THE SUPERIOR AND MUNICIPAL COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
-------------------
RICHARD J. BOYLAN, PH.D. ENDORSED
Petitioner FEB -8 1996
By R. ROUSE, Deputy
MEDICAL BOARD OF CA, -------------------
BBSE, DCA AND THE STATE
OF CALIFORNIA
Respondents
DECISION ON SUBMITTED MATTER
Case No. 95CS02187
This Petition for Writ of Mandate came on regularly for hearing
on January 19, 1996, in Department 7 of the Sacramento Superior Court,
the Honorable Thomas M. Cecil presiding. Petitioner was present and
represented by counsel, Mr. Richard S. Linkert. Respondents were
represented by counsel, Mr. Arthur D. Taggart. The matter was argued and
deemed submitted.
For reasons set forth below, as well as those stated during the
hearing of January 19, 1996, the Petition for Writ of Mandate is denied.
This Petition was filed under the authority of section 1094.5 of
the Code of Civil Procedure. It is undisputed that vested rights of
petitioner are at stake. Accordingly, this court has reviewed the
administrative record and exercised its independent judgment. With the
exception of one of respondents' findings, the court has determined that
the findings are supported by the weight of the evidence. Specifically,
the court finds the evidence relative to Determination of issue II
insufficient.
With regard to each of the other Determinations found true by
the ALJ (Nos. 3, 4, 5, 7, 9, and 10), the court finds the evidence in
support overwhelming. Further, separate from the issue of whether
evidence in support of the acts comprising the Determination of issues
was presented, the court specifically notes that in each instance,
expert testimony was presented in support of these determinations.
Petitioner's contrary assertion is not supported by the record.
1
Petitioner accurately asserts that basic concepts of due process
requires certainty and clarity of the accusations being filed as well as
the need for fundamental fairness in the hearing process. Contrary to
petitioner's assertions, however, the court finds no prejudice
occasioned by the amendments to the accusation. Petitioner was afforded
ample opportunity to address the amendments with the presentation of his
evidence and in cross examining respondents' witnesses.
In his moving papers as well as during oral arguments on January
19, petitioner referred to the "thrust" or "focus" of respondents case,
asserting that the resulting "moving target" was constitutionally
defective and required reversal of the administrative decision. As
already noted, the record demonstrates that petitioner was afforded
substantial leeway in terms of responding to changes made to the
accusation. Moreover, the mere fact that petitioner misconstrued the
"focus" or "thrust" of respondent's case, does not diminish or negate
the end product. It is commonplace for arguments originally envisioned
to be "winners" to be tossed aside during the course of trial. Concepts
or tactics first deemed unwise often blossom before the eyes of the
litigants.
In no respect does this court find any violation of the due
process rights of petitioner nor has petitioner been able to demonstrate
any prejudice stemming from the amendments to the accusation.
Petitioner takes issue with the "delay" in pursuing the
complaint originally lodged with BOP by KG. It should be noted that KG
advised the board of her inability to go forward - alone. It appears
that the BOP acceded to her wish until such time as additional
complaints were filed against the petitioner. Moreover, petitioner is
unable to demonstrate any prejudice resulting from the delay.
Lastly, petitioner has challenged the level of discipline
ordered by the boards. It is well-established that a penalty
determination will not be disturbed by a reviewing court absent a
finding of a manifest abuse of discretion. The fact that reasonable
minds could differ as to the propriety and necessity of a given sanction
is insufficient justification to overturn a penalty decision.
The court concurs with the analysis of respondents, both legally
and factually as set out in respondents' Points & Authorities in
Opposition. Moreover, notwithstanding petitioner's efforts to
demonstrate that he poses no risk to the public, his own "Responsive
Brief" forcefully reinforces the position of _respondents_. Petitioner
consistently references the notion that his patients "misconstrued" his
intent, or that it was "misunderstood", or that the risk was "minimal."
2
Obviously, petitioner holds licenses that confer upon him
substantial obligations. His chosen professions require that he exercise
good judgment, respect his patients' feelings and their needs. Contrary
to the position of petitioner, this court finds almost no evidence of
insight into the inappropriateness of his conduct. To the extent that it
exists, it appears to relate solely to the potential ramifications on
his licenses rather than an acknowledgement of misconduct or grossly
inappropriate behavior.
Petitioner does not comprehend what all of the experts clearly
understood. Petitioner continues to assert that this case is about his
beliefs in alien encounters. It is not. Petitioner fails to grasp the
significance of the expert testimony and the findings as to matters
completely unrelated to aliens. Petitioner's conduct was outrageous,
especially in the light of the underlying reasons for treating these
particular patients. His conduct fell well below the standard of care
expected of his professions and constituted gross negligence.
Revocations are appropriate.
Respondent is directed to prepare an appropriate order in accord
with this decision, obtain approval as to form from petitioner's counsel
and submit it to this Court.
Dated: 2-8-96 [handwritten]
By: [signature]
---------------------------
Thomas M. Cecil
Judge of the Superior Court
[Superior Court
County of Sacramento, California] seal
