{
  "id": 8721011,
  "name": "ARKANSAS STATE MEDICAL BOARD v. Dr. J. E. CROSS",
  "name_abbreviation": "Arkansas State Medical Board v. Cross",
  "decision_date": "1974-04-15",
  "docket_number": "73-299",
  "first_page": "388",
  "last_page": "391",
  "citations": [
    {
      "type": "official",
      "cite": "256 Ark. 388"
    },
    {
      "type": "parallel",
      "cite": "507 S.W.2d 709"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "248 Ark. 1188",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1597763
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  "last_updated": "2023-07-14T14:44:14.527021+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Fogleman.J., not participating."
    ],
    "parties": [
      "ARKANSAS STATE MEDICAL BOARD v. Dr. J. E. CROSS"
    ],
    "opinions": [
      {
        "text": "Carleton Harris, Chief Justice.\nOn October 31, 1973, the Arkansas State Medical Board issued a complaint and notice entitled \u201cOrder to Appear and Show Cause\u201d to Dr. J. E. Cross of DeWitt, as follows:\n\u201cThe Arkansas State Medical Board has received evidence that you have been guilty of acts which will justify the revocation of your license to practice medicine in the State of Arkansas.\nSpecifically, it has been charged that you have violated the provisions of Ark. Stat. 72-613 (5) (7) in that you have written prescriptions for Schedule II drugs excessively.\nYou have written a number of prescriptions for which do not comply with the legal requirements for a valid prescription as is illustrated by the attached list.\nYou have been guilty of grossly negligent malpractice in the prescribing and dispensing of said drugs.\nYou are directed to appear before the Arkansas State Medical Board on Wednesday, December 5, 1973 at 2:00 pm. at the Camelot Inn Civic Center at Little Rock/Arkansas to show cause why your license to practice medicine in the State of- Arkansas should not be revoked. Your failure to appear before the Board will result in the immediate suspension of your license.*\u2019\nAttached to the order was an exhibit listing 40 names where Demerol prescriptions had been issued, allegedly in violation of the statute.\nDr. Cross filed a complaint in the Arkansas County Circuit Court under the provisions of Ark. Stat. Ann. \u00a7 5-707 (Supp. 1973) to quash the Order to Appear and Show Cause, in effect asserting that the board had no legal basis to issue said order or to hold a hearing concerning the license of Dr. Cross, there being (as asserted) no full and complete disclosure to him of the alleged acts of misconduct, complainant impropriety, or lack of qualifications, as he contends is demanded by Ark. Stat. Ann. \u00a7 72-614 (Repl. 1957). The board responded to this pleading, appearing specially, with a Motion to Quash, asserting that the court had no jurisdiction to enjoin such board \u201cfrom conducting a hearing under the Arkansas Medical Practices Act, Ark. Stats. 72-601 et seq.\u201d\nWe agree with appellant that the facts in this case did not give the Arkansas County Circuit Court jurisdiction, or authority to act, under Ark. Stat. Ann. \u00a7 5-707. That section reads as follows:\n\u201cIn any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself injured in his person, business or property by such failure, refusal, or delay may bring suit in the Chancery Court of any county in which he resides or does business, or in the Chancery Court of Pulaski County, for an order commanding the agency to act.\u201d\nThis section unquestionably relates to the unlawful or unreasonable refusal of an agency, such as the Arkansas State Medical Board, to act, i.e., in this case, to conduct a hearing. Admittedly, the board was not refusing to conduct a hearing; in fact, it had set up a hearing which was the purpose of the notice and complaint to Dr. Cross. Dr. Cross\u2019 assertion deals only with the insufficiency of such complaint, but the sufficiency or insufficiency of the complaint or notice given to the doctor does not constitute a failure to act.\nIt appears that the court litigation actually arose because, after the giving of the notice concerning the 40 alleged violations, it developed that the board also had acquired a list of numerous other alleged violations, and appellee was under the impression that these last mentioned alleged violations would also be introduced at the hearing. Since he had received no notice of these additional violations, the contention was made that the board was acting illegally. On oral argument, it developed, however, that counsel for the board concurred with the contention that these last alleged offenses were not involved in the \u201cAppear and Show Cause Order\u201d of October 31, 1973, sent Dr. Cross, and accordingly would not be used in that particular hearing.\nHowever, as earlier stated, the determinative point in this litigation is that first discussed, and we hold that the sufficiency or insufficiency of a notice given Dr. Cross does not constitute a failure by the board to act, and the provisions of Ark. Stat. Ann. \u00a7 5-707 (Supp. 1973) are thus not applicable to this situation. It follows that the Arkansas County Circuit Court was without jurisdiction to enter the order complained of.\nReversed.\nFogleman.J., not participating.\nIt is interesting to note that prior to 1965, Ark. Stat. Ann. \u00a7 72-613 (5) (Kepi. 1957) provided that a license could be revoked because of \u201cconviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug.\u201d In 1965, the General Assembly amended the statute by the passage of legislation which became Act 85 (Ark. Stat. Ann. \u00a7 72-613 |5|) providing that the board could revoke or suspend an existing license, inter alia, because of\u201c(5) Violation of the laws of the United States or the State of Arkansas regulating the possession, distribution or use of narcotic drugs, or drugs the sale and distribution of which is regulated by the Arkansas Barbiturate and Benzedrine Law.\"\nIt will be noted that this change did away with the requirementof a conviction before the license of a doctor could be revoked or suspended. Again, in 1973, the General Assembly amended this section by the passage of Act 486 (Ark. Stat. Ann. \u00a7 72-613 [Supp. 1973]) inter alia by changing sub-section (5) to (e), the wording ol such new sub-section providing .that the board could revoke an existing license for \u201cviolation of the laws of the United States or the State of Arkansas regulating the possession, distribution or use of narcotic or controlled drugs classed in Schedules 1 through 5 of the Controlled Substances Act of 1970 (U.S.C., tit. 21, \u00a7 812), or the Arkansas Controlled Substances Act (\u00a7\u00a7 82-2601 - 82-2638), including any amendments thereto;\u201d.\nThe violations referred to were the failure in some instances to date the prescriptions, and in other instances, to give the address ol the patient.\nWe have held that the authorizing of the Chancery Court to entertain a petition for writ of mandamus must fall as being violative ol the Arkansas Constitution, although the remainder of the section is not affected since the designation of the forum is clearly severable from the other provisions. See Harber v. Rhodes. 248 Ark. 1188, 455 S.W. 2d 926.",
        "type": "majority",
        "author": "Carleton Harris, Chief Justice."
      }
    ],
    "attorneys": [
      "Warren & Bullion, for appellant.",
      "George E. Pike and Smith, Williams, Friday, Eldredge & Clark, by: George Pike, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "ARKANSAS STATE MEDICAL BOARD v. Dr. J. E. CROSS\n73-299\n507 S.W. 2d 709\nOpinion delivered April 15, 1974\nWarren & Bullion, for appellant.\nGeorge E. Pike and Smith, Williams, Friday, Eldredge & Clark, by: George Pike, Jr., for appellee."
  },
  "file_name": "0388-01",
  "first_page_order": 424,
  "last_page_order": 427
}