Judge: Timothy B. Taylor, Case: 37-2023-00009310-CU-WM-CTL, Date: 2023-09-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Writ of Mandate Hearing on Petition 37-2023-00009310-CU-WM-CTL CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS (IMAGED] CAUSAL DOCUMENT/DATE FILED: Petition for Writ of Mandate, 03/03/2023

Tentative Ruling on Merits Cullen v. Medical Board of Calif, Case No. 2023-09310 Sept. 21, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

In this case, the petitioner, a pain management doctor since 2010, seeks a writ of mandate pursuant to CCP section 1094.5 directing respondent, the Medical Board of California,* to set aside an order imposing probation and placing other conditions on his license to practice medicine. The hearings below took place in September, 2022. The Medical Board's decision was handed down in January, 2023, and the present petition was filed in March. The Medical Board answered. ROA 15.

The court set the case for hearing. ROA 16. The parties later approached the court for a continuance, which the court allowed. ROA 17-25.

The court has reviewed the record and the merits briefs. ROA 26-35, 37, 38-41. One complexity exists regarding the record: The disciplinary charges involved the treatment of four different patients, and the administrative decision found petitioner's conduct with respect to each of these patients to be below the standard of care. The parties apparently concluded that three sets of patient records had to be included in the administrative record. The practical result was the delivery to the Dept. 72 chambers of 5 cartons crammed with 14 binders 'filed conditionally under seal.' The patient charts are as follows: Patient RM: EXHIBIT '11a': AR-0324 – AR-0823 EXHIBIT '11b': AR-0824 – AR-1083 Patient SD: EXHIBIT '15a': AR-1168 – AR-1667 EXHIBIT '15b': AR-1668 – AR-2167 EXHIBIT '15c': AR-2168 – AR-2667 Calendar No.: Event ID:  TENTATIVE RULINGS

2972671 CASE NUMBER: CASE TITLE:  CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF  37-2023-00009310-CU-WM-CTL EXHIBIT '15d': AR-2668 – AR-3167 EXHIBIT '15e': AR-3168 – AR-3667 EXHIBIT '15f': AR-3668 – AR-4167 EXHIBIT '15g': AR-4168 – AR-4364 Patient DB: EXHIBIT '19a': AR-4547 – AR-5046 EXHIBIT '19b': AR-5047 – AR-5546 EXHIBIT '19c': AR-5547 – AR-6046 EXHIBIT '19d': AR-6047 – AR-6546 EXHIBIT '19e': AR-6547 – AR-6781 Of this more below. In any event, no further briefing is permitted in connection with this matter.

2. Applicable Standards.

A. Petitioner has expressly invoked Code of Civil Procedure section 1094.5, which 'provides the basic framework by which an aggrieved party to an administrative proceeding may seek judicial review of any final order or decision rendered by a state or local agency.' Bixby v. Pierno (1971) 4 Cal.3d 130, 137. In ruling on a petition for writ of administrative mandate, the court reviews the administrative record to determine whether: (1) the administrative agency exceeded its jurisdiction; (2) there was a fair trial; and (3) there was any prejudicial abuse of discretion. Code Civ. Proc. § 1094.5(b). 'Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.' Id. B. Where it is claimed that the findings are not supported by the evidence and the case does not involve a fundamental vested right, 'abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.' (Id., § 1094.5, subd. (c); American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 607.) According to petitioner (Reply at 1-3), this court must apply the holding in Li v. Superior Court, 69 Cal. App. 5th 836 (2021), and review the evidence as a whole under the clear and convincing evidence standard. The court finds that it need not decide today whether this is a correct statement of the law, for the reasons discussed in part 3, infra.

C. It is not the function of the courts to resolve differences of medical judgment regarding standard of care: 'This principle is particularly applicable to the type of professional decision under review. Courts are ill-equipped to assess the judgment of qualified physicians on matters requiring advanced study and extensive training in medical specialties.' (Bonner v. Sisters of Providence Corp. (1987) 194 Cal.App.3d 437, 447–448, citing Unterthiner v. Desert Hospital Dist. (1983) 33 Cal.3d 285, 294–295, 298; Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 154.) D. The administrative record may only be augmented where the proponent makes the showing under CCP section 1094.5(e): 1) that the proposed evidence could not have been produced at the administrative hearing through the exercise of reasonable diligence; or 2) that the proposed evidence was improperly excluded at the administrative hearing. Situations in which such 'extra-record' evidence should be admitted by a court are relatively rare. Western States Petroleum Assn. v. Superior Court, 9 Cal. 4th 559, 578 (1995); City of Fairfield v. Superior Court, 14 Cal. 3d 768, 776 (1976); Toyota of Visalia v. New Motor Vehicle Bd., 188 Cal. App. 3d 872, 881 (1987). Determination of the question of whether one of the exceptions (to the general rule of non-admissibility) applies is within the discretion of the trial court, and 'will not be disturbed unless it is manifestly abused.' Pomona Valley Med. Ctr. v. Superior Court, 55 Cal. App. 4th 93, 102 (1997). Generally speaking, the rule in mandamus cases is: 'take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.' Protect Our Water v. Cty. of Merced, 110 Cal. App. 4th 362, 364 (2003).

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2972671 CASE NUMBER: CASE TITLE:  CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF  37-2023-00009310-CU-WM-CTL E. CRC 2.550(c) and (d) make clear that the parties face a heavy burden in connection with the sealing request. Courts are public institutions, and the American tradition is that the public's business is not conducted in secret. The presumption of openness, the need for a showing of an overriding interest justifying secrecy, and the requirement of a showing justifying detailed findings by the court set forth in CRC 2.550 are all based on the Supreme Court's decision in NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178. These are matters of constitutional dimensions in a free and open society.

Secrecy in connection with the public resolution of disputes is disfavored. Compare SDCERS v. Superior Court (2011) 196 Cal.App.4th 1228.

The Courts of Appeal have held that the right of privacy can override the right of access, but only under very limited circumstances. Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471 ('Overstock.com'); In re: Marriage of Burkle (2006) 135 Cal.App.4th 1045 ('Burkle'). Overstock.com suggests that a privacy interest in confidential client financial information may take precedence, and Burkle indicates that social security numbers and bank account numbers could be redacted from family court files.

These issues are addressed in Copley Press v. Superior Court (1998) 63 Cal.App.4th 367. In that case, a 15-year-old boy was sexually assaulted with a broomstick by three of his teammates on the high school baseball team. His civil claim against the school district was settled without litigation, but the settlement came before the Superior Court on a petition to approve minor's compromise, pursuant to section 3500 of the Probate Code. The court approved the settlement and approved a stipulation to seal the file, including the data as to the amount of the settlement. Petitioner Copley Press sought to unseal the records, the court denied that request, and the Court of Appeal reversed: 'Public policy requires public records and documents to be available for public inspection to prevent secrecy in public affairs. ... 'It is a first principle that the people have the right to know what is done in their courts.' (In re: Shortridge (1893) 99 Cal. 526, 530 [34 P. 227].)' The public has a legitimate interest in access to court documents because '[i]f public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice and favoritism.' (Estate of Hearst (1977) 67 Cal. App. 3d 777, 784 [136 Cal. Rptr. 821].) ... Probate proceedings, including a petition for minor's compromise, are not closed proceedings. No statute exempts probate files from the status of public records. [citing Hearst] As explained in Hearst in the context of a testamentary trust, 'when individuals employ the public powers of state courts to accomplish private ends...they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed...will be open to public inspection.' ...Here, the student and District sought judicial approval and protection for settling the student's negligence claim against District. ...[N]o compelling reason exists to conceal the agreed-upon amount from the public when weighed against the public's right to know what transpires in both public schools and state courts.' (Copley, supra, at 373-376.) Seven years after Copley Press, another court distinguished its holding that no compelling reason existed to conceal the amount of damages in a civil settlement between a minor sexual assault victim and the school's insurer with the privacy with the due process rights at issue in a criminal action involving accusations of sexual relationships with a minor. People v. Jackson, 128 Cal. App. 4th 1009, 1023 (2005). But five years later, the court in In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1577-78 (2010), reiterated the importance of the holdings in Copley Press in civil matters, and distinguished an earlier case (Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060), which had held (prior to NBC Subsidiary, supra) that the passage of time could give rise to a party's right to rely on continued sealing.

Beyond the infringement of the public's right to know what is going on in public courts of record, there are other dangers associated with the blithe granting of sealing orders. The court in the Overstock.com case, supra, 231 Cal.App.4th at 499, took the parties to task for inundating the trial court with '[a] deluge of confidential materials' amounting to 'brute litigation overkill.' Dealing with sealed documents, from both a judicial perspective and particularly from a clerical one, is very unwieldy, cumbersome and time-consuming. And the court can only imagine the consternation at the Court of Appeal when a massive record arrives there, interspersed with sealed records.

F. Patients have a right to privacy with respect to information contained in medical records; both federal and state law protects this right. Federal first: 'Recognizing the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems, Congress passed Calendar No.: Event ID:  TENTATIVE RULINGS

2972671 CASE NUMBER: CASE TITLE:  CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF  37-2023-00009310-CU-WM-CTL HIPAA in August 1996.' (South Carolina Medical Ass'n. v. Thompson (4th Cir.2003) 327 F.3d 346, 348; see Pub.L. No. 104–191 (Aug. 21, 1996) 110 Stat.1936.) Portions of HIPAA were intended to facilitate information exchange among participants in the health care system (42 U.S.C. §§ 1320d to 1320d–8 (HIPAA §§ 261–262, Pub.L. No. 104–191, § 261–262 (Aug. 21, 1996) 110 Stat.2021–2031)), but Congress foresaw that with easier transmission of intimate medical details would come a heightened risk of privacy loss (65 Fed.Reg. 82469 (Dec. 28, 2000); see also Northwestern Memorial Hosp. v. Ashcroft (7th Cir.2004) 362 F.3d 923, 928–929 ['the sensitivity that lies behind HIPAA' is concern for the 'natural sensitivity that people feel about the disclosure of their medical records'] ). Brown v. Mortensen, 51 Cal. 4th 1052, 1066, 253 P.3d 522, 530 (2011).

In California, the right of privacy in medical records is addressed in the California Confidentiality of Medical Information Act, Cal. Civil Code §56.10. It is also of constitutional dimensions, and this is 'well-settled. (See Hill, 7 Cal.4th at p. 52, 26 Cal.Rptr.2d 834, 865 P.2d 633; Cross, 11 Cal.App.5th at pp. 325-326, 217 Cal.Rptr.3d 569; Medical Bd. of California v. Chiarottino (2014) 225 Cal.App.4th 623, 631, 170 Cal.Rptr.3d 540; People v. Martinez (2001) 88 Cal.App.4th 465, 474–475, 105 Cal.Rptr.2d 841.... As one court explained, '[t]he matters disclosed to the physician arise in most sensitive areas often difficult to reveal even to the doctor. Their unauthorized disclosure can provoke more than just simple humiliation in a fragile personality. ... The individual's right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones.

The state of a person's gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person's bank account, the contents of his library or his membership in the NAACP.' (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679, 156 Cal.Rptr. 55.) ... The right to privacy, however, is not absolute. (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633; Fett v. Medical Bd. of California (2016) 245 Cal.App.4th 211, 221, 199 Cal.Rptr.3d 196 (Fett).) Potential invasions of privacy are ordinarily evaluated by balancing the privacy interest at stake and the seriousness of the threatened invasion with the strength of legitimate and important countervailing interests.' Grafilo v. Wolfsohn, 33 Cal. App. 5th 1024, 1034, 245 Cal. Rptr. 3d 564, 571–72 (2019).

3. Discussion and Rulings.

A. The stipulated request for the sealing of the 5 boxes/14 binders of documents referenced in part 1 above is denied.

The parties' stipulations devote exactly two sentences to the subject of sealing: 'TO THE HONORABLE COURT: PLEASE TAKE NOTICE that pursuant to California Rules of the Court, RULE 2.551, Petitioner Jeffrey A. Cullen, M.D. and Respondent Medical Board of California hereby jointly submit the following documents conditionally under seal with the above-entitled court as outlined in the Joint Submission of Record of Administrative Proceedings and Reporter's Transcript of Proceedings.' and 'The following portions of the Record of Administrative Proceedings are filed under seal: Complainant's Exhibits 11a, 11b, 15a, 15b, 15c, 15d, 15e, 15f, 15g, 19a, 19b, 19c, 19d, and 19e.' ROA 26, 27. This is a far cry from the 'memorandum and ... declaration containing facts sufficient to justify the sealing' required by CRC 2.551(b)(1). Indeed, CRC 2.551(a) expressly forbids a court from allowing sealing 'based solely on the agreement or stipulation of the parties.' Among other striking deficiencies, the parties' approach says nothing about the 'narrow tailoring' required by CRC 2.550(d), and it is abundantly clear that the parties made no effort to redact the records or otherwise narrowly tailor the proposed sealing. Simply put, the court cannot, on this sparse/non-existent showing, make the detailed findings required under Rule 2.550(d).

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2972671 CASE NUMBER: CASE TITLE:  CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF  37-2023-00009310-CU-WM-CTL These deficiencies are particularly acute when considered against the backdrop of petitioner's theory of the case. He does not contend that the records proposed to be sealed contain evidence exonerating him. Rather, he asserts (ROA 1, 4) that the Medical Board improperly adopted 'guidelines for the prescribing of controlled substances that were published by the Medical Board in 2014,' as well as 'later guidelines published by the CDC' as the standard of care despite the fact that those guidelines 'specifically provided that they were not intended to mandate the standard of care,' and then exacerbated the problem by ignoring 'the testimony of two separate highly trained and well qualified expert witnesses produced by petitioner that established that the standard of care was met' by petitioner.

Under these circumstances, the court denies the sealing request in full. To protect the privacy of the three patients, the court orders the 5 boxes lodged as conditionally sealed returned to petitioner forthwith. The court will not consider these patient records, and they are not part of the record.

Petitioner's counsel should bring a cart to the hearing so these boxes can be retrieved. Otherwise, the contents of the boxes will be destroyed by the court.

B. Respondent's objections to petitioner's attempt to augment the administrative record are sustained, and petitioner's tardy motion to augment (ROA 40)** is denied. The irony of petitioner's position is not lost on the court: he wants the court to consider an unauthenticated document that was not discussed by any witness below, and essentially allow that document to walk into court and testify. This is precisely what he (incorrectly) accuses the ALJ of doing with the Guidelines that were the subject of expert testimony below. Moreover, the 2023 Guidelines are not relevant to a resolution of a dispute over conduct five years earlier.

C. Turning to the merits of the petition: For several decades, the United States has been battling an onslaught of societal problems arising from addiction to prescription pain medication (including OxyContin and other opiod/opiate derivatives. See generally In re OxyContin Products Liability Litigation, 395 F. Supp. 2d 1358 (MDL 2005); United States v. Purdue Pharma, 600 F. 3d 319 (4th Cir.

2010); 'Sacklers Near Deal to Increase Opiod Settlement in Purdue Bankruptcy,' 71 No. 6 Bankr. Ct.

Dec. News 2 (2/17/22). The court has little doubt that the accusations leveled against petitioner arise, at least in some part, as the result of the increased public attention this crisis has brought to the practices of pain management physicians like petitioner. The court cannot say that this increased vigilance by those charged with monitoring the conduct of physicians is inappropriate. It really cannot be gainsaid that addiction to prescription pain medication has laid waste to entire communities, and many of these are in already economically challenged areas. This case involves just such a patient population: petitioner saw the patients that were the subject of the underlying accusation in a 'federally qualified health center (FQHC) that serves largely underserved community populations.' As already noted, petitioner contends that the Medical Board improperly adopted 'guidelines for the prescribing of controlled substances that were published by the Medical Board in 2014,' as well as 'later guidelines published by the CDC' as the standard of care despite the fact that those guidelines 'specifically provided that they were not intended to mandate the standard of care,' and then exacerbated the problem by ignoring 'the testimony of two separate highly trained and well qualified expert witnesses produced by petitioner that established that the standard of care was met' by petitioner. 8/29/23 Supp. Br. at 2:22-26.

But that is not what happened at all. The hearing officer/ALJ did not allow the 'guidelines for the prescribing of controlled substances that were published by the Medical Board in 2014' or the 'later guidelines published by the CDC' to walk into the hearing room and authenticate themselves, and then uncritically adopt those guidelines as the standard of care. Instead, the respondent (complainant in the inferior tribunal) called a qualified expert (James Huang, MD), who testified extensively regarding the standard of care. E.g. ALJ Decision*** at 10-15, 28-31, 39, 47. While he did endorse the guidelines petitioner criticizes as being indicative of the standard of care, it is simply not accurate for petitioner to suggest that he stopped there.

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2972671 CASE NUMBER: CASE TITLE:  CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF  37-2023-00009310-CU-WM-CTL Far from 'ignoring' petitioner's experts (as petitioner contends the ALJ did), the hearing officer recounted the expert testimony at length (e.g. ALJ Dec. at 15-19, 31-32, 40, 47) and then plainly stated at pp.

56-59 of his decision: '192. The decision in this matter requires resolving the conflict in the testimony of the experts. In this regard, consideration has been given to their qualifications and credibility, the factual bases of their opinions, the reasons for their opinions, and any biases that could color their opinions and review of the evidence. California courts have repeatedly underscored that an expert's opinion is only as good as the facts and reasons upon which that opinion is based. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 924.) 'After giving due consideration to these factors, Dr. Huang's opinions regarding respondent's care and treatment of the four patients at issue in this matter are found more persuasive than Dr. Stenzel's opinions. The weight given to Dr. Badre's opinions is discussed below.

'193. The conclusion to give more weight to Dr. Huang's opinions than Dr. Stenzel's is reached primarily for this reason: While Drs. Stenzel and Huang both have impressive credentials and experience, on balance, Dr. Huang is found to be more qualified as an expert in the area of pain management therapy considering his long standing work at the VA and Loma Linda, and his extensive experience teaching residents and interns since 2002 in both the inpatient and outpatient settings. Dr. Huang also has extensive clinical experience treating patients through his work at the VA since 2000, and he has significant experience treating patients with opioids and other addictive medications in opioid pain management therapy. He has kept up on the literature regarding the applicable standards of care for management of opioid pain management and addictive medications patients. Dr. Huang articulated, in great detail, the applicable standards of care for the treatment of pain management patients. These standards of care are well-founded and based on the board's and CDC's guidelines and other sources.' (Emphasis by this court.) ...

'194. Concerning Dr. Badre's testimony and his opinions, Dr. Badre testified as a dispassionate expert from his perspective in the field of forensic psychiatry. His testimony with respect to the appropriateness of the benzodiazepines, and Ambien, respondent prescribed to patients B and C is found persuasive.' (Emphasis by this court.)**** From all that appears, the ALJ did exactly what the law of California summarized in CACI 219 and CACI 221 requires fact finders to do when analyzing expert testimony. The ALJ's opinion reflects his careful attention to the testimony and other evidence in this case, and his painstaking, 79 page effort to lay out in excruciating detail the evidence supporting his conclusion that petitioner deviated from the standard of care. The physicians who testified in the hearing below appeared before the ALJ; he had the opportunity to observe their demeanor, while this court did not. This court may not set aside the ALJ's credibility determinations.

Petitioner attempts to make a great deal out of the recitations in the Board and CDC guidelines: 'These guidelines are not intended to mandate the standard of care' and 'the recommendations in the guideline are voluntary, rather than prescriptive standards.' These disclaimers were written in 2014 and 2016, but the conduct in question occurred in 2016-2018. Simply put, it is not inconsistent to testify that published standards not initially intended to set the standard of care later became the standard of care due to widespread adoption by physicians.

There was no miscarriage of justice here. There is nothing suggesting the Medical Board exceeded its jurisdiction in adopting the ALJ decision. Petitioner received a fair trial, and has failed to demonstrate any prejudicial abuse of discretion. This is so because respondent has proceeded in the manner required by law, the decision was supported by the findings, and the ALJ's findings were supported by clear and convincing evidence in light of the whole record.

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2972671 CASE NUMBER: CASE TITLE:  CULLEN MD VS MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF  37-2023-00009310-CU-WM-CTL For the foregoing reasons, the petition is denied. Respondent is ordered forthwith to submit a judgment consistent with the foregoing.

____________________________ *The Medical Board is the unit of the California Department of Consumer Affairs 'charged with the duty to protect the public against incompetent, impaired, or negligent physicians.' (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7.) **Petitioner erroneously called ROA 40 an 'opposition.' As respondent notes in its opposition brief filed two days ago (ROA 42), the motion was not filed until after respondent pointed out what petitioner was trying to accomplish.

***The ALJ Decision is attached to the petition as Ex. 3. It is actually called a 'Proposed Decision,' but it was adopted by the respondent by order dated January 24, 2023. A subsequent rehearing request was denied by operation of law.

****Petitioner's contention that the ALJ 'ignored' Dr. Badre's testimony is negated by the ALJ's express conclusion that it was 'persuasive.' Calendar No.: Event ID:  TENTATIVE RULINGS

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