Judge: James C. Chalfant, Case: 22STCP03155, Date: 2023-12-12 Tentative Ruling

Case Number: 22STCP03155    Hearing Date: December 12, 2023    Dept: 85

            Petitioner David James Smith, M.D. (“Smith”) seeks mandamus directing Respondent Medical Board of California (“Board”) to set aside its disciplinary action against his license. 

            The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Smith commenced this proceeding on August 26, 2022, alleging two causes of action for administrative mandamus.  The verified Petition alleges in pertinent part as follows.

            On August 25, 2020, the Board issued a decision against Smith’s license (“2020 Decision”).  On January 24, 2022, the court in Smith v. Board of California, (“Smith I”), Case No. 20STCP03757, set aside the 2020 Decision for failure to provide Smith a fair trial.  The court issued a writ of mandate to that effect, and the Board’s return acknowledged that it had set the 2020 Decision aside.

            The Board then conducted a hearing limited to the evidence in the record from the 2020 Decision’s hearing.  Oral argument proceeded on July 22, 2022.  The administrative law judge (“ALJ”) refused to accept evidence of Smith’s then-current competency, fitness to practice, and other factors pertinent to the issue of the nature and scope of further Board action.  This effectively turned the hearing into the Board’s reconsideration of the 2020 Decision.

            Smith I concluded that Smith’s expert should have been allowed to testify as to three of the five patients originally at issue.  The Board limited the second hearing to the other two patients.  The Board’s August 11, 2022 decision after the hearing (“2022 Decision”) removed the three patients discussed in Smith I, repeated the discussion as to the remaining two patients, and reimposed the same discipline on Smith’s license as the 2020 Decision.

            The Board lacked jurisdiction for the 2022 Decision because it was a reconsideration of the case outside of the time limits of Government (“Govt.”) Code section 11521.  The 2022 Decision is also ultra vires.  The Board’s disciplinary authority allows it only to protect the public and not aid the rehabilitation of the licensee.  The Board’s failure to consider evidence of Smith’s current fitness renders the current discipline beyond such authority.

            The Board denied Smith a fair trial when it refused to permit expert testimony on Smith’s behalf.  This expert testimony would have discussed Smith’s current competence, the relative expertise of his and the Board’s experts, and the controversies relating to a dynamically changing standard of care. 

            The 2022 Decision was not based on clear and convincing evidence to a reasonable certainty.  The 2022 Decision stated that it was retroactively effective to September 24, 2020.  No provision in law allows the Board to make a decision almost two years after the conclusion of an administrative disciplinary hearing, back date the new decision to two years earlier, impose license discipline without an appraisal of a licensee’s current competence, and exclude evidence at the hearing.  Because the 2022 Decision does so, the Board engaged in underground rulemaking under Govt. Code section 11340.5.

            Smith seeks a writ of mandate setting aside the 2022 Decision, plus attorney’s fees and costs.

            2. Course of Proceedings

            On September 8, 2022, Smith served the Board with the Petition and Summons by substitute service, effective September 18, 2022.

            On October 7, 2022, the Board filed and served an Answer.

            On November 8, 2022, the court found this case related to Smith v. Board of California, 22STCP00574.  Both cases are assigned to this court.

B. Standard of Review

            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, (“Topanga”) (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 agency’s decision must be based on the evidence presented at the hearing.  Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.  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 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.

            The standard of proof in administrative proceeding is relevant on mandamus review.  Li v. Superior Court (Sacramento County), (2021) 69 Cal.App.5^th 836, 844.  Where the administrative burden of proof is clear and convincing evidence, the trial court must account for that standard of proof when exercising its independent judgment on the sufficiency of the evidence.  Id. at 865.   The trial court must apply the principles of deference and presumptive correctness in the context of whether the findings are supported by clear and convincing evidence rather than a mere preponderance of the evidence.  Id.

            C. Governing Law[1]

            1. Medical Practice Act

            Protection of the public shall be the highest priority for the Board, Division of Medical Quality,[2] Board of Podiatric Medicine, and administrative law judges of the Medical Quality Hearing Panel in exercising their disciplinary authority.  Business & Professions Code (“B&P Code”) §§ 2001.1, 2229(a).  In exercising such authority, an ALJ or the Division of Medical Quality shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.  B&P Code §2229(b). 

            The legislative intent is for the Division of Medical Quality, Board of Podiatric Medicine, and enforcement program to seek out licensees who have demonstrated deficiencies in competency and take action, with priority given to the measures that will remove those deficiencies.  B&P Code §2229(c).  Where rehabilitation and protection are inconsistent, protection shall be paramount.  Id.

            All proceedings against a licensee for unprofessional conduct shall be conducted in accordance with the Administrative Procedures Act (“APA”) (Govt. Code §11500 et seq.) and shall be prosecuted by the Senior Assistant Attorney General of the Health Quality Enforcement Section.  B&P Code §2230.

            A person whose certificate has been surrendered while under investigation or while charges are pending, or whose certificate has been revoked or suspended or placed on probation, may petition the board for reinstatement or modification of penalty, including modification or termination of probation.  B&P Code §2307(a).  The petition can only be filed only (1) at least three years after the license was surrendered or revoked for unprofessional conduct, except that the Board may for good cause shown specify in the revocation order that the petition for reinstatement may be filed after two years; (2) at least two years after the commencement of probation of three years of more for early termination of the probation; and (3) at least one year after the imposition of a condition the licensee seeks to modify, surrender or revocation of a license for mental or physical illness if the licensee seeks reinstatement, or probation of less than three years if the licensee seeks early termination of the probation.  B&P Code §2307(b).

            2. The APA

            The Office of Administrative Hearings (OAH”) shall have a Medical Quality Hearing Panel consisting of no fewer than five ALJs with qualified medical training.  Govt. Code §11371. All adjudicative hearings and proceedings relating to the discipline or reinstatement of Board licensees that are heard pursuant to the APA shall be conducted by an ALJ as designated in section 11371.  Govt. Code §11372.  All adjudicative hearings and proceedings conducted by an ALJ as designated in section 11371 shall be conducted under the terms and conditions set forth in the APA, except as provided in the Medical Practice Act.  Govt. Code §11373.

            An “adjudicative proceeding” is an evidentiary hearing for determination of facts pursuant to which an agency formulates and issues a decision.  Govt. Code §11405.20.  A “presiding officer” is the agency head, member of the agency head, ALJ, hearing officer, or other person who presides in an adjudicative proceeding.  Govt. Code §11405.80.

            An agency may provide any appropriate procedure for a decision for which an adjudicative proceeding is not required.  Govt. Code §11415.50(a).  An adjudicative proceeding is not required for informal factfinding, an informal investigatory hearing, or a decision on whether to initiate an investigation, prosecution, or other proceeding before the agency, another agency, or a court.  Govt. Code §11415.50(b).  An agency also may formulate and issue a decision by settlement, pursuant to an agreement of the parties, without conducting an adjudicative proceeding.  Govt. Code §11415.60(a).

            If a contested case is originally heard by an ALJ alone, the ALJ shall prepare a proposed decision within 30 days after the case is submitted to the ALJ.  Govt. Code §11517(c)(1).  Within 100 days of the agency’s receipt of this decision, the agency may (A) adopt the decision in its entirety; (B) reduce or mitigate the proposed penalty and adopt the balance of the proposed decision; (C) adopt the decision with technical or other minor changes that do not affect the factual or legal basis; (D) reject the proposed decision and refer the case to the same ALJ, or to another ALJ if the first is not reasonably available, to take additional evidence and prepare a revised proposed decision; or (E) reject the proposed decision and decide the case upon the record or an agreed statement of the parties, with or without taking additional evidence and subject to additional proceedings.  Govt. Code §11517(c)(2).  If the agency does not act within 100 days of receiving the proposed decision, it is adopted in full.  Id.

            The agency may order reconsideration of all or part of the case on its own motion or on petition of any party.  Govt. Code §11521(a). The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration.  Id.  If additional time is needed to evaluate a petition for reconsideration filed prior to the expiration of any of the applicable periods, an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition.  Id.  If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied.  Id.

            The agency itself may reconsider a case based all pertinent parts of the record and such additional evidence and argument as may be permitted.  Govt. Code §11521(b).  Alternatively, it may assign the reconsideration to an ALJ subject to Govt. Code section 11517.  Govt. Code §11521(b). 

            3. California Code of Regulations

            A party who wishes to present oral argument to the Board panel that issued an order of non-adoption or reconsideration shall make a written request for oral argument within 20 calendar days of the date of the notice of non-adoption or the order granting reconsideration.  16 California Code of Regulations (“16 CCR”) §1364.30(a).  An ALJ will preside at oral argument and may sit with and assist the panel members with closed session deliberations.  16 CCR §1364.30(b).

            Oral argument shall be based only on the existing record and not exceed the scope of the record of duly admitted evidence.  16 CCR §1364.30(c).  The panel members may ask questions of the parties to clarify the arguments but not to elicit new evidence.  Id.  The ALJ and any panel member may also ask a party to support the party’s oral argument on a matter with a specific citation to the record.  Id.  The ALJ shall stop an attorney, a party, or a panel member if the line of questioning or argument is beyond the record or otherwise out of order.  16 CCR §1364.30(d).

            The ALJ shall offer the respondent physician an opportunity to address the panel regarding the penalty.  16 CCR §1364.30(e).  If the physician does so, the ALJ shall place the physician under oath.  Id.

            Written argument submitted in response to an order of non-adoption or reconsideration shall state each point under a separate heading or subheading summarizing the point and support each point by argument, and citation of authority if applicable.  16 CCR §1364.32(a).  It shall also support any reference to a matter in the record by a citation to the volume and page number of the record or exhibit number where the matter appears.  16 CCR §1364.32(b).

            D. Statement of Facts[3]

            The facts concerning the underlying charges against Smith are not at issue because he challenges only the Board’s procedure in this case.   Pet. Op. Br. at 3-4.[4]

            1. The Accusation and 2020 Decision

            On April 27, 2018, the Board’s Executive Director (“Complainant”) filed the Accusation against Smith.  AR 1-15.  The Complainant filed a First Amended Accusation on February 13, 2019.  AR 198-217.  The First Amended Accusation alleged gross negligence as to Patients A-D (AR 201, 207, 209, 210), repeat negligence as to Patients A-E (AR 212-213), incompetence as to Patient A (AR 215), repeat acts of clearly excessive prescribing for Patients A-C (AR 215), failure to maintain adequate and accurate medical records as to Patients A-E (AR 215-216), and unprofessional conduct (AR 216).

            ALJ Valeria Johnson heard the First Amended Accusation between September 16, 2019 and January 20, 2020.  AR 15572.  On June 25, 2020, ALJ Johnson issued a 100-page Proposed Decision.  AR 15708-808.  The Board served the Proposed Decision on Smith on July 24 2020. AR 15708.  The Proposed Decision was to revoke Smith’s license, stayed the revocation, and placed Smith on a seven-year probation subject to certain terms and conditions.  AR 15795.

            On August 25, 2020, the Board adopted the Proposed Decision (the 2020 Decision), effective September 24, 2020.  AR 15809. 

            2. The Petition for Reconsideration

            On September 15, 2020, Smith filed a petition for reconsideration and stay of effectiveness of the 2020 Decision.  AR 15910-42. 

            On September 22, 2020, the Board stayed execution of the 2020 Decision until October 5, 2020, solely for the purpose of allowing Smith to file a petition for reconsideration.  AR 16347.           

            On September 30, 2020, the Complainant filed an opposition to Smith’s petition for reconsideration.  AR 16348-68.

            On October 5, 2020, the Board stayed execution of the 2020 Decision until October 15 to enable it to review and consider Smith’s petition for reconsideration.  AR 16636.

            On October 15, 2020, the Board issued notice that it had taken no action on Smith’s petition for reconsideration, and therefore it was denied by operation of law.  AR 16637.

            3. Smith I

            On November 13, 2020, Smith filed a petition for a writ of mandate to compel the Board to set aside the 2020 Decision.  AR 16859.  Smith asserted that the Board erred in excluding Smith’s expert witness, Jack Berger, M.D. (“Berger”), from testifying.  AR 16861-62.  He also asserted the evidence did not support the findings and that seven years of probation constituted excessive discipline.  AR 16862.

            On November 3, 2021, Judge Beckloff issued a tentative decision denying the petition.  AR 16900-07.  After oral argument, Judge Beckloff issued a final decision granting the petition on fair trial grounds.  AR 16909-23.

            As to excluded expert testimony, Smith had asserted his expert disclosures satisfied B&P Code section 2334(a)(2).  AR 16914.  The court held they contained significant deficiencies, and the exclusion was warranted for most of the testimony for Smith’s failure to comply with B&P Code section 2334.  AR 16914.  However, the disclosures were sufficient as to some opinions and the wholesale preclusion of all Berger’s expert testimony was an error.  AR 16914.  The ALJ should have permitted Berger’s testimony as to those opinions.  AR 16914.

            The ALJ properly excluded all expert testimony as to Patient B.  AR 16915.  The expert disclosure as to cause of actions was generalized and vague.  AR 16915.  It was not a complete statement of the expert’s opinions with the bases and reasons for each.  AR 16915.  Smith did not provide the Complainant with any idea of the substance of the proffered opinion and the disclosures did not ensure the Board would not be sandbagged at trial by undisclosed opinions or the general bases for those opinions.  AR 16915.

            The disclosure as to Patient E also did not comply with B&P Code section 2334.  AR 16917.  It just summarized allegations in the First Amended Accusation and disputed one fact.  AR 16917.  This did not set forth the proffered expert opinion.  AR 16917.  The ALJ did not commit a legal error when she excluded Berger’s testimony for Patients B and E.  AR 16918.

            As to Patient A, the disclosure complied with B&P Code section 2334 for the allegation of gross negligence.  AR 16915.  It set forth Berger’s proffered opinion that Smith acted within the standard of care for the prescription of various drugs.  AR 16915.  It also provided the basis and reasons for that opinion; the disclosure said that Smith prescribed medications when clinically indicated and within safe dosing given Patient A’s medical history.  AR 16915.  The disclosures were insufficient as to the other causes of discipline, including “no negligence” and excessive prescribing.  AR 16915.  However, Berger’s opinion still may have informed on those causes of discipline.  AR 16915.  Similarly, Smith’s expert disclosure for Patient C and D was sufficient.  AR 16916-17. 

Consequently, the Board erred and deprived Smith of a fair trial as to Patients A, C, and D because it excluded all expert testimony about them.  AR 16918.  Not all proffered expert testimony as to those three patients complied with B&P Code section 2334.  AR 16918.  However, Smith’s disclosures were compliant for at least some opinions.  AR 16918.  The ALJ should have limited the testimony in a manner consistent with those opinions.  AR 16918.  This ruling on expert testimony did not impact the 2020 Decision’s holding as to Patients B and E.  AR 16918. 

            Judge Beckloff then held that Smith failed to demonstrate that the weight of the evidence did not support the Board’s findings on any of Patients A-E.  AR 16921. 

            As for the penalty, a court cannot disturb an administrative penalty unless it demonstrates a manifest abuse of discretion.  AR 16921.  Smith argued that the terms of the probation shut down his pain management practice and had the same effect as full revocation.  AR 16921.  This did not answer whether the penalty was excessive relative to his wrongdoing.  AR 16921.  Based on the serious misconduct involved, the court could not find the disciplinary action a manifest abuse of discretion.  AR 16922.  Reasonable minds may disagree as to whether it was appropriate, but it was not arbitrary or capricious.  AR 16922. 

            The court granted the Petition on fair trial grounds and set aside the 2020 Decision.  The court added that nothing it its decision would limit or control the discretion legally vested in the Board.  AR 16923. 

            4. The Judgment

            On February 14, 2022, the Board submitted a proposed judgment with a declaration regarding any known objections to it.  AR 16926-30.  The proposed judgment set aside the 2020 Decision without prejudice and remanded the matter to the Board for reconsideration pursuant to CCP section 1094.5(f).  AR 16930.  It stated that the Board could reconsider the case and additional evidence and argument as may be permitted by law.  AR 17413.  If so, the rehearing and final determination shall include any parts of Berger’s testimony regarding Patients A, C, and D that the ALJ had improperly excluded.  AR 16930.

            On February 28, 2022, Judge Beckloff entered judgment.  AR 16948-49.  The court struck language from the proposed judgment including “without prejudice” and the reference to remand and reconsideration by the Board, with the note “Objections considered.”  AR 16949, 17357.         On April 18, 2022, the clerk issued a writ of mandate compelling the Board to set aside the 2020 Decision.  AR 17554.

            5. The Motion to Vacate Judgment

            On March 15, 2022, the Board filed notice of its intent to move to vacate the judgment and enter a different one.  AR 16951-52.  The Board filed the motion to vacate on March 23, 2022.  AR 16954-66.  The motion asserted that a judgment setting aside the 2020 Decision in its entirety without remand is not consistent with or supported by the facts contained in the court’s order.  AR 16955.  This error materially affected the Board’s substantial rights.  AR 16955.  The court’s decision had found no legal error in the exclusion of Berger’s expert testimony as to either (1) Patients B and E in full or (2) some causes of action and allegations concerning Patients A, C, and D.  AR 16955. 

            The Board’s supporting memorandum asserted that the facts and evidence in Smith I support the Board’s right to impose discipline against Smith’s medical license for many causes of discipline concerning the five identified patients.  AR 16963.  However, the judgment dismissed Smith’s probation in its entirety and disenfranchised the Board of its vested statutory authority to impose discipline.  AR 16963.  A judgment setting aside the 2020 Decision without remand was therefore legally incorrect and not consistent with the facts contained in the court’s order.  AR 16963.  The Board requested a judgment reflecting its right to hear the case on remand and cure the specified deficiencies to admissible parts of Berger’s testimony.  AR 16965.

            After a hearing on May 20, 2022, Judge Beckloff denied the motion to vacate judgment in a written decision.  AR 17584.  He explained that the judgment complied with CCP section 1094.5(f), which requires a court to enter judgment either denying the writ or compelling the respondent agency to set aside its decision.  AR 17584.  Consistent with that statute, he had ordered the Board to set aside its 2020 Decision.  AR 17584.  Judge Beckloff expressly noted that the judgment was not intended to limit or control the Board’s legally vested discretion.  AR 17584.  The writ just returned Smith to the position he was in before the Board’s disciplinary hearing began.  AR 17584.  The court was not required to remand the matter because the Board was free to conduct further proceedings on the Accusation after it vacated the 2020 Decision to comply with the writ.  See Carlton v. Department of Motor Vehicles, (1988) 203 Cal.App.3d 1428, 1435.  AR 17584-85. 

            Judge Beckloff stated that he did not constrain the Board because his decision expressly chose not to limit or control the Board’s legal discretion.  AR 17585.  Once the Board complied with the writ and vacated the 2020 Decision, it could exercise the discretion legally vested in it and determine how to proceed.  AR 17585.  The court’s silence on reconsideration allows the Board to act with any discretion legally vested after complying with the writ.    AR 17585.  In his view, it is not appropriate for the court to direct the Board how to proceed because it can proceed in any number of ways, and the Board is in the best position to make that decision.  AR 17585.

            On June 9, 2022, the Board filed and served a return to the writ.  AR 17587-88.  The return included a Board order issued earlier that day to vacate and set aside the 2020 Decision.  AR 17587-88, 17590.  The order stated that the Board would reconsider Smith’s case on July 22, 2022 in a manner consistent with the court’s decision.  AR 17590.

            6. The June 22, 2022 Order

            On June 22, 2022, the Board issued an order fixing dates for written and oral argument.  AR 17609-10.  Any written argument the parties wished to present about the appropriate level of discipline for Smith’s conduct as to Patients B and E shall be filed by July 8, 2022.  AR 17609.  Oral argument would take place in open session at a Board meeting on July 22, 2022, subject to strictly enforced time limits.  AR 17609.  An ALJ would sit with the Board.  AR 17609.  The order warned that any written and oral argument must be limited to the evidence in the record, and neither party could submit new evidence.  AR 17610.  Any argument must comply with 16 CCR sections 1364.30 and 1364.32.  AR 17610. 

            On July 8, 2022, Smith submitted a brief arguing that the Board should not take further action against him.  AR 17612, 17617.  To safeguard California patients, the validity of any discipline would depend on an evaluation of Smith’s current competency to practice his specialty of pain management.  AR 17613.  Smith also argued that the record before the Board was incomplete.  AR 17613.  The Board’s June 22 order limited argument to evidence already in the record but this excludes evidence that would demonstrate that Smith has been fully compliant with the set aside disciplinary order and has remained so in good faith.  AR 17613.  A retrial of the original Accusation would be unfair and would unduly expend the resources of both Smith and the Board.  AR 17613.

            Also on July 8, 2022, the Complainant submitted a brief requesting license revocation, stay of the revocation, and a five-year probation.  AR 17618-32.  Such probation should be nunc pro tunc from the effective date of the 2020 Decision.  AR 17632.  The Complainant asked the Board not to consider any of the previous findings concerning Patients A, C, and D.  AR 17631.  Only the findings for Patients B and E should be considered, and any decision should expressly state the grounds for such discipline following reconsideration of the case.  AR 17631.

            7. The July 22, 2022 Board Meeting

            A Board panel and an ALJ heard the matter on July 22, 2022.  AR 17835, 17839.  The ALJ said the Board had invited particular discussion about the level of discipline to be imposed for Smith’s care of Patients B and E.  AR 17840.  Arguments were to be based on the existing record of duly admitted evidence and not exceed its scope.  AR 17840.  The panel could ask questions to clarify the parties’ stance, but not if the questions would elicit new evidence.  AR 17840. 

            The ALJ promised to give Smith an opportunity at the end of the hearing to address the panel about the proper level of discipline as to Patients B and E.  AR 17841.  The ALJ reiterated that all arguments must be based on the existing record, no new evidence would be heard, and the Board had read the written briefs.  AR 17841.

            The Board heard opening argument by Smith’s counsel (AR 17848-52) and the Complainant (AR 17852-62) and closing arguments by Smith (17863-67) and the Complainant (AR 17868-70). 

            Smith was sworn in to provide a statement about the appropriate level of discipline for his care of Patients B and E.  AR 17871.  He started to testify how he has fulfilled every condition imposed on him in good faith and a timely manner.  AR 17873.  The ALJ stopped to remind him he could not provide the Panel with information outside the scope of the record that is before it.  AR 17873.  Although some of the oral argument had exceeded the record, Smith’s statement could not.  AR 17873. 

            Smith responded that his statement did pertain to the prior discipline and how he was still following its terms.  AR 17874.  He was serious about the disciplinary order imposed on him, and he has been and will remain compliant with whatever the Board tells him to do.  AR 17874.  He did fly to Texas to partake in a competency program after the one in San Diego rejected him.  AR 17874.  The ALJ again told Smith that these issues were not before the Board.  AR 17874.  He needed to limit his statement to evidence that was before it.  AR 17874-75.  Smith then discussed Patients B and E and contended that his 20 months of probation to date is an adequate amount of discipline.  AR 17875-76.

            8. The 2022 Decision

            On August 11, 2022, the Board issued the 2022 Decision, retroactively effective September 24, 2020.  AR 17731.  The 2022 Decision is entitled “Decision after Superior Court Remand.”  AR 17635.  The Board reviewed the record and Smith I before issuing the 2022 Board Decision.  AR 17637.

The Board stated that Judge Beckloff had found an abuse of discretion in the 2020 Decision’s exclusion of expert testimony about Patients A, C, and D.  AR 17637.  Judge Beckloff granted Smith relief solely because he did not receive a fair trial as to Patients A, C, and D.  AR 17637.  The erroneous exclusion of testimony as to Patients A, C, and D did not impact the findings as to Patients B and E.  AR 17637.  The imposed discipline also was not a manifest abuse of discretion, arbitrary, or capricious.  AR 17637.  Judge Beckloff expressly did not limit the Board’s discretion to decide the matter was.  AR 17637.

The Board discussed the Complainant’s expert witness, Jason Pope, M.D., his credibility, the credibility of Smith, and the evidence concerning Patients A-E.  AR 17641-07.  It concluded that there was insufficient evidence to prove the charges against Smith concerning Patients A, C, and D because he was erroneously prevented from presenting expert opinion on his care and treatment of those patients.  AR 17668-69, 17696-98, 17704.  It found that the weight of the evidence supported the 2020 Decision’s findings of gross negligence, repeated negligent acts, repeated acts of excessive prescribing, and failure to maintain adequate records for Patient B and repeated negligent acts and failure to maintain adequate records for Patient E.  AR 17668-92, 17707. 

            The purpose of the Medical Practice Act is to assure the high quality of medical practice.  AR 17711.  It keeps unqualified and undesirable persons, along with those guilty of unprofessional conduct, out of the medical profession.  AR 17711.  The purpose is not to punish these persons, but to protect the public by eliminating dishonest, immoral, disreputable, or incompetent practitioners.  AR 17711.

            Cause exists to discipline Smith based on gross negligence in his care and treatment of Patient B, repeat negligent acts in care and treatment of Patients B and E, clearly excessive prescription of drugs to Patient B, failure to maintain adequate and accurate records as to Patients B and E, and unprofessional conduct in his care of Patients B and E.  AR 17716-17.

            Because the purpose of discipline is to protect the public, the inquiry must be limited to the effect of the doctor's actions upon the quality of his service to his patients.  AR 17717.  Rehabilitation requires consideration of the offenses from which the doctor allegedly has been rehabilitated.  AR 17717.  The law favors rewarding those who have achieved reformation and regeneration with the opportunity to serve.  AR 17717-18.  Remorse, cooperation, and absence of prior discipline are mitigating factors.  AR 17718.

            Candid admission of misconduct and acknowledgment of wrongdoing may be a necessary first step in rehabilitation, but it is only a first step.  AR 17718.  A truer indication of rehabilitation is presented if an individual demonstrates fitness to practice by sustained conduct over an extended period of time.  AR 17718.

            Smith had no record of prior discipline in 30 years as a licensed physician.  AR 17639, 17718.  He had no prior complaints and only one pending civil action against him.  AR 17718.  However, this case involved numerous violations of the Medical Practice Act in the “care and treatment of five patients”.  AR 17718.  

            Smith never acknowledged he made a mistake for most issues.  AR 17718.  He changed his practice by reprogramming his pumps, but this was a response to the Accusation rather than an admission that his conduct was below the standard of care.  AR 17718.  There was no evidence that Smith accepted responsibility for his mistakes or had taken action to change or correct his practice.  AR 17719.

            The 2022 Decision revoked Smith’s license, stayed the revocation, and placed him on probation for five years retroactive to September 24, 2020 (AR 17719), subject to the same terms and conditions as the 2020 Decision (AR 17719-731).  Smith would receive full credit for all periods of probation already served and for any term of probation satisfied before Smith I was remanded to the Board.  AR 17719.  He is also entitled to petition for termination or modification of his probation under B&P Code section 2307 based on a probation start date of September 24, 2020.  AR 17719. 

            E. Analysis

Petitioner Smith contends that the Board (a) lacked jurisdiction to reconsider its 2020 Decision, (b) exceeded its authority by using discipline as a penalty, (c) deprived Smith of a fair hearing by excluding evidence of his competence and fitness to practice at the time of the 2020 Decision, and (d) abused its discretion by not permitting expert testimony on the controversy and shifting standard of care with respect to Patients B and E.

1. Procedural Failure

As the Board’s opposition points out (Opp. at 6, n. 1), Smith’s 20-page opening brief exceeds the 15-page limit of CRC 3.1113(d).  Smith argues that this failure was “inadvertent” and asks that the court excuse his failure.   Reply at 1, n. 1.

Smith’s failure is not excused.  Not only did Smith violate CRC 3.1113(d), he violated the court’s July 20, 2023 trial setting order which expressly limited him to 15 pages.  As a result of his violation of both the CRC and a court order, Smith has waived issues (b) through (d) identified above that are contained on pages 16-20 of his opening brief.  The court will address these issues below only as informational and out of an abundance of caution. 

2. Subject Matter Jurisdiction

Smith argues that the Board’s 2022 Decision is a reconsideration of its 2020 Decision that considered only two-fifths of the evidence adduced in the administrative hearing.  The Board did not hold an administrative hearing consistent with the APA by receiving evidence from the Complainant or Smith on the appropriate discipline.  Instead, it held a hearing before the Board with an ALJ presiding.  Smith contends that the Board cast the renewed proceedings as a reconsideration of the 2020 Decision and followed the reconsideration procedure in Govt. Code section 11521(b).  The 2022 Decision that resulted, patterned after the set aside 2020 Decision, is a classic product of reconsideration.  The Board exceeded its jurisdiction and violated the APA, which requires that the 2022 Decision be set aside.  Pet. Op. Br. at 11-12.

Smith notes that all proceedings against a licensee for unprofessional conduct shall be conducted in accordance with the APA.  Bus. & Prof. Code §2230.  Govt. Code section 11372(a) provides:

“[A]ll adjudicative hearings and proceedings relating to the discipline . . . of licensees of the Board of California . . . that are heard pursuant to the Administrative Procedures Act, shall be conducted by an administrative law judge [from the Medical Quality Hearing Panel], sitting alone if the case is so assigned by the agency filing the charging pleading.” (emphasis added).

See also Govt. Code §11373 (“All adjudicative hearings and proceedings conducted by an administrative law judge…shall be conducted under the terms and conditions set forth in the Administrative Procedures Act…” (emphasis added).  Pet. Op. Br. at 11-12.   

Smith argues that Govt. Code section 11372 is unambiguous.  All adjudicative hearings relating to discipline must be conducted by an ALJ, not a panel including the Board.  Govt. Code §11372 (a).  Pet. Op. Br. at 14.

Govt. Code section 11521(a) makes this plain:

“The agency itself may order a reconsideration of all or part of the case on its own motion….  The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration.” (emphasis added).

See also Bonnell v. Medical Board, (2003) 31 Cal. 4th 1255, 1261-62 (citations omitted) (“Before the enactment of section 11521(a), we recognized that in the absence of statutory authority, administrative agencies generally lacked the power to order reconsiderations.”).

Smith argues that Govt. Code section 11521(a) also is unambiguous.  The agency’s power to reconsider ends within the time prescribed by section 11521, which generally 30 days after the delivery or mailing of the decision to a licensee.  See Bonnell v. Medical Board, supra, 31 Cal. 4th at 1261-62.  The Board can lengthen this period by making its decision effective “at the termination of a stay of not to exceed 30 days which they agency may grant for the purpose of filing an application for reconsideration”, provided this extension is granted within the first 30-day period.  Id.  Pet. Op. Br. at 14.

The Accusation and First Amended Accusation were assigned by the Board to an OAH Medical Quality Hearing ALJ.  AR1-15, 198-217.  The ALJ issued her Proposed Decision on July 24, 2020.  AR 15708-808.  The Board adopted the Proposed Decision on August 25, 2020, to become effective on September 24, 2020.  AR 15809-909.  Smith filed a Petition for Reconsideration and Request for Stay on September 16, 2020.  AR 15910-6346.  The Board “stayed execution” “for the purpose of allowing [Smith] to file a Petition for Reconsideration”.  AR 16347.  The Board extended the stay until October 15, 2020.  AR 16636.  The Board later provided notice that the Petition for Reconsideration was denied as a matter of law after it had taken no action on it.  AR 16637.  Under the law, the power of the Board to reconsider the 2020 Decision expired on November 14, 2020.  Pet. Op. Br. at 13.

Smith argues that, despite this expiration of its power to reconsider, the Board elected to conduct a reconsideration proceeding after it vacated the 2020 Decision at Judge Beckloff’s direction.  The Board’s counsel admitted as much at the Board’s July 22, 2020 hearing: “Today you’re being asked to reconsider the board’s [2020] decision against…Dr. Smith….”  AR 15927 (emphasis added).  Pet. Op. Br. at 14.

The 2022 Decision on reconsideration entailed excision of three of five patient cases from those considered by the Board for the 2020 Decision.  Judge Beckloff concluded that Smith’s expert should have been permitted to testify as to three of the five patients that formed the basis of the 2020 Decision.  The Board reconsidered the 2020 Decision based only on care of two patients.  The Board then retroactively reimposed the same discipline it imposed in the 2020 Decision without receiving further evidence.  Pet. Op. Br. at 15.

Yet, the Board was without power to reconsider the 2020 Decision.  There is no statutory authority for the proceeding that was conducted by the Board because the time for reconsideration proceedings had long ago passed.  Pet. Op. Br. at 14.  The extra-legality of the Board’s action is highlighted by its Notice of Hearing for the July 22, 2022 hearing which stated: “Written and oral argument shall be limited to evidence contained in the record and shall comply with 16 CCR sections 1364.30 and 1364.32.”  AR 17609-10.  These regulations apply to reconsideration proceedings.  Pet. Op. Br. at 12.  Smith concludes that the Board’s attempt to reconsider nearly two years after the statutory limit for doing so expired is error and outside of the Board’s power and the Board proceeded without jurisdiction.  Pet. Op. Br. at 15.[5]

a. The Board’s Hearing Was Within the Scope of Judge Beckloff’s Writ

            The Board’s exercise of discretion with respect to the 2020 Decision was certainly within the scope of what Judge Beckloff contemplated.  In his decision granting Smith’s Petition on fair trial grounds and setting aside the 2020 Decision, he stated that nothing therein was to limit or control the discretion legally vested in the Board.  AR 16923.  In entering judgment, Judge Beckloff struck the Board’s proposed language remanding the matter to the Board for reconsideration pursuant to CCP section 1094.5(f).  AR 16930.  AR 16949, 17357.

            The Board then filed a motion to vacate the judgment, arguing that a judgment setting aside the 2020 Decision without remand is not consistent with or supported by the facts.  AR 16955.  In denying the motion to vacate judgment, Judge Beckloff explained in a written decision that his judgment complied with CCP section 1094.5(f), which requires a court to enter judgment either denying the writ or compelling the respondent agency to set aside its decision.  AR 17584.  Consistent with the statute, he ordered the Board to set aside its 2020 Decision.  AR 17584.  However, the judgment was not intended to limit or control the Board’s legally vested discretion.  AR 17584.  He was not required to remand the matter because the Board was free to conduct further proceedings on the accusation after it vacated the 2020 Decision.  See Carlton v. Department of Motor Vehicles, (1988) 203 Cal.App.3d 1428, 1435.  AR 17584-85. 

            Judge Beckloff added that he expressly chose not to limit or control the Board’s legal discretion.  AR 17585.  Once the Board complied with the writ and vacated the 2020 Decision, it could exercise the discretion legally vested in it and determine how to proceed.  AR 17585.  The court’s silence on reconsideration allows the Board to act with any legally vested discretion after complying with the writ.    AR 17585.  In his view, it is not appropriate to direct the Board how to proceed because it could proceed in any number of ways, and the Board was in the best position to make that decision.  AR 17585.

            Thus, Judge Beckloff plainly authorized the Board to take any action within its legal discretion after complying with the writ. 

b. The Caselaw Interpreting CCP Section 1094.5(f) Supports the Board’s Authority

In denying the motion to vacate judgment, Judge Beckloff cited Carlton v. Department of Motor Vehicles, (“Carleton”) (1988) 203 Cal.App.3d 1428.  AR 17584-85. 

In Carlton, the trial court concluded that the evidence was insufficient to support revocation of the petitioner’s probationary driver’s license and ordered the DMV to set it aside.  Id. at 1432.  The DMV contended that the trial court was required specifically to remand for a new hearing.  Id. at 1434.  The appellate court stated that “[w]here an administrative decision is set aside for insufficiency of the evidence it is customary to remand the matter to the agency for a new hearing [citations] except in the rare case in which as a matter of law no evidence could support the agency’s decision.”  Id. at 1434.  It was conceivable that the DMV could cure the defect in evidence and nothing in the trial court’s writ precluded it from doing so.  Id. at 1434-35.  The writ merely ordered the DMV to set aside its decision and reinstate the petitioner’s driver’s license.  Id. at 1434.  In other words, the court required the DMV to reinstate the petitioner’s status pending such further proceedings as the DMV may choose to initiate.  Id.

In Voices of the Wetlands v. State Water Resources Control Board, (“Wetlands”) (2011) 52 Cal.4^th 499, the California Supreme Court stated in dictum that the approach in Carleton was correct.  When a trial court concludes that the agency’s decision is “not sufficiently supported” by the record, the only possible cure is “the agency’s reconsideration of its decision on the basis of additional evidence.”  52 Cal.4^th at 531 (italics in original).  The Supreme Court instructed that the trial court has the option under CCP section 1094.5(f) to order the agency to reconsider its decision “in light of the” trial court’s judicial determination – “i.e., a reconsideration in which the agency may entertain all the additional evidence [viewed by the trial court as missing] to support its new decision.”  Id. at 531.  The Supreme Court stated that alternatively the trial court could simply vacate the agency’s decision.  Id. In that circumstance, the petitioner could have commenced a new permit proceeding and the board would have been empowered to receive and consider all evidence pertinent to the decision.   Id.

Thus, the Supreme Court in Wetlands read CCP section 1094.5(f) in a way that does not foreclose agency action that is not expressly mentioned in the trial court’s judgment.   Rather, CCP section 1094.5(f) governs how the agency should proceed if the trial court expressly ordered it.  For this reason, CCP section1094.5(f) uses the words “in light of the court’s opinion and judgment”. 

Coupled with Carlton and Wetlands, CCP section 1094.5(f) allows the trial court to focus the agency’s action by “order[ing] the reconsideration of the case “in light of the court’s opinion and judgment”.  Or the trial court may remain silent regarding what should happen, which allows the agency to act within the discretion legally vested in it after complying with the writ. 

c. The Board Lawfully Exercised Its Discretion

Judge Beckloff’s writ compelling the Board to vacate its 2020 Decision returned the parties to the status quo ante before that decision.  The status quo ante is that the Board was considering the ALJ’s Proposed Decision to revoke Smith’s license, stay the revocation, and place him on a seven-year probation subject to certain terms and conditions.  AR 15795.

After complying with Judge Beckloff’s writ and setting aside the 2020 Decision, the Board could not simply re-adopt the Proposed Decision because the seven-year probation was based in part on the unlawful findings of guilt with respect to Patients A, C, and D.  The Board’s legally vested options included: (a) take no further disciplinary action, (b) consider the appropriate penalty based upon the two upheld charges, (c) receive limited evidence, such as from Smith’s expert and any rebuttal evidence, or (d) conduct a new evidentiary hearing on the charges.[6]

The Board chose to consider the appropriate penalty based on the two upheld charges.  Consequently, the stated purpose of the July 22, 2022 Board hearing was “to address the level of discipline” to be imposed for Smith’s violations of the standard of care for Patients B and E. AR 17609.  The evidence “in the record” had been closed and submitted on April 15, 2020.  AR 15811.  The Board’s June 22, 2022 order fixing dates for written and oral argument expressly stated that any written argument the parties wished to present about the appropriate level of discipline for Smith’s conduct as to Patients B and E must be filed by July 8, 2022.  AR 17609.  The order warned that any written and oral argument would be limited to the evidence in the record, and neither party could submit new evidence.  AR 17609.  It added that any argument must comply with 16 CCR sections 1364.30 and 1364.32.  AR 17610.

The court agrees with Smith that the Board must adhere to the APA, but the Board’s 2022 Decision was authorized by the APA.  The Board’s June 22, 2022 order stating that it would consider the appropriate penalty at hearing effectively was a non-adoption of the ALJ’s Proposed Decision’s penalty.  The order was not a reconsideration of that penalty but rather an initial consideration of the penalty after non-adoption of the Proposed Decision. 

As part of the non-adoption, the Board chose to rely on the existing record, which required compliance with 16 CCR sections 1364.30 and 1364.2.  Pursuant to those regulations, written arguments may be submitted.  16 CCR §1364.32(a).  For the hearing after non-adoption, an ALJ will preside at the oral argument and may sit with and assist the panel members with closed session deliberations.  16 CCR §1364.30(b).  Oral argument shall be based only on the existing record and not exceed the scope of the record of duly admitted evidence.  16 CCR §1364.30(c).  The panel members may ask questions of the parties to clarify the arguments but not to elicit new evidence.  Id.  The ALJ and any panel member may also ask a party to support the party’s oral argument on a matter with a specific citation to the record.  Id.  The ALJ shall stop an attorney, a party, or a panel member if the line of questioning or argument is beyond the record or otherwise out of order.  16 CCR §1364.30(d).  The ALJ shall offer the respondent physician an opportunity to address the panel regarding the penalty.  16 CCR §1364.30(e).  If the physician does so, the ALJ shall place the physician under oath.  Id.

After non-adoption of the ALJ’s Proposed Decision, the Board fully complied with 16 CCR sections 1364.30 and 1364.2 and exercised its discretion.

c. If the July 22, 2022 Hearing Was a Reconsideration, It Was Not an Adjudicative Hearing

Alternatively, the Board’s opposition correctly argues (Opp. at 13-14) that the July 22, 2022 Board meeting was not an “adjudicative hearing” required to be conducted by an ALJ under Govt. Code section 11372(a).  The Board meeting was not an “evidentiary hearing” for the determination of facts required for the formulation and issuance of a decision.  Those factual determinations already were made as part of the 2020 Decision.  While the Board invited written argument, and heard oral argument during the meeting, the parties’ arguments were strictly limited to addressing the level of discipline to be imposed for Smith’s conduct involving Patients B and E. AR 17609-10.  The Board’s 2022 Decision merely modified a prior disciplinary penalty to be consistent with Judge Beckloff’s writ.

Smith replies: What was the Board doing on July 22, 2022?  Was it not determining facts?  Was its purpose not to formulate and issue a decision?  Did the hearing not result in an adjudication?  If the proceeding was just a meeting, why was Smith sworn as a witness to provide testimony?  AR 15946.  Govt. Code section 11405.20 defines an adjudicative hearing as “an evidentiary hearing for the determination of facts pursuant to which an agency formulates and issues a decision.”   “Exemptions from this [provision] are to be construed narrowly.”  California Youth Auth. v. State Personnel Bd., (2002) 104 Cal. App. 4th 575, 529, n. 5 (holding that Govt. Code section 11405.20 applies to SPB proceedings).  Smith concludes that adjudicative proceedings include hearings to determine disputed factual and legal issues.  If there is a dispute to determine, that determination is an adjudication by definition.  Reply at 2-3.

That is not what Govt. Code section 11405.20 says.  Its plain elements are (a) an evidentiary hearing and (b) to determine facts from which the agency will make a decision.  The Board conducted no evidentiary hearing on July 22, 2022.  The fact that Smith was sworn under oath does not affect this conclusion.   The ALJ was required to offer Smith an opportunity to address the panel regarding the penalty and, if he accepted, to swear him under oath.  16 CCR §1364.30(e).  But his testimony about what the discipline should be did not require the Board to determine any facts.  He was only permitted to argue the appropriate discipline from the existing facts.  The Board did not determine any facts at the July 22, 2022 hearing and its penalty decision does not meet the definition of an adjudicative hearing under Govt. Code section 11405.20.

The Board then argues that the July 22 meeting and the procedures it employed fall within the authority provided in Govt. Code section 11415.50.  Where an “adjudicative proceeding” is not required, the Board has full discretion to determine what the appropriate procedure will be for a decision.  Govt. Code §11415.50.  Opp. at 15.

Smith replies that a plain reading of Govt. Code section 11415.50 illustrates both that the hearing before the Board was not authorized.  The 2022 Decision did not result from “informal factfinding”, an “informal investigatory hearing”, or the Board’s deliberation to decide whether to “initiate an investigation, prosecution, or other proceeding….”  Reply at 6.  

Smith focuses on the wrong APA statutes.  While all Board proceedings against a licensee for unprofessional conduct must be conducted pursuant to the APA (Bus. & Prof. Code §2230) and all adjudicative hearings relating to licensee discipline by the Board shall be conducted by a qualified ALJ (Govt. Code §11372(a)), the Board’s July 22, 2022 hearing resulting in the 2022 Decision was not an adjudicative hearing.  The APA defines “adjudicative proceeding” as “an evidentiary hearing for determination of facts pursuant to which an agency formulates and issues a decision.” Govt. Code §11405.20 (emphasis added). 

Smith fails to separate Govt. Code section 11415.50(a) from (b).  Subdivision (a) simply states that “[a]n agency may provide any appropriate procedure for a decision for which an adjudicative decision is not required.”  The Board’s hearing fits this statement.  The fact that it may not fit within any specific hearing listed in subdivision (b) does not alter this conclusion. [7]

Under this alternative, the Board’s July 22, 2022 hearing was a reconsideration of the 2020 Decision which the APA authorized.  An agency may provide any appropriate procedure for a decision for which an adjudicative proceeding is not required.  Govt. Code §11415.50(a).  No adjudicative proceeding was required for the Board’s 2022 Decision reconsidering the 2020 Decision and the Board’s imposition of a disciplinary penalty based on the upheld charges was within its legally vested authority.[8]

3. Discipline as a Penalty

Protection of the public shall be the highest priority for the Board in exercising its disciplinary authority.  B&P Code §2229(a).  In exercising such authority, the Board shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.  B&P Code §2229(b).

“‘[T]he object of the Board’s discipline ‘is not to punish’ the physician, but ‘rather, ‘to protect the life, health and welfare of the people at large and to set up a plan whereby those who practice medicine will have the qualifications which will prevent, as far as possible, the evils which could result….In short, the purpose of discipline is to make the [physician] a better physician.’”  Pirouzian v. Superior Court, (“Pirouzian”) (2016) 1 Cal. App. 5th 438, 446 (citations omitted).

Smith argues that the language in B&P Code section 2229(a) is mandatory, and that the Board exceeded its authority by using discipline as a penalty.  The Board made it clear that it was considering the imposition of a penalty irrespective of Smith’s fitness to practice medicine at the time of the hearing.  The Board precluded him from providing any evidence of his fitness and competency to practice or his potential risk to patients at the July 22, 2022 hearing.  Thus, the Board sought to punish Smith based on a nearly two-year old record of events that occurred more than four years earlier.  Pet. Op. Br. at 16; Reply at 7.

Smith contends that the Board’s approach is not consistent with its duty to aid in rehabilitation:

“Although the Board has discretion in determining the discipline to impose for unprofessional conduct, such discretion []is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action.[]….Here, the Board’s discretion is subject to the Legislative mandate that the Board’s highest priority be protection of the public; and, secondarily, discipline should ‘aid in the rehabilitation of the licensee.’  ….Punishment is not a goal.”  Pirouzian, supra, 1 Cal.App.5^th at 448 (citations omitted).  Pet. Op. Br. at 16.

Without diminishing the seriousness of the claims against him in the 2018 Accusation, the 2022 Decision’s discipline was unnecessary to protect the public and contrary to the goal of making him a “better physician” and an abuse of discretion.  It was expressly intended to punish a physician who, the record shows to the extent it was permitted by the Board, had complied with the terms of his probation for nearly two years without incident and completed reeducation and competency assessments directed by the Board.  Pet. Op. Br. at 16-17.

In reply, Smith adds that this disciplinary case was about whether he overprescribed pain medication to his chronic pain patients in violation of the Medical Board’s Guidelines and other guidelines as expressions of the standard of care.  The 2022 Decision cited the Medical Board’s guidelines—frozen in time in the period between 2011 and 2017. AR 17689-90, 17710, 17790-93, 17812.  Evidence that the medical community’s understanding of opioid dosing by pain management physicians was excluded from consideration by the Board’s order setting its 2022 hearing, including changes that were later memorialized in its July 2023 Guidelines for Prescribing Controlled Substances for Pain.  RJN Ex. A.  Reply at 7.

Smith is correct that the Board did not allow him to present rehabilitation evidence related to his compliance with probation terms and conditions for the 2022 Decision.  However, he is wrong that the Board’s actions constituted punishment.  The 2020 Decision reflects the seriousness of the sustained violations against him and the Board’s paramount duty to protect the public.  AR 17711.  The Board found sufficient clear and convincing evidence to impose discipline involving numerous serious violations in the care of Patients B and E, and Judge Beckloff upheld these conclusions.  AR 16918-21.  Given the “serious misconduct involved”, Judge Beckloff found no abuse of discretion with the disciplinary penalty imposed by the Board.  AR 16921-22.  The Board’s 2022 Decision merely decided that a reduced penalty of a five-year probation was appropriate for the violations of care for Patients B and E.  See Opp. at 17.

Smith really is arguing that B&P section 2229 requires the Board to consider new evidence regarding his competency and fitness to practice medicine anytime there is a subsequent hearing on penalty, whether on remand from a trial court or an appellate court, or pursuant to the administrative process.  It is not surprising that he cites no case or authority so requiring.  The mere passage of time between the 2020 and 2022 Decisions does not mean that the Board abrogated its duty under B&P Code section 2229 or that it used discipline as a penalty in the 2022 Decision.[9]

4. Fair Hearing

Smith argues that the Board denied him a fair hearing based on the same exclusion of evidence of his competence.  As noted, the Board’s June 22, 2022 order precluded Smith from presenting any evidence of his competence and fitness to practice for the July 22, 2022 Board hearing.  AR 17610.  Pet. Op. Br. at 17.

Smith warned the Board not to proceed as it ordered.  In his pre-hearing brief, Smith argued: “Because the validity of any discipline requires an evaluation of Dr. Smith’s competency to practice in his specialty of pain management to safeguard California patients and that evaluation was not properly conducted [in the administrative hearing resulting in the 2020 Decision], the resulting discipline cannot be restored.”  AR 17612-17.  He argued that the record before the Board would be incomplete because of the Board’s order that no evidence could be presented outside of the 2020 Decision’s administrative trial.  AR 1612-17.  Pet. Op. Br. at 17.

By setting aside the 2020 Decision, Judge Beckloff put the underlying case back to its status of having received evidence at an administrative hearing but without a decision based on that evidence.  After the intervening nearly two years between the 2020 Decision and the July 2022 Board hearing, no new evidence had been received.  Smith’s competency and fitness to practice was informed by his compliance with his probation as ordered by the 2020 Decision and by changes made to his delivery of care.  The refusal of the Board to permit Smith to present this evidence denied him a fair hearing.  Pet. Op. Br. at 17-18.

The Board’s June 22, 2022 order informed the parties that the Board would follow the procedures in 16 CCR sections 1364.30 and 1364.32 for the July 22, 2022 hearing.  AR 17610.  The Board followed these procedures. 

The Board’s opposition points out that the Board’s consideration of penalty when some of the initial charges are eliminated by mandamus writ is not the proper venue for consideration of rehabilitation based on the licensee’s compliance with probation for approximately 20 months.  If Smith believes that his probation term should be reduced or modified, the proper venue is a petition for modification or termination of probation.  B&P Code §2307(a).  Smith was legally entitled to file a petition to modify or terminate probation beginning September 24, 2022, only six weeks after the 2022 Decision was issued by the Board.  Opp. at 18.

The Board’s opposition also points out that its decision not to “open the door” to Smith for additional evidence was equally true for the Complainant’s case such that no negative evidence in the possession of Complainant’s counsel on July 22, 2022 could presented to the Board.  Opp. at 18.  Smith was not denied a fair hearing.

5. Exclusion of Expert Testimony on the Pain Medication Controversy and the Shifting Standard of Care

Smith argues that the Board’s 2022 Decision simply excised its conclusions from the 2020 Decision basing discipline on Patients A, C, and D based on Judge Beckloff’s determination that Smith’s expert should have been permitted to testify about his care of these three patients.  But doing so deprived him of a fair trial because it deprived him of overarching expert testimony concerning his competence, the relative expertise of the Medical Board’s expert, and the controversies relating to the medical issues in a dynamically changing standard of care among a variety of medical specialties and governmental bodies.  Pet. Op. Br. at 18; Reply at 9.

Put differently, Judge Beckloff concluded that Smith’s expert should have been permitted to testify.  His testimony would have necessarily encompassed not merely an analysis of the care rendered to Patients B and E but also testimony concerning the significant controversies and political aspects to the shifting standards of care relative to pain management at the time of Smith’s treatment of those two patients.  The Board prevented this evidence and deprived Smith of a fair trial.  Pet. Op. Br. at 18.

Smith wrongly assumes that his expert could have testified to any charge other than Patients A, C, and D.  Judge Beckloff upheld the charges concerning patients B and E and any additional expert testimony bearing on those charges would have been irrelevant. 

            F. Conclusion

The Petition is denied.  The Board’s counsel is ordered to prepare a proposed judgment, serve it on Smith’s 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 January 18, 2024 at 9:30 a.m.