Petrucci v. Board of Medical Examiners

• Decision Date: 03 February 1975
• Parties: Leonard J. PETRUCCI, M.D., Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California et al., Defendants and Respondents. Civ. 35266.
• Court: California Court of Appeals Court of Appeals

Page 735

117 Cal.Rptr. 735

45 Cal.App.3d 83

Leonard J. PETRUCCI, M.D., Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California et al., Defendants and Respondents.

Civ. 35266.

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

Feb. 3, 1975.

Carlson, Collins & Calhoun, Robert Collins, Richmond, for plaintiff and appellant.

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

EMERSON, ^* Associae Justice.

Appellant's license to practice medicine in California was revoked by the Board of Medical Examiners after a hearing in its case No. D--1082. He petitioned the Superior Court for a writ of administrative mandamus to review the Board's decision. Upon the hearing of the petition the court entered a judgment denying the writ, from which appellant takes this appeal.

He first attacks the sufficiency of the evidence to support the findings of the trial court.

The accusation filed by the Board in the instant case consisted of nine causes of action. The first was an allegation that appellant had previously been convicted of violating two sections of the Health and Safety Code. The trial court's finding that this allegation was supported by the weight of the evidence cannot be questioned, since the record shows that appellant pleaded guilty to the offenses and was sentenced as charged by the accusation.

The remaining eight causes of action charged, with reference to some five different persons, that appellant wrote false and fictitious prescriptions purporting to be for said persons and prescribing dangerous drugs; that by means of said prescriptions appellant obtained and had in his possession such drugs. As to seven of the eight charges, the trial court found them to be supported by the weight of the evidence.

The independent judgment rule must be applied by the trial court in reviewing administrative findings in a case such as this. If a vested right is involved and the determination is by an administrative agency lacking judicial powers, the independent judgment rule should be invoked by the trial court and the evidence should be weighed. (See Bixby v. Pierno (1971) 4 Cal.3d 130 at pp. 139--140, 93 Cal.Rptr. 234, 481 P.2d 242.) It has been held that the Board of Medical Examiners does not exercise judicial functions, and that revocation of a professional license involves deprivation of a vested right. Hence, the sufficiency rule applicable in the instant case if that of independent judgment pursuant to Code of Civil Procedure section 1094,5, subdivision c. (See Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790, 794--796, 136 P.2d 304.)

In cases where the court is authorized to exercise its independent judgment on the evidence, abuse of the agency's discretion is established if the court determines that the findings are not supported by the weight of the evidence. (Code Civ.Proc. § 1094.5, subd. c.) Thus, under the independent judgment rule, the trial court must weigh the evidence and make its own determination as to whether the administrative findings are sustained. It is not disputed that the trial court herein exercised its independent judgment and weighed the evidence.

Where an appeal is taken from the superior court's decision, the reviewing court gives the lower court's judgment the same effect as if it were rendered in any ordinary trial in that court. 'In other words, on appeal the question is not whether the administrative determination was supported by the weight of the evidence, but whether, disregarding all contrary evidence, there is substantial evidence in support of the Trial court's findings.' (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 217 at p. 3974.)

Testimony was received to the effect that none of the five persons referred to in the charges ever saw the prescriptions purportedly written for them and that they never received the drugs called for therein. Appellant admitted writing all of the prescriptions.

The evidence showed, and the court found, that each of the false prescriptions was written by appellant and that each was written and intended for appellant's wife; that thereby appellant obtained and possessed the respective drugs. Appellant's contention that the findings of the trial court are not supported by substantial evidence is not well taken.

Appellant next presents a series of arguments based on the doctrine of double jeopardy, the rule against multiple prosecutions and the rule regarding compulsory joinder as enunciated in Kellett v. Superior Court (1966) 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206.

At the times when the above referred to false prescriptions were discovered there was pending before the Board an earlier accusation against appellant numbered D--981. Appellant contends that the...