Judge Mitchell L. Beckloff, Case Number: 22STCP02489, Date: 2023-09-01 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02489, Date: 2023-09-01 Tentative Ruling

Petitioner, Patrick Yat-Fu Tong, M.D., seeks a writ of administrative mandamus directing Respondent, Medical Board of California, to set aside its January 18, 2022 decision revoking his medical license.

Petitioner’s request for judicial notice (RJN) of the National Commission for the Protection of Human Subjects of BioMedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (1979) (Belmont Report) is denied.

In general, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be considered by the court if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the administrative hearing. (Code Civ. Proc., § 1094.5, subd. (e).) A request for judicial notice cannot be used to circumvent the rules constraining the admission of extra-record evidence in administrative mandamus. (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475, fn. 10.)

The Belmont Report, dated in 1979, is evidence that was available at the time of the administrative proceedings. (Indeed, it was discussed in testimony during the hearing.) Thus, it is subject to judicial notice only if Petitioner satisfies the requirements of Code of Civil Procedure section 1094.5, subdivision (e) to augment the administrative record. Petitioner contends he could not submit this evidence during the administrative proceedings because “the ALJ . . . allowed argument regarding whether Dr. Tong unethically experimented on his patients, an allegation which was not charged and which was raised/or the first time at hearing.” (RJN 2:18-20.)

Petitioner has developed no argument about the fairness of the administrative hearing or the Administrative Law Judge’s (ALJ) evidentiary rulings. Consistent with applicable page limits (see California Rules of Court, Rule 3.1113), Petitioner cannot make arguments concerning the underlying merits of his petition through in his RJN. Further, as Petitioner acknowledges, evidence of his rehabilitation or lack thereof was relevant to Respondent’s determination of penalty. Petitioner had ample opportunity in the administrative proceedings to rebut evidence presented by Respondent related to his rehabilitation. As noted, Petitioner cited the Belmont Report on cross-examination. (AR 916.) The court finds that Petitioner could have, with reasonable diligence, submitted the Belmont Report as evidence during the administrative proceedings. Accordingly, the proffered extra-record evidence is not properly considered in these proceedings.

Petitioner was licensed to practice medicine in California in 1993. (AR 705.) He was licensed to practice medicine in Maryland in 1995. (AR 265.)

After medical school, Petitioner completed a residency in ophthalmology, a clinical fellowship in pediatric ophthalmology, and a research fellowship in pediatric ophthalmology. From 1997 to 2007, Petitioner served as a clinical assistant professor in a medical school’s ophthalmology department. In 2008, Petitioner established a private outpatient pediatric ophthalmology practice in Maryland. (AR 705-706.)

The Maryland State Board of Physicians (Maryland Board) summarily suspended Petitioner’s authority to practice medicine in Maryland on November 18, 2020. Following a hearing on January 13, 2021, the Maryland Board declined to lift the suspension order. (AR 706; see AR 265-278.)

On April 6, 2021, Petitioner entered into a Consent Order with the Maryland Board, which, among other terms, reprimanded Petitioner, ordered him to permanently cease practicing ophthalmology on pediatric patients, placed Petitioner on probation for six months, and ordered Petitioner to take an ethics course addressing ethical issues and human participant protection in human subjects. (AR 279-296.) Petitioner consulted with legal counsel before entering into the Consent Order. (AR 295, 912-914.) In his signed Consent, certified under oath, Petitioner “acknowledge[d] the validity and enforceability of this Consent Order as if entered after the conclusion of a formal evidentiary hearing in which I would have had the right to counsel, to confront witnesses, to give testimony, to call witnesses on my behalf, and to all other substantive and procedural protections as provided by law.” (AR 296.) Petitioner also “waive[d] any right to contest the Findings of Fact and Conclusions of Law and Order set out in the Consent Order.” (AR 296.)

The Consent Order includes detailed Findings of Fact and Legal Conclusions regarding Petitioner’s unprofessional conduct that led to the discipline of his Maryland medical license. (AR 280-292.) The Consent Order focused on Petitioner’s treatment of nine pediatric patients with two conditions: strabismus[1] and/or amblyopia.[2] (OB 2:15-16.)

· Two “Peer Reviewers [who reviewed Petitioner’s medical records] expressed their concern that the [Petitioner] regularly used prism glasses to treat pediatric asymptomatic patients with minimal objective findings for visual acuity conditions that the [Petitioner] had inappropriately diagnosed using nonstandard techniques, in violation of the standard of quality care.” (AR 286.)

· Petitioner “diagnosed and treated patients for amblyopia based on his finding that there was a one-line difference between the eyes, not a two-line difference as set forth as the standard of care. . . . [Petitioner] also diagnosed strabismus, that he would then treat with prism glasses, based on his observation of a patient's head tilt. [Petitioner] perused patients' Facebook postings to confirm his finding of a patient's head tilt.” (AR 286.)

· Petitioner “consistently used a mathematical ‘equation’ of his own creation to determine the power of the prism he gave to the child. [Petitioner’s] equation is not based on clinical measurements. Instead, the equation uses a patient's functional eye height, fusional effort, head tilt, and prismatic compensation. [Petitioner’s] equation consists of variables that cannot be measured; the equation has not been scientifically validated which calls into question its utility and appropriateness as a diagnostic tool.” (AR 287.)

· Petitioner “diagnosed and treated pediatric patients with prism glasses, in the absence of symptoms or clinical indications of strabismus. (Patients 1 -7, 9 - 10). Both Peer Reviewers expressed concern regarding [Petitioner’s] frequent use of unnecessary prism glasses to treat pediatric patients based primarily on subclinical (‘flick’) findings. [Petitioner] often merely documented ‘head tilt’ or left hypertropia with no numeric documentation of the degree of head tilt, or the amount of deviation in prism diopters (Patients 1 - 7, 9 - 10). Ophthalmologists do not diagnose or treat eye disorders based on head tilt alone.” (AR 288.)

· Petitioner “diagnosed children with amblyopia who did not meet that diagnostic definition (Patients 1, 3, 7, and 10).” (AR 288.)

· Petitioner’s “prescription of daily atropine drops to treat children whom he wrongly diagnosed with amblyopia is unnecessary and overly aggressive.” (AR 289.)

· Petitioner “advised parents, without medical substantiation, that using prism glasses will help ameliorate non-specific complaints including ‘moodiness,’ neck stiffness and gastrointestinal distress.” (AR 289.)

· Petitioner “proposed to perform eye surgery on two patients (Patients 1 and 2), both of whom were asymptomatic and did not require the prism glasses [Petitioner] had ordered them to wear, much less surgery for an eye problem that did not exist. Eye surgery for strabismus is based on prism measurements which [Petitioner] failed to perform.” (AR 289.)

Respondent Files Accusation and Revokes Petitioner’s California Medical License After a Hearing

On April 14, 2021, Respondent issued an order immediately suspending Petitioner’s California physician’s and surgeon’s certificate based on Petitioner’s out-of-state discipline in Maryland. (AR 264.) On May 19, 2021, Respondent filed an Accusation against Petitioner’s license for violations of Business and Professions Code[3] sections 2305 and 141 based on the out-of-state discipline. (AR 10-13.)

On December 3, 2021, an administrative hearing was held on the California Accusation before an ALJ. (AR 704.) Petitioner testified in his defense and also presented testimony of two pediatric ophthalmologists, David Hunter, M.D., Ph.D., and David Guyton, M.D., and an adult ophthalmologist, Irene C. Kuo, M.D. (AR 707-709.)

On December 16, 2021, the ALJ issued a proposed decision concluding Petitioner’s medical license should be revoked based on the Maryland Board’s discipline as well as Petitioner’s failure to show rehabilitation. (AR 710-711.)

On January 18, 2022, Respondent adopted the proposed decision as its own, effective February 17, 2022. (AR 652.) Petitioner filed a petition for reconsideration which was denied by operation of law after Respondent took no action on it. (Opening Brief 10:17-23.)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

The revocation of Petitioner’s medical license concerns a fundamental vested right. Accordingly, the court exercises its independent judgment when reviewing the agency’s factual findings. (See Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 154; Sandarg v. Dental Bd. of California (2010) 184 Cal.App.4th 1434, 1440; CCP § 1094.5(b).) Under independent judgment review, “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 v. Pierno (1971) 4 Cal. 3d 130, 143.) The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) “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 v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code, § 664.)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, the evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) When there is a challenge to “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [the claimant’s] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) “And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board . . . . Rather, the challenger must explain why that evidence is insufficient to support that finding.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.)

At the agency level, “the standard of proof to revoke a professional license is clear and convincing evidence. . . .” (Lone Star Sec. & Video, Inc. v. Bureau of Sec. and Investigative Services (2012) 209 Cal.App.4th 445, 454.) The Court of Appeal has held that “ a trial court reviewing an administrative agency's findings under the independent judgment standard of review in section 1094.5 must . . . account for the standard of proof required and applied in the underlying proceeding.” (Li v. Superior Court (2021) 69 Cal.App.5th 836, 844, 865.) Accordingly, the phrase the “weight of the evidence” used herein refers to sufficient evidence to support a factual finding taking into account the clear and convincing evidence standard of proof applicable at the agency level.

Finally, an agency’s determination of the appropriate penalty is reviewed under a deferential abuse of discretion standard. (See Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)

The Consent Order is Grounds for Discipline Against Petitioner’s California Medical License

The revocation, suspension, or other discipline, restriction, or limitation imposed by another state upon a license or certificate to practice medicine issued by that state . . . that would have been grounds for discipline in California of a licensee under this chapter, shall constitute grounds for disciplinary action for unprofessional conduct against the licensee in this state.

“Pursuant to the language of section 2305, petitioner[’s] ‘unprofessional conduct’ lies not in the alleged underlying misfeasance in [Maryland] but in the fact that discipline has been imposed by another state regarding petitioner[’s] license[] to practice medicine in that other state.” (Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089, 1097.)

“A certified copy of the record of the disciplinary action taken against the licensee by another state, an agency of the federal government, or another country shall be conclusive evidence of the events related therein.” (§ 141, subd. (a).)

Respondent “shall take action against any licensee who is charged with unprofessional conduct,” which is defined to include “gross negligence,” “repeated negligent acts,” “incompetence,” and the failure to maintain adequate and accurate medical records. (§ 2234, suds. (a)-(d); § 2266.)

The Consent Order constitutes a restriction or limitation on Petitioner’s medical license, including a permanent prohibition of his practice of pediatric ophthalmology—his primary area of practice in Maryland. The Maryland Board found Petitioner engaged in unprofessional conduct in the practice of medicine, including incompetence, negligent acts, and failure to keep adequate medical records. (AR 291-292.) Accordingly, sections 2305 and 2234 provided Respondent with grounds to discipline Petitioner’s California medical license. The Consent Order constitutes clear and convincing evidence of grounds supporting Respondent’s discipline against Petitioner. (See AR 706-707, ¶¶ 7-11 and 710, ¶¶ 2-3.)

Respondent’s Factual Findings Related to Penalty Are Supported by the Weight of the Evidence

Respondent made several factual findings in support of its decision Petitioner’s medical license should be revoked. Specifically, Respondent concluded:

The matters stated in Findings 12 and 14 through 17 demonstrate that if the Board permitted [Petitioner] to continue practicing medicine in California, he would continue exactly the same unprofessional conduct that resulted in his Maryland license restriction. Moreover, the matters stated in Findings 14 and 15, specifically, confirm that [Petitioner] has no insight into the reasons for his Maryland discipline, and has gained no benefit from the rehabilitative steps Maryland required. Public safety compels revocation of [Petitioner’s] California physician's and surgeon's certificate. (AR 710-711.)

Petitioner challenges Respondent’s Factual Findings 12, 14, 15, 16, and 17. Petitioner contends the findings are not supported by clear and convincing evidence. As noted earlier, clear and convincing evidence supports Respondent’s findings and conclusion that grounds for discipline exist based on the Consent Order. (AR 706-707, 710; § 2305.) Accordingly, sections 2305 and 2234[4] provide Respondent with authority (and direction) to impose discipline on Petitioner’s medical license.

The court addresses Petitioner’s challenge to Respondent’s factual findings as follows:

To the Maryland State Board of Physicians, [Petitioner] explained his diagnostic and treatment decisions as reflecting his discovery of ‘new symptoms associated with any small eye misalignment, in situations where the eyes are not sufficiently misaligned to cause double vision, but sufficiently misaligned to cause symptoms.’

At the hearing, [Petitioner] explained that he is capable of diagnosing subtle eye misalignments that most ophthalmologists do not perceive, and that he has developed better methods for treating such subtle eye misalignments than the methods that most pediatric ophthalmologists use. (AR 707.)

Petitioner does not challenge the first sentence of Factual Finding 12. (Opening Brief 11:25-12:13.)[5]

Petitioner contends the second sentence of Factual Finding 12, however, “misstates” his testimony. (Opening Brief 12:2.) Petitioner argues: “Although he (and Dr. Hunter and Dr. Guyton) explained that Dr. Tong's novel fixation target represented an innovation in measurement of eye misalignments, . . . neither Dr. Tong nor any of his witnesses stated that he had developed ‘better’ methods for treating such misalignments.” (Opening Brief 12:2-6 [citing AR 886-888, 805-806, 829, 404, 817-818, 823-824, 809].)

When Petitioner’s testimony and the whole record are considered, the court finds the weight of the evidence (in the context of a clear and convincing standard) supports Respondent’s summary finding that Petitioner believes he has “developed better methods for treating such subtle eye misalignments than the methods that most pediatric ophthalmologists use.” (AR 707.)

Petitioner’s record citations support Factual Finding 12. During the hearing, Petitioner testified:

Q. So in the consent order, there are statements . . . that you used nonstandard diagnostic techniques. Can you tell me a little bit about that? . . . .

A. I do not believe my technique was nonstandard. What I believe is that my station pocket, that is how I have children look straight ahead at a letter instead of a Disney movie or a dog, fortuitously brought up additional data.

There's a concept called signal to noise ratio. When there's a lot of noise, you can't hear the signal. By my own circumstance, I use a changing letter. I didn't design it. I just need the kid to look somewhere. It was truly fortuitous, and that's -- because of doing that, I decreased the noise. Therefore, I was fairly equipped to see signals.

As Dr. Hunter related, if other people had seen the signal, they might have responded the same. . . . [¶]

I stumbled upon a better way to measure things. I decreased the noise; therefore, signals that other people cannot see, I can see. Because I did my task in a more quiet environment. And if other people had heard the same signal, they would've done accordingly. . . . (AR 886-888 [emphasis added].)

In response to a question about a finding in the Consent Order that Petitioner did not adequately document “head tilt” in his patients, Petitioner responded:

Because I'm able to see smaller problems, because I have less noise. I'm able to see small signals. . . . The reviewer (inaudible) with big signal, loud noise, because they examined them around noises. So therefore, they don't understand that I don't have a number to give it because it's a variable. (AR 888-889.)

Petitioner’s explanation at the hearing can, in part, be fairly summarized as expressing Petitioner’s belief “he is capable of diagnosing subtle eye misalignments that most ophthalmologists do not perceive, . . . .” (AR 707.) Unlike other practitioners, Petitioner “did [his] task in a more quiet environment” allowing him to see “signals that other people cannot see, . . . .” (AR 888.)

Petitioner’s testimony must be read in the context of the Consent Order findings as well as the expert testimony of Dr. Hunter and Dr. Guyton when considering Factual Finding 12. As summarized earlier, the Maryland Board found Petitioner engaged in unprofessional conduct in his medical practice by, among other things, treating pediatric patients with prism glasses “in the absence of symptoms or clinical indications of strabismus” and based on Petitioner’s observation of “head tilt alone”; treating “asymptomatic patients with prism glasses over a long period of time, often several years”; and prescribing “overly aggressive” amounts of daily atropine drops to treat children he wrongly diagnosed with amblyopia. (AR 23-24.)

Dr. Guyton, Petitioner’s expert, explained at length how Petitioner’s innovative diagnostic methods led to him developing new methods of treating “small misalignments of the eyes.” (AR 804-805.) Dr. Guyton testified:

And he came up with a way of examining children which could come -- see very small misalignments of the eyes and he discovered, since we use prisms in adults a great deal and sometimes in children as well with vertical misalignment, he started holding prisms in front of the child's eye to see if a small (inaudible) for example would straighten.

If it did or if a prism helped reading ability or acceptance of the child about the glasses, if it had some beneficial effect, he started prescribing prisms in the term of these little plastic prisms stuck on the glasses. Rather than getting new glasses, an expense every time, he put the little plastic prism on instead, as an economical move, and he found that he often would need to increase the prism at subsequent visits.

He was gathering data as a pilot study for later studying in a larger clinical trial that he -- and he was very much enthusiastic about. Because he thought he'd come up with a way to solve some problems that have never been done before. He was enthusiastic about it. His patients liked it. And then what happened was that he -- a couple of the patients went for second opinions to other ophthalmologists because the children did not like to wear the glasses and it made the sick when they wore them. And the other ophthalmologists loudly condemned Dr. Tong, I'm afraid, because they didn't understand what he was doing. They had no idea what he was doing.

But the trouble is he sometimes went for long periods of time, sometimes for -- because of treatment of amblyopia that was necessary other times, and patients just kept building up and up and up and up and he felt he had to stabilize them before recommending surgery. And he probably went too long in many of these patients for the reasons that I detailed in the documents that I submitted. (AR 804-809.)

Although Dr. Guyton stated “prism adaptation” (AR 817) had been used in ophthalmology since the 1980s (AR 805 [“sometimes in children”]), Dr. Guyton’s testimony when considered in its entirety suggested Petitioner developed a new method for treating “small misalignments of the eyes.” (AR 805, 822 [no other ophthalmologists “doing what he was doing”], 817. [“He was taking what had been established in the literature as a valid technique for horizonal misalignments. He was extending that to vertical misalignments.”]) Contrary to Petitioner’s suggestion, Dr. Guyton did not state that he “employed” the exact same method on his own patients.[6] Indeed, Dr. Guyton criticized Petitioner for maintaining his treatment method “for long periods of time” and explained Petitioner did not know muscle lengths “could really change much over time . . . .” (AR 809, 825.)[7]

Dr. Hunter also did not fully endorse Petitioner’s “innovative diagnosis and treatment” methods. (AR 407.) For example, Dr. Hunter opined that Petitioner “should have listened to his patients and abandoned the treatment once the symptoms had improved and before the prism power became intolerable.” (AR 406.) Dr. Hunter testified similarly at the hearing. (AR 783, 787.)

With this context, Petitioner’s testimony is reasonably interpreted to explain how his “innovative” diagnostic methods led to “better methods for treating such subtle eye misalignments than the methods that most pediatric ophthalmologists use.” (AR 707.) Petitioner explained how he would treat pediatric patients with prism glasses and gradually increase the amount of prism. (AR 893-895.) In response to questions from counsel, Petitioner explained his rationale for increasing the “prism power” for pediatric patients:

Q. Was this idea of increasing the prism to high levels and keeping them placed for longer periods, could you just tell us what that referred to? . . . .

A. Sure. So when someone's eyes are really not straight, they work super hard to keep them straight and they do very well. This is like someone that lives in Phoenix their whole life, never had air conditioning, and they're fine. They don't complain about 110 degrees. But if you were to bring that person into your 70-degree living room, they will scream that it's too cold. They run back out. Therefore, you have to make the changes very slowly. They have been enjoying 90-degree air conditioning. After a while, they might accept 85 degrees and so on and so forth. But while the temperature -- while the air conditioning is getting better and better, this person has got to stay in the air conditioning.

. . . . This is what happens when I help the children to line the eyes up better with prisms. They have to stay in it. If you take them off, you back out in the heat. You put them on, your air conditioning will not be as good. Then you would suffer from headaches. Then they come in for a visit. I do my exam. I tell them that this is what's happening. You better be compliant with your glasses and wear them all the time from awake to asleep. Then suddenly all their symptoms go away. So the symptoms that bother some families, when they start putting glasses on and off, on and off, they do bad. They say let me go get a second opinion. And then the other second opinion may not recognize that. And that is where the condemnation begins. (AR 897-898 [emphasis added].)

In contrast to the expert opinions of Dr. Guyton and Dr. Huter, and in conflict with the Consent Order findings, Petitioner did not acknowledge he advised pediatric patients to use the prism glasses for too long, or he should have abandoned the treatment once the prism power became intolerable. (See AR 897-89; see also AR 900.) Accordingly, Petitioner’s testimony is reasonably interpreted to explain “that he has developed better methods for treating such subtle eye misalignments than the methods that most pediatric ophthalmologists use.” (AR 707.)

The court finds the weight of the evidence (in the context of a clear and convincing standard) supports Factual Finding 12. Petitioner has not demonstrated otherwise.

[Petitioner] testified that the Maryland order described above in Findings 8 through 10 is wholly unjust. He believes that the expert reviewers who criticized his patient treatment to the Maryland State Board of Physicians were biased against him, and that their understanding of pediatric ophthalmology is inadequate to evaluate his innovative methods of diagnosis and treatment. “In every single instance,” he explained, “I was right.” (AR 706-707.)

The weight of the evidence (in the context of a clear and convincing evidence standard) supports Respondent’s finding. Petitioner testified, at length, why he believed the two Maryland reviewers were biased against him and their understanding of pediatric ophthalmology was inadequate to evaluate his innovative methods. (AR 880-884, 889-895.)

Petitioner summarizes the alleged “conflicts of interest.” (Opening Brief 2, fn. 3.) Petitioner also testified, clearly, he believes the Consent Order is wholly unjust. As Petitioner phrased it, “I’ve been wronged.” (AR 917.) Despite the findings of unprofessional misconduct and the permanent restriction on his practice of pediatric ophthalmology in Maryland, Petitioner believes his “license to practice medicine should not be restricted.” (AR 918.)

Petitioner contends the ALJ quoted his statement—“In every single instance I was right”—out of context. (Opening Brief 12:24-26; see AR 882-883.) The court agrees the ALJ could have provided more context for the quote and omitted the finding as a direct quotation. Nonetheless, as Petitioner acknowledges, Petitioner did testify “I was right” with respect to one of the expert reviewer’s criticisms. (Opening Brief 13:7 [head tilt patient seven (AR 883)]). Other testimony suggested his overall high performance in all cases. (AR 918. [“I welcome anybody to look at anything. I have nothing to hide. I perform at the highest of high. I perform at the highest standard.”])

Exercising its independent judgment, the court finds the ALJ provided an accurate direct quote as to part of Petitioner’s testimony; other testimony supported the meaning behind the ALJ’s reference to being right in every instance. (AR 918.) Moreover, Petitioner’s testimony, in context, clearly supports Respondent’s finding Petitioner believed the Consent Order was unjust (see AR 917), his reviewers were biased against him (AR 880-883) and the expert reviewers were unable “to evaluate his innovative methods of diagnosis and treatment.” (AR 890 [“that’s what they don’t understand”], 890-891 [“I don’t think they really understood it”], 892 [that’s not the group of patients I’m treating”], 894 [“the reviewers only recognized people who have gigantic problems”].)

Petitioner notes he did acknowledge the need to make certain improvements in his medical practice, including informed consent. (AR 917.) Also, Petitioner recognized “he needed to avoid delivering glasses to patients’ homes and surveying Facebook for evidence of head tilt without express written permission from patients in the future.” (Opening Brief 13:14-16 [citing AR 916-917].)

The ALJ did not find otherwise. Nonetheless, despite the detailed findings of unprofessional conduct in the Consent Order—an order stipulated to by Petitioner (AR 915)—Petitioner acknowledged only limited deficiencies in his practice. Petitioner did not take responsibility for (or acknowledge the legitimacy of) the serious findings of misdiagnosis and inappropriate treatment methods. (See e.g., AR 911-912, 916-918.)

The weight of the evidence (in the context of a clear and convincing standard) supports Factual Finding 14. Petitioner has not demonstrated otherwise.

[Petitioner] also summarized what he had learned from the ethics course he took to satisfy the Maryland order described above in Findings 8 through 10. He said that the main lesson he took away from the course was that using novel, unproven treatments on patients does not constitute unethical experimentation if the physician’s motive is to help those patients. He regrets not having given his patients’ parents greater explanation of how his treatment methods differed from, and were superior to, other pediatric ophthalmologists’ more standard methods; but he views any unprofessionalism as ‘technical’ at worst because he intended primarily to help his patients, not to gather data from them with which to advance his own career. (AR 708.)

A. The ethics course that I took spent a good bit of time on the Belmont Report, which is the quintessential document on human experimentation. It states that when you do something to benefit a patient for their wellbeing that is not human experimentation.

Human experimentation is completely limited to when you have an intent to do an experiment. I had no intent to do an experiment. What I did learn from the ethics course is the formalities of documentation and I took notes and I do -- I believe that if I were guilty of ethical issues, it would be a technical guilt.

. . . I believe that I exercised (inaudible) with the best interest of the patients and their wellbeing is as important as my wellbeing.

Q. Doctor, the one thing you indicated that you would do differently is that you would now have your informed consent be formal and written?

Q. So would it be fair to say that in your opinion you should not have been disciplined for your care and treatment of the patients?

ALJ: If [Respondent’s counsel] would like an answer to that question, she's entitled to one and so, [Petitioner], can you give any answer to her question?

I think that I should make the informed consent process more formal and certainly written. I already do it verbally. I openly tell patients that I think differently. I see things slightly differently. And this is what I propose. You can try it for a few weeks and if you don't see a positive outcome, we shouldn't proceed. (AR 911-912.)

Exercising its independent judgment on the record, the court finds the weight of the evidence supports Factual Finding 15. Factual Finding 15 does not purport to be a direct quote from Petitioner—the ALJ paraphrased sentiments expressed by Petitioner during his testimony. Petitioner’s parsing of the finding with comparisons to direct quotes from Petitioner does not undermine the weight of the evidence for Factual Finding 15.

The weight of the evidence (in the context of a clear and convincing standard) supports Factual Finding 15. Petitioner has not demonstrated otherwise.

Petitioner concedes Factual Finding 16 “correctly stated that ‘[s]ince November 2020, [Petitioner] has completed more than 140 hours of continuing medical education, on topics including ethics in clinical medical research involving human subjects, eye diseases, and eye surgery.’" (Opening Brief 15:1-3 [emphasis added].)

The weight of the evidence (in the context of a clear and convincing standard) supports Factual Finding 16. Petitioner does not suggest otherwise. (See AR 1393-1394 [summary of education hours].)

[Petitioner] suggests that he might join the faculty at the University of California, San Francisco, or at the California Pacific Medical Center, and become the principal investigator on a formal clinical research project to test his theories about diagnosing and treating strabismus and amblyopia. No evidence established that either of these institutions has considered employing [Petitioner], however. (AR 708.)

Petitioner acknowledged in this testimony he did not have any present offers of employment from either university he identified. (AR 910-911.) He questioned: “who will touch me with a 10-foot pole unless I'm Board certified?” (AR 911.)

Petitioner argues “it is unrealistic to expect any academic institution to make a formal job offer until the matter before Respondent was settled.” (Opening Brief 15:10-11.) While that might be true, the argument does not undermine the evidence supporting Factual Finding 17. There is no controversy—Petitioner has not been considered for employment by the universities for whatever reason.

The weight of the evidence (in the context of a clear and convincing standard) supports Factual Finding 17. Petitioner has not demonstrated otherwise.

Petitioner asserts “Finding 17 also evidenced Respondent’s failure to apply the correct burden of proof.” (Opening Brief 15:15.) Petitioner argues:

[I]t was not Dr. Tong's burden to establish that his rehabilitative efforts, including his plans for future practice in California, were complete and confirmed in every respect, as it might have been in a hearing on a petition for early termination of probation or reinstatement. Rather, it was Respondent's burden to prove by clear and convincing evidence—evidence so clear as to leave “no substantial doubt”––that his rehabilitative efforts and his ability and willingness to undertake further Board supervised rehabilitation were so deficient as to be inconsistent with public protection. (Opening Brief 15:16-21.)

In the Legal Conclusions section of Respondent’s administrative decision, Respondent correctly notes the Consent Order constitutes "conclusive evidence" of the facts the order states (§ 141, subd. (a)), and “[c]lear and convincing evidence must prove any additional facts supporting California discipline.” (AR 709-710; see also AR 10-13 [Accusation].) Thus, Respondent’s decision acknowledges it[9] has the burden to establish, by clear and convincing evidence, grounds for discipline and “any additional facts” supporting California discipline.

As discussed earlier, the Consent Order conclusively proved grounds for discipline. (§§ 141, subd. (a), 2305.) Given the serious and detailed findings of unprofessional conduct in the Consent Order, the Maryland discipline standing alone, unless adequately undermined by Petitioner, constituted sufficient grounds for Respondent to discipline Petitioner.

Even assuming that were not the case, Respondent could reasonably consider all evidence in the administrative record—including Petitioner’s testimony and that of his experts—when deciding whether Petitioner had been rehabilitated, and whether revocation of Petitioner’s medical license was necessary to protect the public. Contrary to Petitioner’s apparent position, that Respondent considered Petitioner’s testimony does not suggest Respondent misapplied or misunderstood the burden of proof.

Respondent correctly applied the burden of proof in its factual findings and legal conclusions. Petitioner has not demonstrated otherwise.

Petitioner contends the findings do not support the conclusion Petitioner had not been rehabilitated. (Opening Brief 15:25-17:20.)

Petitioner argues “the weight of the evidence at the hearing also established that [Petitioner] has gained significant insight into his conduct and has gained substantial benefit from his Maryland probation.” (Opening Brief 17:9-11.) Petitioner highlights his testimony acknowledging “he should have made the informed consent process in his office more comprehensive, including formalizing it and incorporating written informed consent documents . . . ; that he needs to improve his informed consent discussions with patient's parents . . . ; and that he should refrain from personally delivering glasses to patient's homes or reviewing their Facebook photos to confirm head tilt.” (Opening Brief 17:11-15 [citing AR 911-912, 917].) Petitioner also points out he offered the testimony of Dr. Hunter and Dr. Guyton “with full knowledge that they would express their own critiques of his practice in Maryland.” (Opening Brief 17:16-17 [citing AR 406-407, 453-454, 906-911, 922-923].) Petitioner further relies on his testimony he did not intend to open a private practice in California, rather he would work with pediatric patients in an academic research practice. (Opening Brief 17:1-8; see e.g., AR 868, 909, 921, 919-923.)

Even assuming the court’s independent judgment applies when reviewing the penalty imposed by Respondent, the court finds Petitioner’s position unpersuasive. Based on the whole record, the court agrees with Respondent’s Factual Findings 12, 14, 15, 16 and 17. Such findings support a conclusion Petitioner “has no insight into the reasons for his Maryland discipline, and has gained no benefit from the rehabilitative steps Maryland required.” (AR 710.)

The weight of the evidence (in the context of a clear and convincing standard)—the testimony of Petitioner, Dr. Hunter, Dr. Guyton as well as the other evidence in the record such as blaming his lawyers for allegedly convincing him to agree to the Consent Order—supports Respondent’s conclusion about Petitioner’s lack of insight for the discipline and lack of benefit from rehabilitative steps required by the Maryland Board. (AR 295, 710, 912-914.) The weight of the evidence also supports a finding Petitioner takes no responsibility for the most serious misconduct, blamed the expert reviewers, and contends he was wronged by the Maryland Board.

Exercising its independent judgment, the weight of the evidence (in the context of a clear and convincing standard) supports Respondent’s conclusion that “if [Respondent] permitted [Petitioner] to continue practicing medicine in California, he would continue exactly the same unprofessional conduct that resulted in his Maryland license restriction.” (AR 710.) As Petitioner showed no insight and gained no rehabilitation from the Maryland Board’s discipline, and since Petitioner desired to continue using the same diagnostic and treatment methods on his patients, including children, it is reasonable to conclude Petitioner “would continue exactly the same unprofessional conduct that resulted in his Maryland license restriction.” (AR 710.)

The court is not persuaded Petitioner’s desire to work in an academic setting in California undermines Respondent’s findings and decision. Petitioner acknowledged he wants an unrestricted California medical license to continue service to pediatric patients. (AR 911, 921.) Petitioner admitted he had no offers of employment from any academic institutions in California. (AR 911.)

The possibility that Petitioner could practice medicine with “safety protocols specific to IRB-approved studies” (Opening Brief 16:18) does not change the court’s conclusion Petitioner did not gain insight from the Maryland Board’s discipline and intends to continue the same diagnostic and treatment methods in California—whether in private or academic medical practice—found to be unprofessional conduct in Maryland. Significantly, Petitioner never adequately explained why he should be permitted to practice pediatric ophthalmology in California, after having consented to “permanently ceas[ing]” such practice in Maryland. (AR 292.) In such context, Petitioner’s testimony about his plans if he were permitted to practice medicine show a lack of rehabilitation and insight, not the converse.

Based on the foregoing, the weight of the evidence (in the context of a clear and convincing standard) support all of Respondent’s factual findings, including Factual Findings 12, 14, 15, 16 and 17. The findings support Respondent’s conclusion Petitioner has not rehabilitated from the misconduct at issue in the Consent Order and grounds for discipline against Petitioner’s medical license exist. Petitioner does not meet his burden of demonstrating any prejudicial abuse of discretion by Respondent. (Code Civ. Proc., § 1094.5, subd. (b).)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “[T]he court does not exercise its own judgment and may not substitute ‘its own . . . discretion for that of the board with respect to the penalty to be imposed.’ ” (Bryce v. Board of Medical Quality Assurance (1986) 184 Cal.App.3d 1471, 1474.)

“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.’ [Citation.] 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.’ (§ 2229, subds. (a) & (b).) Punishment is not a goal.” (Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 448.)[10]

"In reaching a decision on a disciplinary action under the Administrative Procedure Act (Government Code section 11400 et seq.), the Medical Board of California shall consider the disciplinary guidelines entitled ‘Manual of Model Disciplinary Orders and Disciplinary Guidelines’ (12th Edition/2016) which are hereby incorporated by reference." (Cal. Code Regs., tit. 16, § 1361.) The manual specifies the maximum penalty for “disciplinary action taken by others” is revocation. (AR 1365.)

As discussed earlier, the weight of the evidence (in the context of a clear and convincing standard) supports Respondent’s finding that “if the Board permitted [Petitioner] to continue practicing medicine in California, he would continue exactly the same unprofessional conduct that resulted in his Maryland license restriction. Moreover, . . . [Petitioner] has no insight into the reasons for his Maryland discipline, and has gained no benefit from the rehabilitative steps Maryland required.” (AR 710-711.)

Accordingly, the court cannot find Respondent’s penalty decision constitutes a manifest abuse of discretion. The Consent Order includes detailed findings of unprofessional conduct, including findings of incompetence and negligence for which Petitioner has not accepted responsibility. Since Petitioner did not gain insight or rehabilitation from the Maryland discipline, Respondent could reasonably determine public safety compels revocation of Petitioner’s medical license. While discipline should aid in rehabilitation when possible, protection of the public is paramount. (§ 2229.)

Petitioner contends the penalty imposed was excessive because he had no prior discipline; he was not convicted of a crime or charged with dishonesty; and he completed the Maryland probation and “a massive amount of [continuing education].” (Opening Brief 19:22.) Petitioner contends if Respondent “felt that [Petitioner] required additional insight and rehabilitation before resuming unrestricted practice, it was fully within Respondent's power to order probation in California on terms and conditions crafted to address areas it felt remained deficient.” (Opening Brief 17, fn. 14.) Petitioner also points out that the California discipline exceeded the discipline imposed in Maryland. (Opening Brief 1:23-24.)

Respondent’s findings of lack of insight and rehabilitation amply support a penalty of revocation, despite potential mitigating factors. That Respondent may have had discretion to impose a lesser penalty does not mean the penalty imposed was unreasonable. Indeed, if reasonable minds can differ as to the propriety of the penalty, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

The circumstances in the California action are different from those in Maryland. Petitioner consented to the discipline in Maryland and did not testify or present Dr. Guyton and Dr. Hunter as expert witnesses at a hearing. The Maryland action did not consider whether Petitioner had rehabilitated from serious misconduct found in a different state. Furthermore, the Maryland discipline was substantial and included a “permanent” prohibition on Petitioner practicing pediatric ophthalmology. Given the different circumstances, it is not significant that the Maryland action resulted in a somewhat lesser penalty.

Primarily in reply, Petitioner contends he was not required to make “statements of attrition” for all misconduct found in the Consent Order, and his “limited but sincere acknowledgment of wrongdoing” weighs for a lesser penalty. (Reply 7:3-8 [discussing Calaway v. State Bar (1986) 41 Cal.3d 743, 747-748 and Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730]; see also Opening Brief 7:22-8:2 and fn. 11.) While Petitioner had no obligation “to become the fraudulent penitent for his own advantage” (Calaway v. State Bar, supra 41 Cal.3d at 747), Respondent could reasonably consider the extent to which he accepted responsibility for the Maryland misconduct in its rehabilitation findings and its determination that license revocation was necessary to protect the public. Neither Calaway v. State Bar nor Hall v. Committee of Bar Examiners, involving state bar and not medical board proceedings, supports a different conclusion.

The court finds the penalty imposed by Respondent was reasonable and did not constitute a manifest abuse of discretion.

[1] Strabismus, “a condition commonly referred to as ‘cross-eyed,’ is a problem with eye alignment, in which both eyes do not look at the same place at the same time.” (AR 282.)

[2] Amblyopia “commonly referred to as ‘lazy eye,’ is a disorder of sight in which the brain fails to process inputs from one eye and over time favors the other eye, resulting in decreased vision.” (AR 281.)

[3] All undesignated statutory references are to this code.

[4] Section 2234 defines unprofessional conduct. The section requires Respondent to “take action against any licensee who is charged with unprofessional conduct.”

[5] The Consent Order quotes Petitioner’s statement. (AR 22.)

[6] Dr. Guyton did state, “I’ve done it sometimes.” (AR 824.) He followed the statement with, “Not as long as [Petitioner] has.” (AR 824.) Dr. Guyton explained Petitioner was using prism adaptation for vertical misalignments which had not been “studied” and was “not usual practice, . . . .” (AR 824.) Dr. Guyton opined that the use of prisms over long periods of time could cause “muscle lengths to change . . .” with the potential for harm. (AR 824-825.) Dr. Guyton had seen patient harm from “long periods of time” in three patients. (AR 825.)

[7] Dr. Guyton did not testify he used those treatment methods used by Petitioner. (See Opening Brief 12:13 [citing AR 809].) Dr. Guyton’s testimony referenced Petitioner’s “special way of picking up these small misalignments -- of picking up misalignments other doctors would never see. I’ve tried his approach and it works quite well.” (AR 808-809.)

[8] Petitioner does not challenge the first sentence of the finding:

Respondent wishes to continue holding his California physician's and surgeon's certificate because he would like to relocate to California (where he has family ties) and resume practicing pediatric ophthalmology. He sees his license restriction in Maryland as a "tragedy," but he hopes to recover from this tragedy in California, where he can "help the world. (AR 708. See Opening Brief 15:5-8.)

[9] The complainant in the Accusation is Respondent’s executive director, William Prasifka.

[10] Section 2229 states in relevant part:

(a) Protection of the public shall be the highest priority . . . . (b) In exercising . . . disciplinary authority . . . [the ALJ and 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. (c) It is the intent of the Legislature that the [Board] shall seek out those licensees who have demonstrated deficiencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice, or other means, that will remove those deficiencies. Where rehabilitation and protection are inconsistent, protection shall be paramount.