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Eastman v. Southworth

Supreme Court of Arizona

May 4, 1960

Lewis K. EASTMAN, Appellant,
v.
Harry T. SOUTHWORTH, M.D. et al., as members of the Board of Medical Examiners of the State of Arizona, and the Board of Medical Examiners of the State of Arizona, Appellees.

Page 993

[87 Ariz. 395] E. R. Thurman, Phoenix, Ellis & Cox, Eloy, for appellant.

Robert Morrison, former Atty. Gen., H. B. Daniels, Asst. Atty. Gen., Wade Church, present Atty. Gen., H. B. Daniels, Asst. Atty. Gen., for appellees.

PHELPS, Justice.

This is an appeal by Lewis K. Eastman, hereinafter referred to as petitioner, from an order and judgment of the superior court dismissing his second amended complaint in which he sought a writ of mandamus against the State Board of Medical Examiners, appellees, hereinafter designated as the Board. The order of dismissal also denied petitioner the right to amend.

The facts of the case are that petitioner is a physician and surgeon, and has been engaged in the practice of his profession in the State of Illinois since November 1917 after his graduation from Loyola University School of Medicine until some time [87 Ariz. 396] previous to coming to Arizona in 1951, and is now duly licensed to paractice his profession in that state.

On April 4, 1951 petitioner made application with the Arizona State Board of Examiners in the Basic Sciences requesting that he be issued a certificate of registration in the basic sciences by reciprocal endorsement. Petitioner complied with all of the rules and regulations of said Board and with the provisions of Section 67-207, Cum.Sup. paragraph B, A.C.A.1939, [now A.R.S. Subsection B, § 32-424] in filing said application.

The second amended complaint alleges that the above-named Board subsequent to said 4th day of April 1951 up to the 29th day of September 1954, purposely procrastinated and arbitrarily and capriciously failed to inform petitioner that it would or would not issue him a certificate in the basic sciences; That during the interim period above mentioned the Board advised petitioner that his application would be presented again to the Board but that he was not informed until September 29, 1954 that his application had been denied.

That petitioner was forced to file an action in the superior court asking it to mandamus the Examining Board in Basic Sciences to issue said certificate to him, and that on December 7, 1954, said court did issue its peremptory writ of mandamus commanding the Board to issue said certificate of registration in the basic sciences to petitioner by reciprocal endorsement between the State of Arizona and the State of Illinois.

The complaint further alleges that on March 27, 1951 petitioner filed his application with the Arizona State Board of Medical Examiners for a certificate to practice medicine and surgery in Arizona, and that no action was taken thereon until subsequent to the issueance of the peremptory writ of mandamus December 7, 1954 against the State Board of Examiners in the basic sciences with whom it is alleged the State Medical Board of Examiners had been cooperating; That this delay was without justification for the reason that petitioner had fully complied with the law relating thereto and with the rules and regulations of the State Medical Examining Board.

Petitioner alleges that on January 7, 1955, a form letter was addressed to him requesting him to appear before the Board at 2:15 p. m. on January 15, 1955 for a personal interview; That at that time and place he was advised by the president of the Board of Medical Examiners that it had information he was morally unfit and that he was guilty of unprofessional conduct and that it had other derogatory statements concerning him, and that the Board would not decide his matter until further investigation; That he was not informed of the outcome [87 Ariz. 397] of such investigation until December 21, 1956, a period of nearly two years later.

The second amended complaint further alleges that on April 11, 1955, a letter was addressed to him advising that an interview was scheduled with him for 4 p. m. April 16, and requested him to report; That he presented himself at the time and place and was informed by the president of the

Page 994

Board that further derogatory statements concerning him had been received but, when requested by petitioner to inform him of their nature and by whom the charges were made, the Board refused to give him the information. Upon inquiry as to when their investigation would be concluded he was informed the members did not know. Petitioner then requested that he be given an oral examination and was told by the Board they were not prepared to give him such as examination.

It is further alleged that at no time has the Board cited petitioner with a sworn complaint charging him with unprofessional conduct as provided in Section 67-1106, A.C.A.1939, or A.R.S. § 32-1452, setting forth the particular facts upon which they rely as constituting unprofessional conduct; That a letter addressed to petitioner bearing date December 19, 1956 informed petitioner that although it felt that his past activities are subject to question and cast some reflection upon his reputation as an ethical practitioner, it would abide by the law, A.R.S. § 32-1452, supra, which provided in part that:

'* * * No certificate shall be refused on the ground of inability or unprofessional conduct unless the applicant has been affected by such inability or guilty of such conduct within two years next preceding his application.'

and that the next scheduled meeting of the Board would be January 19, 1957, and it was requested that he submit to an oral examination. The amended complaint having been dismissed without leave to amend by the court, the court was thereby committed to the proposition of law, not only that all of the material allegations of fact were true but that it did not state a cause of action ...


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