# Opposition Brief — Day v. Superior Court of California

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1409%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1145

## Text

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

ii

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.

iv

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-

12

Vv

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

vi

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

9

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

10

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.

11

§ 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

12

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.

13

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,

14

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

15

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.

16

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
ae

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.)

17

‘

“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).)

18

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

19

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).)

20

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

21

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.

22

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

23

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

24

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.)

25

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

26

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

27

f

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.

28

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

29

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,

30

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

i

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.

(c) Be placed on probation upon order of the divi-
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.
(c) Repeated negligent acts.
(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.

(c) A state prison.

(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.
(c) Six grains of Pantopon.
(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.
(c) Three grains of Pantopon.

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.

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1409%3A2. Public record. Not legal advice.