Opposition Brief — Day v. Superior Court of California

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Supreme Court, U.S.

») FILED

No. 00-863 JAN 2 2001

In The CLERK

Supreme Court of the United States

FRANKLIN J. DAY, M.D.,

Petitioner,

SUPERIOR COURT, THE STATE OF CALIFORNIA,

SAN FRANCISCO COUNTY,

Respondent,

DIVISION OF MEDICAL QUALITY OF THE

MEDICAL BOARD OF CALIFORNIA,

Real Party in Interest.

On Petition For Writ Of Certiorari

To The Court Of Appeal Of California

For The First Appellate District

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Bit. Lockyer

Attorney General

Cartos RAMIREZ

Senior Assistant Attorney General

Vivien H. HersH

Supervising Deputy Attorney

General

ALFREDO TERRAZAS

Deputy Attorney General

Counsel of Record

1515 Clay Street, 20th Floor

Oakland, California 94612-1413

Telephone: (510) 622-2220

Fax No: (510) 622-2121

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

California has in place a Medical Practice Act (Cali-

fornia Business and Professions Code (§ 2000 et seq.)).

The Medical Board of California, acting through its Divi-

sion of Medical Quality Assurance, filed accusations

against Petitioner herein alleging that he had violated the

provisions of the Medical Practice Act. After a twenty-

two day hearing before an impartial Administrative Law

Judge, acting under California’s Administrative Pro-

cedure Act (California Government Code § 11500 et seq.),

petitioner’s medical license was disciplined and he was

placed on a five year probation with extensive terms and

conditions. In California, a physician may challenge a

decision of the Medical Board revoking, suspending, or

restricting a license by filing a petition for administrative

mandamus in the trial court. (California Code of Civil

Procedure, § 1094.5) Petitioner filed a petition for admin-

istrative mandamus and did not prevail. Next, he filed a

motion for a new trial and, again, did not prevail. Until a

few years ago, either the physician or the Medical Board

could seek review of a trial court’s adverse decision by

filing either an appeal or a petition for extraordinary

relief before the California Court of Appeal. (See, e.g.,

Franz v. Board of Medical Quality Assurance, 31 Cal.3d 124,

181 Cal.Rptr. 732, 642 P.2d 792 (1982).) Effective January

1, 1996, however, the California Legislature amended

Business and Professions Code § 2337 to provide for

appellate review only by petition for extraordinary writ.

The California Supreme Court has determined that § 2337

does not violate the appellate jurisdiction clause of the

California Constitution. (See, e.g., Leone v. Medical Board of

QUESTION PRESENTED - Continued

California, 22 Cal.4th 660, 94 Cal.Rptr.2d 61, 995 P.2d 191

(2000).) (App. 78-106.) After the California Supreme

Court issued its ruling in Leone, supra, it also ordered the

re-publication of a California Appellate Court decision

which had determined that § 2337 does not violate either

the equal protection or due process protections of the

California Constitution. (See, App. 208-259 to Petition,

Landau v. Medical Board of California, 81 Cal.App.4th 191,

97 Cal. Rptr.2d 657 (1998) [Previously published at 60

Cal.App.4th 940, 71 Cal.Rptr.2d 54 (1998).] Against this

background, the following questions are posed:

1. Does a trial judge who does not read every word of

every page of a 22 day administrative transcript violate

the Due Process Clause of the Fourteenth Amendment to

the United States Constitution in cases in which the court

is authorized to exercise its independent judgment?

2. Does California Business and Professions Code

§ 2337, which limits appellate review of trial court deci-

sions disciplining physician licensees to petitions for

extraordinary relief, violate the Fourteenth Amendment

to the United States Constitution?

3. Does the Medical Board of California have jurisdic-

tion over one of its physician licensees, treating patients

at both a Naval Hospital facility and his own two private

practice offices, for violations of the California Medical

Practice Act?

4. Was Petitioner herein disciplined for conduct not

alleged against him?

ee &

LIST OF PARTIES

Real Party in Interest, Medical Board of California,

accepts petitioner Dr. Day’s version of the List of Parties

as stated in his Petition for Writ of Certiorari.

TABLE OF CONTENTS

eg es PEP T ETT TETeT TY TIPE Cie

See Qi PME 0 bp ckedK wn dec dens hase eoRenw ee

RAs OR ASR 6.6 0c csnsskennsteraneciane

REAL PARTY IN INTEREST’S BRIEF IN OPPOSI-

BOT a hienendiccdsasctasvdntshitae tasiaeunasen

Ce I ais kk eek ce Kies cided aces

STATEMENT OF JURISDICTION...................

CONSTITUTIONAL AND STATUTORY PROVI-

SEO STEED oc ccs nctecdcuwcadadhvcnkeeaeen

STATEMENT OF THE CASE... ..2..cccccccccccsacace

REASONS FOR DENYING THE PETITION.........

I. THE ISSUE PRESENTED TO THIS COURT

LACKS THE SUFFICIENT NATIONAL IMPOR-

TANCE TO WARRANT A GRANT OF CER-

BMAD i vba nivascinn cds scien sedsd ci Shee’.

II. ALTHOUGH NO EVIDENCE EXISTS THAT

THE TRIAL COURT FAILED TO CONSIDER

ALL EVIDENCE CITED TO IT BY PETITIONER

BY THE TIME OF THE HEARING ON THE

MOTION FOR A NEW TRIAL, ASSUMING

ARGUENDO THAT IT DID, CASE LAW DOES

NOT REQUIRE THE TRIAL COURT TO READ

EVERY LINE OF EVERY PAGE OF THE

ADMINISTRATIVE RECORD IN ORDER FOR

IT TO EXERCISE ITS INDEPENDENT JUDG-

TABLE OF CONTENTS - Continued

Page

III. PETITIONER’S RELIANCE ON SOLORIO IS

MISPLACED AND DOES NOT AFFECT REAL

PARTY IN INTEREST’S JURISDICTION OVER

HIS MEDICAL PRACTICE 6 ii Es 23

IV. PETITIONER WAS NOT DISCIPLINED FOR

MATTERS NOT ALLEGED IN WRITING...... 26

CRM AMIDIE 0 he lictarviraivie taster 28

TABLE OF AUTHORITIES

Page

Cases

Allyn Beth Landau, M.D. v. Medical Board of Califor-

nia, (re-published) 81 Cal.App.4th 191, 97

Cal Rte.e Gar CROGEe ciccccicscivcacsescdsaczun 8, 10

Bixby v. Pierno, 4 Cal.3d 130, 93 Cal.Rptr. 317

(39748) ov cvccccccens ensue seni ebeudesessuee aeons 21

Cleveland Chiropractic College v. State Bd. of Chiro-

practic Examiners, 11 Cal.App.3d 25, 89 Cal.Rptr.

Ri. PPPTT Tere Whi sheeubiws boeuen 19

Dare v. Board of Medical Examiners, 21 Cal.2d 7

(BDED) oo cccvovccesceccicdenctdsctavexvaseeneaanes 21

Drummey v. State Bd. of Funeral Directors, 13 Cal.2d

To, GT POG GEE GAGS) ow ecvevvcsavissucabonuahe 20, 21

Ettinger v. Board of Medical Quality Assurance, 135

Cal.App.3d 853, 185 Cal.Rptr. 601 (1982).......... 17

Guymon v. Board of Accountacy, 55 Cal.App.3d 1010

(RSF) oc ccccaeccasecncscnnesesqunashans maseneuasen 21

Hudson v. Louisiana, 450 U.S. 40 (1981) .............. 12

In re Ruffalo, 390 U.S. 544, 20 L.Ed.2d 117 (1968) .... 26

Katzinger v. Chicago Metallic Mfg. Co., 329 U.S. 394

(RDG) oo cccccwccecsasssddbepadiansaesnid aneeeeers 12

Kenneally v. Medical Board, 27 Cal.App.4th 489, 32

Cal Bete. 26 SHG CHRD oo anc canen aks apes cade 14, 15, 16

Lacy v. California Unemployment Ins. Appeals Bd., 17

Cal.App.3d 1128, 95 Cal.Rptr. 566 (1971).......... 19

Landau v. Superior Court, (formerly) 60 Cal.App.4th

947, 71 Ca.Rptr.2d 54 (1998), review granted April

BS, RODD GION soo osarecsscunsnceancas 10, 13, 14, 16

Leone v. Medical Board, (formerly) 57 Cal.App.4th

1240, 67 Cal.Rptr.2d 689 (1997) ................00. 13

vii

TABLE OF AUTHORITIES - Continued

Page

Leone v. Superior Court, 22 Cal.2d 660, 94

Cobh Rete 2d 6) GOSS) 0000 cncccciesscactinns evens 1, 10

Los Alamitos General Hospital, inc. v. Director of

Dept. of Health, 86 Cal.App.3d 417, 149 Cal.Rptr.

GS CURED 0 omc deccavedsececdegan sanakendsuamenisebs 19

MacGregor v. Westinghouse Co., 329 U.S. 402 (1947) .... 12

Massachusetts Board of Retirement v. Murgia, 427

CR Be SONOUE axe codacesacicguannisnasacenenssmes 16

Moran v. Board of Medical Examiners, 32 Cal.2d 301

ROG nsec so ceciovsstevesen btieditncd fete owen 21

O'Callahan v. Parker, 395 U.S 258, 89 S. Ct. 1683, 23

ee OTT TPT ee err 23

People ex rel. Younger v. County of El Dorado, 5

Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1183

GROG ED Hc ccnccncseschunvd bhaaedeegaaded scusecenngnn 15

Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974) .... 12

Rittenband v. Cory, 159 Cal.App.3d 410, 205

CRO BI GION 6 eG ho cdiews casnncacesacicacces 15

Smith v. Board of Medical Quality Assurance, 202

Cal.App.3d 316, 248 Cal.Rptr. 704 (1988) .......... 15

Solorio v. United States, 483 U.S 435, 107 S. Ct. 2924,

DF UR SO GUPOP WS cose cibbveddoccacscusese 23, 25

William E. Arnold Co. v. Carpenters District Council,

Gs Ee QUE NS ecco s Uae ca eeeuesics dees i2

Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir.

SEW EEsa kexcabboneltinetardadacctecscnvesebdesauces 16

Yellen v. Board of Medical Quality Assurance, 174

Ca.App.3d 1040, 220 Cal.Rptr. 426 (1985).......... 17

Viii

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONS

Se es BD cincckeanccssvcteasivvun 14, 15

Ua COM, Tie AGUS, 2... cicccccededcssdea 14, 15, 17

STATUTES AND RULES

UD. Ge Fes SE Oe OG oc cikccncpakscncssacesss passim

Bus. & Prof. Code §§ 6082, 6083.................... 18

Bus. & Prof. Code §§ 23090-23090.5 ................. 18

Cah. Bees OE Clam, TRO Ba oo oo cc ccccssccvavacs g

Cal. Rules of Court, Rule 977(a) ...............00055 13

California Gov’t Code §§ 3520, 3542, and 3564...... 18

Camtasia Goau’t Cee © TEBE ccc ccdccecrcccevecscna 27

Caiboeia Crow's Gate REGGE vos vice cc cnccsweeenes ess 15

PRTG sh ce Sekedcdaccetes Mish Sosa dees 1

ROGr GORD Be BON bk cic cide cides cece 18

SE Se ae PI bons Annan vaxcadéuwdes dadewewus 18

i, of ae SOUS. errr rrr e 18

REAL PARTY IN INTEREST’S BRIEF IN OPPOSITION

Real Party in Interest, the Division of Medical Qual-

ity of the Medical Board of California (“Board”) respect-

fully requests that this Court deny the Petition for Writ of

Certiorari (“Petition”) of Franklin J. Day, M.D. (“Peti-

tioner”).

OPINIONS BELOW

The Board accepts petitioner’s statement of the Opin-

ions Below as contained in his Petition and as reproduced

in petitioner's Appendix. An additional relevant court

case is contained and reproduced in the Board’s Opposi-

tion, Leone v. Superior Court, 22 Cal.2d 660, 94 Cal.Rptr.2d

61 (2000).

STATEMENT OF JURISDICTION

The Board accepts petitioner’s Statement of Jurisdic-

tion as contained in his petition.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

With the exception of Fed.R.Civ.P. 63, which is not

applicable, the Board accepts petitioner’s statement of the

Constitutional and Statutory Provisions Involved as con-

tained in his Petition and as reproduced at App. 202-205

of the Petition.

STATEMENT OF THE CASE

Petitioner’s California physician and surgeon certifi-

cate was issued to him by the Board on May 18, 1979.

(App. 110 to the Petition.)

From January 1984 through December 1984 he was

head of the Anesthesiology Division, Department of Sur-

gery, Naval Hospital, Corpus Christi, Texas. From Decem-

ber 1984 through December 1990, he worked as an

anesthesiologist with a non-military hospital, Los

Medanos Hospital, Pittsburg, California. Over that same

period, he founded and was medical director of the Pain

Relief Center, with offices in Walnut Creek and San Lean-

dro, California.

The initial source of information which began the

first investigation of petitioner’s practice was a legally

mandated Business and Professions Code § 801 (b) Report

of Settlement, Judgment or Arbitration Award from peti-

tioner’s own Professional Liability Insurance Carrier filed

on May 18, 1990. (Appendix Exh. “GG” to Petition,

Admin. Exh. 5).! Thereafter, multiple investigations were

opened, on a “piecemeal basis,” as the Medical Board of

California became aware of other lawsuits, settlements

and complaints against petitioner. (Admin. Exh. 33, 47,

$7, 73.)

1 References to the Appendix to the Petition for Mandamus,

filed in the California First District Court of Appeal, Case No.

A080131, specifically Exh. “GG” to the petition, the

Administrative Exhibits, shall hereafter be referred to as

“Admin. Exh. __.” During the administrative hearing below,

Rea] Party in Interest’s exhibits were assigned a numerical

designation; e.g., 1-108, and Petitioner’s exhibits were assigned

a letter designation; e.g., A-JJ.

On February 2, 1994, Real Party in Interest, the Board

filed an Accusation against petitioner, an anesthesiologist

by training who practiced pain management medicine,

alleging two causes for disciplinary action regarding a

single patient, M.O.2 (App. 14-20.)

This patient was treated by petitioner in his private

practice Pain Relief Center located in Walnut Creek, Cali-

fornia, not on a military facility. (Appendix Exh. “GG” to

Petition, Admin. Exhibits 5 and JJ). The Administrative

Law Judge’s (hereinafter “ALJ”) Findings of Fact and

Determinations of Issues? found that in regard to her care

and treatment, petitioner in a grossly negligent and

incompetent manner encouraged and allowed the patient

to self-inject morphine through an epidural (through the

lower back and into the spinal fluid) catheter. (App. 132

to the Petition.)

On February 16, 1995, Real Party in Interest filed a

First Supplemental Accusation against petitioner, involv-

ing three other patients, alleging similar conduct as

2 Initials were used to identify the patients in the

accusatory pleadings and although un-redacted medical records

and expert reports were introduced into evidence during the

administrative hearing, both the ALJ’s and trial court’s

decisions refer to the patients by initials. (App. 20-101, 109-201

to the Petition.)

3 The Findings of Fact and Determination of Issues made by

the ALJ set forth in the Statement of the Case hereinabove were

determined to be supported by the w-ight of the evidence upon

review by the trial court in exercising its independent judgment

of the record. (App. 21 to the Petition.) Additionally, the trial

court also found that the ALJ applied the correct standard of

proof, clear and convincing evidence to a reasonable certainty,

in reaching his decision. (App. 92 to the Petition.)

described hereinabove. The three patients were M.G.,

M.H. and B.C. (App. 23-45.)

During the period that petitioner served as the Direc-

tor of the Pain Clinic at Oak Knoll Naval Hospital in

Oakland, he and his staff provided medical care and

treatment for patient M.G. This is the only one of the six

patients alleged in the accusations filed by the Board

against petitioner who was treated exclusively at a mili-

tary hospital. The ALJ’s findings of fact and determina-

tiors of issues found that in regard to his care and

treatment, petitioner was negligent in failing to develop

and record a specific treatment plan. (App. 139, 192 to the

Petition.)

Petitioner first saw patient M.H., upon referral, on

January 29, 1993. (App. 47 to the Petition.) Petitioner saw

the patient at his private practice Pain Relief Center in

San Leandro, California. (Admin. Exh. 50.) The ALJ’s

findings of fact and determinations of issues found that

in regard to his care and treatment, petitioner was negli-

gent in giving methadone on a prn (as needed) basis to a

patient with a known history of addiction to cocaine and

street drug abuse and known history of suicide attempts.

(App. 148-149 to the Petition.)

Patient B.C. was a 37 year old man with a history of

cat scratch fever, resulting in the removal of cysts on the

left side of his neck. Kaiser Hospital in Vallejo, California

referred him to petitioner. (App. 151 to the Petition,

Admin. Exh. 63.) Petitioner saw the patient in his private

practice Pain Care Center in Walnut Creek, California.

(Appendix Exh. “FF”, Admin. Hearing Transcript, Vol. I,

24:3-6, 25:14-17).4 As a result of petitioner’s treatment,

patient B.C. suffered catastrophic complications. (App.

154 to the Petition.) The ALJ's findings of fact and deter-

minations of issues found that in regard to his care and

treatment of patient B.C., petitioner’s care represented

both an extreme departure from the standard of care

(gross negligence) and a lack of knowledge and ability in

carrying out his professional medical obligations (incom-

petence). (App. 160 to the Petition.)

On October 13, 1995, a Second Supplemental Accusa-

tion was filed against petitioner, involving two final

patients, J.W. and A.C. (App. 48-77.)

On August 28, 1986, petitioner first saw patient J.W.

He examined and treated her in his private practice Pain

Relief Center in Walnut Creek, California. (App. 161 to

the Petition, Admin. Exh. 74, “FF”.) The ALJ's findings of

fact and determinations of issues found that in regard to

his care and treatment of patient J.W., petitioner was

grossly negligent in allowing the patient to self inject

narcotics via an intrathecal (subarachnoid) catheter.

(App. 168-169 to the Petition.)

The final patient alleged in the accusations filed

against petitioner was A.C. Petitioner first saw patient

A.C. on November 30, 1987. (App. 173 to the Petition.)

Petitioner treated her in his private practice Pain Relief

4 References to the Reporter’s Transcript of the

Administrative Hearings, Appendix Exh. “FF” to the Petition

for Mandamus, filed in the California First District Court of

Appeal, Case No. A080131, shall hereafter be referred to by their

individual volume numbers, using their original Roman

Numeral designation; e.g., Vol. I.

Center in Walnut Creek, California. (Admin. Exh. 86.)

During the course of her treatment by petitioner, after she

received several morphine injections via catheter, and

epidural technique, A.C. passed out in her office parking

lot and was taken by strangers to John Muir Medical

Center, a non-military facility, where she was hospi-

talized. (App. 176 to the Petition.) When next he tried to

inject morphine, epidurally, her 14 year old son was given

some Narcan (a narcotic antagonist) in a syringe in the

event she had a problem. (App. 177 to the Petition.) The

ALJ's findings of fact and determinations of issues found

that in regard to his care and treatment of patient A.C.,

petitioner was grossly negligent in allowing the patient to

self inject narcotics via epidural and intrathecal catheters.

(App. 185-186 to the Petition.) In addition, petitioner was

also found to have been grossly negligent in allowing and

teaching the patient’s minor 14 year old son in injecting

the narcotic antagonist, Narcan. (App. 187-188 to the

Petition.)

The twenty-two day administrative hearing was held

beginning January 2, 1996 and continuing through Febru-

ary 7, 1996. (App. 109 to the Petition.)

On August 9, 1996, the Medical Board issued its

Decision, effective September 9, 1996, adopting the Pro-

posed Decision of ALJ Jonathan Lew. (App. 108 to the

Petition.)

Petitioner filed a timely Petition for Writ of Adminis-

trative Mandamus before the trial court. (Appendix Exh.

“A”.)

On February 6, 1997, the parties appeared before the

trial court to argue the Writ. Earlier that same day the

Court had posted its tentative ruling denying the Writ.

However, after hearing the arguments, the trial court

decided to take the matter under submission while it

further reviewed the administrative record. (Appendix

Exh. “E”.)

On February 10, 1997, the trial court signed its Order

Denying Peremptory Writ and discharged the stay.

(Appendix Exh. “F”.) After the Board submitted its pro-

posed Statement of Decision, as ordered by the trial

court, and objections were filed by petitioner herein, a 56

page Statement of Decision was signed by The Honorable

Judge William Cahill of the Superior Court on June 16,

1997. (Appendix Exh. “I”.)

On July 17, 1997, petitioner filed a Motion for a New

Trial. (Appendix Exh. “K”, “L” and “M”.)

On July 29, 1997, the Board filed its Opposition to a

New Trial and for Order Setting Aside Judgment.

(Appendix Exh. “O”, “P”, “Q” and “R”.)

On August 12, 1997, the parties appeared and argued

the matter before Judge Cahill in the San Francisco Supe-

rior Court. Once oral argument began, Judge Cahill

advised counsel for the petitioner that, in fact, he had not

read every word of every one of the administrative tran-

scripts but that he had looked at all of the cites in the

brief. (App. 3-4, fn. 1 to the Petition, Appendix Exh. “U”,

Reporter’s Transcript of Proceedings, August 12, 1997,

3:22-4:2.)

That same day, August 12, 1997, the trial court denied

petitioner’s Motion for a New Trial. (Appendix Exh. “V”

and “W”.)

On September 25, 1997, Dr. Day filed a Petition for

Extraordinary Writ with California’s First Appellate Dis-

trict Court of Appeal with a Request for an Immediate

Stay.

On October i, 1997 the Court of Appeal denied the

Stay.

On October 6, 1997, on behalf of the Real Party in

Interest, the Board filed a Preliminary Opposition to the

Petition.

On November 7, 1997, Petitioner filed a Preliminary

Reply in Support of the Petition for Writ of Mandate.

On January 12, 1998, California’s First Appellate Dis-

trict Court of Appeal issued its decision in a related

matter, certified for publication, in Allyn Beth Landau,

M.D. v. Medical Board of California, (re-published) 81

Cal.App.4th 191, 97 Cal.Rptr.2d 657 (1998). (App. 208-259

of the Petition.) The Landau decision ruled on many of the

same issues raised by Dr. Day in his petition challenging

the constitutionality of Business and Professions Code

§ 2337; e.g. whether it violated the Equal Protection and

Due Process Clauses of the California and U.S. Constitu-

tion. The Court in Landau found § 2337 to be constitu-

tional.

On January 8, 1999, having almost a full year earlier

issued its ruling in the Landau case on the constitu-

tionality of § 2337, the First District Court of Appeal

wrote to Real Party in Interest requesting supplemental

points and authorities on the issue of whether the trial

court below had sufficiently reviewed the evidence from

the administrative disciplinary proceeding to satisfy the

independent judgment review required of the trial court

in such matters.

On January 25, 1999, Real Party in Interest filed its

Supplemental Points and Authorities pointing out that

the trial judge understood his duty to exercise his inde-

pendent judgment in making his decision and that he did

just that by carefully reviewing all the cites to the admin-

istrative record called to his attention by the parties.

On March 30, 1999, the First District Court of Appeal

issued in ruling denying Petitioner’s Writ Petition by way

of an unpublished 8 page ruling. (App. 1-8 of the Peti-

tion.) The Court indicated that the key to their decision

was the distinction between “reading” and “reviewing”

the administrative record noting that in order to “review

the entire record” it was not strictly necessary to read

every word, as long as the petitioner had directed the

attention of the court to those material portions of the

record he or she contended undermine the administrative

decision. (App. 7-8 to the Petition.)

On April 12, 1999, Petitioner filed a Petition for

Review in the California Supreme Court.

On April 14, 1999, Real Party in Interest wrote to the

First District Court of Appeal requesting publication of

the decision.

On April 15, 1999, the First District Court of Appeal

wrote to the California Supreme Court recommending

against the publication of its decision.

On April 28, 1999, the California Supreme Court

granted the Petition for Review with further action

deferred pending consideration and disposition of a

related issue in Leone v. Medical Board, $065485 (Cal. Rules

of Court, Rule 29.2(c)), or pending further order of the

court. (App. 11 to the Petition.)

On April 3, 2000, the California Supreme Court

upheld the constitutionality of § 2337 in Leone v. Medical

Board, 22 Cal.4th 660, 94 Cal.Rptr.2d 61, 67, 995 P.2d 191

(Cal. 2000). (App. 78-106.)

On June 14, 2000, the California Supreme Court dis-

missed review in this case, the same day that the Califor-

nia Supreme Court dismissed review in Landau® and

directed publication of the First District’s opinion in the

Landau case. (App. 206-207 to the Petition.)

On July 5, 2000, Petitioner filed with the First District

Court of Appeal a Motion to Stay Issuance of Remittitur

in Order to Permit Petitioner to Petition the U.S. Supreme

Court for a Writ of Certiorari.

On July 19, 2000, Petitioner’s Motion to Stay Issuance

of Remittitur was granted in such a manner that the stay

would automatically dissolve on November 13, 2000 at

which time the clerk of the court would issue the Remit-

titur.

On August 9, 2000, the Second District Court of

Appeal, upon remand from the California Supreme

Court, issued its Order in Leone, agreeing with the First

Appellate District’s decision in the Landau case that

5 Landau v. Superior Court, S068095, was dismissed and

remanded to the Court of Appeal. The opinion of the Court of

Appeal, originally printed at 60 Cal.App.4th 940 (1998) was

ordered republished and appears at 81 Cal.App.4th 191.

Publication page references are not yet available for this

decision, although it does appear in the advance sheets,

California Official Reports, Number 18, July 4, 2000.

§ 2337 does not violate equal protection and due process

considerations. (App. 109-110.)

On November 17, 2000, the First District Court of

Appeal issued its Remittitur, certifying that the decision

in Petitioner’s matter entered on March 30, 1999 had

become final. (App. 112-113.)

On November 20, 2000, Petitioner wrote to the First

District Court of Appeal asking that it recall or stay the

Remittitur issued on November 17, 2000. (App. 114-115.)

On November 20, 2000, Real Party in Interest once

again wrote to the First District Court of Appeal request-

ing publication of the decision.

On December 5, 2000, the First District Court of

Appeal once again wrote to the California Supreme Court

recommending against the publication of its decision.

On December 8, 2000, the First District Court of

Appeal wrote to Petitioner advising that it had no author-

ity to grant his request because the decision has become

final. (App. 118-119.)

REASONS FOR DENYING THE PETITION

Petitioner fails to state a compellirg case that the

constitutionality of Cal. Bus. & Prof. C«.le § 2337 is of

such national urgency as to warrant review by this Court

and the Court should deny review.

The California Court of Appeal’s unpublished deci-

sion in this matter (App. 1-8 to the Petition) carries no

precedential weight beyond the limits of this case. As

such, the questions of law presented here, already judi-

cially resolved twice by the First District Court of Appeal

of California, as well as the California Supreme Court in

favor of the Board, lack sufficient national importance to

warrant a third appellate review by this Court.

In summary, here the California Court of Appeals,

supported by the California Supreme Court, has decided

[in Landau] that a state statute [the same statute in ques-

tion here, § 2337] is constitutional as against an equal

protection and due process challenge under both the

California State Constitution and by an analysis consis-

tent with challenges alleging similar violations of the U.S.

Constitution, that it is not in violation of the U.S. Consti-

tution. Petitioner has failed to demonstrate that a conflict

between decisions of a highest state court and a federal

court of appeals on a matter of federal law exists;

Katzinger v. Chicago Metallic Mfg. Co., 329 U.S. 394 (1947);

MacGregor v. Westinghouse Co., 329 U.S. 402 (1947). Sim-

ilarly, Petitioner has failed to demonstrate that a conflict

between decisions of a highest state court and that of the

U.S. Supreme Court on a matter of federal law exists;

Hudson v. Louisiana, 450 U.S. 40, 42 (1981); William E.

Arnold Co. v. Carpenters District Council, 417 U.S. 12, 14

(1974); Pittsburgh v. Alco Parking Corp., 417 U.S. 369,

371-72 (1974).

I. THE ISSUE PRESENTED TO THIS COURT LACKS

THE SUFFICIENT NATIONAL IMPORTANCE TO

WARKANT A GRANT OF CERTIORARI

Petitioner overstates both the significance and poten-

tial ramifications of the Court of Appeal’s decision for

physicians in California and in other states of the Union.

Publication of the decision was denied, twice, by the

Court of Appeal and is not a part of the official case

reports of California. As such, under California law, the

decision cannot “be cited or relied on by a court of a

party in any other action or proceeding.” (Cal. Rules of

Court, Rule 977(a).) Any potential impact attending to the

decision as controlling legal authority thus does not

extend beyond the limits of this case.

During the pendency of petitioner’s case in the Cali-

fornia judicial system, a disagreement arose in the Courts

of Appeal on the constitutionality of section 2337. In

Leone v. Medical Board, (formerly) 57 Cal.App.4th 1240, 67

Cal.Rptr.2d 689 (1997), review granted December 23, 1997

(S065485), Division Four of the Second District held that

the statute was an imp¢rmissible attempt to interfere with

the constitutional jurisdiction of the Courts of Appeal as

defined in article VI, section 11 of the California Constitu-

tion. In Landau v. Superior Court, (formerly) 60

Cal.App.4th 940, 71 Cal.Rptr.2d 54 (1998), review granted

April 15, 1998 (S068095), Division Two of the First Appel-

late District held that the statute did not violate article VI,

section 11 and that the section does not deny a physician

either equal protection or due process.

On April 3. 2000, the California Supreme Court

issued its decision in Leone, supra, finding that the argu-

ment that section 2337 substantially impairs the exercise

of appellate jurisdiction was not persuasive and that “by

common understanding, a reviewing court may exercise

this power in the procedural context of a direct appeal or

a writ petition.” (App. 83.)

After ruling in the Leone case, the California Supreme

Court then went on to issue its Order, on June 14, 2000,

En Banc, in the Landau case. (App. 206 to the Petition.)

The court directed the Reporter of Decisions to partially

publish the opinion in the Landau case in accord with the

Court of Appeal’s prior partial publication of the opinion

at 60 Cal.App.4th 940.

In the re-published Landau decision, the California

Court of Appeal indicated that in its analysis of the equal

protection claim, “The Fourteenth Amendment's guaran-

tee of equal protection and the California Constitution’s

protection of the same right (Cal. Const., art. I, § 7, subd.

(a), art. IV, § 16, subd. (a) are substantially equivalent and

are analyzed in a similar fashion. [Citations.]” Kenneally v.

Medical Board, 27 Cal.App.4th 489, 495, 32 Cal.Rptr.2d 504

(1994) (App. 230 to the Petition.)

The court then went on to find that section 2337 did

not violate equal protection or due process considerations

and reversed the judgment of the trial court.

While the constitutionality of any state statute is an

important issue to California, the Court of Appeal’s deci-

sion in Landau resolved the questions of whether Bus. &

Prof. Code § 2337 violates the equal protection and due

process clauses of both the California and U.S. Constitu-

tion in a manner fully consistent with existing constitu-

tional jurisprudence. This is reflected in the Court of

Appeal’s language in Landau, where it stated:

“(T]he equal protection clause requires that

those similarly situated not be treated differ-

ently unless the disparity is justified.” (Board of

Supervisors v. Local Agency Formation Com., 3

Cal.4th 903, 914, 13 Cal.Rptr.2d 245 (1992); Ken-

neally v. Medical Board, 27 Cal.App.4th 489, 495,

32 Cal.Rptr.2d 504 (1994).) “The Fourteenth

Amendment's guarantee of equal protection and

the California Constitution’s protection of the

same right (Cal. Const., art. I, § 7, subd. (a), art.

IV, § 16, subd. (a)) are substantially equivalent

and are analyzed in a similar fashion. [Cita-

tions.]” Kenneally, supra, at p. 495. Landau, supra,

81 Cal.App.4th 191, 207.

It is clear that California cases have long held that

equal protection analysis of the provisions of the state

constitution are substantially equivalent to the analysis of

the Equal Protection Clause of the Fourteenth Amend-

ment to the U.S. Constitution. People ex rel. Younger v.

County of El Dorado, 5 Cal.3d 480, 502, fn. 23, 96 Cal.Rptr.

553, 487 P.2d 1183 (1971); Rittenband v. Cory, 159

Cal.App.3d 410, 417, 205 Cal.Rptr. 576 (1984), citing Dunn

v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995 (1972).

This “rational basis” analysis has also been recog-

nized and applied in previous equal protection and due

process challenges to California Medical Practice Act pro-

visions. Smith v. Board of Medical Quality Assurance, 202

Cal.App.3d 316, 324, 248 Cal.Rptr. 704 (1988).

As in the Landau case, Kenneally, supra, 27

Cal.App.4th 489 is dispositive of Dr. Day’s claim that he

has a fundamental right to continue to practice his

licensed profession. In Kenneally, a physician contended

that Government Code section 11511 denied him equal

protection (U.S. Const., 14th Amend.; Cal. Const., art. L

§ 7) by restricting prehearing depositions in physician

disciplinary proceedings. The Court of Appeal refused to

utilize strict scrutiny review and held the rational basis

test was the standard of review applicable to the doctor’s

claim.

The Landau court went on to conclude that in Califor-

nia a physician's right to continue to practice a licensed

profession is not a fundamental right for equal protection

purposes and, accordingly, in evaluating whether § 2337

denied her equal protection, the rational basis test

applied. (App. 235 to the Petition.)

The reasoning employed by California’s First District

Court of Appeal in Landau thus is wholly consistent with

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307,

313, 49 L.Ed.2d 520, 524-525, 96 S.Ct. 2562 (1976)

“We need only state briefly our reasons for

agreeing that strict scrutiny is not the proper

test for determining whether the mandatory

retirement provision [age 50 for state police offi-

cers] denies appellee equal protection. San Ant-

onio School District v. Rodriguez, 411 U.S. 1, 16, 93

S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973), reaffirmed

that equal protection analysis requires strict

scrutiny of a legislative classification only when

the classification impermissibly interferes with

the exercise of a fundamental right or operates

to the peculiar disadvantage of a suspect

6 In some situations, the United States Supreme Court has

applied an “intermediate standard” of review that is not as

difficult for the government to meet as the compelling interest

test, but which involves far less deference to the legislature than

does the re nality test. Under the intermediate standard of

review, the ). .‘ices will not uphold a classification unless they

find that the classification has a “substantial relationship” to an

“important” government interest. The United States Supreme

Court has used this intermediate standard of review in cases

involving gender classifications and cases involving

illegitimacy classification. Woods v. Holy Cross Hospital, 591 F.2d

1164, 1172-1173 (5th Cir. 1979). Kenneally, supra, at p. 495, fn. 4.)

‘

“Nor does the class of uniformed state

police officers over 50 constitute a suspect class

for purposes of equal protection analysis.

Rodriguez, supra, 411 U.S. at 28, 93 S.Ct. at 1294.,

observed that a suspect class is one ‘saddled

with such disabilities, or subjected to such a

history of purposeful unequal treatment, or rele-

gated to such a position of political process.’ ”

Massachusetts, supra, 427 U.S. at 312-313, 96 S.Ct.

at 2566-2567.

Thus, Petitioner’s contention that § 2337 is uncon-

stitutional on the grounds that it violated the Due Process

Clause, Commerce Clause and Equal Protection Clause of

the United States Constitution is not persuasive. Limiting

appellate scrutiny of superior court decisions in physi-

cian discipline cases to review by extraordinary writ is

rationally related to the governmental purpose of reduc-

ing delay in such cases.

_ Today, before such a case reaches the California

Court of Appeal, two separate written decisions exist

detailing all the findings of fact and determination of

issues. Further, the standard of review applied in each

decision is very high; clear and convincing proof to a

reasonable certainty that discipline is warranted at the

administrative level (Ettinger v. Board of Medical Quality

Assurance, 135 Cal.App.3d 853, 856, 185 Cal.Rptr. 601

(1982), and a limited trial de novo, where the superior court

exercises its independent judgment to determine whether

the Board’s findings are supported by the weight of the

evidence, based on the administrative record. (Ettinger,

supra, 135 Cal.App.3d at 858; Yellen v. Board of Medical

Quality Assurance, 174 Cal.App.3d 1040, 1057, 220

Cal.Rptr. 426 (1985).)

Nothing in section 2337, as amended and effective

January 1, 1996, has changed this.

Petitioner’s suggestion that writ review for physician

discipline cases necessarily constitutes an inadequate

review sidesteps the numerous instances in which writ

review is the only avenue for review of an administrative

case. For example, judicial review of decisions of the Pub-

lic Utilities Commission is via petition for certiorari in the

California Supreme Court (Public Util. Code, §§ 1756,

1759); judicial review of attorney discipline cases is by

petition for review to the California Supreme Court or the

California Court of Appeal (Bus. & Prof. Code §§ 6082,

6083); judicial review of Workers’ Compensation Appeals

Board decisions is via petition for writ of review in the

California Supreme Court or the Court of Appeal (Labor

Code §§ 5950-5955); judicial review of Alcoholic Beverage

Control Appeals Board decisions is via writ of review in

the California Supreme Court or the Court of Appeal (Bus.

& Prof. Code §§ 23090-23090.5); judicial review of Agri-

cultural Labor Relations Board decisions is by petition to

the Court of Appeal (Labor Code § 1160.8); and judicial

review of Public Employee Relations Board unit deter-

minations and unfair practice cases can be obtained only

by petition for extraordinary writ to the Court of Appeal.

(California Gov’t Code §§ 3520, 3542, and 3564.)

As earlier noted, the trial court upheld the findings

upon which the Board ultimately based its decision to

discipline Petitioner’s license. Since the record shows that

the trial court correctly understood its independent judg-

ment review function as to those findings in upholding

them, the court determined that they were supported by

the weight of the evidence. In the present case we do not

have to assume that this occurred since at nine separate

places in the trial court’s Statement of Decision, signed by

Judge Cahill, he specifically stated that the weight of the

evidence supported ALJ Lew’s determination of issues

based on the allegations of the various accusations. (App.

36, 42, 44, 51, 63, 64 (twice), 72 and 91 to the Petition.)

The question of whether Petitioner’s due process

rights were violated is really a review of whether the trial

court truly exercised its independent judgment over the

administrative decision below. Under the independent

judgment test, by which a reviewing court independently

determines issues of fact by reference to the administra-

tive record, the function of the reviewing court is limited

to ascertaining the presence, or absence, of the “weight”

of the evidence in the record to sustain the trial court’s

findings, and if they are supported by substantial evi-

dence, they are binding on appeal. (Los Alamitos General

Hospital, Inc. v. Director of Dept. of Health, 86 Cal.App.3d

417, 423, 149 Cal.Rptr. 98 (1978).) As noted above, the trial

court in at least nine separate places indicated that the

weight of the evidence supported the findings of fact and

determination of issues of the administrative tribunal.

The key is whether the administrative agency’s find-

ings are supported by the weight of the evidence, not

whether the superior court judge reviewed every single

exhibit, transcript line, etc. (Lacy v. California Unemploy-

ment Ins. Appeals Bd., 17 Cal.App.3d 1128, 1132, 95

Cal.Rptr. 566 (1971); Cleveland Chiropractic College v. State

Bd. of Chiropractic Examiners, 11 Cal.App.3d 25, 35, 89

Cal.Rptr. 572 (1970).)

II. ALTHOUGH NO EVIDENCE EXISTS THAT THE

TRIAL COURT FAILED TO CONSIDER ALL EVI-

DENCE CITED TO IT BY PETITIONER BY THE

TIME OF THE HEARING ON THE MOTION FOR

A NEW TRIAL, ASSUMING ARGUENDO THAT IT

DID, CASE LAW DOES NOT REQUIRE THE

TRIAL COURT TO READ EVERY LINE OF EVERY

PAGE OF THE ADMINISTRATIVE RECORD IN

ORDER FOR IT TO EXERCISE ITS INDEPEN-

DENT JUDGMENT ,

The seminal California case which expressly deter-

mined that mandamus was the appropriate method of

challenging a license discipline by a state agency and

which also explained what the scope of review on man-

damus would be in such a case was Drummey v. State Bd.

of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848 (1939).

“Although these [citations omitted] and other

authorities establish that mandamus is the

proper remedy to secure the restoration of a

professional license of which the petitioner has

been improperly deprived, where no other rem-

edy exists, the authorities do not clearly estab-

lish the scope of review on mandamus.”

Drummey, supra, 13 Cal.2d 75, 82-83.

However, the Court in Drummey explicitly recognized

that even under an independent judgment test review, the

reviewing court was not acting entirely de novo.

“This does not mean that the preliminary work

performed by the administrative board in sifting

the evidence and in making its findings is

wasted effort. As was pointed out in the St.

Joseph Stockyards case, [298 U.S. 38, 52, 56 S.Ct.

720 (1936)], in weighing the evidence the courts

can and should be assisted by the findings of the

board. The findings of the board come before

the court with a strong presumption of their

correctness, and the burden rests on the com-

plaining party to convince the court that the

board’s decision is contrary to the weight of the

evidence.” Drummey, supra, 13 Cal.2d 75, 85.

The reasoning of Drummey, supra, was followed in

Dare v. Board of Medical Examiners, 21 Cal.2d 790, 795

(1943) and Moran v. Board of Medical Examiners, 32 Cal.2d

301, 308 (1948).

The very language which Petitioner points out from

footnote 10 in Bixby, id., clearly places limitations on the

independent judgment test. It is a “limited trial de novo”.

(Bixby v. Pierno, 4 Cal.3d 130, 143 (1971); see also, Guymon

v. Board of Accountancy, 55 Cal.App.3d 1010, 1013 (1976).)

(Petition at p. 9.)

Thus, the test which the trial court applied in review-

ing the decision of the Medical Board in the present case,

which adopted the findings made by the ALJ, was the

independent judgment test, in a “limited trial de novo”

setting.

In Bixby v. Pierno, 4 Cal.3d 130, 143-144, fn. 10, 93

Cal.Rptr. 317 (1971), cited by Petitioner, the California

Supreme Court characterized as arbitrary and capricious

any administrative decision which has “no reasonable

basis in law or no substantial basis in fact.” In the case at

issue, there is clearly a substantial basis in fact(s) for the

discipline imposed on Petitioner.

Thus, Petitioner’s contention that the trial court did

not independently review the administrative record suffi-

ciently to allow it to exercise its independent judgment is

simply not true. This is fortified by several things.

First, as previously stated, during the first trial court

appearance of February 6, 1997, on the Writ of Man-

damus, the trial judge reminded petitioner that petitioner

had been granted double the allowable number of pages

under the local rules (40 pages in total) for his Memoran-

dum of Points and Authorities in Support of the Petition.

(Appendix Exh. “E”.)

Second, due to the voluminous nature of the adminis-

trative record, in order to assist the trial court in review-

ing it, when the Board filed its Memorandum of Points

and Authorities in Support of Answer to the Petition for

Writ of Mandamus, it attached as Exhibits B through G a

verbatim recitation of the “Findings of Fact” and “Deter-

minations of Issues” in regards to each finding made by

the ALJ (App. 120-194 to the Petition) with supporting

citations to the administrative transcript and written

exhibits. (Appendix Exh. “C”.) This painstakingly

laborious task was undertaken to provide a simple “road-

map” for the trial court to expeditiously exercise its inde-

pendent judgment of the record.

Third, during the hearing on the Motion for a New

Trial the trial judge advised counsel for the petitioner and

that he had looked at all of the cites in the briefs. (App.

3-4, fn. 1 to the Petition, Appendix Exh. “U”.)

Finally, as the First District Court of Appeal correctly

found, “[A]s Petitioner himself points out, petitioner

actually reproduced and attached as an appendix to his

original petition to the trial court the text of most of the

material from the administrative record on which he

relied in his writ petition. Thus, the trial court did not

have to open all the actual reporters’ transcripts of the

administrative record in order to peruse the citations on

which petitioner was relying, since Petitioner had already

provided the relevant texts as part of his own petition

and the trial court could read them there. (App. 8 to the

Petition.) The court went on to state that “[MJoreover,

petitioner completely ignores the fact the trial court also

had available to it literally thousands of pages of attached

exhibits and documentary evidence contained in 22 addi-

tional volumes of administrative record accompanying

his writ petition. Petitioner has never alleged that the

trial court failed to review this evidence, and there is

nothing to suggest that it did not do so.” (App. 8 to the

Petition.)

Ill. PETITIONER’S RELIANCE ON SOLORIO IS MIS-

PLACED AND DOES NOT AFFECT REAL PARTY

IN INTEREST’S JURISDICTION OVER HIS MED-

ICAL PRACTICE.

In Solorio v. United States, 483 U.S. 435, 107 S. Ct.

2924, 97 L.Ed.2d 364 (1987), the Supreme Court held that

a court-martial convened pursuant to the Uniform Code of

Military Justice (UCMJ) had jurisdiction over charges of

sexual abuse by a serviceman even though the crimes

were not “service connected.” In essence, the court held

that jurisdiction of a court-martial depends solely on the

accused’s status as a member of the Armed Forces, and

not on the “service connection” of she offense charged,

thus, overruling the holding in O'Callahan v. Parker, 395

U.S. 258, 89 S.Ct. 1683, 23 L.Ed2d 291 (1969).

Real Party in Interest would point out that Petitioner

was not charged with a criminal offense by either the Navy

under the Uniform Code of Military Justice or the laws of

a state, as was the case in Solorio, supra. Further, the

record demonstrates that trial Judge Cahill clearly under-

stood this issue, raised by Petitioner, when he stated:

“(Real Party in Interest] clearly had jurisdiction

over petitioner’s acts or omissions as a physi-

cian. In the case of the one patient, M.G., who

was treated by petitioner at Oak Knoll Naval

Hospital, petitioner was practicing as a private

practice physician away from the Naval Hospi-

tal at two separate facilities in San Leandro and

Walnut Creek, California during the same rele-

vant period of time. The evidence also shows

that he had independently placed himself

within the jurisdiction of respondent when he

sought and secured California licensure as a

physician when, had he only been practicing

solely and exclusively as an employee of the

Navy and provided medical services exclusively

on a federal facility wholly supported and main-

tained by the U.S. Government, respondent

could not have compelled him to secure such

licensure. Finally, Business and Professions

Code § 2305 clearly allows respondent to take

action against one of its licensees where, as here,

Oak Knoll Naval Hospital moved to restrict the

authority of petitioner to practice medicine.

Petitioner is only licensed as a physician in Cali-

fornia and federal statutes clearly require that as

a health care professional in the Naval armed

services, petitioner is specifically required and

depend on him having a current license to pro-

vide such care by grant of permissions from an

official agency of, among others, a state. (See 10

U.S.C.A. § 1094, (a), (1) and (d), (1), (A).)” (App.

104-105, Order Denying Peremptory Writ of

Mandate, to the Petition.)

Thus, Petitioner’s contention that “Solorio holds that

an active duty officer is under exclusive jurisdiction for

disciplinary proceedings for any offenses committed

while on active duty,” in the present context, is totally

inapplicable. (App. 27 to the Petition.)

Petitioner’s additional contentions that the “unre-

viewed record” also impacted on whether a laches

defense applied or that principles of res judicata or collat-

eral estoppel” barred the charges against him because the

Navy “cleared” him of such charges are also incorrect.

(Petition, 19-20) Each of these issues was thoughtfully

addressed by the Court.

“In addition, the ALJ gave petitioner every

opportunity to prove to him that the Navy pro-

ceedings actually alleged malpractice by peti-

tioner for the care and treatment of patient M.G.

and that there were specific findings made rela-

tive to said patient and petitioner could not do

so.” (Vol. XXII, 12:18-15:22, App. 95 to the Peti-

tion.) (Emphasis in the original.)

: Finally, Petitioner’s contention that “the lack of an

independent review also materially affected DR. DAY’S

laches claim” is also not supported by the evidence. (Peti-

tion at 20.) The trial court made very specific findings

regarding this issue in its Statement of Decision. (App.

96-97 to the Petition.) After very carefully setting forth

the applicable law regarding laches, the trial court con-

cluded by finding that:

“Petitioner herein has failed, both at the

administrative level as well as before this Court,

to meet this burden. Petitioner presented little,

if any, persuasive evidence in this regard. This

Court also finds that Respondent Medical Board

was not guilty of laches because it acted reason-

ably once it became aware of the facts giving

rise to the various accusations against Petitioner

and also because Petitioner was not prejudiced

by any delay.” (App. 97 to the Petition.)

IV. PETITIONER WAS NOT DISCIPLINED FOR MAT-

TERS NOT ALLEGED IN WRITING.

Petitioner’s allegation that he was disciplined for

something that was not alleged in the accusations filed

against him is incorrect. (Petition at 5, 29.) He alleges that

“Administrative Finding 64 found that Petitioner allowed

A.C.’s minor son ‘to be responsible for administering

Narcan in a syringe to her if needed’, was never alleged

in the accusations. (App. 91 and 187-188 to the Petition).

Petitioner continues by alleging that “nowhere in the

Seccend Supplemental Accusations regarding A.C. did this

allegation appear.” (Petition at 29.)

Petitioner cites to In re Ruffalo 390 U.S. 544, 551, 20

L.Ed.2d 117 (1968) for the proposition that “The charge

must be known before the proceedings commence.”

In this case, that is precisely what occurred. In fact,

the California Administrative Procedure Act, which gov-

erns administrative disciplinary proceedings, sets forth

the requirement in this fashion, “The accusation shall be a

written statement of charges which shall set forth in

ordinary and concise language the acts or omissions with

which the respondent is charged, to the end that the

respondent will be able to prepare his defense. It shall

specify the statutes and rules which the respondent is

alleged to have violated, but shall not consist merely of

charges phrased in the language of such statutes and

rules.” (California Gov’t Code § 11503.)

A review of the actual language of the charging accu-

sations in question quickly points out that the charges in

the accusation were quite specific and more than amply

served to place Petitioner on notice of the charges against

him. The Second Supplemental Accusation filed against

him specifically set forth allegations and a cause for

discipline for this conduct. (App. 63, 70, and 75-76.) See,

Second Supplemental Accusation, Para. 32:11-21, Para.

49:14-17, Para. 49(k):21-30:7.)

He allowed and taught the 14 year old son of a

patient, whom he disingenuously described in the medical

records only as the patient’s “attendant,” to inject his

mother, should she experience a narcotic overdose, with

the narcotic antagonist, Narcan. (Vol. IV, 55:6-57:7, Admin.

Exh. 86, Medical Records of Patient A.C., pp. 856, 1184.)

One of the Board’s expert witnesses, whom Petitioner

cross-examined extensively, described this scenario as

“incredulous” and “almost in a category of being ridicu-

lous.” (Vol. IX, 79:12-23.)

Finally, petitioner alleges that “[NJothing in the

record stated that the son was responsible for administer-

ing Narcan to A.C.,” his mother. (Petition at 30.) This is

simply untrue. Petitioner, himself, testified at the hearing:

“So we — her son was with her, and so she was -—

the syringe was given to her son. We drew up

the medication, and all he would have had to

have done, should she felt those symptoms, was

to somehow get that needle under the skin, after

wiping off the skin with alcohol, and inject the

amount in the syringe.

The only way he could have hurt her would be

if he had have injected that into her eye, some-

thing that was probably quite unlikely. The rea-

son for that was that the needle was not long

enough to get into any other vital structures

where the needle itself could have done any

damage.” (Vol. XX, 48:25-49:12.)

The only thing missing from the allegations of the

accusation was the exact age of the 14 year-old son, since

this was unknown to Real Party in Interest. (Appendix

Exh. “U”, Reporter’s Transcript of Proceedings at Motion

for New Trial Hearing, 14:9-15:10.) The reason that it was

unknown to Real Party in Interest was because Petitioner

had failed to note it in the medical record, instead choos-

ing to describe the 14 year-old son as an “attendant”.

CONCLUSION

A review of the Statement of Decision issued by the

trial court quickly points out that the court was well

aware of its duties under the law as well as the specific

evidence of the case, as was pointed out by the trial court,

following its review of the administrative record:

“There was sufficient evidence presented by

way of the Board’s expert witnesses, one Board

Certified Orthopedic Surgeon; one Board Certi-

fied Neurologist and two Board Certified Anes-

thesiolgists, that petitioner’s care and treatment

of the six patients alleged in the various accusa-

tions failed to fall within the prevailing stan-

dards of practice as found in the ALJ’s

PROPOSED DECISION, adopted by [Real Party

in Interest] Medical Board. See Cooper v. Board of

Medical Examiners, 49 Cal.App.3d 931, 941, 123

Cal.Rptr. 563 (1975); Gore v. Board of Medical

Quality Assurance, 110 Cal. App. 3d 184, 198, 167

Cal.Rptr. 881 (1980). Finally, in reviewing the

findings of the Board, it should be noted that the

burden rests on the complaining party to con-

vince the court that the Board’s decision is con-

trary to the weight of the evidence. (Drummey v.

State Bd. of Funeral Directors, 13 Cal.2d 75, 84-85,

87 P.2d 848 (1939)). It is established that the

“weight of the evidence” is synonymous with “a

preponderance of the evidence” (Chamberlain v.

Ventura Co. Civil Service Comm’n, 69 Cal.App.3d

362, 138 Cal.Rptr. 155 (1977)). Petitioner herein

has failed to meet his burden of proving that

[Real Party in Interest’s] decision against him is

contrary to the weight of the evidence.” (App.

97-98 to the Petition.)

Further, the trial court found that the Administrative

Law Judge had discharged his duties in an exemplary

fashion.

“The decision is extremely detailed and well

reasoned. Over the course of 22 days of hearing,

ALJ Lew was able to carefully gauge the exper-

tise, credibility and demeanor of the witnesses

who testified before him, including Petitioner,

the five patients who appeared at the hearing as

well as numerous expert witnesses called by

both parties. ALJ Lew then proceeded to make

specific written findings thereon which clearly

set forth for all interested parties what his

thought and deliberative process was between

the raw evidence, his findings of fact, deter-

mination of issues and decision as to ultimate

disposition. AL] Lew demonstrated in his writ-

ten decision an extensive knowledge of the law,

the medical issues involved and his duties pur-

suant to the law.” (App. 100 to the Petition.)

For all of the foregoing reasons, the petition for writ

of certiorari should be denied.

Brit Lockyer, Attorney General

of the State of California

CarLos Ramirez, Senior

Assistant Attorney General

Vivien Hara HErsH

Supervising Deputy Attorney

General

ALFREDO TERRAZAS

Deputy Attorney General

(Counsel of Record)

Counsel for Respondent

Brief in Opposition - Appendix

Table of Contents

Original Accusation (Patient M.O.) February

BME sch cc pap hans saagsWise cit kad eee App.

First Supplemental Accusation (Patients M.G.,

M.H., and B.C.) February 1995.............. App.

Second Supplemental Accusation (Patients J.W.

and A.C): Oxtaber 1998. 36k AE. App.

LEONE California Supreme Court Opinion April

come dhe TEE Ce OO EEE Py NCEE App

LEONE Order August 2000................... App.

Remittitur November 2000.................... App.

Petitioner’s Letter to Ct. of Appeal November

ME Sin See SS Aer eek eo eee) eco ckk App.

Court of Appeal Letter to Petitioner December

tates CS LL OT EEE POP EEE TES ea NTS. App.

cwrorintcitni: Hohe tertdin. ssc ee Pe ee App

Page

107

112

114

118

. 120

App. 1

DANIEL E. LUNGREN, Attorney General :

of the State of California ,

ALFREDO TERRAZAS :

Deputy Attorney General

455 Golden Gate Avenue, Suite 6200

San Francisco, CA 94102

Telephone: (415) 703-1971

Attorneys for Complainant

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DIVISION OF MEDICAL QUALITY

STATE OF CALIFORNIA

In the Matter of the Accusation

Against:

Franklin Jerome Day, M.D.

P. O. Box 306

)

) No. D-5613

)

San Leandro, California 94577 ‘

)

ACCUSATION

Certificate No. G-39260

Respondent.

DIXON ARNETT, complainant herein charges and

alleges as follows:

1. He is the Executive Director of the Medical Board

of California, State of California (hereinafter “the Board”)

and makes these charges and allegations solely in his

official capacity.

LICENSE HISTORY

2. At all times material herein, respondent, Franklin

Jerome Day, M.D., (hereinafter “respondent”) has held

physician and surgeon certificate No. G 39260, which was

App. 2

issued to him by the Board on May 18, 1979. Said certifi-

cate is in good standing at the present time and expires

on March 31, 1995. No prior disciplinary action has been

taken against said certificate. Respondent is a supervisor

of a physician assistant, however, his supervisor physi-

cian assistant license No. SA 14333 is in a delinquent

status with an expiration date of May 31, 1988.

STATUTES

3. Section 2001 of the Business and Professions

Code! provides for the existence of the Board.

4. Section 2003 of the code provides for the exis-

tence of the Division of Medical Quality (hereinafter

referred to as the “division”) within the Board.

5. Section 2004 of the code provides, inter alia, that

the division is responsible for the administration and

hearing of disciplinary actions involving enforcement of

the Medical Practice Act (Section 2000, et seq.) and the

carrying out of disciplinary action appropriate to findings

made by a medical quality review committee, the divi-

sion, or an administrative law judge with respect to the

quality of medical practice carried out by physician and

surgeon certificate holders.

6. Sections 2220, 2227 and 2234 of the code, together

provide that the division shall take disciplinary action

against the holder of a physician’s and surgeon’s certifi-

cate who is guilty of unprofessional conduct.

1 All statutory references are to the Business and

Professions Code unless otherwise indicated.

App. 3

7. Section 2220 of the code provides that:

. . . except as otherwise provided by law, the

Division of Medical Quality may take action

against all persons guilty of violating this chap-

ter. The division shall enforce and administer

this article as to physician and surgeon certifi-

cate holders, and the division chapter for these

purposes including, but not limited to:

(a) Investing complaints from the public,

from other licensees, from health care facilities,

or from a division of the board that a physician

and surgeon may be guilty of unprofessional

conduct.

8. Section 2227 of the code provides that a licensee

whose matter has been heard by the Division of Medical

Quality, by a medical quality review committee or a panel

of such committee, or by an administrative law judge, or

whose default has been entered, and who is found guilty

may, in accordance with the provisions of this chapter:

(a) Have his or her certificate revoked upon order

of the division.

(b) Have his or her right to practice suspended for a

period not to exceed one year upon order of the division

or a committee or panel thereof.

sion or a committee or panel thereof.

(d) Publicly reprimanded by the division or a com-

mittee or panel thereof.

(e) Have such other action taken in relation to disci-

pline as the division, a committee or panel thereof, or an

administrative law judge may deem proper.

Mea scenes

nL Bis ES Ge et

App. 4

9. Section 2234 of the code provides, in relevant

part, that the Division of Medica) Quality shall take

action against any licensee who is charged with unprofes-

sional conduct. In addition to other provisions of this

article, unprofessional conduct includes, but is not lim-

ited to, the following:

(b) Gross negligence.

(d) Incompetence.

10. Section 725 of the code provides, in pertinent

part, that repeated «cts of clearly excessive prescribing or

administering of drugs or treatment as determined vy the

standard of the community of licensees is unprofessional

conduct for a physician and surgeon.

11. Section 2238 provides that a violation of any

federal statute or federal regulation or any of the statutes

or regulations of this state regulating dangerous drugs or

controlled substances constitutes unprofessional conduct.

12. Section 2241 provides, in pertinent part, that

unless otherwise provided by this section, the prescrib-

ing, selling, furnishing, giving away, or administering or

offering to prescribe, sell, furnish, give away , or adminis-

ter any of the drugs or compounds mentioned in Section

2239 to an addict or habitue constitutes unprofessional

conduct.

13. Section 2242(a) provides as follows:

“(a) Prescribing, dispensing, or furnishing

dangerous drugs as defined in Section 4211

without a good faith prior examination and

App. 5

medical indication therefor, constitutes

unprofessional conduct.”

14. Section 11152 of the Health and Safety Code

provides that no person shall write, issue, fill, compound,

or dispense a prescription that does not conform to this

division.

15. Section 11153, subdivision (a) of the Health and

Safety Code provides that a prescription for controlled

substance shall only be issued for a legitimate medical

purpose by an individual practitioner acting in the usual

course of his or her professional practice. The respon-

sibility for the proper prescribing and dispensing of con-

trolled substances is upon the prescribing practitioner,

but a corresponding responsibility rests with the pharma-

cist who fills the prescription. Except as authorized by

this division, the following are not legal prescriptions: (1)

an order purporting to be a prescription which is issued

not in the usual course of professional treatment or in

legitimate and authorized research; or (2) an order for an

addict or habitual user of controlled substances, which is

issued not in the course of professional treatment or as

_ part of an authorized methadone maintenance program,

for the purpose of providing the user with controlled

substances, sufficient to keep him or her comfortable by

maintaining customary use.

16. Section 11156 of the Health and Safety Code

provides that no person shall prescribe for or administer,

or dispense a controlled substance to an addict or habit-

ual user, or to any person representing himself as such,

except as permitted by this division.

App. 6

17. Section 11157 of the Health and Safety Code

provides that no person shall issue a prescription that is

false or fictitious in any respect.

18. Section 11171 of the Health and Safety Code

provides that no person shall prescribe, administer, or

furnish a controlled substance except under the condi-

tions and in the manner provided by this division.

19. Section 11210 of the Health and Safety Code

provides, in pertinent part that a physician . . . may

prescribe for, furnish to, or administer controlled sub-

stances to his patient when the patient is suffering from a

disease, ailment, injury, or infirmities attendant upon old

age, other than addiction to a controlled substance.

The physician . . . shall prescribe, furnish, or admin-

ister controlled substances only when in good faith he

believes the disease, ailment, injury, or infirmity, requires

such treatment.

The physician . . . shall prescribe, furnish, or admin-

ister controlled substances only in such quantity and for

such length of time as are reasonably necessary.

20. Article 2 of Chapter 5 of Division 10 of the

Health and Safety Code provides, in pertinent part, as

follows:

Article 2. Treatment of Addicts for Addition

11215. Except as otherwise provided in

this section, any narcotic controlled substance

employed in treating an addict for addiction

shall be administered by a physician, or by a

registered nurse acting under his instruction. .. .

App. 7

11216. Except as otherwise provide din

Section 11215, no physician or other person shall

order, permit, or direct any person other than a

registered nurse, or other physician, to adminis-

ter a narcotic controlled substance to a person

being treated for addiction to a controlled sub-

stance.

11217. No person shall treat an addict for

addiction to a narcotic drug except in one of the

following:

(a) An institution approved by the State

Department of Mental Health, and where

the patient is at all times kept under

restraint and control.

(b) A city or county jail.

(d) A facility designated by a county and

approved by the State Department of Men-

tal Health pursuant to Division 5 (com-

mencing with Section 5000) of the Welfare

and Institution Code.

(e) A state hospital.

(f) A county hospital.

(g) A facility licensed by the State Depart-

ment of Alcohol and Drug Programs pur-

suant to Division 10.5 (commencing with

Section 11750).

Methadone in the continuing treatment of

addiction to a controlled substance shall be

used only in those programs licensed by the

State Department of Alcohol and Drug Pro-

grams pursuant to Article 3 (commencing

with Section 11875) of Chapter 1 of Part 3 of

App. 8

Division 10.5 on either an inpatient or out-

patient basis, or both.

This section does not apply during emergency

treatment, or where the patient’s addiction is

complicated by the presence of incurable dis-

ease, serious accident, or injury, or the infir-

mities of old age.

Neither this section nor any other provision of

this division shall be construed to prohibit the

maintenance of a place in which persons seeking

to recover from addiction to a controlled sub-

stance reside and endeavor to aid one another

and receive aid from others in recovering from

such addiction, nor does this section or such

division prohibit such aid, provided that no per-

son is treated for addiction in such place by

means of administering, furnishing, or prescrib-

ing of controlled substances. The preceding sen-

tence is declaratory of preexisting law.

Neither this sectior. or any other provision of

this division shall be construed to prohibit

short-term methadone detoxification treatment

in a controlled setting approved by the director

and pursuant to rules and regulations of the

director. Facilities and treatment approved by

the director under this paragraph shall not be

subject to approval or inspection by the Board of

Medical Quality Assurance, nor shall persons in

such facilities be required to register with, or

report the termination of residence with, the

police department or sheriff's office.

11217.5 Notwithstanding the provisions of Sec-

tion 11217, a licensed physician and surgeon

may treat an addict for addiction in any office or

App. 9

medical facility which, in the professional judg-

ment of such physician and surgeon, is medi-

cally proper for the rehabilitation and treatment

of such addict. Such licensed physician and sur-

geon may administer to an addict, under his

direct care, those medications and therapeutic

agents which, in the judgment of such physician

and surgeon, are medically necessary, provided

that nothing in this section shall authorize the

administration of any narcotic drug.

11218. A physician treating an addict for

addiction shall not prescribe for or furnish the

addict more than any one of the following

amounts of controlled substances during each of

the first 15 days of such treatment.

(a) Eight grains of opium.

(b) Four grains of morphine.

(d) One grain of Dilaudid.

(e) Four hundred milligrams of isonipe-

caine (Demerol).

(f) One hundred eighty milligrams of

methadone.

11219. After 15 days of treatment the physician

shall not prescribe for or furnish to the addict

more than any one of the following amounts of

controlled substances during each day of such

treatment:

(a) Four grains of opium.

(b) Two grains of morphine.

App. 10

(d) One-half grain of Dilaudid.

(e) Two hundred milligrams of isonipe-

caine (Demerol).

(f) One hundred eighty milligrams of

methadone.

11220. At the end of 30 days from the first

treatment, the prescribing or furnishing of con-

trolled substances, except methadone, shall be

discontinued.

11221. The physician prescribing, furnisl.ing,

or administering any narcotic controlled sub-

stance in the treatment of an addict for addic-

tion shall within five days after the first

treatment report by registered mail, over his

signature, to the Attorney General stating the

name and address of the patient, and the name

and quantities of narcotic controlled substances

prescribed.

The report shall state the progress of the

patient under the treatment.

The physician shall in the same manner fur-

ther report on the 15th day of the treatment and

on the 30th day of the treatment, and thereafter

shall make such further reports as are requested

in writing by the Attorney General.

11222. In any case in which a person is taken

into custody by arrest or other process of law

and is lodged in a jail or other place of confine-

ment, and there is reasonable cause to believe

that such person is addicted to a controlled sub-

stance, it is the duty of the person in charge of

the place of confinement to provide the person

so confined with medical aid as necessary to

App. 11

ease any symptoms of withdrawal from the use

of controlled substances.

In any case in which a person, who is partic-

ipating in a methadone maintenance program, is

incarcerated in a jail or other place of confine-

ment, he shall, in the discretion of the director

of such program, be entitled to continue in such

program until conviction.

DRUGS

21. Anesthetics (Parenteral-Local) are given by

injection to cause loss of feeling before and during sur-

gery, dental procedures (including dental surgery), or

labor and delivery. These medicines do not cause loss of

consciousness. Marcaine, a trade name for Bupivacaine;

Nesacaine, a trade name for Chloroprocaine and Xylo-

caine, a trade name for Lidocaine; are anesthetics and all

dangerous drugs as defined in section 4211 of the code.

Colchicine, used primarily to relieve inflammation,

pain and swelling associated with gout or gouty arthritis,

is a dangerous drug as defined in section 4211 of the

code.

Demerol, a trade name for Pethidine or Meperidine is

a dangerous drug as defined by section 4211 of the Busi-

ness and Professions Code, and is a Schedule II controlled

substance as defined in section 11055(c)(16) of the Health

and Safety Code and is a Schedule II controlled substance

as defined in section 1308.12(c)(16) of Title 21 of the Code

of Federal Regulations.

—

App. 12

Depo-Medrol, a trade name for Methylprednisolone

Acetate, when used as a Adrenocorticoid is used to pro-

vide relief for inflamed areas of the body and is a dan-

gerous drug as defined in section 4211.

Elavil, a trade name for Amitriptyline, is a tricyclic

antidepressant and a dangerous drug as defined by sec-

tion 4211 of the code.

Methadone Hydrochloride, aka brand names Dol-

ophine, Methadose and Physeptone, is a dangerous drug

as defined in section 4211 of the code and a schedule II

controlled substance as defined in section 11055(c)(13) of

the Health and Safety Code.

Morphine Sulfate, aka brand names Astramorph,

Duramorph, MSIR, RMS Uniserts and Rozanol, is a dan-

gerous drug as defined in section 4211 of the code and a

Schedule II controlled substance as defined in section

11055(b)(1)(M) of the Health and Safety Code.

Naprosyn, a trade name for Naproxen, is a dan-

gerous drug as defined in section 4211 of the code.

Parafon Forte, a trade name for the combined generic

substance Chlorzoxazone and Acetaminophen, is used to

relax certain muscles in the body and relieve the pain and

discomfort caused by strains, sprains or other injuries to

the muscles. It is a dangerous drug pursuant to section

4211 of the code.

Prednisone, when used as a Adranocorticoid is used

to provide relief for inflamed areas of the body and is a

dangerous drug as defined in section 4211.

App. 13

Talacen, a trade name for the generic combination of

Pentazocine Hydrochloride and Acetaminophen, is a nar-

cotic analgesic and a controlled substance as defined in

schedule IV, section 11507(g)(1) of the Health and Safety

- Code. Talacen is a dangerous drug as defined in section

4211 of the code.

Valium, a trade name for diazepam, is a dangerous

drug as defined by section 4211 of the Business and

Professions Code, and is a Schedule IV controlled sub-

stance as defined in section 11057(d)(7) of the Health and

Safety Code.

Vistaril, a trade name for Hydroxyzine Pamoate, is a

dangerous drug as defined by section 4211 of the Busi-

ness and Professions Code.

‘Vicodin is the trade name for 5 mg Hydrocodone

Bitartrate and 500 mg Acetaminophen and is a controlled

substance as defined in Schedule III, section 11056(e)(5)

of the Health and Safety Code. Zydone and Vicodin ES

are other trade names for Hydrocodone with Apap (Nar-

cotic Analgesic with Acetaminophen). Vicodin, Vicodin

ES and Zydone are all dangerous drugs as defined in

section 4211.

Xanax, a trade name for Alprazolam, is a dangerous

drug as defined in section 4211 and a schedule IV con-

trolled substance as defined by section 1308.14 (c) (1) of

Title 21 of the Code of Federal Regulations.

App. 14

FIRST CAUSE FOR DISCIPLINARY ACTION

22. At all times relevant hereto, respondent was

practicing as a physician and surgeon in Walnut Creek,

California doing business as Pain Relief Center.

23. Beginning on or about January 23, 1987, respon-

dent first saw female patient M.O.2, who was 35 years old

at said time, for complaints of a work related injury. The

patient was a former body builder and aerobics instructor

who was disabled from her position as a freight cashier.

In Apri! of 1985 she twisted her neck while carrying a

heavy load of files. She was startled by gunshots near to

her from a bank robbery apparently in progress. She

reported hearing a pop in her neck and within 24-48

hours had neck pain radiating into her arm.

Patient M.O. was initially treated by a chiropractor

who sent her to undergo a neurological evaluation. She

eventually underwent a cervical discectomy in September

of 1985 at the C5-6 level with an anterior fusion. MRI

scans documented a herniated disc at this level prior to

surgery. A trial of trigger point injections prior to surgery

had been of transient but significant help.

Following the 1985 surgery patient M.O. did have

gradual improvement in sensation in the left arm and

hand but did not have lessening of pain. She continued

with physical therapy, which had been tried before the

surgery, and returned to work for 2 months beginning in

February of 1986. She did have to leave work because of

2 The name of the patient will be made known to the

respondent at the time of discovery in this case.

App. 15

pain and continued to do poorly when she was first seen

by respondent in January of 1987.

24. Patient M.O.’s treatment with respondent

extended over the period January of 1987 through Octo-

ber of 1987. When first seen by respondent, patient M.O.

was depressed and tearful and was being treated with

oral narcotic medications. Within the first few months of

respondent’s treatment of her, she was being followed by

a psychiatrist, Dr. Gracier, and was evaluated by a neuro-

surgeon, Dr. Rosario, on respondent’s referral.

Between January 23, 1987 and October 27, 1987,

respondent saw patient M.O. on approximately 56 occa-

sions. On the occasion of her first office visit, respondent

fitted the patient with a temporary epidural catheter

below the area of her marked tenderness at the T-2 level.

During the period January through August, 1987, the

time prior to her hospitalization with possible meningitis

due to infection at the site of the epidural catheter,

respondent performed approximately 8 epidural local

anesthetic or epidural differential local anesthetic blocks,

26 epidural steroid injections, 9 stellate ganglion blocks

with local anesthetic, 12 sets of trigger point injections, 1

BIER block in the affected extremity, and approximately

72 days of daily epidural opiate injections.

On numerous office visits more than one procedure

was performed such as a stellate ganglion block in addi-

tion to trigger point injections or in addition to an epi-

dural injection. During June, July and August of 1987, an

epidural catheter was in place nearly continuously. It was

changed on the average of a few times each month

though not dictated by a regular schedule but rather

App. 16

within the limitations of the catheter itself including

times where the catheter was pulled out too far or other-

wise was associated with inflammation or nonfunction-

ing. Patient M.O. self-injected Duramorph, on

respondent’s directions and prescriptions, during this

period of time in addition to receiving other blocks from

respondent.

25. The practices described in paragraphs 23 and 24

hereinabove resulted in complications for patient M.O.

The combination of (1) more than 20 epidural steroid

injections in an 8 month period, and (2) prolonged non-

surgical placement of an epidural catheter for epidural

opiates (including Morphine), with the patient self-

injecting the catheter, produced a “Cushingoid” appear-

ance in said patient M.O. and “Adison’s Disease”. Said

manifestations and disease were induced by the use of

steroids over a long period of time followed by adrenal

insufficiency when the frequency of injections was

reduced ultimately resulting in hospitalization of the

patient at Providence Hospital of Oakland from Novem-

ber 13 through 18, 1987 for the treatment of Addison’s

Disease.

Further, the prolonged use of an epidural catheter

eventually also resulted in local cellulitis and epidural

inflammation adjacent to the dura which, by definition, is

Meningitis. From September 11 through 19, 1987, said

patient was hospitalized at Los Medanos Community

Hospital for approximately 8 days for treatment of spinal

meningitis (epidural infection) and removal of the cervi-

cal catheter. During this hospitalization the patient also

suffered from withdrawal from the morphine which she

App. 17

had been receiving from respondent in the form of injec-

tions directly into the epidural catheter as well as the self-

administration of morphine, begun under orders of

respondent.

26. Respondent treated patient M.O. and prescribed

and/or administered controlled substances and/or dan-

gerous drugs, as identified in paragraph 21 hereinabove,

and/or treatments to said patient in clearly excessive

amounts without performing a good faith medical exam-

ination and/or without a medical indication for the pre-

scribing of the controlled substances and/or dangerous

drugs and/or treatments as follows:

Over the course of 8 months, from January 1987

through August 1987, the period prior to her

hospitalization for catheter related epidural

infection, respondent treated patient M.O. by

providing her with:

~ epidural local anesthetic or differential local anes-

thetic blocks (8 injections);

- epidural steroids (26 injections);

- stellate ganglion blocks (9 injections);

- BIER block (1 injection);

- Daily epidural opiate injections (Minimum of 72

days).

27. In addition to the above listed treatments pro-

vided and/or administered by respondent directly to

patient M.O., respondent also knew that the patient had

sought and received additional amounts of injectable

Morphine Sulfate from him during said period of time

where he had instructed the patient and her husband on

App. 18

how to inject said opiate medications through an epidural

catheter.

28. In diagnosing, caring for and treating patient

M.O. during said time, respondent failed to recognize

and act on the implications of the treatment modalities he

employed with her including the following:

A. Respondent, in a grossly negligent and/or negli-

gent and/or incompetent manner, employed the use of

multiple epidural steroid injections in an excessive man-

ner which directly led to the suppression of the hypo-

thalamic pituitary adrenal axis in patient M.O., hence the

development of Addison’s Disease.

B. Respondent, in a grossly negligent and/or negli-

gent and/or incompetent manner, failed to design an

adequate long-term treatment plan for patient M.O.

deciding instead on performing invasive procedures,

from one office visit to the next, dictated by short-term

responses only.

C. Respondent, in a grossly negligent and/or negli-

gent and/or incompetent manner, used morphine, on an

ongoing basis, to control patient M.O.’s pain. The use of

morphine, on a long-term basis, for chronic pain in a

patient with chronic cervical discomfort post-operatively,

in the face of polylitigenous environments, is outside the

standard of practice of California licensed practitioners.

D. Respondent, in a grossly negligent and/or negli-

gent and/or incompetent manner, employed the pro-

longed use of temporary catheters in the care and

treatment of patient M.O.

App. 19

E. Respondent, in a grossly negligent and/or negli-

gent and/or incompetent manner, taught, encouraged

and allowed patient M.O. to self-inject opiate medications

through an epidural catheter, all in addition to the epi-

dural injections of opiate medications administered by

respondent.

F. Respondent, in a grossly negligent and/or negli-

gent and/or incompetent manner, injected and issued

prescriptions to patient, M.O., and authorized refills of

prescriptions to patient, M.O. for the “controlled sub-

stance” and “dangerous drug” Morphine in large quan-

tities for complaints of neck and shoulder pain which

resulted in patient, M.O., becoming addicted to Mor-

phine.

G. Further, after respondent belatedly realized that

patient, M.O., had become addicted to Morphine, he pro-

vided her with Methadone and Valium in an effort to help

her with her dependance on the Morphine. Patient M.O.

was admitted to Providence Hospital on November 11,

1987, following her treatment by respondent, where she

was successfully tapered off the Methadone and Mor-

phine.

29. Respondent's conduct as alleged in paragraphs

23 through 28, detailing the treatment and professional

care provided to patient M.O., constitutes gross negli-

gence and/or repeated negligent acts and/or incompe-

tence and is grounds for disciplinary action pursuant to

Business and Professions Code sections 2234(b), (c) and

(d).

30. Further, respondent’s conduct as alleged in

paragraphs 23 through 28, detailing the treatment and

App. 20

professional care provided to patient M.O., constitutes

repeated acts of clearly excessive prescribing or adminis-

tering of drugs (controlled substances and dangerous

drugs) and/or treatments as determined by the standard

of the community of licensees in violation of section 725

of the Code subjecting Respondent’s certificate number G

39260 to discipline for unprofessional conduct pursuant

to section 2234 of the Code.

SECOND CAUSE FOR DISCIPLINARY ACTION

31. The allegations of the First Cause for Disciplin-

ary Action hereinabove are hereby incorporated by refer-

ence.

32. Respondent’s conduct as alleged in the First

Cause for Disciplinary Action constitutes unprofessional

conduct and the furnishing of a controlled substance(s)

(Morphine, Methadone) to a known addict or habitué

without legitimate medical purpose and solely for the

purpose of providing the user with controlled substances

sufficient to keep her comfortable by maintaining her

customary use. This conduct is in violation of Health and

Safety Code sections 11007, 11153, 11154(a), 11156 and

11171. Further, this conduct constitutes cause for disci-

plinary action pursuant to sections 2234, 2238 and 2241 of

the Business and Professions Code.

WHEREFORE, complainant requests that the Board

hold a hearing on the matters hereinabove alleged and

after that hearing issue an order suspending or revoking

physician’s surgeon’s certificate No G 39260, heretofore

issued to Respondent Franklin Jerome Day, M.D., and

App. 21

taking such other and further action as is deemed just

and proper.

Dated: 2-2-94

/s/ Dixon Arnett

DIXON ARNETT

Executive Director

Medical Board of California

State of California

Complainant

App. 22

DANIEL E. LUNGREN, Attorney General

of the State of California

ALFREDO TERRAZAS, STATE BAR No. 78403

Deputy Attorney General

2101 Webster Street, 12th Floor

Oakland, CA 94612-3049

Telephone: (510) 286-3795

Attorneys for Complainant

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DIVISION OF MEDICAL QUALITY

STATE OF CALIFORNIA

In the Matter of the

Accusation Against: No. D-5613

Franklin Jerome Day, M.D. FIRST

P. O. Box 306 SUPPLEMENTAL

San Leandro, California 94577 ACCUSATION

Certificate No. G-39260

Respondent.

ee mee ee eee ee ee”

DIXON ARNETT, complainant herein charges and

alleges as follows:

1. He is the Executive Director of the Medical Board

of California, State of California (hereinafter “the Board”)

and makes these additional charges and allegations to be

added to the charges and allegations contained In the

Matter of the Accusation Against: FRANKLIN JEROME

DAY, M.D., filed on February 2, 1994, solely in his official

capacity.

App. 23

THIRD CAUSE FOR DISCIPLINARY ACTION

2. At all times relevant to the allegations in this

accusation regarding patient M.G., respondent was prac-

ticing as a physician and surgeon at the Oak Knoll Naval

Hospital located in Oakland, California as the Director of

the Pain Clinic at said hospital.

3. Beginning at a time presently unknown but

believed to be shortly prior to October 18, 1991, respon-

dent first saw male patient M.G., d.o.b. 10/02/62, a then

30 year old patient who was complaining of chronic,

acute and recurrent back pain. The patient was a Naval

employee in 1988 when he injured his lower back helping

to unload a Medivac flight.

4. Patient M.G. had a relevant prior medical history

as follows, in June of 1988 the patient underwent a Lami-

nectomy (Hemilaminectomy) for decompression of his

nerve root at L5 & Sl. In December of 1988, due to

continued pack pain, patient M.G. underwent a second

Laminectomy which included a two level fusion (L4, L5 &

S1) with a bone graft. While this second surgical pro-

cedure provided patient M.G. with some relief from his

chronic back pain, he was subsequently hospitalized from

July 22 to July 24, 1991 due to spinal instability, low back

pain and left leg pain.

5. Beginning at a time presently unknown but

believed to be shortly prior to October 18, 1991, patient

M.G. was seen for the first time by respondent at the Pain

Clinic at Oak Knoll Naval Hospital in Oakland for a

consultation. The Consultation report reads, in its

entirely, as follows: “29 year old status post two level

laminectomy and fusion, now with positional sharp pain

App. 24

and (illegible). Pain probably non-union related. Has

failed epidural steroids in past times five. Will try Meth-

adone - if fails consider diagnostic block.” On this date

began a course of care and treatment by respondent, and

his subordinate staff at the Pain Clinic at Oak Knoll Naval

Hospital, for patient M.G. where he was prescribed, in

increasing amounts, a powerful narcotic Methadone

Hydrochloride, without any adjunctive physical therapy

or medications. At the inception of pain medication treat-

ment with Methadone by respondent and his associates,

patient M.G. was reporting good results taking 2 to 4, five

(5) mg tablets per day which escalated to approximately

150 mg per day, (30, five (5) mg tablets per day), at the

time of his admission into a detoxification program in

July of 1993. :

6. Thereafter, on or about August 20, 1992 the

patient was seen at the Palo Alto Veteran’s Administra-

tion Hospital Pain Management Clinic where a diagnosis

was deferred and the patient denied any substance abuse

problem.

7. On or about October 19, 1992 patient M.G. under-

went a third surgical back procedure, a repeat transverse

process fusion L4 to L5. The patient was hospitalized

from October 18 to October 27, 1992 when he was dis-

charged in a full body cast. After the full body case was

apparently removed by patient M.D. himself and re-fitted

by hospital personnel, it was finally removed on or about

January 22, 1993.

8. On or about April 30, 1993 patient M.G. was seen

at the Neurosurgery Clinic at the Veteran’s Administra-

tion Hospital in Palo Alto where he indicated that he was

App. 25

being withdrawn from his Methadone medications in a

Methadone Detoxification Program.

9. On or about July 26, 1993 patient M.G. was

admitted, via an elective admission, to the Oak Knoll

Naval Hospital in Oakland for Methadone withdrawal.

The records for this hospitalization indicate that this the

patient has had two prior unsuccessful attempts to stop

Methadone. The first prior withdrawal attempt was com-

plicated by violent behavior, diarrhea and nausea. The

second prior withdrawal attempt, which included the use

of Clonidine, was complicated by increased lethargy and

insomnia. At the inception of this third withdrawal

attempt at Naval Hospital Oakland (NHO), patient M.G.

was started on 100 mg of Methadone per day along with

Clonidine at .1 mg twice a day. The hospitalization

included a decreasing taper of 10 mg per day of Meth-

adone as well as physical therapy two times per day. At

the time of discharge, on August 5, 1993, patient M.G.

had been off of Methadone for two days and he was

immediately accepted into a prescription drug rehabilita-

tion program.

10. On or about August 5, 1993 patient M.G. was

transferred from NHO to CPC Fremont Hospital for con-

tinued inpatient prescription drug rehabilitation therapy.

While patient M.G. had been rapidly detoxified from

Methadone within the preceding two weeks prior to

admission, it was decided to accept him into the in-

patient program at CPC Fremont Hospital because it was

felt that he was not completely clear. Patient M.G. was

started on a detoxification protocol using Buprenex sub-

lingually as well as Valium for sedation and muscle relax-

ation. Shortly thereafter patient M.G. began refusing

App. 26

medications and left the hospital, against medical advise,

on or about August 7, 1993.

11. On or about August 9, 1993 patient M.G. was

admitted to CPC Fremont Hospital for a second attempt

at the prescription drug rehabilitation program. At the

time of this second admission, laboratory tests confirmed

positive results for Methadone use by the patient

between the date of his previous discharge (August 7,

1993) and the beginning of this admission. Patient M.G.

was restarted on a detoxification protocol using Buprenex

and at the time of his discharge, on August 17, 1993, he

was transferred into a partial hospitalization (PHP) as far

as his follow care for his drug addiction and back to NHO

for follow up care for his ongoing back problems.

12. In diagnosing, caring for and treating patient

M.G. during said time, respondent acting either alone or

in supervision of those subordinate to him did so in a

grossly negligent and/or negligent and/or incompetent

manner as follows:

A. Respondent failed to perform a complete history

and physical examination of patient M.G. during the

initial patient visit.

B. Respondent specifically failed to record a history

which included a description of the pain, its location,

aggravating and relieving factors, effects on the patient’s

lifestyle and activities of daily living, a complete past

medical history which would include other medications

and treatments previously tried and cu ‘rently in use and

a history of alcohol or drug dependence.

App. 27

C. Respondent specifically failed to perform a phys-

ical examination which noted the limitations caused by

the pain. Although pain can only be evaluated in subjec-

tive terms, objective physical findings are useful to deter-

mine if the patient is making progress towards a more

functional lifestyle.

D. By failing to perform a complete physical exam-

ination which noted the limitations caused by the pain,

respondent could not, and did not, initiate a treatment

plan noting what’ objective factors would be used to

evaluate the success of the treatment. If the patient shows

no improvement in his functional abilities, then a differ-

ent treatment plan should be instituted.

E. By failing to institute an objective, measurable

treatment plan for patient M.G., respondent could not,

and did not, evaluate the patient at periodic intervals,

using the original history and physical as a baseline.

F. Respondent failed to use other medications or

treatment modalities, commonly used by pain manage-

ment physicians for treatment of neuropathic pain such

as tricyclic antidepressants, antiseizure medications,

physical therapy te improve range of motion and muscle

strength and to help evaluate the patient’s progress, and

psychologic counseling and support if available.

G. Respondent incompetently and/or negligently

and/or grossly negligently taught, encouraged and/or

allowed patient M.G. to self administer Methadone, on an

as needed basis. Methadone is not prescribed in a p.r.n.

manner as was done with patient M.G., but in a stated

milligram dose every six or eight hours. When a patient

continues to have problems maintaining the dosing

App. 28

schedule and is reporting that he lost pills or coming up

with other excuses, as noted in this patient’s chart, then

psychologic evaluation should be sought before continu-

ing the narcotic program.

13. Respondent’s conduct as alleged in paragraphs

2 through 12, detailing the treatment and professional

care provided to patient M.G., constitutes gross negli-

gence and/or repeated negligent acts and/or incompe-

tence and is grounds for disciplinary action pursuant to

-Business and Professions Code sections 2234(b), (c) and/

or (d).

14. Further, respondent’s conduct as alleged in

paragraphs 2 through 12, detailing the treatment and

professional care provided to patient M.G., constitutes

repeated acts of clearly excessive prescribing or adminis-

tering of drugs (Methadone) as determined by the stan-

dard of the community of licensees in violation of section

725 of the Code subjecting respondent’s certificate as a

physician and surgeon to discipline for unprofessional

conduct pursuant to section 2234 of the Code.

FOURTH CAUSE FOR DISCIPLINARY ACTION

15. At all times relevant hereto, respondent was

practicing as a physician and surgeon in San Leandro,

California doing business as Pain Relief Center.

16. Beginning on or about January 29, 1993, respon-

dent first saw female patient M.H., who was 39 years old

at said time, when she first filled out the Intake History

Questionnaire, for complaints of sever recalcitrant low

CORY OPCL LES LIS LAL LIES CRORE POT

App. 29

back pain with occasional leg pain. The patient was dis-

abled from her involvement in an earlier vehicle related

injury and also was suffering from severe depression at

the time of her first office visit with respondent. In April

of 1983 she was involved in an automobile accident from

which she was unable to stand up straight, secondary to

pain, for a period of about 2 years. She was seen by many

different physicians including evaluation at St. Mary’s

Spine Center very early on. Her pain continued unabated

during this entire time. Over the years, and before con-

sulting with respondent, she had approximately 7-8 epi-

dural steroid injections with varying esults [sic] (some

seemed to make her pain somewhat better although none

ever made her pain go away, even for a brief period). In

addition, prior to seeing respondent, patient M.H. had

tried medication protocols including Vicodin and anti-

inflammatories as well as Acupuncture and Chiropractic.

17. At the time of her first office visit with respon-

dent, patient M.H. advised respondent that she was cur-

rently taking medications including;

Mellaril (Mellaril is a trade name for the generic

substance Thioridazine Hydrochloride, and) is a

dangerous drug under section 4211 of the Busi-

ness and Professions Code) for an Obsessive/

Compulsive Personality Disorder and for hear-

ing occasional voices;

Doral (Doral, a trade name for the generic sub-

stance Quazepam, a trifluoroethyl ben-

zodiazepine hypnotic agent, and) [sic] is a

dangerous drug as defined by section 4211 of

the Business and Professions Code, and is a

Schedule IV controlled substance as defined in

section 11057(d)(22) of the Health and Safety

App. 30

Code) for help in sleeping and; Zoloft (Zoloft, a

trade name for Sertraline Hydrochloride, an

antidepressant unrelated to tricyclic, tetracyclic

or other available antidepressant agents, and)

[sic] is a dangerous drug as defined by section

4211 of the Business and Professions Code) for

major depressive disorder.

18. Prior to her visit to respondent's office on Janu-

ary 29, 1993, patient M.H. had a history of psychosis,

depression and suicidal ideation and attempts. She had

seriously considered suicide and had attempted suicide

on two different occasions. She had been treated with

electric shock therapy as a result. Patient M.H. had just

recently returned to work and reported that her pain had

worsened since returning to work. She reported her pain

to be about a 7 on the 0-10 scale, although she had not

undergone any surgical intervention before seeing

respondent.

19. Patient M.H.’s actual treatment with respondent

extended over the period from February 1, 1993 to Febru--

ary 16, 1993 when she saw respondent for.a total of six

office visits. On the occasion of her first office treatment,

on or about February 1, 1993, respondent took a history

of her present illness, including a chart notation of all her

then treating physicians and psychologists, noted her

current medical problems and current medications, per-

formed a physical examination and reached an impres-

sion that the patient had degenerative lumbar disc

disease.

20. On or about February 2, 1993, respondent per-

formed a spinal block using a local anesthetic (Lidocaine

App. 31

50 mg) and a Schedule II short-term acting narcotic (Fen-

tanyl 50 mcg) which patient M.H. tolerated well and

which provided complete pain relief.

21. On or about February 3, 1993, noting that the

spinal block performed on the previous day lasted only

approximately 2 hours, respondent performed a second

spinal block using a local anesthetic (Lidocaine 50 mg)

and doubled the Schedule II short-term acting narcotic

(Fentanyl 100 mcg) which patient M.H. tolerated well but

developed generalized pruritus which required 50 mg’s

of Benadryl, intramuscularly.

22. On or about February 4, 1993, noting that there

was no overall incremental improvement in the patient's

pain, respondent performed a diagnostic intravenous

Lidocaine infusion, beginning with 50 mg’s with an addi-

tional 150 mg’s for a total dose of 200 mg’s. This was

followed by a trial prescription for Mexiletine.

23. On or about February 8, 1993 patient M.H.

returned to respondent’s office. She apparently did not

tolerate the Mexiletine and her pain returned to its base-

line soon after leaving his office from the previously

appointment. It was at this time that respondent started

patient M.H. on a Methadone trial, on a p.r.n. basis,

prescribing for her one to two 5 mg tablets every 4-12

hours as needed for pain with a total number of 50 tablets

prescribed. He discussed titrating the dosage to her needs

with her and scheduled a follow-up appointment for one

week later having made available to her a total of 250 mg

of Methadone during said week.

24. On or about February 16, 1993 returned to

respondent's office for what turned out to be her final

App. 32

visit. She reported having taken two Methadone every

four hours with essentially no effect on her pain. Further,

she reported to respondent a previous history of street

drug use, primarily cocaine. She had not had any cocaine

for over a year but it was noted that this could be affect-

ing her tolerance to the Methadone. The chart for this

office visit noted that patient M.H. reported that her

psychologists were pleased and that she brought with her

a note from a psychologist asking respondent to consider

the possibility of “Versed Injections”. Respondent then

issued a new prescription for Methadone, on a p.r.n.

basis, prescribing for her three to four 5 mg tablets every

4-6 hours as needed for pain with a total number of 200

tablets prescribed. Respondent thereby made available to

her a total of 1000 mg of Methadone. Respondent’s treat-

ment plan consisted of increasing her Methadone, re-

evaluating her based on the increased dosage of Meth-

adone, have the patient return with imaging scans of her

back and consider the possibility of a pump and a Versed

block in the future.

25. On or about February 19, 1993, not having con-

tacted her parents during the morning as was her routine

and her parents being unable to contact her despite

efforts to do so, patient M.H. was found, unconscious,

unresponsive and comatose in her apartment by the man-

ager of the apartment building in which she lived. She

was rushed, by ambulance, to the emergency room at

Humana Hospital in San Leandro where, after having had

her stomach lavaged, and laboratory tests performed, she

was admitted with a diagnosis of suicide attempt and

acute respiratory failure secondary to phenothiazine

App. 33

(Mellaril) and Methadone overdose and aspiration pneu-

monia. She was discharged on February 28, 1993.

26. In diagnosing, caring for and treating patient

M.H., as alleged in paragraphs 15 through 25, respondent

did so in a grossly negligent and/or negligent and/or

incompetent manner as follows:

A. Respondent incompetently and/or negligently

and/or grossly negligently taught, encouraged and/or

allowed patient M.H. to self administer Methadone, on an

as needed basis. Methadone is not prescribed in a p.r.n.

manner as was done with patient M.H., but in a stated

milligram dose every six or eight hours.

B. Respondent failed to appropriately consider

patient M.H.’s relevant recent psychological, including

suicidal and street drug abuse medical history, in the

manner in which he prescribed Methadone for this

patient. Methadone has a variable half life, and does not

reach steady state blood levels for as long as five days

after dosing is started. Therefore, a patient may not notice

the effects of an increase in the methadone level for as

long as five days after the dosing. To prescribe Meth-

adone, on a p.r.n. basis, for a patient with M.H.’s recent

relevant medical history demonstrates a lack of knowl-

edge or understanding of the pharmacology of Meth-

adone.

C. Respondent caused patient M.H. to undergo,

without medical indication or justification, two spinal

anesthetics with local anesthetic and narcotic. These pro-

cedures were without any diagnostic or therapeutic value

and constitute both clearly excessive use of diagnostic

and/or treatment procedures and an extreme departure

App. 34

from the standard of practice among the community of

California licensed physicians practicing pain manage-

ment.

27. Respondent’s conduct as alleged in paragraphs

15 through 25, detailing the treatment and professional

care provided to patient M.H., constitutes gross negli-

gence and/or repeated negligent acts and/or incompe-

tence and is grounds for disciplinary action pursuant to

Business and Professions Code sections 2234(b), (c) and/

or (d).

28. Further, respondent’s conduct as alleged in

paragraphs 15 through 25 detailing the treatment and

professional care provided to patient M.H., constitutes

repeated acts of clearly excessive use of diagnostic or

treatment procedures (spinal anesthetics) as determined

by the standard of the community of licensees in viola-

tion of section 725 of the Code subjecting respondent’s

certificate as a physician and surgeon to discipline for

unprofessional conduct pursuant to section 2234 of the

Code.

FIFTH CAUSE FOR DISCIPLINARY ACTION

29. At all times relevant hereto, respondent was

practicing as a physician and surgeon in Walnut Creek,

California doing business as Pain Relief Center and per-

formed the surgical procedure described in this cause for

disciplinary action at the Kaiser Permanente Hospital

located in Vallejo, California.

30. Beginning on or about February 1, 1990, respon-

dent first saw male patient B.C., who was 37 years old at

App. 35

said time, at Pain Relief Center in Walnut Creek upon

referral from Kaiser Permanente Hospital in Vallejo, Cali-

fornia. Patient B.C., in 1987, first began developing lumps

on the left side of his neck. A biopsy showed this was due

to cat scratch fever with enlargement of the lymph node.

Following partial removal of the cysts, first in 1987 and

again in 1988 for a recurrent mass, patient B.C. noted pain

in the distribution of the trigeminal nerve (chronic tri-

geminal neuralgia) and was eventually referred to

respondent as noted above. Before being referred for a

consultation with respondent, a pain specialist, his pain

continued unabated and he underwent various tests and

treatments in an unsuccessful effort to relieve the pain.

31. At the time of his first office visit with respon-

dent, on February 1, 1990, respondent had been apprised

of previous attempts at pain relief which included

localized injections at Kaiser Hospital with relief of his

symptoms, transiently, but the pain always returned to its

original intensity. Using an upper thoracic epidural cathe-

ter, respondent performed a diagnostic block at the

approximately T1-T2 interspace, injecting patient B.C.

with incremental 0.5% Lidocaine. Patient B.C. experi-

enced complete relief of his pain symptoms and respon-

dent recorded the response as being consistent with

sympathetic dystrophy. The catheter was left in place to

facilitate an injection the following day.

32. Patient B.C. next saw respondent the following

day, on February 2, 1990, reporting that the previous

day’s injection had provided pain relief for approxi-

mately 3 1/2 hours and was_back to full intensity in 4

hours. Respondent injected areas which on palpation

e App. 36

indicated an underlying somatic or inflammatory compo-

nent with 1% Lidocaine with DepoMedrol 40 mg total.

Following the injections, patient B.C. was completely

pain free to palpation and the sympathetic component.

33. Patient B.C. next saw respondent on February 5,

1990 where he reported essentially the same pain relief

following the second office visit as occurred after the first

block was attempted during the first office visit with no

improvement. At this point, rather than attempt any fur-

ther blocks, respondent referred patient B.C. back to his

Ear, Nose and Throat (ENT) physician to have him evalu-

ated for underlying structural problems.

34. Patient B.C. was next seen by respondent on

February 8, 1990 when he returned to respondent's office

for a diagnostic block prior to examination by his ENT

physician. An upper thoracic epidural catheter was

passed and he was injected with incremental 0.5% Lido-

caine until evidence of sympathetic block was obtained.

35. On or about March 27, 1990 patient B.C.

returned to respondent's office following exploratory sur-

gery by his other treating physicians. While a neuroma

was found and excised during the surgery, the pain com-

ponent did not improve. During the office visit, respon-

dent performed a stellate ganglion block with 1%

Lidocaine with 10 cc of 5 mg Morphine added. Respon-

dent noted good sympathetic block along with excellent

relief of the patient’s pain symptoms. After about 1 hour

of observation, abdominal pain (epigastric) resolved and

the original pain came to about a 50% level in the left

neck area.

App. 37

36. Patient B.C. next saw respondent the following

day, on or about March 28, 1990 where he reported hav-

ing his pain return to its full intensity about three hours

after. leaving the office the previous day. Respondent

decided to repeat the previous day’s procedure of a left

stellate ganglion block. Once again complete pain relief

was attained, however after about 1 hour patient B.C.

began to experience his pain once again. At this point

respondent repeated the stellate ganglion block using 10

ce of .5% Bupivacaine with another 5 mg of Morphine

injected.

37. On or about March 29, 1990, patient B.C. next

consulted with respondent reporting that the pain

returned about 3 hours after leaving respondent's office

the previous day. Respondent noted that it did not appear

that patient B.C. obtained good pain relief with stellate

ganglion block and assessed him as being a candidate for

either stellate ganglionectomy and/or Phenol injection.

Respondent decided that prior to resorting to some per-

manent kind of therapy, such as surgery and cutting of

nerves, he would provide patient B.C. with trials of epi-

dural blocks and narcotics for his pain. Respondent then

proceeded to insert an epidural catheter in the upper

thoracic epidural space, at about the T1-T2 interspace,

through a 17 gauge Hustead needle. The catheter was

injected with incremental 0.5% Lidocaine until he had

complete relief of his pain symptoms. This was followed

by an injection with 50 mg of Demerol and 80 mg of

DepoMedrol diluted with 10 cc of normal saline. Patient

B.C. developed some lightheadedness and was given 2

1/2 mg of Naltrexone which corrected the symptoms and

he obtained good pain relief. Respondent provided

App. 38

patient B.C. with Naltrexone to take home should his

symptoms return and scheduled a follow up appoint-

ment.

38. On or about April 2, 1990, patient B.C. returned

to respondent's office. Patient B.C. reported that he

obtained 6 hours of complete relief from the Demerol

injection administered during the previous appointment

on March 29, 1990 before the pain returned to its original

intensity. Respondent then proceeded to provide patient

B.C. with a Morphine injection. Respondent placed an

upper thoracic epidural catheter at the T1-T2 interspace

which he injected with 5 mg of Morphine and 5 cc of 0.5%

Lidocaine. Patient B.C. reported obtained about 50%

relief of symptoms with this injection over about a half an

hour and developed some abdominal cramping. Another

5 mg of Morphine was then injected through the catheter

and the catheter flushed with a small amount of 0.5%

Lidocaine. Patient B.C. then reported essentially complete

relief of his pain symptoms and respondent dispensed

Naltrexone, as a prophylactive measure when the patient

went home.

39. On or about April 3, 1990, patient B.C. returned

to respondent’s office and reported having obtained

approximately 10 hours of pain relief from the previous

day’s Morphine injections. Respondent discussed with

patient B.C. the alternatives treatment modalities of

either a phenol sympathetic block (neurolytic stellate

ganglionectomy), surgical sympathectomy (surgical stel-

late ganglionectomy) or an implanted morphine infusion

pump and decided to consult with the patient’s other

treating physicians as to the options.

App. 39

40. On April 10, 1990 respondent communicated, in

writing with patient B.C.’s primary physician at Kaiser

Hospital in Vallejo. In this communication, respondent

described the course of treatment, the results and the

three options which he discussed with the patient during

the last office visit of April 3, 1990. In regards to option

#1, a phenol sympathetic block, respondent indicated that

he did not feel comfortable in performing same, having

had no personal experience with it, in view of the risks

involved. Next, respondent discussed option #2, the sur-

gical stellate ganglionectomy, describing same as a rea-

sonable option to pursue. Finally, in regards to option #3,

the implanted Morphine infusion pump, respondent

opined that it should reliably work for the patient and

didn’t involve any permanent neurodestructive tech-

niques noting that it was a new technique and the devices

are expensive. However, respondent indicated that option

#3 should not be considered until the patient had been

evaluated by a surgeon or refused the operation or had

the operation and have it fail to provide him with ade-

quate relief.

41. Respondent next saw patient B.C. on or about

October 2, 1990 after having been evaluated by a physi-

cian at the University of California Medical Center at

Davis, California. This physician, a neurosurgeon, opined

that patient B.C. was a candidate for either a surgical

sympathectomy or a Morphine infusion pump. There was

disagreement, however, over whether the patient’s Kaiser

coverage would pay to have the surgery performed by

this neurosurgeon outside of a Kaiser facility and patient

B.C. returned to the care of respondent. During this office

visit respondent performed some Phenol trigger point

App. 40

therapy by injecting a small amount of 0.5% Marcaine

into the scar on the patient’s neck from his previous

surgeries. The patient obtained good, but not complete

pain relief from this procedure. Respondent allowed the

medications to soak in the tissues for approximately a

one half hour and then repeated the procedure, this time

injecting 1 cc of 6% aqueous Phenol solution into the area

without any substantial neurologic change prior to leav-

ing the office.

42. Patient B.C. next saw respondent on or about

October 8, 1990 and reported having obtained pain relief

for approximately 3 to 4 hours from the procedure per-

formed by respondent during the previous office visit.

Respondent then treated patient B.C. as he had on the

previous office visit, injecting 1 cc of 6% aqueous Phenol

solution into the subcutaneous tissues deep into the scar

on the left side of the patient’s neck.

43. On or about January 25, 1991 respondent noti-

fied patient B.C. the he [sic] (respondent) had been called

to active duty with Operation Desert Shield and that the

Pain Relief Center, where patient B.C. had been consult-

ing with respondent could be forced to close its doors on

very short notice. Patient B.C. was advised that respon-

dent would no longer be able to attend to him for ongo-

ing care and advised patient B.C. to consult his primary

care physician for ongoing and follow up care.

44. On or about December 6, 1991, at the request of

patient B.C. and in order to have his Kaiser medical plan

cover the costs associated with the surgery, patient B.C.

was admitted to Kaiser Hospital in Vallejo for the

attempted insertion of an intrathecal narcotic infusion

App. 41

pump by respondent. A small incision was made at

approximately the T5-T6 interspace and multiple unsuc-

cessful attempts were made, using a 14 gauge epidural

needle, to enter the intraspinal space. Respondent then

moved one space further cephalad (toward the head)

where, once again, multiple unsuccessful attempts were

made, using both a 14 and 22 gauge epidural needle, to

enter the intraspinal space. Further incision, made to join

the two sites and to deepen the incision in order to allow

attempts to get below the skin and into the subarachnoid

space, via multiple attempts, also proved unsuccessful.

Thereafter, respondent attempted entry from various

positions, including the midline and to the right of the

paramedian approach, without success. On one occasion

when respondent felt that he had entered the sub-

arachnoid area, he obtained free flowing, but very

bloody, fluid. At this point the patient developed big-

eminy (a form of arrhythmia) and the anesthesiologist

had to administer Lidocaine in order to return the patient

to a normal sinus rhythm. Respondent next attempted to

enter the subarachnoid space in the lumbar area, as

opposed to the thoracic area, and inserted .a 22 gauge

needle at approximately the L1-L2 area where he

obtained grossly bloody fluid. At this point the attempted

procedure was aborted. At no time during the procedure

was fluoroscopy used. After the patient was awakened

and regained minimal ability to respond in the operating

room, he was noted to have poor movement of the right

lower extremity and he underwent an emergency CAT

scan where it was discovered that he had also sustained a

pneumothorax. The patient was transferred, via emer-

gency ambulance, to the Kaiser Hospital in Sacramento

App. 42

because of the development of the paraplegia where an

emergency MRI revealed evidence of a small spinal cord

contusion at the thoracic level. Patient B.C. remained

hospitalized for 11 days before he was discharged for

home nursing care and physical therapy for his para-

plegia.

- 45. In diagnosing, caring for and treating patient

B.C. during said time, respondent did so in a grossly

negligent and/or negligent and/or incompetent manner

as follows:

A. Respondent failed to perform a complete history

and physical examination of patient B.C. during the ini-

tial patient visit or at any time before embarking on a

course of treatment involving numerous invasive pro-

cedures.

B. Respondent specifically failed to record a history

which included a description of the pain, its location,

aggravating and relieving factors, effects on the patient’s

lifestyle and activities of daily living, a complete past

medical history which would include other medications

and treatments previously tried and currently in use and

a history of alcohol or drug dependence.

C. Respondent specifically failed to perform a phys-

ical examination which noted the limitations caused by

the pain. Although pain can only be evaluated in subjec-

tive terms, objective physical findings are useful to deter-

mine if the patient is making progress towards a more

functio .al lifestyle.

D. By failing to perform a complete physical exam-

ination which noted the limitations caused by the pain,

App. 43

respondent could not, and did not, initiate a treatment

plan noting what objective factors would be used to

evaluate the success of the treatment. If the patient shows

no improvement in his functional abilities, then a differ-

ent treatment plan should be instituted.

E. By failing to institute an objective, measurable

treatment plan for patient B.C., respondent could not,

and did not, evaluate the patient at periodic intervals,

using the original history and physical as a baseline.

F. Prior to proceeding with a narcotic infusion

pump respondent failed to use other medications trials or

treatment modalities, commonly used by pain manage-

ment physicians for treatment of neuropathic pain such

as tricyclic antidepressants, antiseizure medications, anti-

arrhythmic medications, Capsaicin cream, oral narcotics

or physical therapy to improve range of motion and

muscle strength and to help evaluate the patient’s prog-

ress, and psychologic counseling and support if available.

G. Respondent made the diagnosis of sympathetic

dystrophy after placing an epidural catheter and injecting

0.5% Lidocaine when the Lidocaine itself could easily

give a sensory block and make the diagnosis suspect.

Respondent compounded the uncertainty of the diagnosis

when he proceeded to perform stellate ganglion blocks,

which would have been useful in determining whether

this was a sympathetic dystrophy, however he included

Morphine in the solution each time. Morphine would be

useful to include as a therapeutic measure, but clouds the

picture when used in a diagnostic stellate ganglion block

and makes the test of no value.

App. 44

H. Respondent injected local anesthetic, epidural

narcotics through an epidural catheter. There was no

clear indication for using steroids in this condition. Inject-

ing narcotics and then discharging the patient, who had

no history of having been prescribed or administered

high doses of oral or intravenous narcotics and without

appropriate respiratory monitoring, is an extreme depar-

ture from the standard of practice among the community

of California practicing physicians.

I. Injecting narcotics with local anesthetics, as

respondent did in this case, would not be a diagnostic

test that would be useful for determining whether an

intrathecal narcotic infusion pump would be beneficial to

the patient.

J. Respondent’s decision to attempt to place an

intrathecal narcotic pump was premature given the lack

of more conservative measures.

K. Respondent's decision to place the infusion cath-

eter at the thoracic level indicates a lack of knowledge,

skill or training to, with safety, perform his professional

medical obligations. Respondent demonstrated a lack of

knowledge of both how the catheter is inserted and how

intrathecal Morphine circulates in the cerebrospinal fluid.

Intrathecal Morphine is hydrophilic, meaning that it will

circulate freely in the cerebrospinal fluid. Narcotic

infused at the lumbar level, where it is much safer to

place the catheter, would achieve the same concentration

at the thoracic level as a catheter placed at that level.

Furthermore, the catheters are designed to be threaded

from the lumbar region below the spinal cord upwards

under Fluoroscopy, so that if it was necessary to place a

App. 45

catheter at the thoracic level, it should have been done

from an insertion point at the lumbar level. Respondent

attempted to place the catheter through a thoracic

entrance site and failed to use Fluoroscopy.

L. Respondent attempted the procedure, at the tho-

racic site, with the patient under general anesthetic.

46. Respondent’s conduct as alleged in paragraphs

29 through 45, detailing the treatment and professional

care provided to patient B.C., of failing to perform a

complete history and physical before embarking on a

course of invasive treatment; of performing confusing

nerve blocks which did not adhere to a logical treatment

plan which were, at times, dangerous when performed in

an outpatient setting; of proceeding to attempt insertion

of a narcotic infusion pump without exploring other med-

ication or other more conservative modalities, and the

attempted placement of an intrathecal narcotic infusion

pump under general anesthesia, without Fluoroscopy, at

the thoracic level constitutes gross negligence and/or

repeated negligent acts and/or incompetence and is

grounds for disciplinary action pursuant to Business and

Professions Code sections 2234(b), (c) and/or (d).

47. Pursuant to Business and Professions Code sec-

tion 125.3, in any order issued in resolution of a disciplin-

ary proceeding, the Board may request the administrative

law judge to direct a licentiate found to have committed a

violation or violations of the licensing act to pay a sum

not to exceed the reasonable costs of the investigation

and enforcement of the case.

WHEREFORE, complainant requests that the Board

hold a hearing on the matters hereinabove, as well as the

App. 46

matters alleged in the original accusation presently on

file against respondent, and after that hearing issue an

order;

1.) Suspending or revoking physician’s surgeon's

certificate No G 39260, heretofore issued to

Respondent Franklin Jerome Day, M.D.;

2.) Granting the Medical Board of California its rea-

sonable costs of investigation and prosecution of

this case; and

3.) Taking such other and further action as is

deemed just and proper.

Dated: February 16, 1995

/s/ Alfredo Terrazas, RAG for

DIXON ARNETT

Executive Director

Medical Board of California

State of California

Complainant

Dh ee Le a’

App. 47

DANIEL E. LUNGREN, Attorney General

of the State of California

ALFREDO TERRAZAS, STATE BAR No. 78403

Deputy Attorney General

2101 Webster Street, 12th Floor

Oakland, CA 94612-3049

Telephone: (510) 286-3795

FAX (510) 286-4020 -

Attorneys for Complainant

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DIVISION OF MEDICAL QUALITY

STATE OF CALIFORNIA

Respondent.

In the Matter of the ) No. D-5613

Accusation Against: ) SECOND

Franklin Jerome Day, M.D. SUPPLEMENTAL

P. O. Box 306 ACCUSATION

San Leandro, California )

94577 )

Certificate No. G-39260

)

DOUG LAUE, complainant herein charges and

alleges as follows:

1. He is the Acting Executive Director of the Medi-

cal Board of California, State of California (hereinafter

“the Board”) and makes these additional charges and

allegations to be added to the charges and allegations

contained In the Matter of the Accusation Against: FRANK-

LIN JEROME DAY, M.D., filed on February 2, 1994, and to

the charges and allegations contained In the Matter of the

)

App. 48

First Supplemental Accusation Against: FRANKLIN JER-

OME DAY, M.D., filed on February 16, 1995, solely in his

official capacity.

SIXTH CAUSE FOR DISCIPLINARY ACTION

2. At all times relevant hereto regarding female

patient J.W., respondent was practicing as a physician

and surgeon in Walnut Creek and San Leandro, California

doing business as Pain Relief Center.

3. Beginning on or about August 28, 1986, respon-

dent first saw female patient J.W., d.o.b. 2/22/52, a then

34 year old patient who was complaining of chronic,

acute and recurrent pain in her left foot and leg. The

patient had a history of a falling accident in September of

1979, which resulted in an injury to her left knee. She

subsequently had numerous surgeries to that knee. After

her second surgery, the patient began complaining of

numbness in her left knee which gradually progressed to

a burning pain with a hypersensitivity of the skin in her

left leg. She eventually had a surgical fusion of her left

knee joint, reportedly as an attempt at pain control.

Respondent's notation for this first office visit reads, in

relevant part, as follows:

“She is a 32 (sic) year old female who has a long

history of a sympathetic dystrophy of the left

leg. This has been well evaluated and aggres-

sively treated in the past. She has received

numerous sympathetic blocks in the past. These

resulted in relief of the pain in the leg, but she

has never gotten long term relief from these

injections. She has also received intravenous

App. 49

regional Reserpine with relief of the pain, but

again, no long term relief.

She has had epidural steroids in the past, and

this has not given her any long term relief. She

is a good candidate for a neurolytic injection,

but before I do that, I need to document for

myself that she does not receive relief from a

series of local anesthetic injections, and that she

can get good relief with a good sympathetic

block.”

4. Thereafter, beginning on or about September 2,

1986 began a course of care aitd treatment by respondent,

and his subordinate staff at the Pain Relief Center at

Walnut Creek, where he prescribed, in increasing

amounts, powerful narcotics, without any adjunctive

physical therapy or medications. At the inception of pain

medication treatment by respondent and his associates,

patient J.W. was provided treatment consisting of the

insertion of an epidural catheter with daily nerve blocks

for one week via injection of 0.5% Lidocaine with

DepoMedrol. She had brief relief with each block. She

was then started on Methadone and Minipres.

5. On September 12, 1986 a decision was made to

proceed with further epidural sympathetic nerve blocks.

She underwent epidural sympathetic blocks frequently,

intermittently mixed with DepoMedrol, between Septem-

ber 2, 1986 and November 7, 1986. During this period of

time she was switched from Damason P to Methadone.

The Methadone was prescribed on a p.r.n. (as needed)

basis and the only restraint on the Methadone was

whether pain relief was achieved. Notations made during

this time that the patient was also seeing a psychiatrist.

App. 50

6. In October of 1986, Soma 350 mg tid. (three

times per day) was added to the Methadone. On October

28, 1986 it was noted by respondent that:

“She seems to feel that [Soma] helps. She also

asked for some more Methadone. I prescribed

100 tablets for her 6 days ago. She states that she

takes on the average, 10 per day (Methadone)

but she doesn’t keep that close track of them.

Looking back, her needs have been about 14 per

day. This is a significantly large amount of

Methadone although she has been on narcotics

for a very long time and has obviously devel-

oped a tolerance to them. We are obviously not

going to be able to change this until we get

control of her pain and I feel we are moving in

that direction.”

7. On or about November 12, 1986 a neurolytic sym-

pathetic block was recommended by respondent. In the

same note, respondent commented that an intravenous

regional sympthetic block apparently using Reserpine

that gave her about one week of relief.

8. Sometime during early 1987 patient J.W. under-

went another surgical leg procedure, a sympathicectomy

to the left leg at Stanford Hospital. Respondent then did

not see patient J.W. again until August 6, 1987 when he

noted the surgical procedure and commented that there

had been some improvement in her pain symptoms, but

certainly not a substantial or complete relief. The left leg

remained warm, and she was able to “cut down substan-

tially on her amount of pain medication.” Two options

were presented to the patient by respondent during this

office visit; spinal cord stimulation or epidural narcotic

injection. On August 6, 1987 a lumbar epidural catheter

App. 51

was placed and the patient began receiving injections of

narcotics as an outpatient through the catheter. On

August 11, 1987 respondent taught patient J.W. to self

inject narcotic through the catheter. Between August 6,

1987 and May 6, 1988 patient J.W. underwent numerous

DuPen epidural catheter placements and continued to

self inject narcotics.

9. On March 17, 1988, a lumbar epidural catheter

was placed, however, it was placed subarachnoid rather

than epidurally. The chart note for March 18, 1988 states

that:

“She is getting excellent relief with the sub-

arachnoid injections and feels that the pain

relief is even more profound that she gets with

the epidural injections. In view of this response,

we will leave the catheter in place and she will

inject that and we will consider very early next

week for changing her to a more permanent

subarachnoid catheter.”

10. On March 23, 1988 the chart noted that patient

J.W. was having “persistent leakage of CSF, out of the

catheter that was placed the other day”. Respondent

noted that she was getting ineffective pain relief with her

injections, probably because of loss of fluid and that she

was not feeling well secondary to withdrawal symptoms

associated with persistent spinal fluid leakage. It was

then decided to remove the subarachnoid catheter and to

place a midlumbar epidural catheter.

11. Between March 23, 1988 and May 6, 1988 patient

J.W. experienced multiple problems with both temporary

and permanent epidural catheters placed by respondent

including headaches, marked changes in mental status

App. 52

and poor functioning of the epidural catheter tip because

in was not correctly placed in the epidural space.

12. On April 19, 1988 patient J.W. was admitted to

Los Medanos Community Hospital and further work-up

revealed her to have meningitis. On this same date,

respondent infiltrated the area of the previous back inci-

sions with local anesthesia and the temporary catheter

was removed. Respondent then proceeded to reinstall the

previously removed Davol silicone epidural catheter.

13. On May 8, 1988 patient J.W. was re-admitted at

Los Medanos Community Hospital, on an emergency

basis and on the recommendation of the Infectious Dis-

ease Specialist, for treatment of a reoccurrence of men-

ingitis. At the time of her admission, patient J.W. had a

fever greater than 101, white blood cell count of greater

that 15,000 with a left shift and was complaining of a stiff

neck and headache.

14. On or about June 1, 1988 at Los Medanos Com-

munity Hospital respondent, in the operating room,

placed a percutaneous DuPen long term catheter as well

as a permanent subcutaneous port for her. Thereafter,

narcotic injection resumed. On or about June 13, 1988,

after the patient complained that the catheter had

stopped working, an x-ray showed that the catheter had

backed out of the epidural space and on July 5, 1988

respondent removed the non-functioning catheter. Patient

].W. was started on Roxanol, also known as oral Mor-

phine, and this medication was continued until a neuro-

surgeon could place a permanent indwelling catheter into

the epidural space so that she could use a pump to instill

narcotics.

App. 53

15. Sometime between August 5 and August 23,

1988, patient J.W. had a permanent indwelling DuPen

catheter and Davol subcutaneous injection port placed by

a neurosurgeon at the county hospital.

16. On August 23, 1988 patient J.W. returned to

respondent's office where respondent provided her with

her first injection into the newly installed port and pro-

vided her with a prescription for 25 gauge needles and

Catapres to help her with withdrawal. On August 26,

1988 the patient reported that when she injected her port

that fluid came out of the skin and that she was not

obtaining good pain relief. Upon examination, respon-

dent assessed that fluid was leaking back along the cathe-

ter path and not staying in the epidural space.

17. Respondent continued to see patient J.W., inter-

mittently, until January 25, 1991. Throughout the chart

there are notations that the patient was under-reporting

her use of medication, including the theft of her purse

resulting in the loss of 100 Roxanol pills on April 6, 1989,

and also returning, early for refills. There are no notations

as to pain level, activity level or side effects of the treat-

ment with oral and injectable narcotics. The chart entry

for January 25, 1991, the last date on which respondent

saw patient J.W. states, in pertinent part, that “we really

haven't done a single shot spinal block to assess dosage

so I felt that we should do that one time prior to placing

the pump just to ensure that we could have a good

starting dose on her.” Whereupon, Img of preservative-

free Morphine was injected intrathecally and she was

discharged home.

App. 54

18. In diagnosing, caring for and treating patient

J.W. during said time, respondent acting either alone or in

supervision of those subordinate to him did so in a

grossly negligent and/or negligent and/or incompetent

manner as follows:

A. Respondent failed to perform a complete history

and physical examination of patient M.G. during the

initial patient visit.

B. Respondent specifically failed to record a history

which included a description of the pain, its location,

aggravating and relieving factors, effects on the patient's

lifestyle and activities of daily living, a complete past

medical history which would include other medications

and treatments previously tried and currently in use and

a history of alcohol or drug dependence.

C. Respondent specifically failed to perform a phys-

- ical examination, including other joints in the leg, which

noted the limitations caused by the pain. Although pain

can only be evaluated in subjective terms, objective phys-

ical findings are useful to determine if the patient is

making progress towards a more functional lifestyle.

D. By failing to perform a complete physical exam-

ination which noted the limitations caused by the pain,

respondent could not, and did not, initiate a treatment

plan noting what objective factors would be used to

evaluate the success of the treatment. If the patient shows

no improvement in functional abilities, then a different

treatment plan should be instituted.

E. By failing to institute an objective, measurable

treatment plan for patient J.W., respondent could not, and

App. 55

did not, evaluate the patient at periodic intervals, using

the original history and physical as a baseline.

F, Respondent failed to use other medications or

treatment modalities, commonly used by pain manage-

ment physicians for treatment of neuropathic pain such

as tricyclic antidepressant, selective serotonin re-uptake

inhibitors, antiseizure medications, anti-arrhythmics,

Capsaicin Cream, or physical therapy to improve range of

motion and muscle strength and to help evaluate the

patient’s progress, and psychologic counseling and sup-

port if available.

G. Respondent incompetently and/or negligently

and/or grossly negligently taught, encouraged and/or

allowed patient J.W. to self administer narcotics, on an as

needed basis, in the epidural and intrathecal catheters.

Allowing the patient to self inject entails a high risk of

infection in the epidural or intrathecal space, which can

lead to permanent neurologic damage or even death. The

risk is well recognized when allowing cancer patients to

self inject, but is not acceptable with non-cancer patients.

H. Respondent incompetently and/or negligently

and/or grossly negligently used deposteriods in the epi-

dural space. There is no indication that use of steroids

given epidurally has any affect [sic] on RSD. In addition,

if respondent understood the mechanism of action of

deposteroids, in that they continue to exert their effect for

2-3 weeks, he would have known that there was no

indication to inject the steroids daily.

I. In spite of the fact that there was no sustained

response to the epidural or sympathetic nerve blocks,

. fespondent repeated them over a period of months.

App. 56

Respondent should have known that if the injections

were continued, each injection should have provided a

more long lasting pain relief period. If this does not

occur, then the patient is not responding to the nerve

blocks and they should be abandoned, or a neurolytic

block performed.

J. Respondent prescribed numerous narcotics with-

out evaluating the patient’s response other than her sub-

jective report of pain relief. She continued to rapidly

escalate the dose and not keep detailed accounts of the

medication that she was using. Without any objective

improvement in her pain, and with the massive escalation

in narcotic usage from Damason P to Methadone and

Roxanol, the continuing use of these narcotics was con-

tra-indicated.

K. Respondent failed to investigate other specific

treatments which may have been effective for the patient.

In his note of November 12, 1986, he stated that a Reser-

pine intravenous regional block gave her one week’s

worth of relief. He should have repeated the intravenous

regional block to see if repeated regional blocks could

have provided more sustained relief. This is particularly

true since he was obtaining less than one day of pain

relief from injections of the epidural catheter and consid-

ering more invasive and destructive therapies. Similarly,

on August 6, 1987 respondent offered the patient the

option of spinal cord stimulation versus epidural nar-

cotics. On August 10, 1987 he noted “patient can’t decide

which technique she would like to try.” On August 17,

1987 he noted “she does not seem interested in spinal

cord stimulation.” However, no discussion was under-

taken. Spinal cord stimulation is routinely used for RSD

App. 57

and is considered safer, more reliable, less costly, and

more effective than narcotics alone.

L. Respondent incompetently and/or negligently

and/or grossly negligently continued to repeatedly place

temporary, as well as “permanent”, epidural catheters,

despite mechanical problems with the catheters and

despite the fact that the patient never had any evidence

of sustained pain relief with the catheters. He also inser-

ted the catheters in a non-sterile environment, when such

are routinely placed in surgery centers, and without stan-

dards in place for peer review or input.

M. Respondent incompetently and/or negligently

and/or grossly negligently injected epidural and intra-

thecal narcotics and then discharged the patient home.

Epidural or intrathecal narcotics are known to cause

severe respiratory depression and patients administered

such narcotics must be monitored for, at minimum, the

first 24 hours following the injection.

N. On the final office visit to respondent’s office, he

performed a spinal puncture on patient J.W. to inject

Norphine for evaluation of a starting dose for intrathecal

narcotic infusion if a pump were placed. Since respon-

dent had already made the decision that epidural and

intrathecal narcotics had been useful in the past, this

injection of Morphine had no clear medical indication

and was therefore a clearly excessive use of a diagnostic

procedure.

19. Respondeni’s conduct as alleged in paragraphs

2 through 18, detailing the treatment and professional

care provided to patient J.W., constitutes gross negligence

and/or repeated negligent acts and/or incompetence and

App. 58

is grounds for disciplinary action pursuant to Business

and Professions Code sections 2234(b), (c) and/or (d).

20. Further, respondent’s conduct as alleged in

paragraph 17, detailing the treatment and professional

care provided to patient J.W. on the occasion of her final

office visit on January 25, 1991 where she received an

injection of Morphine for evaluation of a starting dose for

intrathecal narcotic infusion pump purposes, constitutes

repeated acts of clearly excessive prescribing or use of

treatments as determined by the standard of the commu-

nity of licensees in violation of section 725 of the Code

subjecting respondent's certificate as a physician and sur-

geon to discipline for unprofessional conduct pursuant to

section 2234 of the Code.

SEVENTH CAUSE FOR DISCIPLINARY ACTION

21. At all times relevant hereto, respondent was

practicing as a physician and surgeon in Walnut Creek,

California doing business as Pain Relief Center.

22. Beginning on or about November 30, 1987,

respondent first evaluated and began treating female

patient A.C., d.o.b. 10/8/53, who was 34 years old at said

time, for complaints of severe recalcitrant low back pain

with a radicular component. The patient-was traumatized

from her involvement in an injury where, on or about

August 10, 1987, while assisting respondent place an

orthopedic knee brace on an elderly female patient, the

patient fell on top of A.C. while she was in the squatting

position. At the time, patient A.C. was working as an

orthotic fitter for Doc’s Pharmacy. The original diagnosis

App. 59

for the injury was a lumbar strain and was treated conser-

vatively with rest and anti-inflammatories by another

physician. Both plain films and a Computerized Tomog-

raphy (CT) of the spine were negative for any acute

processes or disc herniation. However, degenerative

changes (desiccation) were noted in the L1/2 and L5/S1

discs on a subsequent Magnetic Resolution Imaging

(MRI) scan of the lumbar spine performed on January 6,

1988. After several weeks her back pain complaints

remained sever [sic], even though she tried to return to

work. Her care was then assumed by another physician

with no change in the management of her muscle spasms

and pain, whereupon, she first went to respondent for

care.

23. Respondent's initial evaluation of the patient,

performed on November 30, 1987, noted that the “patient

was currently taking Vicodin 1-2 p.r.n. for pain” without

specifying how long or how much of the narcotic, or to

what extent it covered her pain. Respondent’s diagnostic

impression was that the patient bad a “ligamentous strain

of the lumbar spine”, and possibly a “problem” in her

sacro-iliac joint, however there is no record of a positive

“Gaenslen’s sign” for S-I joint problems. He also noted

that a recently performed epidural steroid injection had

caused increased back pain. The anesthesiologist noted as

having performed the injection was not contacted,

although respondent indicated that from the patient's

description, she couldn’t have received an epidural injec-

tion. His plan was to immediately perform a differential

epidural injection of steroids and local anesthetic to “sep-

arate the back from the sacro-iliac component of her

pain”. During this initial office visit, an epidural injection

App. 60

was attempted and was unsuccessful due to the patient’s

adverse reaction, (CNS symptoms including some twitch-

ing, hypertension and tachycardia), to either incremental

0.5% Lidocaine or 10cc of 2% Nesacaine, which respon-

dent attributed to an undetected catheter placement into

an epidural vein(s).

24. Respondent next saw patient A.C. the following

day, December 1, 1987, when he repeated his attempt at a

differential epidural using, again, incremental 0.5% Lido-

caine whereupon the patient became hypertensive and

shaky requiring two (5mg) doses of Valium, which could

have, and most likely did, cloud subsequent observa-

tions. Respondent noted that the patient appeared to be

susceptible to local anesthetic toxicity. The patient’s feet

became warm, but her pain was unaffected and respon-

dent concluded that the pain was not sympathetically

mediated. Whereupon, respondent proceeded to inject

DepoMedrol 80mg followed by 50mg of Demerol.

Respondent then noted that the patient’s pain relief was

complete and she slept for about two hours before leav-

ing the office.

25. Respondent next saw patient A.C [sic] two days

later, on December 3, 1987, when he placed another mid-

lumbar epidural catheter and injected 5mg of Morphine

(DuraMorph). Although it is not noted in the record as to

how long respondent waited, this injection did not com-

pletely relieve the patient’s pain. Respondent then pro-

ceeded with another 5mg’s of Morphine which only

produced partial relieve [sic] of her pain, however, for

some unexplained reason, respondent then proceeded to

inject 5 cc’s of 1% Lidocaine. Following this injection the

patient developed involuntary twitching as well as

App. 61

marked itching and nausea. The patient was then pro-

vided with IM Narcan. Even so, the patient was sent

home.

26. On December 10, 1987 patient A.C. returned to

respondent’s office where the chart note states that

“[A.C.] comes in desiring a therapeutic injection to help

relieve her pain.” Respondent then placed another mid-

lumbar epidural catheter and injected in 5mg increments,

10mg of Morphine (DuraMorph). The chart notes that the

patient had “only mild central effects”, (read “mild CNS

effects”), which he treated with 0.4 mg of Narcan. He

then left the catheter in place for further injections should

she desire them in the near future, and the patient went

home.

27. Respondent next saw patient A.C. the following

day, December 11, 1987 when she reported 20 hours of

60% relief of her pain. He injected 10mg of Morphine

(DuraMorph) with little or no relief and then proceeded

to replace the epidural catheter. Thereafter, respondent

proceeded to inject an additional 10 mg of Morphine

(DuraMorph).

28. Respondent next saw patient A.C. three days

later, on December 14, 1987, where the record again

shows a repetition of events; i.e.; catheter injected with 10

mg Morphine (DuraMorph) without pain relief, catheter

replaced and an additional 10 mg of Morphine

(DuraMorph) injected. The patient developed nausea

which was treated with Narcan, and then discharged

home. Later that same day she was admitted to a nearby

hospital, John Muir Medical Center, for a drug reaction

App. 62

with symptoms of vomiting, nausea, rash, itching, blad-

der distention, etc. According to the hospital records,

respondent did not have admitting privileges at the hos-

pital and was not available for consultation at the time of

her Emergency Room evaluation. The patient was admit-

ted to the hospital for observation of the drug reaction,

with an admission impression of excessive epidural mor-

phine, and was discharged on December 16, 1987. There

are no notations of this episode in respondent's records.

29. Respondent next saw patient A.C. on December

21, 1987 and while no notation mentioned the hospitaliza-

tion induced by the prior appointment’s treatment,

respondent removed the catheter and started the patient

on Methadone 5mg pills which the patient was to titrate

to see if she could obtain a better pain solution than the

Vicodin she was then taking.

30. Respondent’s medical records next indicate,

without indicating where, that from January 7, 1988 to

February 4, 1988 patient A.C. tried various other methods

of pain management including biofeedback and hypnosis

without providing details as to success or lack thereof.

There is a note in the chart, dated March 23, 1988 that the

patient was seen during this time period by a Marriage,

Family and Child Counselor who saw the patient since

early February of the same year, on a weekly basis, for

hypnosis and supportive counseling.

31. Patient A.C. was next seen in respondent's office

on February 12, 1988 when she was seen by respondent's

wife, also a physician, where the chart notes indicate that

the patient was taking Methadone (Dolophine) 10 mg

App. 63

every four hours while awake for pain, Vistaril for anxi-

ety and Soma as a muscle relaxant, all prescribed by

respondent. At this time the patient was also started, for

the first time, on an anti-depressant medication, Deseryl

50mg hs (at the hour of sleep).

32. Approximately two months later, on April 5,

1988, patient A.C. was next seen by respondent complain-

ing of poor pain relief with Methadone, asking respon-

dent to try the epidural Morphine again. Respondent

acquiesced with the patient’s wishes and placed an upper

lumbar epidural catheter and administered two 5mg

boluses of Morphine obtaining no more than a transient

“whoop-dee-do feeling” without relief of pain. She com-

plained of some light-headedness and developed very

mild twitching. She was discharged feeling better and

was provided with Narcan, in a syringe and without

indicating the amount, which was given to her “atten-

dant” son.

33. The patient was seen by respondent the next

day, April 6, 1988 when he injected her through the

epidural catheter with 15 mg of Morphine. The note

concludes with the entry, “We taught her some self-injec-

tion techniques, and she is going to go home and practice

drawing up the medicines so that we can get her on a

self-injection regimen”.

34. Thereafter on April 7 and 8, 1988 patient A.C.

visited respondent’s cffice where respondent further

instructed and witnessed the patient self-inject 15 mg of

Morphine on each occasion. On Monday April 11, 1988

the patient again returned to respondent's office where

she reported excellent pain relief over the weekend from

App. 64

her self injections, getting 12-14 hours of complete relief

with 15 mg of Morphine per day. However, the patient

had a low grade fever, tenderness around the catheter site

with a purulent discharge also noted. The catheter was

cleaned with peroxide and betadine and she was placed

on antibiotics (Dicloxicillin, 500 mg 4 times per day). The

patient was quite emphatic that she did not want the

catheter removed.

35. The patient was next seen by respondent two

days later, on April 13, 1988, when he noted that the

tenderness around the catheter site had gone away and

that she was recovering from generalized viral infection

and that she had now started giving herself a second

injection at night, describing this second injection only in

the terms of “a smaller injection”. Respondent then charts

that he will follow-up with the patient on an “as needed

basis”.

36. The patient was next evaluated on April 18, 1988

when it was noted that she complained of continuing

back pain and a headache. Her temperature was 100

degrees, redness and tenderness at the catheter site was

recorded and the catheter was left in place despite

respondent’s assessment to rule out systemic infection.

37. The patient was next seen on April 25, 1988

when tenderness was again noted around the catheter

site, her temperature was recorded at 99.8 degrees, the

patient complained of a headache and noted that the

injections were less effective. The catheter was pulled and

the patient was told to use Methadone until her tempera-

ture was back to normal.

App. 65

38. On April 27, 1988 a DuPen long-term epidural

catheter was placed in the patient at approximately the

L1-2 interspace.

39. From May 5, 1988 to September 6, 1988, patient

A.C. had the following significant medical care and treat-

ment from respondent:

May 5, 1988 - The catheter was not working well and

it was thought to be disconnected. X-ray with dye

showed the catheter to be in the epidural space and

the patient was injected with 15 mg of Morphine.

May 12, 1988 - The patient complained of poor pain

relief and nausea following larger doses, without any

notation of how much narcotic was used or given.

Narcan was given without any notation as to what

amount was given.

May 20, 1988 - Injections do not give relief and fluid

was observed coming out at the catheter site. The

Dupen catheter was replaced, although it appears

that this was done in respondent's office.

May 27, 1988 — Visit for suture removal. Patient noted

to have lost 15 pounds in one week. Chart says,

“Follow-up when [patient has] lost another 20

pounds”.

June 8, 1988 - Catheter stopped working the day

before with fluids coming out with injections. In his

office, respondent then removed the distal portion of

the catheter and it was removed and saved. The same

internal part of the catheter system was then reused

and a new external part attached.

June 9, 1988 - A catheter connector failure was noted

due to separation at the point where the internal and

external catheters connect. Respondent repaired the

connection in his office.

App. 66

June 17, 1988 - Injectate completely leaking out of

catheter site with poor pain relief. The patient feels

like she is in withdrawal. The catheter was injected

with 15 mg Morphine while in the sitting position

with no leakage.

July 25, 1988 - Patient A.C. complains that the cathe-

ter has been very painful to inject. Continues to lose

weight, now approximately 35 pounds. Started on

trial of antibiotics.

August 1, 1988 - Leakage at catheter site again. Cath-

eter revised, in office, once again using same internal

part which was reinserted.

August 8, 1988 —- Catheter continues to leak. Catheter

injected with fluid and air. Fluid leaked back easily

and air bubbles felt distal to catheter connector site.

X-ray showed catheter to be in probable good posi-

tion. Once again in his office, respondent performed

a surgical procedure on the patient, this time the

ordinary epidural portion of the DuPen long term

catheter was placed internally and connected to the

external catheter.

August 15, 1988 - Patient A.C. complains of pain on

injection of catheter, but good pain relief. Catheter

plug was wiped with betadine solution and 20 mg

DepoMedrol injected in order to keep catheter open.

August 24, 1988 - Patient reported excellent results

from steroid injection of 8/15/88, reducing pain with

injection and lasting almost 10 days. Requests repeat.

20 mg DepoMedrol injected.

6, 1988 - Patient reports injections becom- -

ing very painful for her again. Got good improve-

ment in these symptoms for several weeks after

injection of steroids. Desires repeat. Still losing

weight and problem may be catheter migration and if

App. 67

continue to have problem may need to move. 20mg

DepoMedrol injected.

40. On September 9, 1988 patient A.C. was seen at

the Emergency Room of a nearby hospital, Mt. Diablo

Hospital Medical Center, for a drug reaction with

toms of extreme shortness of breath and coughing with

wheezing after injection of Morphine. According to the

hospital records, the patient went to the fire station and

had some resolution of the symptoms on Oxygen before

being brought

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