Judge James C. Chalfant, Case 21STCP02234 2022-09-29 Tentative Ruling

Respondent Medical Board of California (“Board”) moves to augment the record with (1) the transcript from the February 3, 2022 hearing on this matter; (2) emails between counsel dated June 2, 2022; and (3) email exchanges with court reporter Roxanne Brazas Estipular (“Estipular”) on June 2, 2022, and July 18 and 19, 2022. The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

Petitioner Curtis Edward Rollins (“Rollins”) filed his Petition on July 12, 2021, alleging in pertinent part as follows.

Rollins was a surgeon licensed by the Board since 1993. On February 22, 2021, the Board filed an Accusation that (1) due to mental illness, his competency to practice medicine was impaired; and (2) he had engaged in unprofessional conduct that showed he was unfit to practice.

After a hearing that took place from March 22 to 24, 2021, the Administrative Law Judge (“ALJ”) issued a proposed decision in the Board’s favor on both counts. The ALJ found that, under Business and Professions Code section 822, Rollins was unable to practice medicine safely due to his mental illness. Per Business and Professions Code sections 2234 and 2239, Rollins had also used controlled substances and drugs to an extent that put himself and others in danger, including by compromising his ability to practice medicine. The proposed decision did not discuss how Rollins’ ability to practice had been compromised or any harm that stemmed from the purported substance abuse. The Board adopted the proposed decision on July 16, 2021.

Rollins contends that the Board’s decision exceeds its jurisdiction, which is limited to decisions that protect the public from dishonest, immoral, disreputable, or incompetent practitioners. In contrast, the decision exists to punish Rollins with no proof of patient harm or risk to public health and safety.

Rollins seeks a writ of administrative mandamus directing the Board to set aside the order revoking his medical license.

On July 19, 2021, the court denied Rollins’ ex parte application for a stay.

On February 3, 2022, during a continued trial setting conference and Order to Show Cause (“OSC”) hearing re: dismissal for failure to request the administrative record, Rollins’ counsel informed the court that he had ordered the clerk’s portion of the record but not the hearing transcripts. The court gave him the option of ordering the entire record or having in hand the partial record on which he would proceed by the next OSC hearing.

On March 10, 2022, Rollins failed to appear at the OSC hearing re: dismissal for failure to request the administrative record. The court noted that Rollins was required to either have partial transcripts in hand with which he intended to proceed with or alternatively to have ordered the entire record, including all transcripts. The Board’s counsel reported that the reporting agency has not received a request from Rollins for certified hearing transcripts. The court dismissed the case pursuant to Government Code section 68608(b) for Rollins’ failure to comply with its order, including the failure to appear and the failure to prosecute the action by having the appropriate record.

On March 18, 2022, Rollins moved to set aside or vacate the dismissal. The court granted it on May 5, 2022 with the understanding that the parties will proceed on a partial administrative record without transcripts.

On May 31, 2022, the Board gave notice that the Office of the Attorney General (“OAG”) had reassigned the case to Deputy Attorney General John S. Gatschet (“Gatschet”).

The court will hear the Petition itself on the same day as this motion to augment the record.

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. CCP §1094.6(c); Govt. Code §11523.

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States Petroleum Assn. v. Superior Court (“Western States”) (1995) 9 Cal.4^th 559, 578; Eureka Citizens for Responsible Govt. v. City of Eureka, (2007) 147 Cal.App.4^th 357, 366. In addition, extra-record evidence is admissible only if it relevant. Western States, supra, 9 Cal.4^th at 570.

The Code of Civil Procedure does not expressly provide for a motion to augment or correct the administrative record, but such motions are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

On February 3, 2022, this court asked Rollins if he had ordered the administrative record for the Petition. Gatschet Decl., ¶2, Ex. 1. Rollins explained that because the transcript cost $2,000, he would not order the full transcript and would continue with a partial transcript. Gatschet Decl., ¶2, Ex. 1. The court gave him 30 days to decide if he would proceed with the transcript pages at hand or order the full transcript. Gatschet Decl., ¶3, Ex. 1. The court warned him that if Rollins chose to continue with only part of the transcript, he exposed himself to an argument by the Board that the missing parts of the record are critical to the issued raised; Rollins would lose if the Board argued that. Gatschet Decl., ¶3, Ex. 1.

On June 2, 2022, after Rollins filed his opening brief, Gatschet asked Rollins via email for a copy of the proposed record and if he had reached a decision on the use of transcripts. Gatschet Decl., ¶4, Ex. 2. Rollins confirmed that he would not obtain a hearing transcript. Gatschet Decl., ¶4, Ex. 2. The same day, Gatschet confirmed with Estipular that Rollins did not order transcripts. Gatschet Decl., ¶5, Ex. 3.

On July 18, 2022, Gatschet asked Estipular again if Rollins decided to order hearing transcripts; he had not. Gatschet Decl., ¶6, Ex. 4.

Respondent Board seeks augmentation of the record with various documents pertaining to Rollins’ decision to not obtain a complete administrative record, including the hearing transcript where this court allowed it but warned Rollins of the consequences.

In administrative mandamus, extra-record evidence may be considered only if the party seeking inclusion of such evidence shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States, supra, 9 Cal.4th at 578-579. In addition, extra-record evidence is admissible only if it relevant. Id. at 570.

The evidence at issue includes a transcript of the proceedings of this court and pertinent conversations after the filing of this Petition. Gatschet Decl., ¶¶ 2-6, Exs. 1-4. Neither party therefore could have presented them at the administrative hearing. As to relevance, during the hearing on February 3, 2022, this court warned Rollins that if it chose to proceed without the full administrative record, the Board could argue that important parts were missing. Gatschet Decl., ¶3, Ex. 1. The Board has confirmed that Rollins chose not to order the transcript, and it has presented this argument in the opposition brief to the Petition. Gatschet Decl., ¶6, Ex. 4; Pet. Opp. at 14. The emails and transcript discussing this issue are therefore evidence relevant to this issue.

Petitioner Curtis Edward Rollins (“Rollins”) seeks a writ of mandate directing Respondent Medical Board of California (“Board”) to set aside its order revoking his medical license.

The court has read and considered the moving papers, opposition, and reply,^{^[1]} and renders the following tentative decision.

Petitioner Curtis Edward Rollins (“Rollins”) filed the Petition on July 12, 2021, alleging in pertinent part as follows.

Rollins is a physician licensed by the Board since 1993. On February 22, 2021, the Board filed an Accusation that (1) his competency to practice medicine was impaired due to mental illness, and (2) he had engaged in unprofessional conduct showing that he was unfit to practice medicine.

After a March 22 to 24, 2021 hearing, the Administrative Law Judge (“ALJ”) issued a proposed decision in the Board’s favor on both counts. The ALJ found that Rollins is unable to practice medicine safely due to his mental illness under Business and Professions Code section 822. Rollins also had used controlled substances and drugs to an extent that put himself and others in danger, including by compromising his ability to practice medicine under Business and Professions Code sections 2234 and 2239. The ALJ’s proposed decision did not discuss how Rollins’ ability to practice had been compromised or any harm that stemmed from the purported substance abuse. The Board adopted the proposed decision on July 16, 2021.

Rollins seeks a writ of administrative mandamus directing the Board to set aside the order revoking his medical license. He contends that the Board’s decision exceeds its jurisdiction, which is limited to decisions to protect the public from dishonest, immoral, disreputable, or incompetent practitioners. The decision punishes Rollins with no proof of patient harm or risk to public health and safety.

On July 19, 2021, the court denied Rollins’ ex parte application for a stay.

On February 3, 2022, during a trial setting conference and Order to Show Cause hearing re: dismissal (“OSC”) for Rollins’ failure to request the administrative record, Rollins’ counsel informed the court that he had ordered the clerk’s portion of the record but not the hearing transcripts. The court gave him the option of ordering the entire record or using the partial record in hand, and directing counsel to inform the court how he would proceed at the next OSC hearing.

On March 10, 2022, Rollins failed to appear at the OSC hearing. The court dismissed the case pursuant to Government Code section 68608(b) for Rollins’ failure to comply with its order and failure to prosecute.

On March 18, 2022, Rollins moved to set aside or vacate the dismissal. The court granted the motion on May 5, 2022 based on the concession by Rollins’ counsel that he would proceed on the existing partial administrative record without transcripts. The court set a briefing schedule and ordered Rollins’ counsel to lodge a trial notebook, memory stick, and the administrative record.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, 514 15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013 16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150 51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691. The petitioner bears the burden of showing that the agency’s decision is supported by a preponderance of the evidence. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.

The Board notes that for nearly 40 years the weight of the evidence standard has been considered synonymous with the preponderance of the evidence burden of proof. Ettinger v. Board of Medical Quality Assur., (1982) 135 Cal.App.3d 853, 858 (citation omitted). In Conservatorship of O.B., (“O.B.”) (2020) 9 Cal.5th 989, the California Supreme Court decided that an appellate court evaluating the sufficiency of the evidence must make an “appropriate adjustment” to its analysis when the clear and convincing standard of proof applied before the trial court. The reviewing court must determine whether the record as a whole contains substantial evidence from which a reasonable trier of fact could find a high probability under the clear and convincing standard of proof. Id. at 1005.

O.B. did not address administrative law cases and did not state that it was overruling the longstanding standard of review for administrative mandamus addressed in Fukuda, supra, 20 Cal.4th a 805. Since O.B., two appellate courts have reached differing conclusions whether its holding applies to administrative mandamus. In Yazdi v. Dental Board of California, (2020) 57 Cal.App.5th 25, the Second Appellate District concluded that O.B., which was a probate case, did not overturn the weight of the evidence standard for a trial court in reviewing an administrative mandamus. Id. at 33-34. In Li v. Superior Court, (2021) 69 Cal.App.5^th 836, the Third Appellate District held that a trial court reviewing an administrative agency’s findings under the independent judgment standard must “account for” the standard of proof required at the administrative level and that the weight of the evidence phrase in CCP section 1094.5 is not synonymous with preponderance of the evidence. Id. at 844, 864. Li did not describe the accounting deemed necessary and merely pointed out that the trial court should apply principals of deference and presumption of correctness in the context of whether the findings are supported by clear and convincing evidence rather than a mere preponderance of the evidence. Id. at 864-65.

The Board concludes that Li did not abolish or change the substantial evidence/weight of the evidence standard of review. The Board argues that Fukuda’s independent judgment/weight of the evidence standard still applies to administrative writ review. Li’s holding that the superior court must “account for” the underlying clear and convincing standard of proof is perfectly consistent with the decades of independent judgment review by the superior court, which extends beyond simply examining the record for errors in law to the exercise of independent judgment upon the evidence, and a reweighing of the evidence where appropriate. Fukuda, supra, 20 Cal. 4^th at 816. Opp. at 13.

The court need not decide whether Li is correct or has any impact on the court’s determination of the weight of the evidence after independent review. Even if administrative clear convincing burden of proof is carried over to require a mandamus trial court to decide whether the record contains substantial evidence from which the ALJ could find a high probability under the clear and convincing standard of proof, it would have no affect on the outcome of this case.

The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514 15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

Business and Professions Code^{^[2]} section 820 allows the Board to compel a mental health evaluation of a licensee as part of the Board’s investigatory power when it appears that the licensee’s ability to safely practice their profession may be impaired by a mental illness. §820; Fettgather v. Board of Psychology (2017) 17 Cal.App.5th 1340, 1345-46. If the Board determines that a licentiate’s ability to practice his or her profession safely is impaired because he or she is mentally ill, the Board can take action including revocation of a professional license. §822(a). The Board conducts section 822 proceedings in the same manner as other disciplinary proceedings in accordance with the Administrative Procedure Act. §§ 826, 2230(a).

Under the Medical Practices Act, section 2000 et seq., the Board shall take action against any licensee who is charged with unprofessional conduct. Unprofessional conduct includes, but is not limited to, (b) gross negligence; (c) repeated negligent acts, defined as two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts; (d) incompetence; and (f) any action or conduct that would have warranted the denial of a certificate. This subdivision shall only apply to a certificate holder who is the subject of an investigation by the Board. §2234.

“The use or prescribing for or administering to himself or herself of any controlled substance; or the use of any of the dangerous drugs identified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely...constitutes unprofessional conduct.” §2239(a). A “dangerous drug” means any drug unsafe for self-use in humans, including any drug that by federal or state law can be lawfully dispensed only on prescription or furnished by regulation pursuant to 4006.

The Board may discipline a licensee under section 2239 without establishing that he has caused actual patient harm. Griffiths v. Superior Court (2002), 96 Cal.App.4th 757, 773; Watson v. Superior Court (2009), 176 Cal.App.4th 1407, 1415.

Rollins graduated from the Medical University of South Carolina in May 1992. See AR 161.^{^[3]} In June 1992, he began an internship, residency, and fellowship at the University of California, Davis Medical Center. See AR 161. On August 16, 1993, the Board issued Rollins Physician's and Surgeon’s Certificate No. G77431. AR 235.

Although Rollins attended a residency program for psychiatry at Wake Forest from 2005-2009, he left for mandatory drug rehabilitation and is not board eligible for psychiatry. AR 894.

Over the years, Rollins has been licensed in California, Arizona, and North Carolina, and had an application pending in South Carolina where he was licensed to practice dentistry. See AR 161. Rollins has taken and failed board exams in both general and forensic pathology. AR 894.

Rollins’ Controlled Substance Utilization Review & Evaluation System (“CURES”) sheet – a California Department of Justice document tracking a physician’s prescriptions for controlled substances -- shows prescriptions for buprenorphine (Suboxone), an opioid used to treat addiction and pain, from June 2019 through January 2021. AR 335.

Rollins received his Arizona medical license on October 24, 2000. See AR 161. In January 2001, the Coconino County Sheriff's Office investigated Rollins for drug-related activities. See AR 161-62. The Mohave County Attorney's Office later alleged that a March 18, 2001 search of Rollins’ home revealed that he possessed several vials of Demerol, a Schedule II controlled substance, without a prescription. AR 139, 162.

Although Arizona’s medical board opened an investigation and subpoenaed Rollins for an interview, it postponed the investigation once Rollins agreed to enter inpatient treatment at Talbott Marsh Recovery Campus, which he did on March 23, 2001. AR 162.

On January 30, 2002, Rollins pled guilty to a misdemeanor for possession of drug paraphernalia and a felony for the possession or use of narcotics. See AR 162. The sentence for the misdemeanor conviction was one year of unsupervised probation and sentencing for the felony conviction was suspended for one year provided Rollins participated in the California diversion program. See AR 162.

On February 4, 2002, Rollins signed a Consent Agreement wherein he accepted discipline of his Arizona license, which included a Letter of Reprimand and a five-year probationary period with terms and conditions. AR 972. The conditions included participation in either the California diversion program or the Arizona Monitored Aftercare Program, and a restriction on prescribing, administering, or dispensing Schedule II controlled substances under his license. AR 972-73.

On October 16, 2003, Rollins cancelled his Arizona license and has not practiced medicine in Arizona since that date. See AR 163.

On June 30, 2005, Rollins received a North Carolina Medical Board (“NCMB”) residency training license to study psychiatry and behavioral medicine at Wake Forest. See AR 163. On December 5, 2005, NCMB issued him a license to practice medicine and surgery. AR 1015, 1018. In light of his history in Arizona and subsequent treatment, the license was subject to conditions that included refraining from use of alcohol and any mind-or-mood-altering drugs, notifying NCMB of his use of the same within ten days, and biological fluid testing on demand. AR 1018-19.

On July 3, 2007, Wake Forest placed Rollins on probation for a year because of concerns about his work ethic, attitude, and willingness to follow new protocols. See AR 163. In September 2008, Rollins wrote a prescription for his spouse for buprenorphine (Suboxone) and redirected some to himself. AR See 138, 163. He tested positive for consumption of Suboxone in an October/November 2008 fluid sample test. See AR 164. On February 16, 2009, Rollins agreed to surrender his NCMB license after admitting that he prescribed Suboxone to his spouse David and diverted some of the medication to himself, and that he failed to disclose his positive Suboxone test to NCMB. Wake Forest terminated his residency as a result. See AR 164.

On July 28, 2009, NCMB issued a Notice of Charges and Allegations against Rollins with intent to revoke his license based on his diversion and consumption of buprenorphine (Suboxone). AR 1007-08, 1010. When he reapplied for a resident training license and reinstated medical license in 2011, NCMB rejected both applications due to his (1) criminal, substance abuse, and Arizona and NCMB disciplinary histories; and (2) failure to disclose prior license investigations and discipline, medical conditions, and academic discipline. AR 996-98. Specifically, he did not disclose on his application (1) the 2002 Arizona investigation that led to the probation of his Arizona license; (2) his opioid dependence as a medical condition; (3) his Wake Forest probation from July 3, 2007; and (4) a 1993 dental malpractice lawsuit against him. Ibid. Rollins requested an appeal hearing but withdrew the request on September 19, 2011. See AR 164.

In 2011, Rollins reapplied for a resident training license and reinstatement of his medical license, which NCMB denied. See AR 143.

Following the surrender of his North Carolina medical license, Rollins surrendered his Drug Enforcement Administration (“DEA”) registration. On August 5, 2009, he applied and obtained a new DEA registration in California to prescribe Schedule II and III controlled substances. See AR 144.

On July 30, 2013, Rollins’ DEA registration was modified to allow him to prescribe Schedule III, IV, and V controlled drugs or combinations of approved narcotic-controlled drugs for the use in maintenance or detoxification treatment of opioid abuse, including Suboxone, without obtaining a separate registration as required by federal law. See AR 165. On September 1, 2020, Rollins agreed to surrender this authorization until September 1, 2025.

His DEA registration is otherwise active and set to expire on April 30, 2022. See AR 144.

On March 2, 2018, Nurse Maria P. Sanchez (“Sanchez”) filed a complaint with the Board against Rollins for viciousness, harassment, bullying, intimidation, unethical behavior, concerning work ethics, and unsafe delivery of medical services. AR 287. Sanchez alleged that she sometimes saw Rollins snorting white powder and drinking alcohol in his office at Santa Clara Urgent Care (“Santa Clara”). AR 288. When his hands shook uncontrollably, he drove to a small liquor store and returned with calm hands. AR 288. On February 8, 2016, he threatened to shoot her if she reported that he was seeing patients while he was under the influence. AR 288.

Sanchez complained that an office manager, Manny, would examine workers’ compensation patients as if he was a medical provider and forge Rollins’ signature to do so. AR 289. On multiple occasions, Manny and other Santa Clara staff asked Sanchez to alter a patient’s workers’ compensation claim status to prevent the patient’s insurance rates from increasing in the manner Rollins had done it before. AR 290-92.

The extent of Rollin’s malpractice prompted Sanchez to refuse to continue working at Santa Clara if Rollins ever became its medical director again. AR 290. Rollins sees patients in two-minute intervals, lies in his notes about thoroughly examining them, pre-writes his prescriptions, gives the same medication to most patients, spits his chewing tobacco in front of patients when performing sterile procedures, gives unnecessary medications to patients to increase productivity, neglects patients, discriminates against Spanish-speaking patients, makes patients wait for an hour while he wakes up in the morning, takes breaks at times that leaves patients behind, sees patients under the influence, and commits fraud. AR 291.

The Board assigned Investigator Jaimee Tassio (“Tassio”) of the Department of Consumer Affairs’ Health Quality Investigative Unit to investigate Sanchez’s Complaint. See AR 158.

On June 19, 2018, Rollins provided a voluntary urine sample for biological fluid testing. AR 316. The sample tested positive for clonazepam (controlled substance to treat anxiety), buprenorphine (Suboxone), alcohol, and cannabis. AR 318. Rollins’ CURES report showed that Rollins did not have a prescription for Suboxone, and his last clonazepam prescription was entered six months earlier. See AR 159.

A second voluntary urine sample obtained almost a year later, on May 1, 2019, yielded positive results for buprenorphine (Suboxone) and cannabis. AR 322, 324.

On May 1, 2019, Tassio interviewed Rollins. AR 447. Rollins stated that he started as a dentist and oral surgeon, and often used Demerol for his patients. AR 462. Because he had some waste leftover at the end of each shift, he started personally using that waste in 1988, and it grew into an addiction. AR 463-64. At the time, he had just ended a 13-year-long relationship after finding out that his partner cheated on him with a mutual friend. AR 463. In his subsequent depression, Rollins visited a psychiatrist who prescribed depression medicine that caused his addiction to spiral out of control. AR 463.

Rollins always ordered his own Demerol and never diverted from another patient. AR 463-64. He would get at most two 30-cc bottles in a year but binge three to four days. AR 464. He used his DEA registration to obtain his pills from distributing manufacturer Henry Schlein. AR 465.

Rollins has a current subscription for clonazepam, a Schedule IV substance, for 60 doses per six months. AR 473. He also uses his partner David’s clonazepam, for which Rollins writes the prescription. AR 538-39. They mix prescriptions because they share the same bathroom. AR 539. Although David has a medical chart that Rollins updates, the chart does not list the clonazepam. AR 620. This is a one-time mistake by Rollins. AR 621.

Buprenorphine (Suboxone) is the only substance Rollins takes without a prescription. AR 473-74. It is a craving blocker that David used when undergoing chemotherapy. AR 478. As a dope addict, Rollins found that it eliminated his cravings when he used it. AR 479-80.

Rollins did not know the Board’s stance on buprenorphine (Suboxone), but he knew that the NCMB prohibited it. AR 473. Rollins knew that if he took Suboxone from someone in California, the CURES system would show it. AR 475. He did not want to reveal something to the Board that could cost him his license. AR 478. He therefore has obtained Suboxone every three months since 2009 from a doctor in Reno, Nevada (whom he declined to name). AR 473-74, 476.

He would never steal buprenorphine from patients. AR 478. He would never prescribe buprenorphine or anti-addiction drugs to someone using clonazepam because it is an “absolute contraindication” and such patients face a risk of overdose. AR 514-15.

Rollins drinks occasionally, but he does not get drunk because he can only have about two drinks before he experiences nausea. AR 486. He usually drinks three times a week, either wine or vodka martini. AR 487. He has never been treated for an alcohol-related problem. AR 487.

Rollins planned to go tuna fishing with one of his Suboxone patients in August 2019, and he fishes and hunts with two others. AR 518, 542-43. He acknowledged that his decision to hunt and fish with patients is questionable, but he does not have anyone else to do it with. AR 543-44.

Rollins treats up to 40 Suboxone patients despite his status as a DATA Waived physician who can only treat 30. AR 636. Rollins does not consider this, his receipt of drugs from Nevada without a prescription, or his dispensing of those drugs to his patients to be a public health and safety issue. He understands why the DEA would think so, but he is just taking care of his patients. AR 636.

Laura Davies, M.D. (“Davies”) is a child, adolescent, and general adult psychiatrist who has practiced for 24 years. AR 901-03. On October 7, 2020, she conducted a mental health evaluation of Rollins via teleconference because of the COVID pandemic. AR 893.

Davies’ November 2, 2020 report (AR 893-906) reviewed Rollins’ work history and employment at Santa Clara (described by him as a shady company), his current employment at NMCI Medical Clinic where he is a workers’ compensation physician, his various licenses and suspensions, current psychiatric symptoms, medical and psychiatric history, personal background, and physical appearance in his mental status examination. AR 893-98.

Davies diagnosed Rollins with severe opioid, mild alcohol, and unspecified cannabis use disorder, as well as antisocial personality disorder. AR 898. Davies’ noted that Rollins had built a life of deceit and manipulation. AR 893, 898. He has an occupational medicine practice with a salary. AR 898. Yet, he has a side cash practice of seeing psychiatric and addiction medicine patients, all without the necessary qualifications and with more patients than permissible. AR 898. He stores the medical charts for these patients in an unsecured location on his desk in a clinic. AR 899.

Rollins also acts as neuro-oncologist by ordering MRIs for his partner, who has brain cancer. AR 898. He reported without any remorse that he deliberately killed another person during a hunting trip and pretended it was a “justified use of force”. AR 898. He reported as inconsequential that he killed another person. AR 898. He has been through rehabilitation many times, and for extended periods, as a consequence of not following laws, rules or probation and none of them were voluntary. AR 899.

Rollins is not currently sober. AR 899. He reports that he is sober despite drug tests showing buprenorphine and cannabis and his admission of regular alcohol use. AR 899. He has used an alias to obtain a controlled substance, buprenorphine (Suboxone), in another state for years. AR 899. He dispenses his own controlled substances to his patients and prescribes controlled substances to himself (methylphenidate). AR 899. He prescribes controlled substances to his partner since 2009. AR 899. He seemed not to understand the importance of following rules. AR 899. His lack of understanding the potential problems of alcohol intake is disturbing and his use of marijuana is greater than just CBD oil as it appeared on two drug screens almost a year apart. AR 899. He lies about his intake and the effects it has on him. AR 899.

Rollins gave varying accounts about what happened to his license in Arizona, and he seemed to think he can make people believe whatever he says is true. AR 899. That he killed someone on a hunting trip also demonstrates he is an impulsive danger to public safety. AR 900. Davies acknowledged that without any information on Rollins before the age of 15, she could not say if he had a conduct disorder at the time. AR 899.

He seemed to believe that he can make others believe what he says is true. AR 899. He said he never prescribed Class 2 controlled substances, but his CURES shows multiple stimulant prescriptions. AR 899. He said he was not breaking the law at Santa Clara, but he knew it was not reporting income correctly. AR 899. He may be the only person who states that the first two years of dental school and medical school are identical (which is not true). AR 899.

His handling of patient files, repeated distortions of the truth, and inability to accept responsibility are less egregious but unacceptable. AR 899. There is a lack of history before age 15, so it is unclear if he had a conduct disorder before that time. AR 899.

Davies’ report concluded that Rollins’ substance use is a mental disorder that impacts his ability to safely engage in the practice of medicine. AR 900. His continued practice of medicine posed a danger to the public health, welfare, and safety. AR 900. Monitoring and treatment would not fix the problem; he cannot practice medicine safely. AR 900.

On March 13, 2021, Davies issued a supplemental report (AR 904-06) reaching the same conclusions and responding to a March 5, 2021 evaluation by Dr. Lavid (“Lavid”). AR 904. Rollins told Lavid a different history than he told to either Tassio or Davies, except for the story about the drug cartel member he killed during a hunting trip. AR 904.

Rollins was quite frank with Davies about his procurement of Suboxone under an assumed name from a doctor in Nevada, and that is evidence of opioid abuse. AR 904. Davies was concerned that Lavid did not see Rollins’ decision to prescribe controlled substances for himself and his partner David as unacceptable. AR 905. David was under the care of a neuro-oncologist and must have been able to obtain pain medications from that physician. AR 905. Rollins continues to prescribe clonazepam for his partner, which he also takes. AR 905. Self-prescribing controlled substances is not acceptable. AR 905. She also found Lavid’s reliance on MMPI-3 psychological test scores problematic. AR 905-06.

On February 22, 2021, the Board filed an Accusation against Rollins that alleged to causes of action for discipline: (1) cause for discipline under section 822 for mental impairment affecting Rollins’ ability to practice medicine safely; and (2) cause for discipline under sections 2234 and 2239 for unprofessional conduct. AR 9-21.

In early March 2021, Rollins submitted declarations from Donyelle Rose (“Rose”), a human resources employee at NMCI Medical Clinic, and Chiropractor Robert Froh (“Froh”) in which both stated that he never heard a patient complain about Rollins or saw him do anything that cast doubt on his competency. AR 1024-27.

On March 11, 2021, Rollins filed a motion in limine to exclude Davies’ testimony on the grounds that (1) the Complainant failed to disclose Davies as an expert witness at least 30 days before the hearing as required by section 2234; and (2) Davies’ opinion did not meet the requirements of reliability required by Sargon Enterprises, Inc. v. University of Southern California, (“Sargon”) (2012) 55 Cal.4^th 747, 772, because she did not conduct an in-person examination, did not perform any clinical tests on Rollins, and did not rely on any reliable clinical protocol in reaching her conclusions that Rollins suffers from mental impairment affecting his ability to practice medicine. AR 76-78.

On March 15, 2021, the Complainant responded that the ALJ had the power to determine when the exchange of necessary information is timely under section 2334 and a 30-day disclosure would have been impossible because Rollins refused to waive the 30-day hearing deadline of Government Code section 11529(f). AR 87. The distinction between in-person and virtual interviews for Davies’ opinion was immaterial, and Davies relied on the same American Psychiatric Association’s 5th Edition Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”)^{^[4]} as Rollins’ expert. AR 89-90. The Complainant also argued that no separate Evidence Code 402 hearing was necessary because the ALJ would be the trier-of-fact and could hear the evidence and rule on its admissibility. AR 90. On March 15, 2021, the ALJ denied Rollins’ motion. AR 102-03.

Following a three-day hearing, the ALJ issued a proposed decision on May 21, 2021. AR 135-53. Inspector Tassio testified at the hearing, but his reports were not offered into evidence. AR 137.

The ALJ noted that Rollins’ June 19, 2018 drug test found metabolites of clonazepam, buprenorphine (Suboxone), alcohol, and cannabis in his system. AR 138. Tassio compared these results to Rollins’ CURES report, which had no active controlled substance prescriptions matching his test results for clonazepam and buprenorphine. AR 138. Rollins had prescribed buprenorphine to patients almost daily in June 2018. AR 138. A second drug test almost a year later also yielded positive results for buprenorphine and marijuana. AR 139.

Rollins admitted in his interview that he (1) was a drug addict in remission, (2) was addicted to Demerol between 1988 and 1997, (3) has participated in several drug and alcohol treatment programs but relapsed, (4) has been licensed to practice medicine in California, Arizona, and North Carolina but chose not to renew his Arizona medical license, (5) has been required to participate in license diversion programs by Arizona and North Carolina, (6) surrendered his North Carolina medical license and had his DEA registration restricted after a positive buprenorphine (Suboxone) test in 2009, (7) received a new DEA registration when he returned to California, (8) buys buprenorphine from a doctor in Reno every three months in cash under a false name, and (9) works fulltime at urgent care but also treats private cash-only patients for psychiatric and addiction treatment, including prescribing Suboxone. AR 139.

Rollins was searched at the interview and found in possession of loose pills of buprenorphine (Suboxone), clonazepam, Flomax, Prozac ( an anti-depressant), and trazodone (an anti-depressant). AR 139-40.

The ALJ reviewed Rollins’ license history in other states (AR 140-43) and noted that he surrendered his DEA registration on February 23, 2009, after his North Carolina license was surrendered. AR 144. On August 5, 2009, while in California, Rollins applied for and received a new DEA registration. AR 144. On July 30, 2013, the DEA registration was changed to include Schedule III-V substances that the FDA approved specifically for use in maintenance or detoxification treatment (Suboxone). AR 144. On September 1, 2020, Rollins agreed to surrender his DEA Data-Waiver authorizing him to dispense narcotics in settings other than opioid treatment program and Schedule II authority until September 1, 2025. AR 144. His DEA registration is currently active and will expire on April 30, 2022. AR 144.

The Board’s mental health evaluation expert psychiatrist, Davies, reviewed Rollins’ personal history statement and resume, toxicology reports, CURES reports for prescription history from April 2016 through April 2019, his interview transcript, the Investigative Report, and Rollins’ February 2018 letter regarding supervision at urgent care. AR 145. Davies has evaluated approximately 50 physicians and completed approximately 150 chart reviews. AR 145.

Using DSM-5, Davies diagnosed Rollins with severe opioid, mild alcohol, and unspecified cannabis use disorder as well as antisocial personality disorder. AR 146. She found that he showed a problematic pattern of opioid, alcohol, and cannabis use leading to clinically significant impairment, and a pervasive pattern of disregard for and violation of the rights of others. AR 146. As a result, he was unfit to practice medicine. AR 146.

In support of her diagnosis, Davies cited Rollins’ repeated failed efforts to control his use of opioids, alcohol, and cannabis even as they caused or exacerbated persistent or recurrent social or interpersonal problems. AR 146. As examples, Rollins (a) lied about his drugs and alcohol intake and their effects on him, (b) reported that he is sober despite drug tests showing buprenorphine (Suboxone) and cannabis, and his admission of regular alcohol use, (c) used marijuana more than just CBD oil as reflected on two drug screens almost a year apart, (d) obtained buprenorphine (Suboxone) under an alias in another state for several years, (e) prescribed drugs to himself and his partner, (f) did not demonstrate any insight into the consequences of alcohol intake, and has been through rehabilitation many times for extended periods, and never voluntarily. AR 147.

Davies’ diagnosis of antisocial personality disorder was supported by Rollins’ failure to conform to social norms and appreciate social and professional boundaries, his poor decision-making, his lack of insight or remorse, and his deceitfulness. AR 147. As examples, he is trained in pathology but practices in an urgent care clinic, he works fulltime at the clinic but provides psychiatric and opioid addition treatment to private patients, he sees 30-35 drug addiction patients which is more than the 30 his Soboxone registration allows, he stores their medical charts in unsecured locations, he hunts and fishes with patients, and he provides ongoing care to his spouse that involves neurology, oncology, and psychiatry. AR 147. Finally, he reported, as if it were inconsequential that he actively sought and killed someone during a hunting trip. AR 147-48.

Davies had concluded that Rollins built a life on deceit and manipulation, to the point where he gave varying explanations as to how he obtained patients and what happened to his Arizona license. AR 148. Davies failed to take any personal responsibility and blamed others for his failures. AR 148. Davies therefore found that Rollins cannot practice medicine safely. AR 148.

Rollins testified that, while he had a long history of substance abuse from 1988, including multiple rounds of rehab, he has been sober since February 29, 2009. AR 148. At the same time, he admitted that he (1) drinks two or three times per week and takes Suboxone daily to prevent cravings; and (2) visits a physician in Nevada every three months for a personal Suboxone prescription about which he did not feel he needed to tell the Board. AR 149.

Rollins admitted that he pled guilty to a drug charge in Arizona in 2001, but only because police raided his home and his partner had illegal drugs in the house. AR 149. While the guilty plea was the cause of the discipline to his Arizona license in 2002, he canceled the license in 2003 because he did not want to return to the state. AR 149. Rollins admitted the discipline of his North Carolina license, including extensions of his California diversion program in 2005 and 2009. AR 149. He pointed out that his only positive Suboxone test during this nine-year period of drug testing was in 2008. AR 149. Rollins also admitted to surrendering his North Carolina license in February 2009, which forced him to leave his Wake Forest residency with only four months remaining. AR 149.

Rollins said Davies was “delusional” because she never met him in-person or ordered any laboratory testing or assessments. AR 149. He denied smoking marijuana and said he just used CBD oil for muscle pain after chest surgery. AR 149. He also denied admitting that the killed anyone and claimed that Davies injected her “anti-gun” bias into her assessment. AR 149. Rollins contended that he has always provided excellent care and treatment to his patients and never had any patient complain. AR 150.

The ALJ’s proposed decision concluded that Davies’ report was thorough, persuasive, and unchallenged by competent medical evidence. AR 150. Davies relied on specific examples of conduct to show a problematic pattern of substance use leading to clinically significant impairment or distress and a pervasive pattern of disregard for and violation of the rights of others. AR 150. In 2002, 2005, 2009, and 2011, Rollin’s out-of-state medical licenses were disciplined for the same or similar conduct to that upon which Davis based her opinion. AR 150. Rollins continues to use controlled substances in 2021 to cause himself serious injury and risk the public health and safety. AR 150. Rollins’ conduct demonstrates his inability to safely practice medicine due to a mental impairment affecting competency. AR 150.

Section 822 authorizes the Board to revoke, suspend or restrict a physician’s license when it is established that the physician’s ability to safely practice medicine is impaired due to mental or physical illness affecting competency. AR 151. Section 2234 mandates that the Board take action against any licensee who is charged with unprofessional conduct. AR 152. Section 2239(a) identifies the use of any controlled substance to the extent or in such a manner as to be dangerous or injurious to the licensee or any other person or to the public as unprofessional conduct. AR 152. Under both statutes, the Board had established by clear and convincing evidence that cause existed for discipline. AR 152-53. The ALJ therefore recommended revocation of Rollins’ medical license. AR 153.

On June 16, 2021, the Board adopted the ALJ’s proposed decision and gave notice to Rollins, with the revocation effective July 16, 2021. AR 154-55.

Petitioner Rollins raises three issues: (1) the ALJ^{^[5]} applied the wrong standard under section 822; (2) the ALJ’s finding that Rollins suffers from mental illness impairing his ability to practice medicine safely is not supported by sufficient evidence; and (3) the ALJ’s finding that Rollins used controlled substances in a manner injurious to himself or the public is not supported by sufficient evidence.

On February 3, 2022, the court asked Rollins if he had ordered the administrative record. Gatschet Decl., ¶2, Ex. 1. Rollins’ counsel explained that the transcript would cost $2,000 and that he probably would use only a partial transcript. Gatschet Decl., ¶2, Ex. 1. The court gave him 30 days to decide if he would proceed with the transcript pages at hand or order the full transcript. Gatschet Decl., ¶3, Ex. 1. The court warned Rollins’ counsel that if he chose to continue with only part of the transcripts, he exposed himself to an argument by the Board that the missing transcripts would be critical to the issues raised. Gatschet Decl., ¶3, Ex. 1.

On March 18, 2022, the court granted Rollins’ motion to set aside or vacate a dismissal, accepting a concession by Rollins’ counsel that he would proceed on the existing partial administrative record without transcripts.

On June 2, 2022, after Rollins filed his opening brief, the Board’s attorney asked Rollins’ counsel via email for a copy of the record and if he had reached a decision on the transcripts. Gatschet Decl., ¶4, Ex. 2. Rollins confirmed that he would not obtain the hearing transcripts. Gatschet Decl., ¶4, Ex. 2.

On the same day, the Board’s counsel confirmed with the administrative hearing reporter that Rollins did not order transcripts. Gatschet Decl., ¶5, Ex. 3. He confirmed this fact again with the reporter on July 18, 2022. Gatschet Decl., ¶6, Ex. 4.

CCP section 1094.5(a) provides that “[a]ll or part of the record of the proceedings” may be filed with a petition. Where a petition claims that an agency’s findings are not supported by the evidence, a court exercising its independent judgment must determine whether the agency’s findings are supported by the weight of the evidence. CCP §1094.5(c).

The petitioner’s only burden with respect to the administrative record is to produce a sufficient record of the administrative proceedings, rather than produce the complete record. See Elizabeth D. v. Zolin, (“Zolin”) (1993) 21 Cal.App.4th 347, 354–55. Even though CCP section 1094.5(a) allows both parties in a mandamus proceeding to file either ‘all or part’ of the record for the court’s review, this does not mean that a partial record is sufficient to establish error. Id. at 354. It is the responsibility of the petitioner to make an adequate record available to the trial court. Otherwise, the presumption of regularity will prevail since the burden falls on the petitioner to demonstrate where the administrative proceedings were unfair, in excess of jurisdiction, or a prejudicial abuse of discretion. Foster v. Civil Service Com., (1983) 142 Cal.App.3d 444, 453.

A partial record is sufficient “if it provides the reviewing court a basis for the affirmance or reversal of the order or decision, and establishes where in the proceedings the administrative body proceeded in excess of its jurisdiction, or denied a fair hearing or abused its discretion. Zolin, supra, 21 Cal.App.4^th at 355. The partial record must accurately represent the administrative proceedings, provide the review court an understanding of what occurred below, and enable that court to provide an independent judicial review of the administrative decision.” Ibid.

A petitioner who fails to file a sufficient administrative record “runs the risk of having the petition denied.” Hawthorne Savings & Loan Assn. v. City of Signal Hill, (1993) 19 Cal.App.4th 148, 154, n. 1. “‘In the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.’” Zolin, supra, 21 Cal.App.4^th at 354.

The Board argues that all of Rollins’ arguments challenge the sufficiency of the evidence supporting the ALJ’s proposed decision. First, he alleges that the Complainant failed to show any evidence that his mental illness impairs his actual ability to practice safely. Second, he alleges that the ALJ’s finding that he has a mental illness is not supported by the weight of the evidence. Finally, he alleges that the ALJ’s finding that he violated section 2239 is unsupported by the weight of the evidence. The hearing transcripts contain the testimony of Rollins, Investigator Tassio, and Davies and the ALJ made his factual findings based on this testimony. Without the transcripts, the court is unable to review the testimony and evidentiary objections and weigh the strength of witness testimony. Without the hearing transcripts, the evidence consists of mostly hearsay documents that cannot provide a record for sufficient review by the court. Therefore, the court must presume that the ALJ’s findings are supported by substantial evidence and Rollins’ mandamus claim should be denied. Opp. at 15-16.

Rollins responds that he produced a partial record containing the pleadings submitted and exhibits admitted during the administrative proceeding. Reply at 2. For the ALJ’s proposed decision to revoke Rollins’ license on the basis of mental illness impairing his ability to practice medicine safely under section 822, the partial record contains Davies’ psychiatric evaluation of Rollins and the medical authorities upon which she relied in making her diagnoses. AR 893–924, 1032–40. The partial record also contains Rollins’ written objection to Davies as an expert witness (AR 76–78), the Complainant’s written opposition (AR 85-91), and the ALJ’s ruling on the objection (AR 98-103). A transcript of the expert’s testimony is not required for the court’s review because the ALJ’s proposed decision principally cites Davies’ report and not her testimony. AR 167–71. Finally, the partial record contains signed declarations from Rollins’ work colleagues that they had not received any complaints and did not have any concerns about his ability to safely render patient care. AR 1024–27. Thus, the partial record enables the court to independently review the ALJ’s proposed decision to revoke his license pursuant to section 822. Reply at 3.

Rollins argues that the partial record also contains a sufficient record for the court to review the ALJ’s proposed decision to revoke his license under section 2239. The partial record contains the investigative report (AR 926), the criminal court records for Rollins’ 2002 Arizona conviction (AR 949–64), the disciplinary action taken by the Arizona Medical Board based on the conviction (AR 968–69), the disciplinary action taken by the North Carolina Medical Board in 2009 (AR 999–1003), and Rollins’ DEA registration history (AR 980–82), all of which were admitted into evidence at the hearing. Thus, the court has the sufficient evidentiary record to determine whether the ALJ abused his discretion in revoking his license under section 2239. Reply at 3.

Rollins contends that a transcript of his own testimony is not required for the court to determine whether his use of controlled substances is dangerous to the public. The partial record contains a CURES report indicating that he has been prescribed buprenorphine (Suboxone), the controlled substance that is the basis for his discipline. AR 335. His signed declarations provide firsthand accounts of his ability to safely render patient care. AR 1024–27. The partial record also includes information regarding his California medical license, including that he has been licensed since 1993 with no record of disciplinary action despite his struggles with substance abuse throughout that time. AR 235. There is no evidence that he has suffered a recent conviction related to controlled substances, has any pending criminal actions related to controlled substances, or that his patients have been harmed as a result of his use of controlled substances. Reply at 4.

The Board is mostly correct. The ALJ found that Rollins (a) suffers from mental illness impairing his ability to practice medicine safely and (b) used controlled substances in a manner injurious to himself or the public. Rollins contends that both are not supported by the weight of the evidence. As the Board argues, the court cannot weigh the evidence on these two issues without the transcripts. The court must review the witness testimony and weigh its credibility, and it cannot do so without the witness transcripts.

Rollins’ argument is untenable that no transcript of Davies’ testimony is required because the ALJ’s proposed decision principally cites to Davies’ report and not her testimony. In weighing the evidence, the court does not rely on the ALJ’s conclusions but rather must make an independent determination about whether the ALJ’s conclusions are supported. The court needs Davies’ testimony to ascertain the standard of practice, whether Rollins breached it, and how he did so. The fact that some of this evidence may be in Davies’ report is insufficient. She may have provided more testimony than contained in her report on why and how his substance abuse disorder and personality disorder reflect on his ability to practice medicine safely. AR 167–71. The fact that the record contains evidence favorable to Rollins’ ability to practice medicine safely in the form of supporting declarations does not affect this conclusion. It is the entire record that must be evaluated, not just portions that benefit one party.

The partial record does not enable the court to independently review the ALJ’s proposed decision to revoke his license pursuant to section 822 and sections 2234 and 2239(a). As a result, the presumption that the findings are supported by substantial evidence -- whether or not the administrative clear and convincing standard must be accounted for in mandamus -- applies to Rollin’s claims on these issues. See Zolin, supra, 21 Cal.App.4^th at 354.

However, the Board is wrong in concluding that the lack of transcripts prevents Rollins from contending that the ALJ misapplied the section 822 standard. Under CCP section 1094.5(b), an agency abuses its discretion when fails to proceed in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. If the ALJ misapplied section 822’s elements as Rollins contends, that would be a failure to proceed in the manner required by law. Evaluation of this issue requires only the ALJ’s proposed decision and not the transcripts.

Section 820 allows the Board to order and compel a mental health evaluation of a licensee as part of the Board’s investigatory power when it appears that the licensee’s ability to safely practice their profession may be impaired by a mental illness. Fettgather v. Board of Psychology, (2017) 17 Cal.App.5th 1340, 1345-46. The purpose of the examination is to determine “that the licentiate’s ability to practice his or profession actually has become impaired because of mental or physical illness. In other words, the examination will have substantiated the presence of mental or physical impairment.” Lee v. Board of Registered Nursing, (2012) 209 Cal.App.4th 793, 797. If the Board “determines that its licentiate’s ability to practice his or her profession safely is impaired because the licentiate is mentally ill, or physically ill affecting competency”, the Board can take action, including revocation of a professional license. §822. The Board conducts section 822 proceedings in the same manner that it conducts other disciplinary proceedings. §§ 826, 2230.

The purpose of sections 820 and 822 is to protect the public from mentally and physically incompetent health professionals by allowing licensing agencies to “determine whether a licentiate’s mental state is interfering with his or her competency to practice....” Alexander D. v. State Board of Dental Examiners, (1991) 231 Cal.App.3d 92, 99. Thus, while the protection of the public is the Board’s highest priority, the Board may not take action against licensees who suffer from mental illness under section 822 unless clear and convincing evidence establishes that such illness impairs the licensee’s ability to practice safely. See §2001.1 (protection of the public is Board’s highest priority). Pet. Op. Br. at 8-9.

Rollins argues that the ALJ misapplied the standard under section 822. The ALJ revoked Rollins’ medical license because he suffers from mental illness without any showing that his mental illness actually impairs his ability to practice safely. Rollins has admitted to a long history of substance abuse, but the issue is whether the Complainant established that Rollins’ ability to practice safely is impaired because of his mental condition. Pet. Op. Br. at 9.

Rollins contends that, while the ALJ noted that Davies’ report referenced specific examples of Rollins’ conduct, all but one of the examples did not occur^{^[6]} during Rollins’ practice of medicine. AR 146–47. The cited examples relate to Rollins’ history of substance abuse, his understanding of the effect his substance use has, his assertion that he is sober despite testing positive for buprenorphine (Suboxone) and admission of regular alcohol use, his practice of obtaining buprenorphine in another state, and the fact that he has been through rehabilitation many times, but only involuntarily. Pet. Op. Br. at 9.

Of these, Davies’ sole example relating to his practice of medicine is his prescription of controlled substances to himself and his spouse, who requires ongoing care and treatment for brain cancer. See AR 898. Rollins notes that there is no law in California prohibiting a physician from treating and prescribing controlled substances to family members so long as the medical services meet the standard of care.^{^[7]} The only instance where Rollins prescribed a controlled substance to himself occurred in 2014, and there is no evidence that he continues to self-prescribe controlled substances such that his ability to practice safely is impaired. See AR 899. Accordingly, while Davies’ expert report and testimony may establish that Rollins suffers from mental illness, there is no indication that his competence or ability to practice safely has been impaired. As a result, the ALJ misapplied the standard of section 822. Pet. Op. Br. at 9-10.

While some of Davies’ examples are not linked to Rollins’ ability to practice safely, both Davies and the ALJ correctly relied on them to support her diagnosis of substance abuse disorder. AR 146. Perhaps the two most egregious examples are (a) Rollins’ prescription of controlled substances to his spouse, both Suboxone during his academic training and clonazepam more recently, and (b) his surreptitious effort to obtain buprenorphine (Suboxone) under an alias in Nevada for several years. AR 146-47. These clearly examples support Davies’ opinion that Rollins’ pattern of substance abuse has led to clinically significant impairment and the ALJ’s conclusion that Rollins cannot safely practice medicine. AR 146-47. Rollins’ suggestion that it is not unlawful to prescribe controlled substances to family members where it is warranted by the standard of care misses the point. While this may be true, Davies’ opinion shows that Rollins’ prescription of controlled substances to his spouse at a time when he has an opioid use disorder adversely affects his ability to practice medicine. See AR 147, 150.

As for Davies’ diagnosis of antisocial personality disorder, Rollins notes that she pointed to a list of unconventional medical practices that are not illegal or indicative of Rollins’ inability to practice medicine safely. AR 147. For example, Davies’ report cited the fact that Rollins is trained in pathology but was practicing occupational medicine at an urgent care clinic, while also providing psychiatric and opioid addition treatment to private pay patients as an example of poor decision-making and deceitfulness. Ibid. Rollins points out that there is no requirement in California that a physician is limited to the practice in which he is trained and no requirement that he must be specialized in the field in which he renders treatment. A medical license does not authorize a physician to perform incompetent medical services, but there is no law or evidence suggesting that Rollins’ practice in one area means that he cannot render safe and competent care in another. Rollins was authorized by the DEA to prescribe controlled substances to treat opioid addiction. AR 144. Pet. Op. Br. at 9-10.

While it is not entirely clear from the proposed decision, both the ALJ and Davies relied on Rollins’ antisocial personality disorder diagnosis to support a pervasive pattern of disregard and violation of the rights of others. AR 146. This antisocial disorder coupled with the substance abuse disorder to a physician who has built his life around deceit and manipulation. AR 148. Davies concluded that Rollins’ substance abuse disorder and the personality disorder led to clinically significant impairment and a pervasive pattern of disregard for and violation of the rights of others. AR 150.

The ALJ did not misapply the section 822 standard by failing to tie Rollins’ mental illness to a showing that it actually impairs his ability to practice medicine safely.

3. The ALJ’s Proposed Finding that Rollins Suffers from a Mental Illness Impairing His Ability to Practice Medicine Safely Is Supported by Substantial Evidence

Assuming arguendo that the issue is not waived by the lack of transcripts, Rollins argue that the ALJ’s finding that his mental illness impairs his ability to practice medicine safely is not supported by the weight of the evidence.

The ALJ found that Rollins “exhibited a problematic pattern of opioid, alcohol, and cannabis use leading clinically significant impairment or distress, and a pervasive patter of disregard for and violation of the rights of others.” AR 146, 150. Rollins argues that this language is in DSM-5, which Davies’ only vaguely referred to in her expert report. See AR 1033, 1035, 1038.

The language used by the DSM-5 states that a problematic pattern of substance use leading to clinically significant impairment or distress is manifested by the occurrence of at least two of the applicable symptoms within a 12-month period. Ibid. Rollins argues that Davies’ report fails to discuss which of the applicable symptoms are present within a 12-month period and only discusses his history of substance use over an approximately 25-year period. AR 894. In failing to note the applicable 12-month period, Davies neglected to specify where Rollins might be in remission for the substance abuse disorder set forth in the DSM-5. AR 1034, 1036, 1038. Notably, her examination occurred on November 2, 2020^{^[8]} and Davies neglected to conduct another drug test. AR 893. Instead, she relied on the June 19, 2018 and May 1, 2019 toxicology reports, which were well beyond the 12-month period when she diagnosed Rollins with substance use disorders. Pet. Op. Br. at 11.

Davies’ conclusion also disregards significant evidence that Rollins has been sober since 2009 and uses buprenorphine (Suboxone) to treat his opioid addiction as it is intended. AR 149. As DSM-5 notes, an opioid use disorder should specify whether a patient is “on maintenance therapy” by taking medication such as buprenorphine, which is a specifier of remission. AR 1038–39. Moreover, the Complainant presented no evidence that Rollins suffers from alcohol abuse other than his admission that consumes alcohol to or three times a week. AR 149. Rollins denied smoking marijuana and only admitted to using CBD oil for muscle pain following his chest surgery. AR 149. Accordingly, the ALJ’s finding that Rollins suffers from substance use disorders impairing his ability to safely practice medicine is against the weight of the evidence, and such diagnoses were not performed in accordance with the DSM-5. Pet. Op. Br. at 11.

In addition, the ALJ’s finding that Rollins suffers from antisocial personality disorder is not supported by the DSM-5 or the evidence. According to the DSM-5, the criteria of a diagnosis of antisocial personality disorder are “the individual must be at least age 18 years (Criterion B) and must have had a history of some symptoms of conduct disorder before age 15 years (Criterion C).” AR 1040. Davies, however, diagnosed Rollins with antisocial personality disorder despite stating: “Notably, there is a lack of history before age 15, so it is unclear whether [Rollins] had conduct disorder before that time.” AR 899. The DSM-5 is clear that an antisocial personality disorder diagnosis requires a history of conduct disorder before the age of 15. Given Davies’ failure to note any symptoms of conduct disorder prior to age 15, the evidence does not support that Rollins suffers from an antisocial personality disorder impairing his ability to practice medicine safely. Pet. Op. Br. at 11-12.

Finally, Davies’ report failed to diagnose Rollins in accordance with DSM-5 and thus fails to satisfy the reliability standard for the admission of expert opinion under Sargon, supra, 55 Cal.4th at 772 (the court’s role ‘is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field). Pet. Op. Br. at 12.

Rollins’ arguments concerning DSM-5 – including whether Davies failed to consider whether his pattern of substance use leading to clinically significant impairment is manifested by at least two symptoms within a 12-month period, whether his opioid use disorder is in remission and he is on maintenance therapy by taking buprenorphine, and whether she disregarded DSM-5’s requirement that an antisocial personality disorder diagnosis requires a history of conduct disorder before the age of 15 -- are disposed of by the fact that expert testimony is required for these issues and Davies is the only expert who testified.

As the Board suggests (Opp. at 17), a medical diagnosis must be established by expert testimony. Scott v. Rayhrer, (2010) 185 Cal.App.4th 1535, 1545-49. Rollins failed to call an expert witness and his unscientific articulation of DSM-5’s requirements for a diagnosis cannot replace Davies’ expert opinion. Naidu v. Superior Court, (2018) 20 Cal.App.5th 300, 313 (citation omitted). Davies’ report did reference DSM-5. AR 899. While the report is sketchy on the issues raised, her testimony may have shed more light. A fact finder must give great weight to uncontradicted expert testimony. See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 (un-contradicted expert testimony is conclusive).

Nor can Rollins rely on Sargon to exclude Davies’ expert opinion now. It is noteworthy that Rollins does not argue that he challenged the reliability of Davies’ opinion at the administrative hearing on the grounds currently alleged. His motion in limine contended that her opinion is unreliable, but only due to her failure to conduct an in-person examination, perform any clinical tests, and rely on DSM-5 at all. AR 76-78. The Complainant responded that Davies relied on the DSM-5 just as Rollins’ expert had done (AR 89-90). There is no reference in the motion to Davies’ report’s failure to adequately explain DSM-5 factors.

Under Evidence Code sections 801(b) and 802, the “trial court acts as a gatekeeper to exclude expert opinion testimony.” Sargon, supra, 55 Cal. 4th at 772. The Complainant’s opposition to Rollins’ motion in limine argued that no separate Evidence Code 402 hearing was necessary because the ALJ would be the trier-of-fact and could hear the evidence and rule on its admissibility. AR 90. The determination of the reliability of Davies’ opinion under Sargon requires a review of the administrative hearing transcript in which the reliability issue was presented. Without the transcripts, the court must accept that Davies’ opinion was sufficiently reliable to be admissible.

Finally, Rollins argues that the ALJ’s finding that he cannot practice medicine safely is against the weight of the evidence. His convictions and out-of-state medical license discipline are over ten years old. He has practiced medicine in California since 2013 without any patient complaints or disciplinary actions being taken against him. His struggles with opioid use were present long before he was licensed to practice medicine in California, and he has found successful treatment using buprenorphine to treat his addition. AR 148. The evidence establishes that he is not presently suffering from mental illness that impairs his ability to practice safely, as he is in treatment for his opioid use and has not had any patient complaints or disciplinary action against his license since receiving his California medical license in 2013. The ALJ chose to discipline him for his history of substance use and his chosen therapeutic treatment for his addiction without any showing that he is incompetent to practice medicine. Pet. Op. Br. at 10, 12.

This argument disregards the evidence reflected in the ALJ’s findings. As stated ante, Davies diagnosed Rollins with substance abuse disorder and gave examples to show his unsuccessful efforts to control his substance abuse, including his prescription of controlled substances to his spouse, both Suboxone during his academic training and clonazepam more recently, and his surreptitious effort to obtain Suboxone under an alias in Nevada for several years. AR 146-47. Davies opined that this diversion of prescribed for his spouse to his own personal use is “not acceptable”. AR 905. For her diagnosis of antisocial personality disorder, Davies pointed to examples showing his failure to conform to social norms, poor decision-making, lack of insight and remorse, and deceitfulness. AR 898-89. His antisocial personality disorder diagnosis to support a pervasive pattern of disregard and violation of the rights of others. Id. Davies concluded that Rollins’ substance abuse disorder and the personality disorder have led to clinically significant impairment or distress and a pervasive pattern of disregard for and violation of the rights of others. See AR 150.

Rollins asserts that he is sober, but he has been actively consuming buprenorphine, clonazepam, and alcohol. According to Davies, these substances can all decrease his medical judgement and lead to relapse, especially because he has poor insight into his addiction. AR 899. Even Rollins recognizes that it is contraindicated to take buprenorphine (Suboxone) and clonazepam together, stating in his interview that he refuses to take on addiction patients who are on benzodiazepines (clonazepam) because of the risk. Yet, he continues to take both medications while practicing medicine. AR 514-15.

Substantial evidence supports the ALJ’s conclusion that Rollins’ mental illness impairs his ability to practice medicine safely.

4. The ALJ’s Proposed Decision that Rollins Violated Section 2239 Is Supported by Substantial Evidence

Assuming arguendo that the issue is not waived by the lack of transcripts, Rollins argues that the ALJ’s finding that he violated section 2239 is not supported by the weight of the evidence.

A licensee’s use of controlled substances to the extent and in such a manner as to be dangerous or injurious to himself, other persons, and the public, is unprofessional conduct and grounds for discipline to the extent that it impairs the licensee’s ability to practice medicine safely. §§ 2234, 2239(a).

Rollins contends that the Complainant failed to establish that he used controlled substances in violation of section 2239(a). He uses buprenorphine (Suboxone) as treatment for his opioid addiction and has received prescriptions for Suboxone. His convictions for narcotics are over ten years old the Complainant failed to present any evidence that he continues to divert controlled substances to himself, self-prescribe controlled substances, or otherwise issue fraudulent prescriptions for controlled substances. Pet. Op. Br. at 12-13.

Rollins is incorrect. The record includes evidence that he engages in current drug diversion, his buprenorphine prescription in Nevada is abnormal due to its clandestine nature, and his buprenorphine usage in conjunction with clonazepam is potentially dangerous. AR 475-79, 514-15, 538-39.

The Board notes that it may discipline Rollins under section 2239 without establishing that he has caused actual patient harm. Griffiths v. Superior Court, (“Griffiths”) (2002) 96 Cal.App.4th 757, 773; Watson v. Superior Court, (“Watson”) (2009) 176 Cal.App.4th 1407, 1415. It sufficient for purposes of discipline to establish that the drug use and alcohol use has a potential for adverse patient impact in the future. Watson, supra, 176 Cal.App.4^th at 1423. Rollins uses buprenorphine, alcohol, and clonazepam in a dangerous manner to himself or others that use renders him unfit to safely practice medicine. Opp. at 18-19.

Rollins replies that in Griffiths the physician-licensee was convicted for reckless driving involving alcohol on three separate occasions. 96 Cal.App.4^th at 765. On appeal, the licensee argued that discipline was not warranted because there was no evidence showing how his alcohol use impaired his medical practice. Id. at 771. The court disagreed, stating that it is not necessary for the misconduct to occur in the practice of medicine for a nexus to exist between the two. Id. The licensee’s position that there was no evidence that his drinking and driving convictions resulted in any patient harm overlooked the preventative functions of license discipline. Id. at 772. “To prohibit license discipline until the physician-licensee harms a patient disregards these purposes; it is far more desirable to discipline before a licensee harms any patient than after harm as occurred. Ibid. (emphasis in original). The licensee’s three convictions were indications of alcohol abuse that affected the licensee’s private life such that it was unnecessary for the Board to wait until his alcohol abuse affected his practice of medicine. Id. at 773-74.

Rollins argues that Griffiths is inapplicable to this case. He does not have more than one conviction involving a controlled substance, and his 2002 conviction was nearly 20 years ago. He also is in recovery and the Complainant failed to present any evidence that his use of buprenorphine is abusive and not therapeutic. He has been licensed since 1993 and struggled with substance abuse even before then, and yet the Board cannot produce a single instance of patient harm or even at risk of harm during his nearly 30 years of practicing medicine. Reply at 4.

The Board’s purpose in citing Griffiths and Watson is only to show that it is not required to wait for harm to discipline Rollins’ license under section 2239. Griffiths is not on point, but its holding is still germane. Rollins has a current, ongoing substance abuse disorder that is dangerous to himself and his patients and impairs his ability to practice medicine safely. See §§ 2234, 2239(a). The fact that he has not harmed anyone yet, or at least no patient has complained of harm, does not mean his patients (and he) are not at risk should he continue to practice medicine.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Rollins’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for November 10, 2022 at 9:30 a.m.

^{^[1]} On May 5, 2022, the court ordered Rollins’ counsel to lodge a trial notebook, the administrative record, and a memory stick containing the parties' briefs in editable Word format, no later than August 25, 2022. Rollins failed to provide the required memory stick at all and failed to lodge a 3-ring binder of the administrative record until September 27, 2022. While the court’s minute order is ambiguous about requirement for a 3-ring binder of the administrative record, Rollins’ counsel is admonished to follow the court’s trial setting directions in all future mandamus case.

^{^[2]} All further statutory references are to the Business and Professions Code unless otherwise stated.

^{^[3]} Citations to the ALJ’s proposed decision do not prove the underlying facts, but these facts are undisputed.

^{^[4]} DSM-5 provides:

Any alcohol, cannabis, or opioid (collectively “substance”) use disorder is, at minimum, a problematic pattern of substance use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:

(1) the substance is often taken in larger amounts or over a longer period than was intended;

(2) there is a persistent desire or unsuccessful efforts to cut down or control substance use;

(3) a great deal of time is spent in activities necessary to obtain or use substance or recover from its effects;

(4) craving, or a strong desire or urge to use the substance;

(5) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home;

(6) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects thereof;

(7) important social, occupational, or recreational activities are given up or reduced because of substance use;

(8) recurrent substance use in situations in which it is physically hazardous;

(9) substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance;

(10) tolerance, as defined by either a need for markedly increased amounts of the substance to achieve intoxication or desired effect, or a markedly diminished effect with continued use of the same amount; and

(11) withdrawal, as manifested by either the characteristic withdrawal syndrome for the substance or by it or a closely related substance being taken to relieve or avoid withdrawal symptoms. AR 1033-38.

An opioid diagnosis should specify as “on maintenance therapy” if the individual is taking a prescribed agonist medication such as methadone or buprenorphine and none of the criteria for opioid use disorder have been met for that class of medication. AR 1038.

The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood. AR 1040. For this diagnosis to be given, the individual must be at least age 18 years and must have had a history of some symptoms of conduct disorder before age 15 years. AR 1040.

^{^[5]} The court will refer to the ALJ’s proposed decision rather than the Board’s final decision to distinguish between the Board’s revocation decision and the Board’s opposition brief.

^{^[6]} Rollins’ opening brief states “occurred” but in context must mean “did not occur”. Pet. Op. Br. at 9.

^{^[7]} See “Can a physician treat and prescribe to family, friends or employees?” Frequently Asked Questions, Medical Board of California (2022) https://www.mbc.ca.gov/FAQs/?cat=Consumer&topic=Complaint:%20General%20Office%20Practices/Protocols.

^{^[8]} The examination actually occurred on October 7, 2020 and Davies’ report was dated November 2, 2020. AR 145.