Smith v. Board of Medical Quality Assurance

• Citation: 202 Cal.App.3d 316,248 Cal.Rptr. 704
• Decision Date: 22 June 1988
• Docket Number: No. A038881,A038881
• Court: California Court of Appeals
• Parties: John Phillip SMITH, M.D., Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.

Page 704

248 Cal.Rptr. 704

202 Cal.App.3d 316

John Phillip SMITH, M.D., Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.

No. A038881.

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

June 22, 1988.

As Modified on Denial of Rehearing July 15, 1988.

Review Denied Sept. 15, 1988.

Jerome Berg, San Francisco, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Alfredo Terrazas, Deputy Atty. Gen., San Francisco, for defendant and respondent.

CHANNELL, Associate Justice.

In this case of first impression, we are asked to determine the constitutionality of section 2292 of the Business and Professions Code, ¹ authorizing the Board of Medical Quality Assurance ² to compel a physician to undergo a professional competency examination. Respondent board, without first granting appellant John Phillip Smith, M.D., the right to appear at its hearing, ordered him to undergo this examination. On appeal, Smith contends, inter alia, that the board's procedure denied him equal protection and due process. We reject these contentions and affirm the trial court's judgment.

I. FACTS

Appellant John Phillip Smith is a physician licensed to practice in this state. In May 1986, the executive director of the respondent Board of Medical Quality Assurance (the Board) prepared a petition requesting that Smith be compelled to take a professional competency examination. The petition alleged reasonable cause to believe that Smith was "unable to practice medicine with reasonable skill and safety to patients" and set forth, as a factual basis for this claim, five case histories of cardiac patients whom Smith was alleged to have improperly treated. Two cardiologists reviewed these case histories and concurred in the director's recommendation.

Smith filed a timely written response to this petition and requested a hearing on the allegations. However, the Board approved the petition without granting Smith's request and ordered him to undergo an examination. After reconsideration, an identical order was issued, also without first allowing Smith to appear at the hearing.

In January 1987, Smith filed a complaint, seeking declaratory and injunctive relief, a writ of mandate, and attorney fees. The trial court found that to be compelled to undergo an examination was not an infringement of such a significant liberty as to require the panoply of due process rights. Finding that Smith's constitutional rights would be adequately protected if he failed the competency examination, the trial court denied the requested relief and entered judgment for the Board.

II. REASONABLE CAUSE PROCEEDING

A. Statutory Procedure

To understand Smith's contentions on appeal, we first review the statutory scheme. Operative since 1985 (Stats.1983, ch. 398, §§ 3, 6, pp. 1662-1663), section 2292 allows the Board to order a physician to undergo a professional competency examination if there is reasonable cause to believe that the physician is unable to practice medicine with reasonable skill and safety to patients. Reasonable cause is defined as a single act of gross negligence, a pattern of inappropriate prescribing, an act of incompetence or negligence causing death or serious bodily injury, or a pattern of substandard care. ( § 2292, subd. (a); see also §§ 820-824.)

Before a physician may be compelled to undergo an examination, a statutorily ordained procedure must be followed. First, the Board's medical consultant conducts an investigation and review, and concludes that reasonable cause exists to believe that the physician is unable to practice medicine with reasonable skill and safety to patients. At least one outside medical consultant must review the matter and concur in this conclusion. ( § 2292, subd. (a).) Next, the Board's executive director prepares a written petition detailing the reasonable cause and all conclusions and facts on which this presumption is based. A copy of the petition is served on the physician, who may file written opposition to it. ( § 2292, subd. (b); see Gov.Code, § 11505, subd. (c).) The Board's Division of Medical Quality may consider the petition or may assign it to a medical quality review committee for consideration. ( § 2292, subd. (c); see § 2323.) This body must review the petition and opposition, and may conduct a hearing to determine if reasonable cause exists. ( § 2292, subd. (d); see Gov.Code, §§ 11500-11528.) If this body finds that reasonable cause exists, it must order the physician to undergo a professional competency examination. ( § 2292, subd. (d).) At the oral clinical examination, two physicians test the examinee on general medical knowledge and any special knowledge of one in the examinee's type of practice. ( § 2293, subd. (a).)

If the physician passes the examination, an accusation of incompetency may not be filed if based solely on the circumstances giving rise to reasonable cause for the examination. ( § 2294, subd. (a).) In this circumstance, all agency records of the proceedings must be kept confidential and are not subject to discovery or subpoena. ( § 2294, subd. (b).) If no further proceedings have been conducted to determine the physician's fitness to practice five years after the date of the petition, the agency must purge and destroy all records of the proceedings. ( § 2294, subd. (c).)

If both examiners agree that the physician failed the professional competency examination, a second examination is ordered before two other physicians. ( § 2293, subd. (b).) If the examinee fails the second examination, an accusation of incompetence may be filed against the physician. ( § 2293, subd. (c); see §§ 2230, 2234, subd. (d).) ³ Incompetence is a form of unprofessional conduct which, if proven, may result in the revocation of a physician's license. ( § 2234, subd. (d); see § 2227, subd. (a).) ⁴

A physician who fails to comply with the Board's order to undergo the examination is guilty of unprofessional conduct. ( § 2292, subd. (d).) Under these circumstances, an accusation of unprofessional conduct must be filed against the physician. ( §§ 2234, 2292, subd. (d).) This accusation subjects the physician to discipline and places his or her license to practice medicine in jeopardy. (See § 2227, subds. (a), (b); see also Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1141, 212 Cal.Rptr. 811.) At all proceedings conducted pursuant to the accusation, the physician is entitled to a full range of due process rights, including the rights to receive notice by verified accusation, to have a hearing conducted before an administrative law judge, to conduct and compel discovery, to compel attendance or document production by subpoena, to be represented by counsel, to attend the hearing, to present any relevant evidence, to cross-examine witnesses, and to receive a statement of decision. ( §§ 2230, 2293, subd. (c); see Gov.Code, §§ 11502, 11503, 11505, subd. (a), 11506, subd. (b), 11507.6-11507.7, 11509-11513, 11517.) Section 2292 does not require these procedural rights to be afforded to physicians when the Board makes a reasonable cause determination. This procedure forms the basis of Smith's contentions on appeal.

B. Investigation or Accusation?

The nature of the Board's reasonable cause proceeding is the one overriding issue on appeal. Is this an investigative proceeding or is it the equivalent of an accusation--the formal charge that must be brought before a physician's license to practice medicine may be revoked? (See §§ 2227, subd. (a), 2230; see also Wood v. Superior Court, supra, 166 Cal.App.3d at p. 1141, 212 Cal.Rptr. 811.)

We believe that the reasonable cause proceeding is investigative rather than adjudicative. Procedural due process rights need not be conferred on those appearing before "purely investigative agencies" such as the federal Commission on Civil Rights. (Hannah v. Larche (1960) 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307.) In Hannah, the court held that the Commission's function was "investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of ... life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action." ( Id., at p. 441, 80 S.Ct. at p. 1514.)

The Board's authority is somewhat different from that of the Commission on Civil Rights. As illustrated by this case, the Board has statutory authority to issue orders--to compel a physician to undergo a professional competency examination. Does this authority transform the Board's proceedings into an adjudication? (See Hannah v. Larche, supra, 363 U.S. at pp. 440-441, 80 S.Ct. at pp. 1513-1514; Stanson v. San Diego Coast Regional Com. (1980) 101 Cal.App.3d 38, 45, 161 Cal.Rptr. 392 [due process applies to quasi-judicial administrative proceedings].) We believe that it does not. Recently, the United States Supreme Court held that the federal Securities and Exchange Commission was an investigative agency, despite the fact that the Commission was authorized to issue subpoenas pursuant to its investigations and could force compliance by bringing an action in federal court. (See SEC v. Jerry T. O'Brien, Inc. (1984) 467 U.S. 735, 741-742, 104 S.Ct. 2720, 2724-2725, 81 L.Ed.2d 615.) "The sole purpose of the preliminary investigation is to determine whether there is any factual basis for considering the initiation of a formal hearing and the incident drafting of a formal accusatory pleading." (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 519, fn. 5, 116 Cal.Rptr. 260, 526 P.2d 268.) We do not believe that the Board's statutory...