Episode one closed with the California and Georgia medical boards stripping “Dr.” Phillip Dyment of his medical license. The good doctor was nothing, however, if not persistent. Like any good charlatan, he lawyered up. Today, we conclude the story of “Dr” Dyment but first a little context.
In 1920, state medical boards were quasi-legal entities straddling two spheres. On the one hand, they served as an extension of the state (i.e., government). In Dent v. West Virginia (1889) and Hawker v. New York (1898), the U.S. Supreme Court accepted the authority of the state (or one of its agencies) to “provide for the general welfare of its people” in matters of public health. Specifically cited was the authority of the state to license and/or examine physicians for the practice of medicine.
On the other hand, state medical boards were bodies heavily weighted toward the interests of physicians and the medical profession in general. Gubernatorial appointment may have been the mechanism for inclusion on these boards but state medical associations exerted tremendous influence by identifying or recommending appointees to these exclusively physician boards. (Note: public members were non-existent at the time)
I share this because legal challenges arose almost as soon as the first medical board issued a decision to issue or revoke a license. Medical boards quickly found themselves on the receiving end of a crash course: Intro to Law 101. Because they operated with a fair degree of autonomy and often lacked access to in-house counsel, medical boards were sometimes outflanked by savvy physicians quick to lawyer up and exploit legal missteps.
Though he was a fake, Dyment proved a savvy fake.
Having learned from the Georgia board about Dyment’s use of a proxy/ringer on their licensing exam, the California medical board notified Dyment in August 1920 of their complaint against him for “unprofessional conduct.” The board demanded he appear before them in October to answer the charge. Apparently operating from a parental rather than a legal mindset (“You know what you did, young man!”), the board didn’t bother to list any detail in its complaint for unprofessional conduct.
Dyment (through his attorney) spotted the board’s error immediately. Instead of appearing before the board in October, he replied with a letter of his own. The legal term for his responding letter is a demurrer but what it comes down to really is this: Dyment said he could not answer the charge—and had no legal obligation to do so—because the board had not been “sufficiently definite and specific” by explaining which of the twelve statutory bases for unprofessional conduct that he had violated.
At its hearing in October sans Dyment, the board decided to ignore the point of law raised by Dyment. They had nothing in their regulations about responding to demurrers so they opted to proceed based upon the facts of the case as they understood them. The board found Dyment guilty of unprofessional conduct and revoked his license.
Dyment took this decision and ran to the courts. A California Superior Court sided with the medical board—apparently citing the board’s enacting regulations as not providing for demurrers. Having lost the first two rounds, an unbowed Dyment pressed on to a state appellate court. Here he found success.
The appellate court reversed the decision stating the fundamental right of a citizen that a complaint against them be sufficiently definite and specific that they can respond adequately to the charge. The court stated that the medical board erred by not first addressing Dyment’s demurrer (the insufficiency of the complaint) before proceeding with its hearing on the facts of the case.
Having said all this, the appellate court acknowledged the valuable work of the medical board. “The work done by the medical boards…in purging the ranks of the medical profession of quacks and charlatans is a most commendable one.” This, however, did not outweigh the board’s legal responsibility to “notify [Dyment] of the nature of the offense attempted to be placed against him.”
Rebuked but not discouraged, the California medical board went after Dyment again—this time sufficiently setting forth the details of the complaint. Again after a hearing, the board revoked Dyment’s license.
Dyment struck back on two points of law that did not conclude until 1928. First, Dyment claimed that the board operated in a “quasi-judicial” capacity and that evidence of bias on the part of one of the board members violated California law requiring judges with bias or interest in a matter to recuse themselves. The court disagreed citing previous case law that a state medical board served an “administrative” rather than judicial function; thus, the law was not applicable in this case.
On his second point, Dyment found success. He claimed the only evidence against him (the affidavit of the proxy test taker wife) was hearsay. While the court acknowledged that the substance of the evidence may have been true, its form (hearsay) was not admissible; and lacking other evidence that did not constitute hearsay, the appellate court once again ruled in favor of Dyment.
This case offers a great example of the many difficulties facing state medical boards of this era. They may have been quasi-judicial bodies serving an administrative role but the legal system held them accountable for observing procedural and substantive due process. Not surprisingly, physicians on these boards floundered at times in navigating unfamiliar legal waters.
And “Dr” Phillip Dyment? The last I found of him dates to 1929…he was still practicing medicine in California.
The opinions stated here are those of the author and not that of the FSMB.
Dyment v. Board of Medical Examiners, 93 Cal. App. 65. 268 P. 1073
The Pacific Reporter, 207, July 3-September 11, 1922 (St. Paul: West Publishing Co., 1922), 410-12
“Phillip Dyment Still Practicing,” Federation Bulletin 15, no. 6 (June 1929), 190.