Stiger v. Flippin

• Decision Date: 14 March 2012
• Docket Number: No. D058117.,D058117.
• Citation: 135 Cal.Rptr.3d 168,201 Cal.App.4th 646,11 Cal. Daily Op. Serv. 14613,2011 Daily Journal D.A.R. 17423
• Court: California Court of Appeals Court of Appeals
• Parties: Brian STIGER, as Director, etc., Plaintiff and Respondent, v. Arthur Moses FLIPPIN et al., Defendants and Appellants.

201 Cal.App.4th 646

135 Cal.Rptr.3d 168

11 Cal. Daily Op. Serv. 14,613

2011 Daily Journal D.A.R. 17,423

Brian STIGER, as Director, etc., Plaintiff and Respondent,

v.Arthur Moses FLIPPIN et al., Defendants and Appellants.

No. D058117.

Court of Appeal, Fourth District, Division 1, California.

Dec. 6, 2011.

Rehearing Denied Dec. 21, 2011.

Review Denied March 14, 2012.

Iungerich & Spackman and Russell Iungerich, Rolling Hills Estates, for Defendants and Appellants.

Kamala D. Harris, Attorney General, Carlos Ramirez, Assistant Attorney General, Thomas S. Lazar and Alexandra M. Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

Arthur Moses Flippin, M.D., and Jacquelyn Jones (collectively, defendants) appeal an order enforcing administrative subpoenas issued by the Medical Board of California (the Board) as part of an investigation into the timeliness of defendants' submission to the Board of a peer review report required by Business and Professions Code ¹ section 805 (805 report). Defendantscontend the order must be reversed for two reasons: (1) the Board has no jurisdiction to investigate a medical group—it may only investigate an actively practicing physician licensed by the Board; and (2) the Board has no jurisdiction to investigate when a required 805 report has been filed late—it may only investigate when a required 805 report has never been filed. We reject these contentions and affirm the challenged order.

IFACTUAL AND PROCEDURAL BACKGROUND

This appeal challenges an order enforcing administrative subpoenas. Because defendants did not file an answer or other responsive pleading to the petition to enforce the subpoenas (hereafter, petition), but only a memorandum of points and authorities in opposition to the petition, “the facts alleged in the petition are uncontroverted and are deemed true on this appeal.” ( Sehlmeyer v. Department of General Services (1993) 17 Cal.App.4th 1072, 1075, fn. 1, 21 Cal.Rptr.2d 840.) The pertinent facts are as follows.

On January 16, 2008, the Osteopathic Medical Board of California received from defendants an 805 report pertaining to Robert Petruzzo, Jr.² According to the 805 report, Dr. Petruzzo “resigned as a partner in the Southern California Permanente Medical Group (‘SCPMG’) after a restriction in work practice due to continued quality concerns regarding the reading of CTs, MRIs and Ultrasounds.” The 805 report states that the actions leading up to Dr. Petruzzo's work restrictions occurred from “September '07 to Present.” Jones prepared the 805 report; and on January 15, 2008, Dr. Flippin signed it as SCPMG's “Chief Executive Officer/Medical Director/Administrator.”

Although the record does not reveal how the Board received the 805 report concerning Dr. Petruzzo, the Board obviously did receive it, because in September 2008, the Board initiated an investigation into the timeliness of its filing. (See § 805, subd. (b)(3) [requiring 805 report to be filed within 15 days of imposition of restrictions on staff privileges of physician].) As part of the Board's investigation, defendants were personally served with investigative subpoenas requiring them to appear and testify “in regard to the [805 report].” Defendants, through their counsel, notified the Board they considered the subpoenas “invalid” and would not comply with them.

The Board, acting through the Director of the Department of Consumer Affairs, Brian Stiger, filed the petition. (See Gov.Code, § 11187 [authorizing head of department to petition court to enforce investigative subpoena].) Over defendants' opposition, the court granted the petition and ordered defendants to appear and give testimony before the Board's investigator.

IIDISCUSSION

Defendants contend we must reverse the trial court's order enforcing the investigativesubpoenas because the Board “lacks jurisdiction to investigate [SCPMG].” According to defendants, the Board's jurisdiction extends only to individuals who are licensed by the Board and are actively practicing medicine, not to a group of physicians such as SCPMG. Defendants also assert that the Board's authority to investigate the failure to file required 805 reports extends only to cases in which no 805 report was ever filed, not to cases, like this one, in which an 805 report was filed late. Consequently, defendants contend, “the subpoenas being enforced in this case are illegal and void.” As we shall explain, these contentions lack merit.

A. The Board Has Jurisdiction to Investigate the Timeliness of the 805 Report

We first address the jurisdictional issue. An administrative agency has only those powers that have been granted expressly or impliedly by Constitution or statute. ( American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1042, 56 Cal.Rptr.2d 109, 920 P.2d 1314;Rich Vision Centers, Inc. v. Board of Medical Examiners (1983) 144 Cal.App.3d 110, 114, 192 Cal.Rptr. 455.) When the essential facts are not in dispute, whether an administrative agency has acted beyond its granted powers—i.e., has exceeded its jurisdiction—is a question of law reviewed de novo on appeal. ( Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 211–212, 106 Cal.Rptr.2d 863.) Because the pertinent facts are undisputed, we examine the statutes defining the Board's duties and powers to determine whether the Board had jurisdiction to undertake the investigation challenged here.

The Board is an administrative agency within the Department of Consumer Affairs. (§§ 101, subd. (b), 2001, subd. (a).) As our Supreme Court has explained, the Board, acting under various names, has been a “key instrument” in the regulation of the practice of medicine since its statutory creation in 1876. ( Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7, 56 Cal.Rptr.2d 706, 923 P.2d 1( Arnett ).) “Since the earliest days of regulation the Board has been charged with the duty to protect the public against incompetent, impaired, or negligent physicians, and, to that end, has been vested with the power to revoke medical licenses on grounds of unprofessional conduct [citation].” ( Ibid.) Consistent with its overall mission, the Board has been given statutory responsibility for, among other things, “enforcement of the disciplinary and criminal provisions of the Medical Practice Act [ (§ 2000 et seq.) ]” and “[r]eviewing the quality of medical practice carried out by physician and surgeon certificate holders under the jurisdiction of the [B]oard.” (§ 2004, subds.(a), (e).)

To enable the Board to carry out its enforcement responsibilities, the Medical Practice Act “broadly vests” the Board with investigative powers. ( Arnett, supra, 14 Cal.4th at pp. 7–8, 56 Cal.Rptr.2d 706, 923 P.2d 1; see also § 2220 [defining Board's investigative powers].) “Such investigatory powers have been liberally construed.” ( Shively v. Stewart (1966) 65 Cal.2d 475, 479, 55 Cal.Rptr. 217, 421 P.2d 65.) The Board's investigative powers with respect to disciplinary actions “relating to” physicians licensed by the Board are exclusive. (§ 2220.5, subd. (a); Lorenz v. Board of Medical Examiners (1956) 46 Cal.2d 684, 687–688, 298 P.2d 537;PM & R Associates v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 357, 363, 94 Cal.Rptr.2d 887( PM & R Associates ).)

Specifically with regard to 805 reports, the Board has two sets of investigative duties and powers. First, it “shall investigate the circumstances underlying [an 805 report] within 30 days to determine if an interim suspension order or a temporary restraining order should be issued” and “otherwise provide timely disposition of [805 reports].” (§ 2220, subd. (a).) Second, the Board is statutorily required to investigate complaints that a physician “may be guilty of unprofessional conduct” ( ibid.), which includes the “willful failure to file an 805 report by any person who is designated or otherwise required by law to file an 805 report” if that person is licensed by the Board (§ 805, subd. (k)). (See Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 768, 117 Cal.Rptr.2d 445 [noting Board's authority to investigate unprofessional conduct by physician]; Bradley v. Medical Board (1997) 56 Cal.App.4th 445, 457, 65 Cal.Rptr.2d 483( Bradley ) [noting Board's obligation to investigate complaints that physician may be guilty of unprofessional conduct].)

Here, the filing of the 805 report concerning Dr. Petruzzo triggered the Board's investigative duties and powers. First, if Dr. Petruzzo is subject to the Board's regulation (see fn. 1, ante ), the receipt of the 805 report obligated the Board to determine within 30 days whether to seek an interim suspension order or temporary restraining order concerning Dr. Petruzzo's practice of medicine. (§ 2220, subd. (a).) The Board also had an obligation “timely” to dispose of the 805 report ( ibid.) by, among other things, seeking an injunction against Dr. Petruzzo's practice of medicine if his practice would endanger the public (§ 2312; Gray v. Superior Court (2005) 125 Cal.App.4th 629, 639, 23 Cal.Rptr.3d 50), and investigating the circumstances underlying the report to determine whether to refer the matter for formal disciplinary action against Dr. Petruzzo (§ 2230, subd. (a); Arnett, supra, 14 Cal.4th at p. 9, 56 Cal.Rptr.2d 706, 923 P.2d 1). Second, because the conduct resulting in the restrictions on Dr. Petruzzo's radiology practice began in September 2007, but Dr. Flippin did not file the 805 report until January 16, 2008, the report apparently was not filed within the statutorily required 15–day period. (§ 805, subd. (b)(3); see Arnett, at p. 11, 56 Cal.Rptr.2d 706, 923 P.2d 1.) If Dr. Flippin willfully failed to file the 805 report in a timely manner, he would be guilty of unprofessional conduct and subject to a fine of up to $100,000. (§ 805, subd. (k); see Arnett, at p. 11, 56 Cal.Rptr.2d 706, 923 P.2d 1.) The Board was thus statutorily authorized—indeed, obligated—to investigate the timeliness of the filing of...