Dresser v. Board of Medial Quality Assurance

• Decision Date: 23 March 1982
• Citation: 130 Cal.App.3d 506,181 Cal.Rptr. 797
• Court: California Court of Appeals Court of Appeals
• Parties: John W. DRESSER, PH.D., Petitioner and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, State of California, Respondent. Civ. 61274.

Page 797

181 Cal.Rptr. 797

130 Cal.App.3d 506

John W. DRESSER, PH.D., Petitioner and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, State of California, Respondent.

Civ. 61274.

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

March 23, 1982.

As Modified April 7, 1982.

Hearing Denied May 20, 1982.

[130 Cal.App.3d 509] Haight, Dickson Brown & Bonesteel, Michael J. Bonesteel, Roy G. Weatherup and Jerry M. Custis, for petitioner and appellant.

George Deukmejian, Atty. Gen., and Calvin W. Torrance, Deputy Atty. Gen., for respondent.

McCLOSKY, Associate Justice.

Appellant John W. Dresser, Ph.D., appeals from a judgment of the superior court denying him mandamus relief upon administrative review of Board of Medical Quality Assurance (hereafter "Board" or "Committee") action revoking his license as a psychologist. He contends that: (1) the Board's decision is invalid because it was based entirely on past conduct, rather than evidence of Dr. Dresser's current fitness; (2) the Board's decision amounted to imposition of per se or strict liability, both of which are impermissible; (3) the evidence failed to support the finding that the alleged conduct was an "extreme departure" from local, professional standard; (4) the exclusion of Dr. Forer's testimony was prejudicially erroneous; and (5) the penalty of license revocation was grossly disproportionate to Dr. Dresser's alleged conduct.

[130 Cal.App.3d 510]

A. FACTS AND NATURE OF THE CASE

Appellant, a licensed psychologist, engaged in sexual relations with two of his clients during a period of time when each was in therapy with him for her psychosexual problems. The proposed decision of the administrative law judge who conducted

the Board hearing, filed August 30, 1979, found that he had engaged in three acts of sexual intercourse and one act of oral copulation with his client, Starlyn F., during the period May, 1974 until June 1975, and that he engaged in three acts of sexual intercourse with his client, Mary B., during the period September 1974 through December 3, 1974. The proposed decision of the administrative law judge adopted by the Board, found that said sexual relations with appellant caused harm and were detrimental to each of the two clients, were extreme departures from the standard of practice of psychotherapists as in the Southern California area, found that cause for suspension or revocation of appellant's license existed pursuant to the provisions of former section 2960, subdivision (i) of the Business and Professions code, in that appellant had been guilty of gross negligence as set forth in the respective findings, ¹ and revoked appellant's license

Appellant filed a petition in the superior court for a Writ of Mandate to compel the Board to set aside its decision. Following a hearing that court gave judgment denying a peremptory writ of mandate. This appeal is from that judgment.

B. STANDARD OF REVIEW

In cases involving the Board's decision to revoke a professional license, the independent judgment standard is the standard to be used by the superior court except as to the determination of the penalty imposed. Thus in this case, the trial court had to exercise its independent judgment on the evidence. (Code Civ.Proc. § 1094.5, subd. (c) and Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69 [64 Cal.Rptr. 785, 435 P.2d 553].) This court's standard of appellate review is stated in Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 577-578 [146 Cal.Rptr. 653] as follows:

"Where, ... the trial [130 Cal.App.3d 511] court has rendered its independent judgment following a review of the evidence presented at the administrative hearing, the role of an appellate court is to determine only whether there is credible, competent evidence to support the trial court's judgment. [Citations omitted.] All conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged in to uphold the judgment if possible; when two or more inferences can be reasonably deduced from the facts, this court is without power to substitute its deductions for those of the trial court." (See also, Yakov v. Board of Medical Examiners, supra.)

C. DISCUSSION

Appellant contends that appellant's license revocation is invalid unless based on current unfitness to practice, which unfitness must be shown by real evidence.

Discipline may not be imposed by the Board except as a means of protecting the public against unfit practitioners. (Morrison v. State Board of Education (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375].) Appellant relies heavily on Morrison. His reliance on it, however, is misplaced. The Supreme Court in Morrison was concerned with a teacher who had a single, isolated and limited homosexual contact with a non-student. There was no criticism of his performance as a teacher in the record and, with the exception of that single incident, no suggestion that his conduct outside the classroom was other than beyond reproach. (Ibid., at pp. 218, 236, 82 Cal.Rptr. 175, 461 P.2d 375.) Further in Morrison, the Board called no medical, psychological or psychiatric experts to testify.

By contrast, Starlyn F. and Mary B. were both having psychological sexual problems and problems relating to men for which problems they sought appellant's aid as a psychologist. Part of that therapy involved his building up their trust in him, and their feeling that they had self worth apart from

being easily sexually accessible. During the course of his therapeutic relationship with them, but not as part of any treatment, appellant took advantage of their psychological vulnerability and had sexual relations with them. Each of these two clients testified as to the psychological harm they suffered as a result of these experiences, and psychological experts testified the clients were harmed by the experiences. Four experts were called by the Board and three of them testified directly and unequivocally that for a psychologist to engage in sexual[130 Cal.App.3d 512] relations with a client is an extreme departure from the standard of practice in California

Appellant argues that those four state experts were biased or unqualified and that if appellant's expert could have testified, he would have presented statistics showing that at least 17 percent of psychologists have or have had sexual relations with their clients. Based on the record the trial judge determined the experts were qualified and found the testimony of the two clients and the three experts credible, substantial and uncontradicted. There was thus credible, competent evidence to support the trial court's judgment.

Appellant contends that the Board's decision on October 29, 1979, and the judgment of the trial court were based on conduct of appellant in 1974 and 1975 and thus sought to punish him for long past conduct which was not evidence of his present fitness to practice his profession. In the Morrison case the court stated at page 235, 82 Cal.Rptr. 175, 461 P.2d 375:

"Thus an individual can be removed from the teaching profession only upon a showing that his retention in the profession poses a significant danger of harm to ... students, ... [W]e must inquire whether any adverse inferences can be drawn from that past conduct as to petitioner's teaching ability, ..." [Emphasis added.]

Past isolated acts unrelated to the licensee's profession cannot alone be the basis for discipline against a professional (see Board of Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 561 [162 Cal.Rptr. 590] and Brandt v. Fox (1979) 90 Cal.App.3d 737, 747 [153 Cal.Rptr. 683] ). Here, however, the acts of appellant were not unrelated to his profession, but occurred several times each with two clients during a period of time in which he was treating them for related sexual psychological problems, although those sex acts did not occur during therapy sessions.

Lest there be any question as to whether the meaning of the Supreme Court in Morrison was to exclude past conduct from a consideration of fitness, the Supreme Court in Pettit v. State Board of Education (1973) 10 Cal.3d 29, 34 [109 Cal.Rptr. 665, 513 P.2d 889] explained that: "In Morrison v. State Board of Education, supra, 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375] ... we made it clear, however, that in future cases revocation will be upheld if the evidence discloses that the teacher's retention within the school system 'poses a significant danger of harm to either students, school employees, or others who might be affected by his [130 Cal.App.3d 513] actions as a teacher.' (p. 235 [82 Cal.Rptr. 175, 461 P.2d 375].) The court suggested that a showing of significant 'harm' could be based upon adverse inferences drawn from the teacher's past conduct as to his probable future teaching ability, ... [Citations.]"

Appellant cites Brandt v. Fox, supra, 90 Cal.App.3d at pages 746-747, 153 Cal.Rptr. 683 as being a case close to the present facts. In Brandt a state agency denied an application for a real estate license because the applicant had more than four years before, been convicted of one isolated incident of distributing cocaine. The Brandt court held that one four year old isolated act, not involving "fraud or dishonesty in any fundamental sense" and unrelated to the field of licensure, did not constitute evidence of unfitness. The Brandt court explained: "Given the isolated nature of the incident, the fact that it occurred over four years ago, the lack of any evidence that plaintiff's subsequent conduct has been other than exemplary, or that such conduct bore a substantial relationship to the qualifications,

functions or duties of, or otherwise rendered him unfit to engage in, the activity for which he sought a license, we must conclude that the Commissioner's decision to deny plaintiff's application was not supported by substantial evidence." (Ibid., at p. 747, 153 Cal.Rptr. 683.) In Brandt...