Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Certiorari Denied Dec. 15, 1958.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
The Commission on Licensure to Practice the Healing Art in the District of Columbia brought an equity action *fn1 seeking the revocation of the license of the appellant to practice medicine and surgery in the District of Columbia. Judgment having been entered in favor of the Commission, this appeal followed.
The complaint charged that appellant had been guilty of "misconduct" in that while a duly licensed and registered doctor and surgeon he had on or about November 23, 1954, prescribed or administered a drug or had used an instrument on the person of a pregnant woman with the intent of procuring a miscarriage, as a result of which the woman had a miscarriage and died three days later. The trial judge found the appellant guilty accordingly, but not guilty in two other charged particulars: (1) of having visited the deceased, but denying he had done so; and (2) of failing to notify the police or the coroner of her death.
Appellant here complains of error in four respects. First, he charges the finding that he committed the abortion is clearly erroneous and rests upon insufficient grounds. Next he argues that the statutory term "misconduct" is too vague and indefinite to meet the requirements of due process, and that revocation of a doctor's license may be had only under D.C. Code § 2-131 (1951) *fn2 following conviction of a felony. Finally, he challenges, because of the prohibition against wire tapping, *fn3 the admission of details of two telephonic conversations as part of testimony by a police officer who listened on a telephone extension while a material witness talked by telephone to the appellant. I
The trial court's findings of fact emerged from a conflict which it was singularly the duty of the trial judge to resolve. Our review discloses substantial evidence of record from which the trier might fairly conclude that the decedent had been aborted and that the appellant had undertaken to, and did, perform whatever acts were involved. That the decedent died as a result is beyond peradventure. We cannot say that the court's findings have been shown to be clearly erroneous, indeed a careful examination of the transcript leads us to agreement with the findings of the trier and the conclusions based thereon. II
The Code's use of the word "misconduct" *fn4 seems at first reading to present a problem in that no statutory standards to govern its present application have been set forth. When we perceive, however, that the statute permits revocation upon this ground only after the institution of action in the United States District Court for the District of Columbia sitting as a court of equity, we first may fairly look to the act as a whole, its purpose and objectives, and then to the complaint itself and to the pleadings of record. In this perspective, we observe, Paragraph 3 of the complaint was quite specific in that the "misconduct" charged had been spelled out in the words of the criminal statute which defines the offense. *fn5 Surely appellant may not be heard to say that the allegations as to the particular offense are not sufficiently stated. *fn6
There was no claim at the trial that appellant had not been fully apprised of the nature of the offense. Had he been in doubt as to particulars either to enable him to plead or to prepare for trial, he might have moved for a more definite statement under the Rule. *fn7
There has been no claim of variance between the allegations and the proof. There is no suggestion that the complaint and the evidence offered to support it had involved elements of surprise prejudicial to the appellant's case. *fn8 It is not argued that the statute transcends the power of Congress or that practitioners of medicine may not be regulated. *fn9 It is argued, and the point is raised here for the first time, that the statute is "so vague and indefinite as to violate the requirements of due process."
After providing that the District Court sitting as a court of equity may revoke a license where the licentiate "has been guilty of misconduct or is professionally incapacitated," *fn10 the Code continues that proceedings shall be commenced by verified petition. "Proceedings shall be conducted according to the ordinary rules of equity practice and such supplementary rules as said [District Court] may deem expedient to carry into effect the purpose and intent of this chapter." The Court is authorized to determine whether a license shall be suspended or revoked. Its decision is subject to appeal to this court.
The "Healing Arts Practice Act, District of Columbia, 1928" *fn11 repealed the earlier act governing the practice of medicine and surgery in the District *fn12 which by its section 10 had committed revocation to a board of medical supervisors. The board had been authorized to act for various causes, such as the "employment of fraud or deception in passing the examinations . . . chronic inebriety, the practice of criminal abortion, conviction of crime involving moral turpitude, or unprofessional or dishonorable conduct." *fn13 The present act eliminated the board of medical supervisors as judges in revocation proceedings and substituted the United States District Court, sitting as a court of equity. The licentiate in every case has available to him the full protection of the Federal Rules. "Misconduct" as a ground for suspension or revocation is not left as a matter of opinion *fn14 but is susceptible to complete exposition under the Rules and requires proof as a matter of fact accordingly.
Nor can we doubt that every medical practitioner knows fully that the performance of a criminal abortion is misconduct. *fn15 He need not guess at the meaning of the term in view of his status and the Code which governs. "The reason of the law, as indicated by its general terms, should prevail over its letter, when the plain purpose of the act will be defeated by strict adherence to its verbiage." *fn16 The purpose of the statute here is clear and calls for no further exploration into semantics. *fn17 Congress intended to provide a remedial measure for the protection of the public, *fn18 ...