Judge James C. Chalfant, Case Number: 24STCP01001, Date: 2025-02-25 Tentative Ruling

Petitioner John Lee, M.D. (“Lee”) seeks a writ of administrative mandamus compelling Respondent Medical Board of California (“Medical Board” or “Board”) to set aside its decision of revoking his medical license.

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

On March 28, 2024, Lee filed his verified Petition for Writ of Mandate against the Medical Board. The Petition alleged in pertinent part as follows.

Lee was a psychiatrist, licensed to practice in California since October 1998. Pet., ¶1. The Medical Board is the agency in charge of administering the California Medical Practices Act, section 2220, et seq. of the Business & Professions (“B&P”) Code. Pet., ¶5.

In November 2018, Lee and the Medical Board entered a stipulated settlement and disciplinary order in In the Matter of Accusation Against Dirk De Brito, M.D., which charged him with convictions of making criminal threats and assault, mental impairment, and gross negligence. Pet., ¶32. The settlement and disciplinary order placed him in probation for three years and required him to participate in a therapeutic or educational anger management program, a professionalism program, continued psychotherapy, and practice monitor. Pet., ¶32. The decision went to effect on January 25, 2019. Pet., ¶32. Lee satisfied all terms of his probation, and his license was fully restored on January 25, 2022. Pet., ¶33.

On July 13, 2022, Complainant Executive Director of the Medical Board commenced an administrative proceeding against Lee, In the Matter of the Accusation Against John Lee, M.D., concerning two patients and alleging nine causes for discipline: 1) sexual exploitation of Patient 1; 2) sexual misconduct with Patient 1; 3) gross negligence in the care and treatment of Patient 1 and 2; 4) repeated negligent acts; 5) prescribing without examination or medication indications as to Patients 1 and 2; 6) excessive prescribing as to Patient 2; 7) prescribing to an addict as to Patient 2; 8) general unprofessional conduct; and 9) failure to maintain adequate and accurate medical records. Pet., ¶7.

On January 29, 2024, Administrative Law Judge Ji-Lan Zang (the “ALJ”) issued a Proposed Decision to revoke Lee’s license under causes for discipline 3, 4, 5, 8, and 9 and directed Lee to pay $40,348.75 to the Medical Board as a condition of reinstatement. Pet., ¶10. On March 4, 2024, the Medical Board adopted the Proposed Decision. Pet., ¶11.

Lee contends that the Medical Board’s Decision represents prejudicial abuse of discretion for the following reasons:

(a) The Decision did not adequately consider and evaluate the evidence of Lee’s rehabilitation;

(b) The Decision failed to consider Lee’s past successful completion of probation;

(c) The Decision rejected Lee’s rehabilitation evidence as mandatory conditions of probation and entitled to little weight;

(d) The ALJ gave little weight to Lee’s PACE fitness-for-duty evaluation occurring in October 2022;

(e) The ALJ gave little weight to Lee’s character witnesses by placing improper weight on their limited knowledge of Lee’s past discipline;

(f) The Decision improperly found Patient 1’s testimony about Lee to be credible, even though the ALJ found that Lee could not have punched Patient 1 in the face;

(g) The Decision disregarded its own finding that Lee and Patient 1 were in a spousal equivalent relationship and improperly accepted a contention that Lee wielded significant power over Patient 1;

(i) The ALJ accepted the Complainant’s expert’s opinion that Lee did not properly assess and intervene in Patient 2’s care when the opinion misinterpreted Patient 2’s records and diagnosis, including that Patient 2 was sober when Lee treated him; and

(j) The Decision accepted the incoherent and scattered testimony of Patient 2 and failed to consider the positive statements Patient 2 made to the Board investigator about Lee. Pet., ¶36.

Lee also contends that the revocation of his license was punitive and a manifest abuse of discretion when lesser remedies would allow Lee to continue practicing. Pet., ¶37.

Lee seeks (1) an ex parte order staying the Medical Board’s Decision to revoke Lee’s license, (2) a peremptory writ of administrative mandate setting aside the Decision and compelling the Medical Board to enter an order consistent with the findings of this court, (3) reasonable costs of suit, and (4) such other relief the court considers just and proper. Pet. at Prayer 1-4.

A proof of service on file shows that Lee served the Summons and Petition on the Medical Board via personal service on March 29, 2024.

On April 10, 2024, the court denied Lee’s ex parte application for a stay of the Medical Board’s Decision because it was not in the public interest.

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.

The Medical Practices Act governs the rights and responsibilities of a licensed physician. B&P Code §§ 2200 et seq. Protection of the public is the highest priority for the Medical Board in exercising its disciplinary authority. B&P Code §20001.1.

Repeated acts of clearly excessive prescribing, furnishing, dispensing, or administering of drugs as determined by the standard of the community of licensees is unprofessional conduct for a physician. B&P Code §725(a).

The commission of any act of sexual abuse, misconduct, or relations with a patient constitutes unprofessional conduct and grounds for disciplinary action. B&P Code §726(a). This section shall not apply to consensual sexual contact between a licensee and his or her spouse or person in an equivalent domestic relationship when that licensee provides medical treatment, other than psychotherapeutic treatment. B&P Code §726(a).

“Any physician who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client is guilty of sexual exploitation.” B&P Code § 729(a). This provision does not apply to sexual contact between a physician and his spouse, or a person in an equivalent domestic relationship when the physician provides medical treatment, other than psychotherapeutic treatment, to his spouse or person in an equivalent domestic relationship. B&P Code §729(e)

“The board shall take action against any licensee who is charged with unprofessional conduct. Unprofessional conduct includes (b) gross negligence and (c) repeated negligent acts. B&P Code §2234.

Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without an appropriate prior examination and a medical indication constitutes unprofessional conduct. An appropriate prior examination does not require a synchronous interaction between the patient and the licensee and can be achieved through the use of telehealth, including, but not limited to, a self-screening tool or a questionnaire, provided that the licensee complies with the appropriate standard of care.” B&P Code §2234(a).

A physician shall not prescribe controlled substance to an “addict” except in limited circumstances. B&P Code §2241.

The failure of a physician to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct. B&P Code §2266.

“The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.” Bus. & Prof. Code, § 2266.

On October 2, 1998, the Medical Board issued Physician’s and Surgeon’s Certificate Number A 66604 to Dirk De Brito, M.D., which was set to expire on October 31, 2022. On March 15, 2022, Dirk De Brito changed his name to John Lee.

Lee was Board-certified in psychiatry. He had a private practice in psychiatry. He received his B.S. in Biology from Yale in 1986 and his MD from the Columbia College of Physicians in 1997. He also earned an MPH from Columbia’s School of Public Health. In 2017, he was Chair of Psychiatry at Huntington Memorial Hospital, on the medical staff for 20 years. AR 2251-56.

On October 4, 2017, the Medical Board issued an interim suspension order ISO prohibiting [Lee] from practicing medicine.” AR 2625.[1]

The hearing on the ISO was held before an administrative law judge. Patient 1 in the current case attended. AR 3343. The evidence included video and audio recordings showing a nanny for Lee's autistic child trying to create audio evidence of physical violence. AR 2346. On October 24, 2017, an administrative law judge dissolved the ISO. AR 2625.

On December 28, 2017, the Medical Board filed an Accusation against Lee in Case No. 800-2015-0108088. AR 2625. Lee had pleaded nolo contendere and was convicted of misdemeanor criminal threat and assault. AR 2625. Lee was sentenced to three years of probation and was required to attend a 52-week anger management course. AR 2625. The 2017 Accusation alleged three causes for discipline: (1) criminal threat and assault, (2) mental impairment, and (3) gross negligence in the care and treatment of one patient. AR 2625.

On November 8, 2018, Lee agreed to a Stipulation Settlement and Disciplinary Order. AR 2625. In the stipulation, Lee conceded that “Complainant could establish a factual basis” for the 2017 Accusation and gave up his right to contest the charges. AR 2625. The stipulation also placed Lee on three years of probation and required him to go to anger management, take an ethics course, go to psychotherapy, and practice with a practice monitor for one year. AR 2625-26. This stipulation became effective on January 25, 2019. AR 2626.

Lee completed the terms of his probation on January 25, 2022, and his license was fully restored. AR 2311.

The Accusation in this case, issued on July 13, 2022, charged Lee with nine causes for discipline. AR 1145-78.

Patient 1’s personal relationship with Lee was complicated and featured romantic/sexual, familial, and financial aspects. Patient 1 testified that she was Lee’s girlfriend for approximately five years, commencing in approximately March of 2014. AR 3202. The relationship was intimate and sexual. AR 3202. The relationship ended after a domestic violence incident in May of 2019. AR 3202.

Patient 1 testified that she took multiple vacations with Lee (AR 3241, 1415-18, 3243, 1428), was actively involved with his children (AR 3247, 3249, 1448), arranged Lee’s flights to Cleveland for his heart surgery (AR 3250, 1450), helped Lee with his complaint about problems at Huntington Hospital and with the Medical Board, and attended a Medical Board hearing in support of him (AR 3244, 1419-24, 1429, 3246-47), lent Lee $7,000 and discussed finances (AR 1388, 3237, 1402-03), was involved in Lee’s leasing and real estate matters (AR 1445-47, 1451, 3249), and shopped for an engagement ring with Lee (AR 1452, 3251).

During his Board interview on August 4, September 10, and October 11, 2021, Lee stated that Patient 1 was a friend and denied a romantic relationship with her. He asserted that their relationship was platonic, characterizing Patient 1 as a “friend.” AR 1576-77, 1604-05, 1615-1617, 1663. He also stated that there may have been a romantic context prior to 2015 but not when he was treating her from October 5, 2016 and 2018. AR 1617, 1663.

At the hearing, Lee testified that he and Patient 1 were not legally married and characterized her as his “domestic partner” and “spousal equivalent.” AR 5266-67, 5269-70, 5272. Lee testified that his sexual relationship with Patient 1 predated the in-office treatment period by two years and that he did not have a sexual relationship with her after October 5, 2016. AR 5292-93. He also testified that he had sex with Patient 1, his domestic partner, every year between 2014 and 2018. AR 5277-79.

Patient 1’s medical records from Lee’s office reflect that she had six office visits from October 5, 2016 to November 14, 2018. AR 2752-84. Patient 1 testified that she never saw Lee at his office as a patient, though he did prescribe medications for her throughout their relationship. AR 3230, 3232. All medical records for her from Lee’s office are forged. AR 3417.[2] Patient 1 provided documentation showing that she was not in town at the time of documented November 9, 2016 office visit. AR 1395, 2764-66.

Lee testified that he was asked to prescribe Trileptal (an anticonvulsant) by Patient 1’s primary psychiatrist because of his expertise in prescribing that particular psychiatric medication. AR 5337, 5340.[3] The documented October 29, 2018 visit reflects that Lee doubled Patient 1’s Trileptal dose based upon her request that she wanted more. AR 2776.

Patient 1’s pharmacy records reflect that, from approximately May 2015 to April 2019, Lee prescribed psychiatric and non-psychiatric medications to Patient 1, not all of which were documented in her medical records. AR 1463-78, 1481-96. Lee also issued 11 prescriptions outside of Patient 1’s office treatment period without chart documentation and without physical examination or medical indication. AR 1463-78, 1481-96, 5346-51. Lee testified that, although there was no physical examination, he could see Patient 1 walking and talking, and he eyeballed her general appearance. Given his medical training and experience, he performed sufficient physical examinations of Patient 1 for prescribing to her. AR 5494.

Patient 1 testified that Lee physically assaulted her on May 16, 2019, when she did not follow his instructions for handling his boat while vacationing in the British Virgin Islands. AR 3202-04. Lee punched her in the mouth for no reason when she was standing in front of the console and he was in the captains’ chair. AR 3394, 3399.[4] Lee also called her derogatory names, threw her down a set of stairs, and pushed her to the ground while on his boat. AR 3204-05, 3207, 1262 (Ex. 10), 1264-65. He also held her down. AR 3404. She pleaded with Lee to allow her off the boat. AR 3206-07, 1305-06. Patient 1 sent texts to Lee stating that she wanted to go to shore, was scared, and was being held against her will. AR 2933.[5]

Once Patient 1 was able to get off the boat, she went to the police station. AR 3209-10. The police observed physical injuries, deemed Patient 1’s report to be genuine, and escorted her to the hospital for medical attention. AR 1268, 2747, 3211. Hospital medical personnel noted multiple bruises and took pictures of Patient 1’s injuries. AR 1259-61, 3212-14. Once she was discharged from the hospital, the police escorted Patient 1 to a hotel for safe housing until she could fly home. AR 3211.

Patient 1 testified that she could not fly home separately and had to fly with Lee, or she would have incurred a significant cost. AR 3220. She went to the airport separately and stayed away from Lee as much as possible. AR 3220. While waiting for the delayed flight, they both sat at the same public food court table, where there were other people and security guards in the vicinity. AR 3221.

Lee testified that he did not assault Patient 1 on the boat. Rather, Patient 1 hit him, striking him from the side while was driving the boat and hitting him so hard that his sunglasses broke. AR 4475, 5062-63. He did not touch Patient 1. AR 5078.[6] Patient 1 admitted to him that she hurt her back falling down the stairs. AR 1716, 5680. Lee also testified that he did not prevent Patient 1 from leaving the boat; the boat was close enough to shore that Patient 1 could have swum to shore. AR 5104. There were a lot of boats and people around. AR 5111. Patient 1 had the ability to leave by dinghy, by hailing boats around her, or by swimming to the beach a warm stone’s throw away. AR 5091-93, 5104. He did not call her derogatory names and take her cell phone away from her, as she alleged. AR 5105. Patient 1 made a covert audio recording with her phone, trying unsuccessfully to get Lee to acknowledge punching her, but he only apologized for calling her a “cunt” and said he was sorry she fell down the steps. AR 5677-84.

Patient 1 testified that she was scared of Lee and immediately sought a restraining order against Lee upon her return home. AR 3222-23, 1279-82. At the restraining order hearing, Lee testified that he was driving the boat and got hit, breaking his shatterproof glasses and cutting him. AR 1367. He stood up and pushed Patient 1 away. AR 1367. After hearing testimony by both Lee and Patient 1, the superior court judge issued a restraining order against Lee for a period of one year. AR 1385, 1269-75.

The Complainant offered the expert testimony of Badre, a board-certified psychiatrist. Badre opined that Lee committed multiple extreme departures from the standard of care with respect to Patient 1. Whether platonic or sexual, Lee had multiple inappropriate dual relationships with Patient 1. AR 3094-3100, 3112-13, 1248-52. Even without the sexual dual relationship, the rest of the dual relationships are sufficient to constitute an extreme departure from the standard of care. AR 3112, 3122-23.

Badre opined that if Patient 1 was never seen as a patient in Lee’s office, Lee falsified Patient 1’s medical records. AR 3117. Alternatively, if Lee did provide care and treatment to Patient 1 on the six occasions he documented, the medical record has significant inconsistencies and is inadequate and inaccurate. AR 3118-19. The record does not include the prescriptions during the period of patient-doctor relationship, does not explain prescriptions after November 14, 2018, does not include an adequate explanation regarding the nature of the dual relationships, and does not include adequate explanation of the identity of Patient 1’s primary psychiatrist and the coordination of care between Lee and that psychiatrist. AR 3116-19, 1252-54. Badre also opined that the dual relationships between Patient 1 and Lee caused her significant harm as she suffered physical and emotional harm. AR 3120-24, 1256.

Lee did not disclose an expert for the standard of care required in treating Patient 1 (AR 1077-78) and no expert witness testified on Lee’s behalf regarding the standard of care in treating Patient 1.

Lugo, a trauma surgeon, was called as an expert by Lee to testify regarding whether the injury pattern suffered by Patient 1 was consistent with a punch to the mouth. AR 3968. He testified that the injury pattern was not consistent with a fist strike to the face. AR 3968.

Patient 2 was 19 years old when he began treating with Lee. Patient 2 testified that he received psychiatric care and treatment from Lee from approximately March 15, 2018 to August 20, 2019. AR 3419. Patient 2 admitted that he struggled with drug and alcohol abuse, before, during, and after he treated with Lee. AR 3431-32. Lee prescribed Adderall for Patient 2’s attention-deficit hyperactivity disorder (“ADHD”), which Patient 2 found helpful. AR 3432, 3437-38.

Lee testified that Patient 2 did well under his care and denied that Patient 2 was a drug addict. He knew that Patient 2 had a past use of substances. AR 5510. Lee prescribed Adderall for Patient 2’s ADHD. Lee did not test Patient 2 for marijuana or street drugs. AR 5502. Lee did not monitor or intervene on Patient 2’s risk factors of continuing and worsening substance use disorder (“SUD”). While prescribing Adderall, Lee believed Patient 2 was sober – except for marijuana and social alcohol use – which Lee testified did not negate Patient 2’s sobriety. AR 5556-58. Lee testified that Patient 2 demonstrated not only stability over a year and several months but also “significant improvement.”

Patient 2 testified that, in addition to providing psychiatric care and treatment, Lee employed him from approximately June 14 to August 1, 2019. AR 3445-46, 3419-20. He had no office experience, only a theater background. AR 3436.[7] Patient 2 had access to Lee’s office safe which had pre-signed prescriptions, prescription pad, cash, and Lee’s medical corporation checks – all while Lee was out of the country on vacation in the British Virgin Islands. AR 3423-26, 3427-28, 1947-48, 1949-50. At Lee’s request, Patient 2 forged Lee’s signature on a check that Patient 2 was directed to place in the mail, a prescription for one of Lee’s patients, and a letter to the Medical Board. AR 3420, 3422-23, 3429, 3433-35. Lee asked Patient 2 to use a signature stencil template which was in the safe. AR 3425. (which he did not photograph). Lee also asked him to “dig holes” at his house. AR 3436.[8] Lee also made a pass at Patient 2’s mom, which was disrespectful as hell. AR 3632.

Lee acknowledged that he employed Patient 2 for less than a month and testified that it was good for people with substance history to have a job. AR 5510, 5514-15, 5518. Lee told Patient 2 about the prospective employment: the only way that we would do this is if you are completely comfortable and confident that it's not going to interfere with any patient stuff. He completely understood this.” AR 4731-32. When asked if answering phones would help Patient 2, Lee testified: “Absolutely, because it was a professional environment adjacent (patients were not present). AR 4743-44. Lee admitted giving Patient 2 access to pre-signed blank prescriptions, blank prescription pads, cash, and checks in Lee’s safe and that the employment “didn’t go great.” AR 5506, 5508-10, 5519.

When Patient 2 texted after the work relationship ended and asked whether Lee could still see him as a patient, Lee immediately knew that his efforts at making it clear that it was a separate relationship had been entirely successful. AR 4748-49. Patient 2 still said: "I'm going to come back and see you in the other relationship”. AR 4749. Patient 2 knew that the patient-doctor relationship was sacrosanct. AR 4749.

Patient 2’s parents testified that their son has substance use issues and exhibited drug seeking behaviors before and while he was seeing Lee. AR 3497-98, 3553-54, 3668, 3673-74. Both parents testified that they were extremely concerned when they learned that Patient 2 had unsupervised access to Lee’s safe which had pre-signed prescriptions, prescription pads, cash, and medical corporation checks. AR 3500-05, 3507-09, 3512, 3665-68, 3671.

Lee had inappropriate dual relationships with Patient 2, including an employment dual relationship, an illegal dual relationship, an unprofessional dual relationship, a personal dual relationship, and demeaning dual relationship. All these dual relationships were boundary violations and an extreme departure from standard of care. AR 3126-31, 1845-47. In addition, Lee failed to maintain accurate records of the nature of his relationship with Patient 2, including an employment contract and written consent. AR 3132-33, 1847-48. Badre opined that Patient 2’s exposure to dual relationships, the inappropriate delegations of tasks, and the inappropriate treatment of Patient 2’s SUD caused significant harm, including entry into a substance abuse program two months after his treatment with Lee. AR 3150-52, 1850-51.

Lee’s expert witness, Ashley, testified solely to Lee’s pharmacologic management of Patient 2 which he opined was appropriate. Ashley found no inconsistencies in Lee’s documentation of Patient 2’s substance use and testified that there was no need to perform urine drug screens to objectively determine whether the patient was abusing drugs. AR 4230. Drug screens have their place, but not in outpatient treatment where it can create conflicts with the doctor-patient relationship. AR 4230-31. Ashley testified that Lee’s office policy and procedures form has most of the elements of a treatment agreement. AR2823, 4168. Compare AR 2098-102 (sample patient agreement forms).

The ALJ’s Proposed Decision stated: “Complainant established by clear and convincing evidence [Lee] committed multiple acts of gross negligence, repeated acts of negligence, prescription of medication without prior examination (only as to Patient 1), unprofessional conduct, and inadequate recordkeeping in his care and treatment of Patient 1 and Patient 2.” AR 2968.

The ALJ discussed Lee’s background and prior discipline, and practice. AR 2969-71.

Lee and Patient 1’s relationship contained dual romantic, sexual, and familial aspects. AR 2971. During their relationship, Patient 1 would spend most nights with Lee before she took a job in Northern California. AR 2972. Patient 1 took care of Lee when he had heart surgery and helped with his children. AR 2972. Patient 1 and Lee discussed marriage and went engagement ring shopping. AR 2972. Patient 1 supported Lee through the 2017 Accusation by writing a letter on his behalf and accompanying him to the related hearings. AR 2972.

Lee and Patient 1’s relationship also involved financial aspects. Patient 1 lent him money and provided Lee with advice about his finances and credit. AR 2972-73. Patient 1 and Lee chartered yachts together for vacations. AR 2973. Patient 1 signed a lease on Lee’s behalf and was listed as a responsible party on Lee’s utility bills. AR 2973.

Lee characterized Patient 1 as his “spousal equivalent” and “domestic partner”. AR 2973. However, he claimed their relationship was not sexual during her in-office treatment period of October 5, 2016 to November 14, 2018. AR 2973. Lee classified Patient 1 as a friend during that period. AR 2973.

The ALJ did not find this contention to be credible due to numerous pictures of Patient 1 and Lee together on vacation, emails declaring love, and inconsistent statements which included an admission that they had slept together every year from 2014 to 2018. AR 2973-74. Lee’s statements about the nature of their relationship also were inconsistent with his Board interview and also with cross-examination at the hearing. AR 2974. The ALJ also found Lee’s testimony “circuitous, evasive, and obstructive” as he sometimes claimed to not understand the questions or words, had many memory lapses, and answered questions with his own questions. AR 2975. In contrast, Patient 1 claim that their relationship was sexual and romantic from 2015 to 2019 was credible “because it was consistent with the documentary evidence.” AR 2975-76.

Their romantic, sexual, familial, and financial relationship came to an end on May 16, 2019, after a physical incident that took place while they were sailing in the British Virgin Islands. AR 2976. Patient 1 claimed Lee punched her in the mouth and she slapped him back. AR 2976. Lee then pushed her down the stairs and held her down. AR 2976.

After the incident, Patient 1 wanted to get off on Tortola, an island. AR 2977. Lee instead went to another island and took away her phone. AR 2977. Before she got off, Patient 1 claimed Lee got violent again, called her “bitch”, “fucking bitch”, and “cunt”, “pushed [her] against a kitchen counter, put her in a headlock, and poked her in the eye.” AR 2977. Once docked, Patient 1 went to the local police and sought medical treatment. AR 2977. The treating physician said Patient 1’s injuries were “consistent with multiple instances of blunt force trauma.” AR 29777.

On May 19, 2019, Patient 1 and Lee flew back together because she could not afford to change her ticket. AR 2977. The next day, Patient 1 filed for a civil restraining order against Lee and, on July 3, 2019, it was granted for one year. AR 2977.

Lee denied punching her, because it was “physically impossible” for him to hit her from his position on the captain’s chair. AR 2978. Instead, she hit him and knocked off his sunglasses. AR 2978. Lee claimed he did not call Patient 1 a “cunt”, and she cut her own eye when she went to the bathroom. AR 2978. Lee also claimed Patient 1’s bruising was from her cancer treatment and from falling out of a dingy. AR 2978. Lee believed Patient 1’s accusations have to do with jealously over an alleged Mongolian girlfriend. AR 2978. Lee testified that she did not appear afraid of him when they had dinner together during a layover in Chicago. AR 2978.

Lugo testified as an expert for Lee. AR 2979. Lugo asserted that the bruising pattern did not indicate that Lee punched Patient 1; Lee would have left more severe bruises if he had punched her. AR 2979. The ALJ did not afford Lugo’s testimony any weight as he lacked “expertise in biomechanical engineering, fail[ed] to reconstruct the incident, and [did not consider]…significant factors potentially affecting the severity of Patient 1’s facial injuries.” AR 2980.

The ALJ found part of Lee’s argument credible. The ALJ agreed there was some merit that Lee could not have punched Patient 1 due to distance between the captain’s chair and Patient 1. AR 2981. However, the ALJ found Patient 1’s testimony more credible that Lee called her a “cunt”, prevented her from getting to Tortola, and pushed her down the stairs. AR 2981. Lee previously admitted to calling Patient 1 a “cunt” in an audio recording. AR 2981. Text messages show that Lee delayed taking Patient 1 to Tortola. AR 2981-82. Lee also admitted at the restraining order hearing that he pushed Patient 1 away from him, resulting in her falling down the stairs. AR 2982.

The ALJ stated that Lee’s explanation of Patient 1’s facial bruises were “dubious” for two reasons. AR 2983. First, Patient 1 claimed she was uninjured from the fall on the dingy. AR 2983. Second, Badre, the Medical Board’s expert witness, asserted that Patient 1’s cancer treatment increased risks of clots; it did not increase her ability to bruise. AR 2983. The ALJ added that Patient 1’s testimony is also more credible because her story remained largely consistent and she testified in “a calm, even manner.” AR 2983.

Accordingly, the ALJ found that: “Patient 1’s testimony is deemed credible, and [the Medical Board] proved by clear and convincing evidence [Lee] called Patient 1 names, confined her to his boat against her will, and physically assaulted her, causing injuries, on May 16, 2019.” AR 2983.

The ALJ acknowledged doubts about whether the medical records are accurate and authentic. AR 2985. According to the medical records, Lee treated Patient 1 in-office over the course of six visits from October 5, 2016 to November 14, 2018. AR 2985. Yet, Patient 1 testified that she never had an in-office visit. AR 2985. Lee testified that appointments occurred. AR 2985. Lee brought a patient witness who asserted that he saw Patient 1 in the office on three to five occasions and spoke with Patient 1 at least once about her medical appointment. AR 2985-86. The ALJ was not convinced by Lee’s arguments but saw no need to resolve the issue because Lee’s records contained significant omissions. AR 2986.

Proved by clear and convincing evidence, the ALJ then found that Lee prescribed Patient 1 14 medications without any documentation, physical examination, or medical indication. AR 2986-87, 2988. From November 19 to December 28, 2016, Lee prescribed Patient 1 three medications during her in-office treatment period. AR 2988. Patient 1’s medical records do not show that Patient 1 underwent a physical examination before Lee prescribed the medication, any medical indications for prescribing the medications, or that Lee explained the risks and benefits of taking the medications. AR 2988.

Lee also produced conflicting claims about whether there was a physical examination and asserted that he coordinated care with Patient 1’s primary care physician although there is no documentation to support this assertion. AR 2988. The ALJ believed that Lee’s testimony was not credible due to the inconsistency and lack of documentation. AR 2988.

Badre discussed the standard of care regarding dual relationships and keeping accurate patient records. AR 2991. In both cases, Badre opined that Lee’s actions were extreme departures from the standards of care. AR 2992. Badre stated that the dual relationships caused Patient 1 harm, represented “clear boundary violations,” and failed to be in the best interest of the patient. AR 2922-23. Badre also opined that the failure to document the dual relationships, symptoms, medications, evaluations, and explanation of diagnoses and treatments goes against the standard of care to keep accurate records. AR 2993-94.

Badre’s opinions were unrefuted as Lee did not present an expert witness as to Patient 1. AR 2994. Accordingly, Badre’s “reasonable [and] unrefuted” opinions helped prove by a “clear and convincing evidence [Lee] committed extreme departures from the standards of care by (1) engaging in multiple dual relationships with Patient 1 over an extended period; (2) failing to document his dual relationships with Patient 1 in the medical records; and (3) failing to document prescriptions he issued to Patient 1, Patient 1’s primary psychiatrist’s identity, and the coordination of care with that psychiatrist.” AR 2994.

From March 15, 2018 to August 20, 2019, Patient 2 saw Lee for medication management and talk therapy related to his ADHD and substance abuse. AR 2995. Patient 2 has “been treated for ADHD since the age of 12 or 13 and ha[s] a history of drug and alcohol abuse, including past participation in a detoxication program.” AR 3003.

On Patient 2’s initial visit, Lee “diagnosed him with ADHD and other ‘psychoactive substance abuse, uncomplicated[,]’” and prescribed 45 mg of Adderall. AR 3004. Lee thought this amount would be effective, because Patient 2 had previously been on 45 mg and claimed this amount was effective. AR 3010. Lee also initially claimed to have run a CURES report, but did not document the report’s findings. AR 3010.

During their sessions, Patient 2 discussed his anxiety, mood swings, and temptation to take illicit substances. AR 3004-05. Lee testified that he counseled Patient 2 not to use marijuana and advised him to seek out therapy. AR 3006. Lee did not drug test Patient 2 or enter into a substance treatment agreement. AR 3009. Lee thought a urine test would take too long and was unnecessary, and a substance treatment agreement would be ineffective because terminating Patient 2’s treatment may result in him taking “street drugs.” AR 3009.

In his notes about Patient 2’s visits, Lee often remarked on Patient 2’s “highly unusual appearance.” AR 3004-05. Lee detailed Patient 2’s current drug use, which included alcohol, marijuana, and extra doses of Adderall. AR 3004-05.

When testifying about Patient 2’s substance abuse and treatment plan, Lee made several conflicting statements. Lee asserted Patient 2 was sober during his treatment period. AR 3007. Lee believed this even though Patient 2 “had benzodiazepines” and used marijuana. AR 3007. Lee asserted that “Patient 2 met none of the criteria for substance use disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (‘DSM-5’)”. AR 3007. Lee diagnosed Patient 2 with “psychoactive substance abuse, uncomplicated” but did not document what drug Patient 2 had abused for his diagnosis. AR 3008. Lee testified that he ran a CURES report on Patient 2’s first visit and that he was not required to chart any subsequent review of CURES. AR 3008.

Lee’s “assessment and monitoring of Patient 2 for substance use disorder departed from the standard of care.” AR 3011. Patient 2 was using “at least marijuana and benzodiazepine” and Lee “should have performed a substance assessment” to determine whether Patient 2 abused these drugs. AR 3011. Due to Patient 2’s past drug use, struggles to stay sober, extra doses of Adderall, and reports of mood instability, Badre opined that Patient 2 was at risk of abusing his medication and Lee did not provide “adequate justification for prescribing” 45 mg of Adderall. AR 3012. Lee should have urine tested Patient 2 and entered into a treatment agreement. AR 3013-14. Lee placed Patient 2 in harm’s way when he “placed Patient 2 in a position … where he had access to cash, blank checks, and pre-signed prescriptions.” AR 3014. Badre opined that Lee actions and omissions constated “an extreme departure from the standard of care.” AR 3014.

Lee’s expert, Ashley, disagreed with Badre on multiple issues and asserted the following. Lee properly diagnosed Patient 2’s substance use disorder. AR 3015. Lee’s documentation of Patient 2 met the standard of care. AR 3016. There was no indication in the medical records that Patient 2 was abusing drugs during his treatment period; Patient 2’s occasional use of marijuana did not qualify and he only took Xanax once during this period. AR 3016. Patient 2 was not at a higher risk for Adderall abuse, because most patients take an extra dose and it’s “usually a misunderstanding.” AR 3017. The standard of care is to check CURES before prescribing but Lee’s alleged failures to do so was not a violation because CURES reports do “not provide much information” and a physician does not need to chart the report to comply with the standard of care. AR 3017-18. Ashley disputed the need for a urine test, because the test has many false positives and can harm the “therapeutic relationship.” AR 3018. Lee had a treatment agreement with Patient 2 because his Policies and Procedures Form had language similar to a treatment agreement. AR 3018. In addition, Ashley opined that treatment agreements often “do more harm than good.” AR 3018. Finally, Lee appropriately intervened to assist Patient 2’s possible substance abuse issues. AR 3019.

The ALJ credited the opinion of Badre over Ashley for a number of reasons. AR 3019. Badre’s opinions were better supported by the medical records. AR 3019. Ashley’s conclusions minimizing Patient 2’s drug use and dismissing a DSM-5 diagnosis are questionable due to Lee’s failure to assess Patient 2’s substance abuse. AR 3020. Ashley did not contradict Badre’s opinion that Lee did not use the proper safeguards when prescribing Adderall. AR 3021. Some of Ashley’s opinions contradicted the treatment agreement resource he cited in his expert report. AR 3021-22. Ashley did not disagree with Badre’s opinion that Lee’s dual relationship with Patient 2 increased Patient 2’s risk of harm by giving him access to cash, blank checks, and blank prescriptions. AR 3022.

The ALJ also examined the effects of Patient 2 working for Lee. Patient 2 and his parents testified to the following. On June 15, 2019, Lee hired Patient 2 for personal and work-related errands. AR 2995. According to Patient 2, Lee gave Patient 2 his house and car keys so that Patient 2 could perform house and gardening work while Lee was on vacation. AR 2992. In July 2019, Lee gave Patient 2 access to his safe, which contained cash, blank checks, and some pre-filled prescription pads. AR 2992. Patient 2 also alleged that Lee directed him to forge Lee’s signature on a check, a July 22, 2019 letter to the Medical Board, and prescription to a patient. AR 2992. During his employment, Lee used demeaning language, calling Patient 2 a “moron.” AR 2992.

On July 25, 2019, Patient 2 called his father from Lee’s office and told him about Lee’s safe. AR 2997. Patient 2’s father told Lee to “get out.” AR 2997. Patient 2 took video of himself opening the safe, of the items in the safe, the check he forged, the prescription he forged, and the July 22, 2019 letter he forged to the Medical Board. AR 2997. This was Patient 2’s last day. AR 2997. After the incident, Patient 2’s father called Lee to discuss his concern. AR 2997. After the conversation, Patient 2’s father made a complaint to the Medical Board. AR 2997.

During Patient 2's treatment period, his mother attended three visits. AR 2997. His mother claimed that Lee cursed every sentence and once called Patient 2 a “fucking moron” in front of her. AR 2997.

Lee conceded that he hired Patient 2 as an assistant. AR 2998. Lee thought this would be helpful to Patient 2. AR 2652. Lee denied that he gave Patient 2 keys to his house or car, or that Patient 2 performed personal errands for him. AR 2992. Lee also denied that he gave Patient 2 access to the safe; he asserted that a staff member gave him access without permission. AR 2992. Lee also denied that he directed Patient 2 to forge the prescription. AR 2653. Lee initially denied that he asked Patient 2 to forge the July 22, 2019 letter and the check but retracted the statements and admitted he did allow Patient 2 to forge the letter signature and a check to Patient 2 himself. AR 2998.

The ALJ found Patient 2’s testimony “was scatted and difficult to follow[,]” but largely consistent with his July 25, 2019 statement. AR 2996. Lee’s credibility was undermined by his inconsistent statements and text messages that indicate Patient 2 had access to Lee’s keys, performed housework, and gardened. AR 2998-99. The ALJ found that Patient 2’s testimony was “corroborated by videos, photographs, text messages, and his parents’ testimony.” AR 2999. Accordingly, the ALJ found that Lee “gave Patient 2: (1) keys to his house and car to do personal and housework for him; (2) access to this office safe containing cash, blank checks, blank prescription pads, and pre-signed prescriptions; and (3) directions to forge [Lee’s] signature on [a] patient[‘s] prescription, the July 22, 2019 letter to the Medical Board, and a check … [and] also called Patient 2 derogatory names, including ‘moron.’” AR 2999-3000.

Badre opined that Lee had multiple dual relationships with Patient 2, including employment, personal, illegal, demeaning dual relationships. AR 3002. There was a dual employment relationship, because of Patient 2’s job at Lee’s office and Patient 2’s ability to access the office safe. AR 3002. There was a personal dual relationship, because Lee “gave Patient 2 access to the keys … so that Patient 2 could perform house … and garden work[.]” AR 3002. There was an “illegal dual relationship” because Lee asked Patient 2 to forge several documents and “demeaning dual relationship” because Lee called Patient 2 a “moron.” AR 3002. Lee failed to document any of the dual relationships, which was an extreme departure from the standard of care. AR 3002. He also improperly delegated tasks to Patient 2 to forge Lee’s signature on a check and a prescription, also an extreme departure from the standard of care. AR 3003.

The ALJ found Badre’s opinions on dual relationships to be reasonable, unrefuted, and therefore accorded substantial weight. AR 3003. Lee committed extreme departures from the standard of care by (1) engaging in dual relationships with Patient 2, (2) failing to document them, and (3) inappropriately delegating tasks to Patient 2. AR 3003.

In his defense, Lee offered some rehabilitation evidence. His criminal conviction for making a criminal threat was dismissed under Penal Code section 1203.4. AR 3024. Lee completed the probation requirements associated with his 2017 Accusation. AR 3024. Lee submitted continuing medical education certificates from 2022 completion of a medical record keeping course in 2023. AR 3024. Lee also provided a PACE Fitness for Duty report dated January 31, 2023. AR 3024. The report found him fit to practice but recommended “weekly or biweekly psychotherapy [for his ADHD, narcissism, and histrionic traits], … ADHD treatment, and … mindfulness training.” AR 3024-25. Lee stated that he had begun all three recommendations and provided a letter from his therapist. AR 3025. However, the ALJ noted the therapist’s letter was dated three years earlier on October 2, 2020. AR 3026.

Lee offered three character witnesses. David Leonardson (“Leonardson”) has been Lee’s patient since 2017. AR 3026. Leonardson testified that Lee is a good listener and made him comfortable. AR 3026. Leonardson also stated that he would like Lee to continue to treat him, because Lee “has a good understanding of how to treat ADHD” and always “thoroughly discusses the risks and benefits of … all his medications.” AR 3026. Leonardson wrote a letter on Lee’s behalf. AR 3026. Leonardson admitted that he did not know the allegations in the Accusation. AR 3026.

Monica Vaccino (“Vaccino”) was Lee’s patient for eight years. AR 3027. Vaccino liked Lee and how he did not sugar coat with her. AR 3027. Vaccino also submitted a letter on Lee’s behalf. AR 3027. Vaccino testified that she knew the allegations against Lee described them as involving a patient who picked up the phone and a domestic partner who got into a dispute and received medication from Lee. AR 3027. Vaccino based her knowledge on Lee’s account of the events. AR 3027.

Sara Beth Trussell (“Trussell”) was Lee’s patient for ten years. AR 3027. Trussell testified that she liked Lee’s bedside manner and did not know what she would do without him. AR 3027. Trussel also submitted a letter on Lee’s behalf. AR 3027. Trussell claimed to know the allegations against Lee and described them as a former patient who was answering the phone and his father got involved and a domestic partner who alleged Lee punched her. AR 3027-28. Trussel did not read the Accusation and relied on Lee’s account of the events. AR 3027.

Lee submitted several other “character reference letters from patients who uniformly describe him as a caring, skilled psychiatrist.” AR 3027.

As to the first and second cause for discipline, the ALJ found that because Lee’s treatment of Patient 1 falls within the exemption for medical treatment of spouses and spouse equivalents under B&P Code sections 726(b) and 729(e), and the exception for psychotherapeutic treatment had not been shown to apply, cause did not exist to discipline Lee’s license for sexual exploitation and sexual misconduct.” AR 3031-32.

As to the third cause for discipline, the ALJ found that Lee violated B&P Code section 2234(b) due to “his gross negligence in his care and treatment” of both patients. AR 3033. The ALJ found that by clear and convincing evidence Lee’s actions constitute “an extreme departure from the standards of care” as to both patients. AR 3033-34.

As to the fourth cause for discipline, the ALJ found that Lee violated B&P Code section 2234(c) “because he engaged in repeated act of negligence in his care and treatment” of both patients based on the same facts as the third cause for discipline. AR 3035.

As to the fifth cause for discipline, the ALJ found that Lee violated B&P Code section 2242(a) because Lee prescribed medications “to Patient 1 without an appropriate prior examination and … medical indication.” AR 3035-36. The Complainant did not prove this cause as to Patient 2. AR 3036.

As to the sixth cause for discipline, the ALJ found that Lee did not violate B&P Code section 725. AR 3036-37. The Complainant did not meet its burden of proving by clear and convincing evidence that Lee repeatedly prescribed excessive Adderall to Patient 2. AR 3037.

As to the seventh cause for discipline, the ALJ found that Lee did not violate B&P Code section 2241. AR 3037. The Complainant did not meet its burden of proving by clear and convincing evidence that Lee prescribed a controlled substance to an addict because it did not show that Patient 2 was an addict. AR 3037-38.

As to the eighth cause for discipline, the ALJ found that Lee violated B&P Code section 2234(c) because he committed unprofessional conduct through his gross negligence and repeated negligent acts. AR 3038-39.

As to the ninth cause for discipline, the ALJ found that Lee violated B&P Code section 2266 because he “fail[ed] to maintain adequate and accurate medical records for” both patients. AR 3039-40.

Based on the Medical Board’s Disciplinary Guidelines, the ALJ concluded that revocation is the appropriate penalty for several reasons. AR 3041. Lee’s “offenses are multiple and serious,” his conduct caused harm to both patients, and he “expressed little remorse for his actions.” AR 3041. Although he completed a medical ethics and professionalism course in 2017, he continued his dual relationships with Patient 1 until 2019 and hired Pateiient to 2 in 2019. AR 3043. Even at the hearing he was unrepentant. AR 3043.

Lee also “offered little evidence of rehabilitation.” AR 3043. The evidence that he completed required anger management, ethics, and professionalism classes carries little weight as Lee is “expected to behave in an exemplary fashion while on Board probation”. AR 3043. The character references and testimony did not show “an understanding of the magnitude of [Lee’s] wrongdoing” and so carry little weight. AR 3043. Significantly, the PACE Report recommended psychotherapy for at least six months, and possibly indefinitely, and the letter Lee submitted from a therapist was dated in 2020; there is no evidence confirming that he is still in therapy. AR 3044.

The ALJ concluded that Lee “exhibited a troubling level of dishonesty” when discussing Patient 1, including an indication of forged medical records and repeated dishonesty in his interview. AR 3044. Lee also made contradictory assertions in texts and his interview when discussing the keys he gave to Patient 2 and his office safe and tasking him with house and garden work. AR 3044.

The ALJ found Lee’s previous 2019 probation to be an aggravating factor. AR 3044. As such, the “protection of the public health, safety, and welfare requires the revocation of respondent’s physician’s and surgeon’s certificate.” AR 3044. In addition, the ALJ recommended that Lee “pay $40,348.75 in costs to the Medical Board as a condition of reinstatement.” AR 3044.

The Medical Board adopted the ALJ’s 81-page Proposed Decision and revoked Lee’s medical license, effective April 3, 2024. AR 2965, 2966, 3046. The Medical Board found that clear and convincing evidence established that Lee committed multiple acts of gross negligence, repeated acts of negligence, unprofessional conduct, and inadequate recordkeeping in his care and treatment of Patient 1 and Patient 2 as well as prescribing medications to Patient 1 without a prior examination. AR 2968.

Petitioner Lee seeks to set aside the Medical Board’s revocation of his license on the grounds that (a) the ALJ’s[9] findings are not supported by the weight of the evidence, (b) the ALJ failed to provide the analysis required by Topanga, supra, 11 Cal.3d at 506 and Ettinger v. Board of Medical Quality Assurance, (“Ettinger”) (1982) 135 Cal.App.3d 853, and (c) the penalty of revocation is excessive.

The court concludes that the ALJ’s 81-page decision is well-reasoned and fully supported by the evidence under the clear and convincing standard. See Li v. Superior Court (Sacramento County), supra, 69 Cal.App.5^th at 844.

Lee argues that Patient 1 lied about the “impossible punch” and failed to disclose her spousal equivalent relationship with him. She contradicted herself continually and testified as if making things up on the fly. The ALJ should have rejected her claim that she was pushed down the stairs on the boat and assaulted by Lee. Pet. Op. Br. at 11.

There can be no dispute that Patient 1 had the motive of jealousy in making her allegations. Patient 1 was educated, jealous, vindictive, and willing to say anything to disparage Lee for “disappointing” and not marrying her. See AR 3251-52. She obsessed about Lee dating a Mongolian woman, admitting that it was the subject of her last text prior to the incident: “Q: Had you been arguing about a woman Dr. De Brito was dating from Mongolia? Answer: Yes.”. AR 2440. “I felt betrayed”. AR 2441. Yet, when asked about this text about Mongolia at the hearing, she calmly said: “Oh I remember it was an intellectual discussion….” AR 2934, 3386-87. Pet. Op. Br. at 12.

Taking advantage of Lee's prior discipline (she attended his 2017 hearing), Patient 1 deceived the Complainant by denying that she was his long-time spousal equivalent, leading to a mistaken charge of sexual exploitation. Her central claim was that Lee punched her in the face. She alternated between claiming he “punched” or “slapped” her. AR 1330. Yet, it was impossible for Lee to reach her from his seat behind a boat steering console. The ALJ agreed with the “impossibility” of the punch.[10] Pet. Op. Br. at 5.

Inexplicably, the ALJ found credibility in Patient 1’s claim that the stunned Lee somehow instantly came around the console to catch her before she was able to flee, pushing her down stairs on the boat and “held her down for minutes”, ignoring her admission in a prior statement that she fell. In finding that Lee immediately was able -- with zero time for being stunned after the sucker punch -- to get up and come around the console so quickly that he caught her and “pushed her downstairs”, the ALJ disregarded Lee’s testimony and also logic. Pet. Op. Br. at 12.

The ALJ gave little weight to Patient 1’s admission that, after allegedly being punched and pushed down the stairs, she voluntarily had dinner with Lee at a Chicago airport on the layover back to California. The ALJ also gave undo weight to Patient 1’s texts, which were part of Patient 1’s blatantly created stills, emails, texts, video and local police contact to make false claims that serve only to show the level of her vindictive motivation. The credibility of Patient 1 cannot form a fair foundation for revocation. Pet. Op. Br. at 5.

The ALJ also somehow found Lee’s credibility to be damaged by disregarding his uncontested testimony defining Patient 1’s “time in treatment.” The ALJ found that he was “less than candid” about denying “sex during treatment” with Patient 1, ignoring the appropriate definition of when she was “in his treatment” or “in office treatment.” Lee clearly testified that, for these isolated refills and visits without any scheduled follow-up, she was under his care only at the visit and the days she took his prescribed medication – e.g., five days for an antibiotic refill for a urinary tract infection (“UTI”) or six days for 12 total oxcarbazepine pills. Lee gave the example that when he sees an ER patient twice years apart, that does not mean the patient is “under his care” all that time. AR 5666-68. His testimony about no sex during these visits and refills, which were mostly for antibiotic pills for UTI, is not a reason to lower his credibility. Pet. Op. Br. at 13.

Finally, Badre’s opinions cannot relate to their spouse equivalent relationship. The ALJ decided that this dual relationship falls under the exception of B&P Code sections 726 and 729 for the first cause. Yet, the ALJ’s decision for the third cause (the central driver of the ultimate punishment) decries Lee’s “boundary violations” of “multiple dual relationships”. These are the re-written “dual relationship” claims of Badre for the first cause, and the ALJ missed her own point in deciding the third cause. Pet. Op. Br. at 11-12.

Lee argues that the ALJ dismissed the most serious charges concerning Patient 2 of excessive prescribing and prescribing to an addict. She also found the Complainant did not prove Lee prescribed without prior examination and/or medical indication. Rather, the ALJ found Lee prescribed to Patient 2 “without adequate monitoring and safeguards” (AR 3022-23), despite Ashley’s clear and robust testimony and evidence that Patient 2 improved under Lee's care. Pet. Op. Br. at 6.

The ALJ noted during the hearing that “the patient reported sobriety” and “there’s no argument that this is accurately recorded”. AR 3590.[11] This was echoed by Ashley, who opined on Lee’s diagnosis of past drug use, with the care and treatment of Patient 2 being entirely appropriate. Pet. Op. Br. at 16.

The ALJ appears not to have understood the difference between past and present use as a medical records issue, specifically identifying: “Patient 2 stated I did coke 3 times [AR 2833], but at another point, Patient 2 also denie(d) cocaine [AR. 2834]”. AR 3004. Not only is the first reference part of a section clearly restating use history, but the actual line referenced starts with the words: “In past drank lots alcohol, denies year and half I did coke 3 times.” AR 2833 (emphasis added). The second reference clearly referred to that day's present denials. They ALJ faults the fact that Lee’s medical records contain no notations to support his assertion that he assessed and analyzed Patient 2’s substance uses issues under DSM-criteria” (AR 3007), but the recorded sobriety documented at every visit removed any active substance use disorder. Pet. Op. Br. at 16.

How grossly negligent regarding substance abuse could it be for Lee to diagnose past use and ask about current use each and every visit? No one denied that Lee performed the “motivational interviewing” as recorded in the medical record, or that it is a state-of-the-art drug prevention tool, as Ashley testified. AR 3781-83. Avoiding this, the ALJ made no distinction between past use and present use, noting instead totally inaccurate “discrepancies” in the medical record because Lee did not specify Patient 2’s particular drug of abuse even though he diagnosed Patient 2 with “other psychoactive substance use, uncomplicated”. AR 3008, 3012. This conclusion is only possible by ignoring the testimony about Patient 2’s past use of multiple substances. In logical reality, as Ashley said, this is exemplary of Lee’s vigilance in assuring that Patient 2 successfully maintained his sobriety. Pet. Op. Br. at 6, 16, n. 12.

Only misunderstandings allowed the ALJ to give Badre's opinion “significant weight” over Ashley's. AR 3030. The ALJ stated: “It is questionable how Dr. A concluded Patient 2’s marijuana use was recreational…” or how Ashley could opine that Patient 2’s past taking of extra Adderall was the result of a misunderstanding when Lee never assessed the extent of Patient 2’s substance abuse. AR 3020. Yet, Ashley explained that marijuana is not addictive and that it is common, not a misunderstanding, to take an extra Adderall. Pet. Op. Br. at 17.

The ALJ found “[e]ven more questionable how Ashley, who based his opinions solely on [Lee’s] medical records, concluded Patient 2’s substance use met none of the DSM-5 criteria when the medical records….do not indicate [Lee] ever assessed Patient 2 for issues such as escalating use, seeking-out behavior, having withdrawal….” AR 3020. Lee argues that this criticism failed to consider that Patient 2’s chart noted that he was sober for marijuana. No clinician would record all “drug abuse” diagnoses. There must be some drug dependence, and any substance diagnosis in a sober patient refers to past use. Pet. Op. Br. at 17.

As for the “treatment agreement,” Ashley reviewed point-by-point all the elements in forming a “treatment agreement,” yet the ALJ found this inexplicably overshadowed by a single web link for a NIDA drug abuse program. AR 3021-22. Pet. Op. Br. at 17.[12]

Lee argues that the ALJ failed to mention the most pertinent tool for evaluating his brief employment of Patient 2. In letting Patient 2 work a few days to take phone messages while Lee was on vacation, Lee exactly followed APA Commentary on Ethics in Practice’s boundary crossing guidelines.[13] Lee testified that the boundary crossing 1) must be undertaken in an intentional manner prioritizing the clinical relationship and 2) must be evaluated in light of community context, and 3) The psychiatrist must ensure that his conduct is not misconstrued and is in the best interest of the patient. The ALJ failed to mention the APA guidelines and Lee’s uncontested testimony that he followed them to the letter. Badre never mentioned this either. Lee showed that he carefully considered the time-limited boundary crossing (including having Patient 2 come back the next business day to separate it from his clinical visit). Patient 2 understood by preserving the clinical relationship (since he kept seeing Lee after his work terminated) and even his parents agreeing the work was potentially excellent for Patient 2. AR 3552-53, 3665. Far from “exploitation”, no one ever ascribed any motive to Lee other than trying to help Patient 2 gain confidence. Pet. Op. Br. at 13-14.

Lee argues that Patient 2’s written complaint to the Board was fraudulently written by Patient 2's father as if Patient 2 was writing in the first person. In addition to the complaint, the father admitted that he authored text messages to Lee purporting to be from Patient 2: “I came for his “drug use” (which was entirely untrue and nowhere on his intake), “I was hired as a manager” (first time in any office), was “denied lunch and breaks” (impossible with Lee out of the U.S.), was given safe access (which Lee would not do for many reasons, not the least being he would have removed the cash), and he worked “weeks” (actually six days per time card and text about accepting this pay). Pet. Op. Br. at 15.

Patient 2's father intensely disliked Lee, claiming his ADHD medicine was “a drug addiction” and saying Lee “made a pass at my wife” based on a single question: “how do you keep fit?” His written complaint orchestrated his son’s testimony (Patient 2 literally looked at it while testifying) and grossly conflicts with Patient 2’s praise of Lee in his interview by the Board investigator. Pet. Op. Br. at 6.

This argument about Patient 2’s father borders on irrelevant. The father’s authorship of Patient 2’s complaint and texts to Lee have little or no bearing on Lee’s guilt with respect to Patient 2. At most, they bear on the father’s credibility, which is not significantly in dispute given the corroboration of Patient 2’s complaints as found by the ALJ. AR 2999-3000.

Somehow the ALJ found credible that Patient 2, employed just six days after a day of training to relay phone messages while Lee was on a vacation, was asked to forge Lee's signature on a prescription already signed, do gardening and food shopping (although Lee was not in the country), and "perform evictions" for Lee, among other incredible claims. Pet. Op. Br. at 7.

Lee argues that Patient 2’s testimony was incoherent, not just "scattered" as found by the ALJ, and at times defied logic. The undisputed evidence was that on July 24, 2019, the same day that he became aware of Patient 2 texting about a prescription or having safe access, Lee shut all work down and texted Patient 2 to return anything he had altered to the safe. AR 2306. When his testimony was not incoherent, Patient 2 directly contradicted his earlier testimony to align with his father’s complaint and malign Lee. He claimed Lee gave him a "signature stencil” to forge Lee's signature (AR 3425) but never said as much to investigators and there was no stencil among his photos because it does not exist. Patient 2 accused Lee of "asking me to sign a prescription,” despite the fact that both Lee and patient (HM) testified the prescription had already been signed and left for her. AR 2365-66.[14] Given Patient 2’s own account that there were pre-signed prescriptions in the safe, there was no need for him to forge Lee’s signature. AR 1853. Pet. Op. Br. at 7, 15-16.

This is a witness credibility case. The weight of the evidence depends in significant part on the credibility of witnesses, and the ALJ made detailed credibility determinations as follows.

Lee classified Patient 1 as a friend during the pertinent period. AR 2973. The ALJ did not find this contention to be credible due to numerous pictures of Patient 1 and Lee together on vacation, emails declaring love, and inconsistent statements which included an admission that they had slept together every year from 2014 to 2018. AR 2973-74. Lee’s statements about the nature of their relationship also were inconsistent with his Board interview and with cross-examination at the hearing. AR 2974.

The ALJ further found Lee’s testimony “circuitous, evasive, and obstructive” as he sometimes claimed to not understand the questions or words, had many memory lapses, and answered questions with his own questions. AR 2975. In contrast, Patient 1 claim that their relationship was sexual and romantic from 2015 to 2019 was credible “because it was consistent with the documentary evidence.” AR 2975-76.

The ALJ agreed there was some merit that Lee could not have punched Patient 1 due to distance between the captain’s chair and Patient 1. AR 2981. However, the ALJ found Patient 1’s testimony more credible that Lee called her a “cunt”, prevented her from getting to Tortola, and pushed her down the stairs. AR 2981. Lee previously admitted to calling Patient 1 a “cunt” in an audio recording. AR 2981. Text messages show that Lee delayed taking Patient 1 to Tortola. AR 2981-82. Lee also admitted at the restraining order hearing that he pushed Patient 1 away from him, resulting in her falling down the stairs. AR 2982.

The ALJ stated that Lee’s explanation of Patient 1’s facial bruises was “dubious” for two reasons. AR 2983. First, Patient 1 claimed she was uninjured from the fall on the dingy. AR 2983. Second, Badre asserted that Patient 1’s cancer treatment increased risks of clots; it did not increase her ability to bruise. AR 2983. The ALJ added that Patient 1’s testimony is also more credible because her story remained largely consistent and she testified in “a calm, even manner.” AR 2983.

Accordingly, the ALJ found: “Patient 1’s testimony is deemed credible, and the Complainant proved by clear and convincing evidence [Lee] called Patient 1 names, confined her to his boat against her will, and physically assaulted her, causing injuries, on May 16, 2019.” AR 2983.

The ALJ stated there are doubts about whether Patient 1’s medical records are accurate and authentic. AR 2985. According to the medical records, Lee treated Patient 1 in-office over the course of six visits from October 5, 2016 to November 14, 2018. AR 2985. Yet, Patient 1 testified that she never had an in-office visit. AR 2985. Lee testified that appointments occurred. AR 2985. Lee brought a patient witness who asserted that he saw Patient 1 in the office on three to five occasions and spoke with Patient 1 at least once about her medical appointment. AR 2985-86. The ALJ was not convinced by Lee’s arguments but saw no need to resolve the issue because Lee’s records contained significant omissions. AR 2986.

Lee produced conflicting claims about whether there was a physical examination of Patient 1 and asserted that he coordinated care with Patient 1’s primary care physician but there was no documentation to support this assertion. AR 2988. The ALJ believed that Lee’s testimony was not credible due to the inconsistency and lack of documentation. AR 2988.

The ALJ credited Badre’s opinion over Ashley’s on Patient 2’s substance use disorder for a number of reasons. AR 3019. Badre’s opinions were better supported by the medical records. AR 3019. Ashley’s conclusions minimizing Patient 2’s drug use and dismissing a DSM-5 diagnosis were questionable due to Lee’s failure to assess Patient 2’s substance abuse. AR 3020. Ashley did not contradict Badre’s opinion that Lee did not use the proper safeguards when prescribing Adderall. 3021. Some of Ashley’s opinions contradicted the treatment agreement resource he cited in his expert report. AR 3021-22. Finally, Ashley did not disagree with Badre’s opinion that Lee’s dual relationship with Patient 2 increased Patient 2’s risk of harm by giving him access to cash, blank checks, and blank prescriptions. AR 3022.

Badre opined that Lee had multiple dual relationships with Patient 2, including employment, personal, illegal, demeaning dual relationships. AR 3002. There was a dual employment relationship because of Patient 2’s job at Lee’s office and Patient 2’s ability to access the office safe. AR 3002. There was a personal dual relationship because Lee “gave Patient 2 access to the keys … so that Patient 2 could perform house … and garden work[.]” AR 3002. There was an “illegal dual relationship” because Lee asked Patient 2 to forge several documents and “demeaning dual relationship” because Lee called Patient 2 a “moron.” AR 3002. Lee failed to document any of the dual relationships, which was an extreme departure from the standard of care. AR 3002. He also improperly delegated tasks to Patient 2 to forge Lee’s signature on a check and a prescription, also an extreme departure from the standard of care. AR 3003.

Government Code section 11425.50(b) (“section 11425.50(b)”) requires a court to give great weight to an ALJ’s credibility determination that identifies the observed demeanor, manner, or attitude of a witness.[15] Section 11425.50(b) is based on the premise that the trier-of-fact who viewed the live testimony is better able to judge their credibility than a reviewing court operating from a “cold record.” Guymon v. Board of Accountancy, (“Guymon”) (1976) 55 Cal.App.3d 1010, 1015. Despite section 11425.50(b), the court has an independent duty to evaluate witness credibility. See Long Beach Civil Service Commission, (1996) 45 Cal.App.4th 652, 658; Guymon, supra, 55 Cal.App.3d at 1011-12. Section 11425.50(b) only requires a court to give great weight to an administrative presiding officer’s credibility determination “to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.” No deference is required where the presiding officer’s determination is based substantially on witness credibility, but there is no reference to the presiding officer’s observation of the demeanor, manner, or attitude of the witness. California Youth Authority v. State Personnel Board, (2002) 104 Cal.App.4th 575, 595-96.

Pursuant to this case law, at least a portion of the ALJ’s credibility findings are entitled to great weight. The ALJ found Lee’s testimony “circuitous, evasive, and obstructive” as he sometimes claimed to not understand the questions or words, had many memory lapses, and answered questions with his own questions. AR 2975. This is an observation of Lee’s demeanor. The ALJ also stated that Patient 1’s testimony is more credible because her story remained largely consistent and she testified in “a calm, even manner.” AR 2983. This is also an observation of demeanor. The court is required to accord great weight to the ALJ’s finding that Lee lacked credibility and that Patient 1 was credible on these issues.

Plainly, the ALJ plainly did not believe Lee in most of his testimony. The court agrees. The testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact. In re Marriage of Mix, (1975) 14 Cal.3d 604, 614. Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1055, 1074. Conversely, where a witness is disbelieved in one part of his testimony, he may be disbelieved in other parts.

Moreover, the ALJ was correct that Badre’s unrebutted opinion that Lee committed extreme departures from the standards of care for Patient 1 by (1) engaging in multiple dual relationships with Patient 1 over an extended period; (2) failing to document his dual relationships with Patient 1 in the medical records; and (3) failing to document prescriptions he issued to Patient 1, Patient 1’s primary psychiatrist’s identity, and the coordination of care with that psychiatrist” (AR 2994) are reasonable and must be accorded substantial weight. AR 3003. The same is true for Badre’s unrebutted opinions for Patient 2 that Lee committed extreme departures from the standard of care by (1) engaging in dual relationships with Patient 2, (2) failing to document them, and (3) inappropriately delegating tasks to Patient 2. AR 3003. The ALJ and the court must accept this expert opinion if reasonable.

Finally, the court agrees with the ALJ’s other credibility evaluations and her evaluation of the opinions of Badre and Ashley concerning Patient 2’s substance use disorder.

Moreover, the court agrees with the Board’s opposition (Opp. at 15-16) that the weight of the evidence supports Lee’s guilt. Patient 1’s testimony about the verbal and physical abuse she suffered while on board Lee’s boat was corroborated by contemporaneous photographs, audio records, and text messages and her reporting of the incident has been largely consistent over time. Badre’s opinions as to Patient 1 and dual relationships were credited as being reasonable, unrefuted, and thus, afforded substantial weight. Patient 2’s statements were corroborated by videos, photographs, text messages, and his parents’ testimony. Badre’s opinions as to Lee’s dual relationships with Patient 2, his failure to document those dual relationships in the medical records, and inappropriately delegating tasks to Patient 2 during his employment were credited as reasonable, unrefuted, and thus, afforded substantial weight. Badre’s opinions as to Lee’s care and treatment of Patient 2’s substance use disorder, continuing to prescribe medications previously misused by Patient 2 without monitoring and safeguards, and failing to properly intervene in response to Patient 2’s risk factors were credited as being “better supported by the medical records” than Ashley’s opinions, who concluded that Patient 2’s marijuana use was recreational, Patient 2’s benzodiazepine use did not constitute substance abuse, and Patient 2’s disclosure of having taken an extra dose of Adderall was the result of a misunderstanding, even though Lee had never assessed the extent of Patient 2’s substance use. Ashley’s credibility was damaged when he testified that the Policies and Procedures Form in Patient 2’s chart was the equivalent of a substance use treatment agreement, despite citing to a sample treatment agreement form the National Institute on Drug Abuse which demonstrates significant differences.

The weight of the evidence under the clear and convincing standard shows that Lee is guilty of the third, fourth, eight, and ninth causes for discipline.

Lee notes that the ALJ’s findings must be sufficient to support the decision and discipline under Topanga, supra, 11 Cal.3d at 515-16 (requiring meaningful findings to bridge the analytical gap) and Kateen v. Dept. of Real Estate, (1985) 169 Cal.App.3d 481, 485 (discipline must reflect a linkage between the act and fitness or competence of the doctor). Pet. Op. Br. at 18.

Lee argues that the ALJ failed to articulate why the testimony of Patients 1 and 2 was accepted over the testimony of Lee in violation of Topanga. As to Patient 1, there were no witnesses to the stair incident and the ALJ should have found much of Patient 1's testimony lacking in credibility. Yet, she accepted Patient 1’s different versions of events at different hearings. The ALJ accepted Patient 2’s testimony on disputed issues -- e.g. that he “was asked to forge a prescription” – despite the proof that Lee stopped all work that day and patient HM’s sworn statement. AR 2365-66. Also, the “personal tasks” Patient 2 performed for Lee make no sense when Lee was overseas. Pet. Op. Br. at 17.

The ALJ further failed to properly consider the unreliability of Patient 2’s incoherent testimony, inappropriately terming it as "scattered” whereas substantial logic contradicted Patient 2's version of events. No fair evaluation would rely only on Patient 2’s testimony while ignoring his positive statements about Lee to the Board investigator -- e.g., he felt Lee was “trying to help him”, “Lee liked him”, he had “no problem with him as Psychiatrist,” Lee’s language "kept it real" – as well as the uncontested fact that he continued care with Lee. AR 3445-46. Pet. Op. Br. at 18.

Finally, the ALJ failed to refer to the accusers’ motives: Patient 1 admitting being “disappointed” and "betrayed,” and Patient 2's father had animosity towards Lee, not wanting his son to have Adderall regardless of its efficacy. Pet. Op. Br. at 18.

Lee apparently has not read the ALJ’s decision, which is replete with credibility findings. See AR2973-76, 2979, 2981-83, 2988, 2994. 3019-21. 2998-3000. These findings concerning Patient 1, Patient 2, Badre, Ashley, and Ludo are more than sufficient under Topanga.

The purpose of discipline is not to punish, but to protect the public. Fahmy v. Medical Board of California, (1995) 38 Cal.App.4th 810, 817; Pirouzian v. Superior Court, (“Pirouzian”) 1 Cal.App. 5th 438, 449-50 (revocation inconsistent with purposes of disciplinary proceeding, even where physician improperly took disability payments, expressing no regret). The court is empowered to set aside a penalty which is excessive or reflective of a manifest abuse of discretion. See Magit v. Board of Med. Exam’rs, (1961) 57 Cal. 2d 74, 88. It is the present fitness to practice one’s profession and the extent to which the primary goal of public safety would permit rehabilitation that should be considered. Id. at 88.

Lee argues that his medical care was safe even before rehabilitation. No one reasonably believes him likely to repeat a boundary crossing or treat a spouse. He wants a clinic setting, itself preventing in full these private practice issues. Revocation is then not required to protect the public, and probation is not only for protection of the public but also for rehabilitation of the practitioner. Pet. Op. Br. at 8.

Lee argues that the ALJ was improperly dismissive of 1) the widely respected PACE evaluation (“fit” without restriction) and 2) three patient character witnesses who pleaded with the ALJ to allow Lee to continue to treat them, and 3) his completion of 52-week anger management therapy, a separate anger management course, five years of personal therapy, a practice monitor who praised him. Pet. Op. Br. at 8.

Lee contends that the ALJ erred in lending so little weight to testimony of three patient character witnesses, wrongly discounting their testimony because they had limited knowledge about Lee’s past discipline, and failed to properly consider the patients' appreciation of Lee's care and empathy. Pet. Op. Br. at 8.

The ALJ failed to consider that successful completion of probation demonstrated that Lee could reliably comply with new terms of probation if they were imposed. The ALJ inappropriately dismissed Lee’s compliance with conditions of probation as “entitled to little weight,” incorrectly concluding that a mandatory condition somehow has little effect on rehabilitation. The issues in the Accusation occurred on and prior to May 2019 with respect to Patient 1, and on and prior to July 2019 with respect to Patient 2. Lee’s probation compliance occurred after these events. The violations found by the ALJ almost certainly have already been fully addressed because Lee has taken, subsequent to the events, the obviously applicable courses. The ALJ’s failure to consider rehabilitation evidence was punitive, contrary to the rehabilitative purpose of disciplinary proceedings under Pirouzian, supra, 1 Cal.App. 5th at 449-50. Pet. Op. Br. at 8, 10-11.

As the ALJ found, Lee engaged in multiple and serious offenses in his care and treatment of Patient 1 and Patient 2. While he served as Patient 1’s physician, he maintained a personal relationship with her for five years, the end of which was marked by violence. He probably forged Patient 1’s medical records or else omitted significant information from her medical records rising to the level of gross negligence. He hired Patient 2 as an employee and tasked him with forging his signature on documents, including a patient prescription. He gave Patient 2, whom Lee had diagnosed with a substance use disorder, access to a safe with cash and pre-signed prescriptions. Patient 2 reported his struggles with substance use and several attempts to achieve sobriety, and Lee did not properly assess and intervene in Patient 2's substance use issues.

Lee’s misconduct caused both actual and potential harm. Patient 1 suffered physical injuries, including a cut on her lip and bruises on her eye, arm, chin, and back from the 2019 incident. Patient 2 suffered emotional harm. As a psychiatrist treating patients with serious mental health conditions, Lee wielded significant power over his patients. His failure to set and maintain professional boundaries could, and did cause, Patient 1 and Patient 2 to be susceptible to confusion and potential exploitation. Additionally, the potential harm in Patient 2's case was grave, as he could have used the cash and the presigned prescriptions in the safe to obtain illicit drugs.

The ALJ correctly found that Lee “expressed little remorse for his actions.” AR 3041. Although he completed a medical ethics and professionalism course in 2017, he continued his dual relationships with Patient 1 until 2019 and hired Patient 2 in 2019. AR 3043. Even at the hearing he was unrepentant. AR 3043.

The court agrees with the ALJ that Lee would be “expected to behave in an exemplary fashion while on Board probation” (AR 3043), but Lee also is correct that does not mean his completion of required anger management, ethics, and professionalism classes carries little weight. AR 3043. His completion of these classes is of rehabilitation value.[16] On the other hand, Lee’s 2019 probation is an aggravating factor. AR 3044. So is the fact that he committed some of his misconduct while on probation.

The court agrees with the ALJ that the character references and testimony did not show “an understanding of the magnitude of [Lee’s] wrongdoing” and so carry little weight. AR 3043.

Perhaps most important, the ALJ correctly concluded that Lee “exhibited a troubling level of dishonesty” when discussing Patient 1, including an indication of forged medical records and repeated dishonesty in his interview. AR 3044. Lee also made contradictory assertions in texts and his interview when discussing the keys he gave to Patient 2 and his office safe and tasking him with house and garden work. AR 3044. This dishonesty works strongly against rehabilitation.

As such, Lee cannot be relied upon to comply with reasonable terms or conditions that would be imposed if he were allowed to practice medicine under a probationary license. The ALJ therefore concluded that revocation of his certificate was necessary for the protection of public health, safety, and welfare. The decision to revoke Lee’s medical license was well within the Board’s discretion.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Lee’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 April 10, 2025 at 9:30 a.m.

[1] Pages 2625-26 are not in the Joint Appendix.

[2] Witnesses Christopher Anderson and Dean Steinberg stated under penalty of perjury that they saw Patient 1 in Lee’s office as a patient. AR 2372-72, 2376.

[3] There is no written referral from this primary psychiatrist in Patient 1’s chart. Nor is there any chart entry that Lee prescribed the medication at the request of a primary psychiatrist. AR 5340, 5353-54.

[4] Lee testified that the distance was 56 inches and that he could only reach 24 inches from the chair. AR 5074.

[5] Although Patient 1 claimed she was prevented from calling for help, Lee testified that she had her phone and texted him from it at least two hours before she claimed Lee took it. AR 5110-14.

[6] Patient 1 took a photo of the boat console (AR 1261) that Lee testified could only have been taken immediately after she punched Lee, showing that she was not a ”shocked” victim “fearing for her life”. AR 5083-84.

[7] Lee denied that he hired Patient 2 as an office manager. AR 4825.

[8] Patient 2 made odd statements during his testimony: "There we go. Ding. Ding. Ding…I didn’t study for the test." (AR 3445); “Jesus Christ Almighty. Help me DSM-5.” (AR 3445); "I will never serve this country" (AR 3449).

[9] The court will refer to the ALJ’s Proposed Decision rather than the Board’s adoption of it.

[10] This is inaccurate. The ALJ merely found “some merit” to this argument. AR 2981.

[11] Lee leaves a portion of the ALJ’s comment out in which she added that there were other indications in the medical records that should have alarmed Lee to potential relapses or potential substance abuse problems, which he did not properly assess. AR 3590.

[12] Lee argues that the ALJ noted that the Complainant failed to establish that, after Lee’s treatment, Patient 2 moved to a sober living facility in June 2021. AR 2996. It was clear that Lee’s treatment of Patient 2 was safe and then he went back to substance use without Lee. Yet, the ALJ claimed Lee was “not recognizing,” “continuing to prescribe” and “not intervening” in Patient 2’s “substance use”. AR 3034. Pet. Op. Br. at 13.

This argument is spurious. Lee relies on an unproved fact (entry into sober living) to conclude that Patient 2 was better off under his treatment. This he cannot do. Moreover, the ALJ concluded that Lee had no basis to know whether Patient 2 was sober or abusing substances because he did not properly assess and monitor Patient 2. As a result, Lee’s “assessment and monitoring of Patient 2 for substance use disorder departed from the standard of care.” AR 3011.

[13] APA Commentary in Ethics in Practice, topic 3.2.6: “Boundary crossings are deviations from customary behavior that do not harm the patient and that on occasion may facilitate the therapeutic process“…” Boundary crossings should be undertaken in treatment only in an intentional manner and when the benefits clearly outweigh the risks. For instance, the appropriateness of accepting a small gift from a patient should be evaluated in light of the cultural and community context and the therapeutic impact…The psychiatrist must evaluate the situation and ensure that his or her conduct is not misconstrued and is in the best interest of the patient.” AR 1962.

[14] That is not what HM says in her letter under penalty of perjury. She says only that a prescription Lee had written has become a subject of this case. AR 2365.

[15] Section 11425.50(b) provides:

“(b)... If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.”

[16] The Board points out that Lee’s voluntary PACE “fitness for duty” was an evaluation for the presence of illness that would interfere with his ability to safely work as a physician. The evaluation of was limited to the following four components: (1) a physical examination; (2) a toxicology screen; (3) a cognitive screening examination; and (4) a psychiatric evaluation. The evaluation did not evaluate Lee’s clinical competency as a physician. AR 2276-84. Opp. at 18, n. 5.