, had, and the director of licenses now has, power under the statute to act upon the facts existing here; and since a right of appeal is intended to be given from any and all actions of the board or director, it must follow that respondent had a clear right of appeal from the refusal of the board to reinstate her.  * * *"

            We have received a brief from interested attorneys in which they draw from the quoted language of the Dibble case the conclusion that the statement of the court is tantamount to a direct holding by the supreme court of this state that the director of licenses had full power to reinstate the license of a doctor whose license had been revoked for unprofessional conduct.

            We cannot agree with such a conclusion.  The question of the legal authority  [[Orig. Op. Page 6]] of the director to reinstate a license that had been revoked was not an issue in the case.  The sole question before the supreme court was whether or not a right of appeal from an order refusing reinstatement was available to the applicant.  As we view the case, all the supreme court said was that on the state of facts presented in that case, the director had the power to act on the existing facts.  The director of the board had acted by refusing to reinstate.  We have reviewed the supreme court records and briefs on appeal in this case, and find that neither party ever presented or argued to the supreme court the question of the legal authority of the director to reinstate.  The only question presented to the supreme court involved the right of appeal from an order of the director denying an application to reinstate.

            In our opinion it was the intention of the legislature, by the enactment of chapter 202, Laws of 1955, to vest in the medical disciplinary board exclusive and absolute authority in the matter of either revoking or reinstating the license of a physician and surgeon, regardless of whether the license was revoked before or after the effective date of chapter 202, Laws of 1955.  Any person desiring reinstatement of a license revoked for unprofessional conduct should apply for such reinstatement to the board and not to the director of licenses.

            We trust the foregoing will prove helpful.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROY C. FOX
Assistant Attorney General