Cooper v. Board of Medical Examiners

• Decision Date: 18 June 1975
• Citation: 49 Cal.App.3d 931,123 Cal.Rptr. 563
• Court: California Court of Appeals Court of Appeals
• Parties: John R. COOPER, Ph.D., Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent. Civ. 35011.

Page 563

123 Cal.Rptr. 563

49 Cal.App.3d 931

John R. COOPER, Ph.D., Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.

Civ. 35011.

Court of Appeal, First District, Division 4, California.

June 18, 1975.

As Modified July 16, 1975.

Stewart & Steiner, by W. K. Stewart, Carmel, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., of the State of California, Louis C. Castro, Deputy Atty. Gen., San Francisco, for defendant and respondent.

RATTIGAN, Acting Presiding Justice.

John R. Cooper, Ph.D., appeals from a judgment of the superior court denying him mandamus relief upon administrative review of respondent State Board of Medical Examiners' action revoking his license as a licensed psychologist.

On September 21, 1971, the Psychology Examining Committee of respondent Board ¹ filed an accusation against appellant's license. Appellant was charged therein with four causes for disciplinary action, based upon allegations that he had illegally prescribed and furnished dangerous drugs and engaged in sexual and other physical intimacies with three female patients.

The Committee conducted a hearing on the accusation on August 7, 8 and 9 and October 18, 1972, and formulated a written decision in which the allegations of three of the causes of action stated in the accusation were found to be true and the penalty proposed as to each ('separately and severally considered') was revocation of appellant's license. Respondent Board adopted the Committee's proposed decision on November 15, 1972.

On June 12, 1973, appellant filed a petition for a writ of administrative mandamus in the superior court, seeking review of the Board's decision pursuant to Code of Civil Procedure section 1094.5. After a trial on August 30, 1973, ² the court signed and filed its findings of fact and conclusions of law and, on December 21, 1973, entered judgment denying the petition for mandamus. This appeal is from the judgment.

The facts shown in the evidence received at the administrative hearing before the Committee are extensive and detailed, and are adequately summarized in the briefs. For both reasons, we need not recite them except as pertinent to our discussion of appellant's contentions. For the reasons respectively stated therein, none of his contentions may be sustained; we affirm the judgment denying relief in mandamus.

(1) Constitutionality Of The Pertinent Statutes

Appellant contends that 'respondent Board . . . has proceeded without, and in excess of, jurisdiction.' The thrust of this argument is that the statutes and rules under which the Committee functions are constitutionally vague in that they provide no ascertainable standards for enactment of Committee rules, that they fail to specify whether the Committee or respondent Board is the agency charged with enforcement of the Psychology Licensing Law, and that the Administrative Procedure Act is unclear as to whether it applies to both the Committee and the Board. We disagree.

The states clearly provide that the provisions of the Psychology Licensing Law (Bus. & Prof.Code, § 2900 et seq.) are to be administered and enforced by the Committee except as to those functions specifically vested in the Board. ³ Section 2965 specifically provides that disciplinary proceedings are to be conducted pursuant to the Administrative Procedure Act (Gov.Code, § 11500 et seq.). As the Committee has the authority to enforce the Psychology Licensing Law, the fact that section 2960 provides that the Committee 'may' take disciplinary action against a licensee does not create uncertainty as to the Committee's Authority to take such action.

Appellant erroneously assumes that, since the Board adopts the decisions of the Committee (§ 2961), ⁴ the Board is deciding the case in violation of the principle that the 'one who decides must hear.' This argument is untenable because the Board's function under section 2961 is strictly ministerial: it is required to issue an order imposing discipline in accordance with the Committee's decision. (56 Ops.Atty.Gen. 50.)

Appellant next contends that the Legislature failed to establish any standards for the rule-making authority delegated to the Committee. To the contrary, it appears that the power delegated to the Committee by statute, to promulgate rules of professional conduct, ⁵ is entirely consistent with the principle (reflected in the many licensing acts in the Business and Professions Code) that administrative agencies are better qualified to determine and set the standards of professional conduct in the specific area of their expertise.

In the present case, the rule-making authority of the Committee is sufficiently clear to allow regulation in accordance with the standards of the profession. Rule 1397.3 (which appellant was found to have violated) and Rule 1397.4 are sufficiently clear so as to be understood by persons of common intelligence. ⁶

Since a licensed psychologist is not authorized to prescribe drugs, it is obvious he is functioning outside his field of competence if he prescribes for a patient. Appellant's related argument that the practice of an administrative agency functioning as both prosecutor and judge constitutes a denial of due process may be summarily dismissed. (See, e.g., Murphy v. Board of Medical Examiners (1946) 75 Cal.App.2d 161, 162--163, 170 P.2d 510.) Similarly, we need not consider his challenge of the validity of that provision of the Administrative Procedure Act which permits the agency to call a respondent to testify. ⁷ Appellant did not appear at the hearing, nor was he called by the agency.

(2) Sufficiency Of The Evidence

Appellant contends that the judgment is unsupported by the findings, and that the findings in turn are not based upon substantial evidence. In urging this court to review the evidence, he erroneously argues that This court is to apply the independent judgment test and that the judgment must be reversed if the trial court's findings are not supported by the weight of the evidence.

As required in administrative mandamus proceedings of this type, the Trial court exercised its independent judgment and reweighed the evidence. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69, 64 Cal.Rptr. 785, 435 P.2d 553.) This court's review is limited by the well-settled rule of Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 309, 196 P.2d 20, which requires that the trial court's decision be upheld if it is supported by any credible, competent evidence. (Yakov v. Board of Examiners, supra, at pp. 71--72, 64 Cal.Rptr. 785, 435 P.2d 553; Packer v. Board of Medical Examiners (1974) 37 Cal.App.3d 63, 69, 112 Cal.Rptr. 76.) Upon application of this test at our level of review, it is apparent that the findings are amply supported by the evidence.

Appellant specifically challenges the trial court's findings 3, 4 and 5 for insufficiency of the evidence. Each fact recited in findings 3 and 4 is supported by the direct, unambiguous, unimpeached, uncontradicted testimony of Justyn Kramer. Each fact recited in finding no. 5 is supported by the similar testimony of Francine Pavia.

Section 2960, subdivision (i), provides that a psychologist's license may be revoked if he is 'grossly negligent in the practice of his profession.' The California Supreme Court in Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588, 594, 297 P.2d 644, 648, defined 'gross negligence' as 'the want of even scant care or an extreme departure from the ordinary standard of conduct.'

Dr. Mervin Freedman, whose qualifications were not challenged by appellant, testified that conduct such as that described in findings 3 and 5 constituted an 'extreme departure from the standard of practice of psychology.'

Section 2904 prohibits psychologists from prescribing drugs. Such conduct is also a violation of Rule 1397.3, which prohibits a psychologist from functioning outside his area of expertise. The fact that such actions also constitute violations of several criminal statutes dispels any doubt as to the Committee's power to hold such conduct to be a ground for disciplinary action. It also precludes credibility to appellant's claim that the rules give insufficient notice that such conduct is prohibited. Under the applicable statutes the findings of fact, all of which are supported by substantial evidence, constitute sufficient bases for disciplinary action against appellant. ⁸

(3) Notice Of The Charges

Appellant contends that the accusation was so vague as to give him inadequate notice of the charges against him, precluding him from preparing a defense. Specifically, he objects to the charges that he subjected each of the three named patients to 'improper and unethical psychological services Including but not limited to the following . . .' (Emphasis added.) Although each charge goes on to allege specific conduct by appellant considered to be in violation of specified statutes, appellant contends that the language, 'including but not limited to,' fails to comport with due process.

This contention is unsound for two reasons. First, the liberal rules of administrative pleading require only that the respondent licensee be informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process. (Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 213, 98 Cal.Rptr. 467, 490 P.2d 1155.) Second, the challenged language was considered at the commencement of the hearing, at which time counsel for the Committee stated to the hearing officer that he would only introduce evidence relevant to those charges specifically pleaded.

A variance between the allegations of a pleading and the proof will not be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits, and a variance may be disregarded when the action has been as fully and fairly tried on the merits...