ORIGINAL PROCEEDINGS in mandate. Patrick Marlette, Judge. Affirmed. (Super. Ct. No. 07CS00380).
The opinion of the court was delivered by: Hull, J.
CERTIFIED FOR PUBLICATION
The Medical Board of California (Board) has authority to discipline a licensed physician for unprofessional conduct. (Bus. & Prof. Code, § 2227; further undesignated section references are to the Business and Professions Code.) Section 2239, subdivision (a) identifies as a form of unprofessional conduct the use of alcoholic beverages "to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely . . . ." (Italics added.) In this original mandamus proceeding, petitioner contends the italicized "or" in the foregoing statutory definition of unprofessional conduct must be read as "and" in order for section 2239 to pass constitutional muster. In other words, petitioner argues, the use of alcoholic beverages to the extent or in such a manner as to pose a danger to the physician or others may be the basis for professional discipline only if it is also proven there is a nexus between such use and the physician‟s ability to practice medicine safely.
We reject petitioner‟s attempt to rewrite section 2239. Although we agree there must be a nexus between the physician‟s use of alcoholic beverages and his or her fitness to practice medicine, we conclude such nexus has been established by the Legislature in all cases where a licensed physician used alcoholic beverages to the extent or in such a manner as to pose a danger to himself or others. We further conclude the imposition of discipline based on alcohol-related incidents that do not result in any criminal conviction does not violate the physician‟s due process rights. Because our conclusions are consistent with the decision of respondent Sacramento County Superior Court, we deny the instant petition.
On September 1, 2004, David Thornton, in his capacity as Executive Director of the Board, filed an accusation against petitioner Louis H. Watson, M.D., alleging various instances of unprofessional conduct. As amended, the accusation alleged that on November 26, 2003, petitioner entered a negotiated plea of no contest to battery (Pen. Code, § 242), following an incident in which he hit another man in the back of the head in the parking lot of a home improvement store. Petitioner was placed on probation for one year. The accusation further alleged four incidents between July 2000 and August 2005 in which petitioner was arrested for driving under the influence of alcohol (DUI) and four incidents in which petitioner provided false information on applications either for reappointment to hospital medical staffs or for professional liability insurance.
Following an administrative hearing, the Board found each of the alleged incidents had been established and provided cause for discipline. The Board revoked petitioner‟s certificate to practice medicine, but stayed the revocation and placed petitioner on probation for five years, with 30 days actual suspension.
Petitioner filed a petition for writ of mandamus in the Sacramento County Superior Court challenging the Board‟s decision. That court granted the petition in part, concluding the Board erred in relying on the battery incident to support discipline, because that incident has no bearing on petitioner‟s qualifications to practice medicine. The court also concluded the Board incorrectly relied on alleged misstatements in one of the applications for professional liability insurance regarding prior convictions, inasmuch as the application was filed after petitioner‟s battery conviction had been expunged. Finally, the court struck a finding that petitioner suffers from substance abuse disorder and struck two conditions of probation prohibiting the use of alcohol and requiring testing of bodily fluids. In all other respects, the court denied the petition.
On September 23, 2008, petitioner initiated the instant mandamus proceeding challenging the decision of the superior court.
On review of an administrative decision imposing discipline on a professional licensee, the superior court exercises its independent judgment on the facts. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 789.) "After a trial court‟s exercise of its independent judgment in review of the facts, an appellate court is limited to determining whether the trial court‟s findings are supported by substantial evidence but may, nonetheless, independently exercise its ability to decide issues of law." (Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089, 1095-1096.)
Here, petitioner challenges the decision of the superior court but, in so doing, relies almost exclusively on the facts as found by that court. In effect, petitioner concedes substantial evidence supports the trial court‟s findings, challenging only the legal conclusions reached by the court. The Board, for its part, relies on the various police reports of the DUI incidents, on which the trial court expressly relied. We therefore quote extensively from the superior court‟s recitation of the underlying facts. However, because the superior court rejected the battery incident as a proper basis for discipline, and that determination is not challenged here, we need not concern ourselves with that incident.
In connection with the four DUI incidents, the superior court found: "On the night of July 27, 2000, petitioner was stopped after police reported observing him driving erratically (making an improper left turn). Petitioner was arrested after the officers observed signs of intoxication, and petitioner performed poorly on several field sobriety tests. A subsequent breath test showed petitioner‟s alcohol level to be .08%. A misdemeanor complaint was filed against petitioner but was dismissed on November 15, 2000 pursuant to Penal Code section 1385.
"In the late afternoon or early evening of February 25, 2003, petitioner was stopped after he rear-ended a van at a stop light and the van‟s driver flagged down a patrol officer and reported petitioner as being intoxicated. Petitioner was arrested after the officer observed signs of intoxication, and petitioner performed poorly on some of the field sobriety tests. A subsequent blood test showed petitioner‟s alcohol level to be .06%, and no charges were filed.
"On the night of January 3, 2004, petitioner lost control of his car on the freeway, skidded and hit the center divider. He claimed that he had become anxious about a car following him too closely, and lost control when he tried to move out of the way. Petitioner‟s car suffered significant damage to the left front and rear areas, but was still operable. Petitioner drove his car off the freeway and to the hotel where he and his wife were staying. Police officers who happened to be there observed petitioner drive his damaged car into the parking lot, approached him, and reported observing signs of intoxication. Petitioner performed poorly on most of the field sobriety tests, and preliminary alcohol screening tests at the site reported alcohol levels of .087% and .081% . . . . Petitioner was arrested, and a subsequent breath test reported an alcohol level of .07%. No charges were filed as the result of this arrest.
"On August 20, 2005, police reported observing petitioner make a sudden lane change to exit the freeway, which caused other motorists to brake in order to avoid him. After stopping petitioner, the officers observed signs of intoxication. Petitioner performed poorly on field sobriety tests and was arrested. Two subsequent breath tests recorded alcohol levels of .06%. At the time of the administrative hearing in this matter, a criminal matter was pending against petitioner in connection with this arrest. . . ."
Regarding the false applications, the superior court found: "[P]petitioner made misrepresentations on two applications for reappointment to medical staff positions and on two applications for professional liability insurance when he failed to disclose the Board‟s investigation and/or pending accusation in this matter and his criminal charges and convictions in response to questions asking about such matters."
As we explain in the next section, conduct used as a basis for disciplining a professional licensee must demonstrate unfitness to practice the profession in question. This nexus requirement stems from constitutional due process principles.
Petitioner contends this matter raises the following issue of first impression: "[W]hether a physician properly may be subjected to professional license discipline for after-hours conduct that (a) does not result in conviction for any criminal offense, and (b) not only fails to demonstrate a nexus to professional competence or ability to practice with safety to the public, but is imposed in the face of an ...