Green v. Board of Dental Examiners
| Decision Date | 18 June 1996 |
| Docket Number | No. B090591,B090591 |
| Citation | 55 Cal.Rptr.2d 140,47 Cal. App. 4th 786 |
| Court | California Court of Appeals |
| Parties | , 96 Daily Journal D.A.R. 8684 Elliot Saul GREEN, Plaintiff and Appellant, v. BOARD OF DENTAL EXAMINERS, Defendant and Appellant. |
Daniel E. Lungren, Attorney General and William L. Marcus, Deputy Attorney General, for Defendant and Appellant.
Freeburg, Judy & Nettels and Steven J. Freeburg, Pasadena, for Plaintiff and Appellant.
In this appeal, we are asked to consider whether the Board of Dental Examiners (Board) can discipline a dentist for engaging in allegedly consensual sexual relations with his female patients. Under the circumstances of this case, we find that it can.
The Board took disciplinary action against Dr. Elliot Green (Green) as a result of patient complaints of sexual misconduct. Green filed a petition for writ of mandate to set aside the Board's order. The trial court denied Green's petition, but remanded the issue of laches to the Board for an evidentiary hearing and determination. The Board appeals from the portion of the judgment remanding the laches issue. Green cross-appeals from the portion of the judgment sustaining the Board's disciplinary action.
On the appeal, we find Green failed either to argue a laches defense or present evidence of prejudice at the administrative hearing. Accordingly, we reverse the ruling requiring a remand to the Board, and order the trial court to enter a new and different judgment denying the writ petition in its entirety.
On the cross-appeal, we find the trial court's decision to sustain the Board's disciplinary action was supported by substantial evidence. Accordingly, we affirm.
The administrative charges against Green arose from improper sexual conduct with two female patients through his misuse of craniosacral therapy to treat their temporo mandibular joint (TMJ) conditions. 1 Green asserts the craniosacral therapy is an osteopathic procedure used to correct a TMJ problem. He alleges the treatment involves subtle physical manipulation of the head, neck, shoulders, sternum, spine, sacrum and pelvic areas to eliminate misalignment problems affecting the jaw. We express no opinion as to the validity of this procedure.
In November 1987, P.M., a former patient, complained to the Board about incidents of Green's improper sexual conduct that occurred in 1986 and 1987. In September 1990, the Board filed an accusation charging the dentist with unprofessional conduct in that he performed craniosacral therapy for his own sexual gratification and he engaged in sexual activity with a patient, in violation of Business and Professions Code section 726. 2 On or about October 29, 1992, Green moved to dismiss the accusation and asserted laches as an equitable defense. The motion was denied on December 7, 1992, without prejudice to its renewal at the administrative hearing.
In April 1991, P.B., another of Green's former patients, also complained to the Board about incidents of Green's improper sexual conduct that occurred in 1985 and 1986. In April 1993, the Board filed an amended and supplemental accusation asserting charges against the dentist similar to those contained in the first accusation.
On November 17, 1994, following a disciplinary hearing, the Board determined cause for discipline existed and revoked Green's license, with revocation stayed, and Green placed on probation for seven years. The Board based its determination on grounds his actions constituted sexual misconduct (§ 726) and unprofessional conduct (§ 1680). At the hearing, Green neither presented a laches argument nor renewed his motion to dismiss.
In its decision, the Board rejected Green's claim that he could not be disciplined for his sexual relations with P.M. because they "were entirely outside his professional association with her." The Board found "[t]he seduction and bedding of [P.M.] was intimately connected with respondent's position and conduct as [P.M.'s] treating dentist." The Board found that Green "used his professional position to persuade at least two of his patients to undergo cranio-sacral therapy and then exceeded the scope of the patient's consent to seduce them...." The Board further found the manipulations used by Green during the "therapy" were subtle and suggestive and seduced the patients "into agreeing to have sex with him." Green, the Board determined, "abused his professional position, violated his patients' trust, and exceeded the scope of the patients' consent for treatment." The Board determined cause existed to impose discipline under section 726 for sexual misconduct, and under section 1680 for professional misconduct, but not under section 1670 for gross negligence or repeated acts of negligence. The Board did not issue a specific ruling as to the laches issue.
On November 11, 1994, Green sought mandamus relief in the superior court to compel the Board to reinstate his license. Green contended (1) the action of the Board was precluded by laches, (2) the revocation decision was not supported by the evidence, (3) the complaining witnesses lacked credibility, and (4) as a matter of law, the sexual conduct was not actionable because it was not represented as a part of therapy. In opposition, the Board argued Green failed to make a showing of prejudicial delay to support a laches defense and there was substantial evidence to support the facts essential for the Board's findings. On December 21, 1994, after an independent evaluation of all the evidence, the trial court denied Green's petition, but remanded the issue of laches to the Board for an evidentiary hearing and determination. 3
On January 24, 1995, the Board filed a notice of partial appeal. On February 7, 1995, Green filed a notice of partial cross-appeal.
On appeal, the Board contends the trial court erred in remanding the laches issue to the Board and in shifting the burden to the administrative agency to explain delay and disprove prejudice.
On cross-appeal, Green contends the trial court erred in affirming the Board's disciplinary action on grounds (1) sexual conduct with patients is actionable under section 726 only when it occurs under the guise of treatment, and (2) the complaining witnesses lacked credibility.
Green Failed to Present a Laches Defense or Prove Prejudicial Delay at the Administrative Hearing.
The Board contends the trial court erred in remanding the laches issue and in shifting the burden to the agency to show delay and disprove prejudice. We agree.
We address the issue of laches in light of two principles of law: First, " (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020, 162 Cal.Rptr. 224.)
Second, (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258.)
Green Failed to Present Evidence of Prejudice.
The record reflects that in December 1992, Green's motion to dismiss the accusation was denied without prejudice to its renewal at the administrative hearing. The motion only addressed the accusation covering P.M.'s complaints. Prior to the commencement of the administrative hearing in October 1994, the Administrative Law Judge (ALJ) inquired whether the parties wanted to present any preliminary matters to the court. Green responded, "Nothing preliminarily." When the ALJ stated, Green then answered, "Yes, your honor." The record further reflects that during the four-day hearing, Green failed to renew his motion to dismiss or request to have the motion and the attached exhibits moved into evidence. He further failed to present any evidence of alleged delays incurred from the initial complaints to the time of hearing and resulting actual prejudice, or any supporting argument to the trier of fact. The ALJ only heard testimony on and received evidence of the sexual misconduct charges against the dentist.
It could be argued that by the ALJ's inquiry, the general issue of laches was raised at the hearing. However, raising the issue, in whatever form, did not relieve Green of his burden to produce evidence of both delay and prejudice resulting from the delay. (Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 188, 258 Cal.Rptr. 302; City of Walnut Creek v. County of Contra Costa, supra, 101 Cal.App.3d at p. 1020, 162 Cal.Rptr. 224.) "The party asserting and seeking to benefit from the laches bar bears the burden of proof on these factors." (Mt. San Antonio Community...
To continue reading
Request your trial
-
Mercury Ins. Co. v. Lara
...related to the other actions. Second, there is no evidence of prejudice. Prejudice is not presumed. ( Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786, 792, 55 Cal.Rptr.2d 140.) The only support for the court's finding Mercury was prejudiced was the accrual and subsequent imposi......
-
City of Oakland v. Pers
...two reasons. First, as stated, the facts about the degree of prejudice were not litigated below. (Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786, 792-795, 55 Cal. Rptr.2d 140.) Second, as stated, the City has not properly invoked laches on appeal. Although the City does rely o......
-
Nightlife Partners v. City of Beverly Hills
...to the issues appearing in the record of that body as made out by the parties to the proceedings" (Green v. Board of Dental Examiners (1996) 47 Cal. App.4th 786, 792, 55 Cal.Rptr.2d 140; § 1094.5, subd. (a)), it is also true that "additional evidence, in a proper case, may be received." (Gr......
-
Finucan v. Board of Physicians
...and we decline to apply it to a disciplinary proceeding." Gromis, 10 Cal.Rptr.2d at 458. See also Green v. Bd. of Dental Exam'rs, 47 Cal. App.4th 786, 55 Cal.Rptr.2d 140,150 (1996) (distinguishing Atienza as a malpractice case not applicable to disciplinary proceedings). Finucan's reliance ......