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Marquez v. Medical Board of California

March 1, 2010


APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlette, Judge. Reversed with directions. (Super. Ct. No. 34-2008-80000024-CU-WM-GDS).

The opinion of the court was delivered by: Nicholson, J.


"Close enough for government work" is an insulting and often unfounded stereotype which we decline to perpetuate in this case. A statute may impose on a government agency what first appears to be a technical formality, but such a requirement may serve to check delegations of power both to and by the agency, as it does here. Ignoring a statutory mandate nullifies the Legislature's valid purposes and results in tangible harm. If a statute requires an agency to dot its "i's" and cross its "t's," the Legislature's will must be done.

Despite a statute requiring it to do so, defendant Medical Board of California (the Board) has never established by resolution the passing score required for the examination used to license people to practice medicine in California. Plaintiff Yvette Marquez took the last part of the examination in May 2008 and was notified she had failed based on the passing score recommended by the national board that administers the examination. She filed a petition for writ of mandate seeking an order to compel the Board to comply with the statute, deem her to have passed, and issue her a license. The trial court denied the petition.

We reverse. Plaintiff is entitled to an order directing the Board to comply with the statute. Although she is not also entitled to an order deeming her to have passed, she is entitled to take the examination again.


Because the facts are not in dispute, we rely primarily on the trial court's findings of fact. Plaintiff is a graduate of Stanford University and the University of Rochester School of Medicine and Dentistry. As of September 2008, she had completed her second year of a seven-year residency in neurosurgery at the Los Angeles County Hospital and University of Southern California Medical Center. She is not licensed to practice medicine.

The Board is the administrative agency responsible for licensing physicians and surgeons in California. It oversees examinations required for obtaining a license to practice medicine.*fn1

One of those examinations is the United States Medical Licensing Examination (USMLE). This examination was developed by the National Board of Medical Examiners (NBME) and the Federation of State Medical Boards (FSMB), of which the Board is a member. The USMLE's purpose is to provide state licensing agencies such as the Board with a common evaluation system for applicants for initial medical licensure.

The USMLE consists of three parts. The applicant must obtain a passing score on all three parts. Also, an applicant must pass Part III of the USMLE on no more than four attempts in order to be eligible for a license. (Bus. & Prof. Code, § 2177, subd. (c)(1).)*fn2

The FSMB, which administers the USMLE, establishes a recommended minimum passing score for the USMLE which a state may use to grade its applicants. Official USMLE materials state that: "`Individual licensing authorities may accept the USMLE-recommended pass/fail result or may establish a different passing score for their jurisdiction.'"

In California, sections 2184 and 2177 require the Board to establish a passing score by resolution. Section 2184 requires a candidate to obtain "a passing score, established by the division pursuant to Section 2177." (§ 2184, subd. (a).) In turn, section 2177 states: "A passing score is required for an entire examination or for each part of an examination, as established by resolution of the Division of Licensing." (§ 2177, subd. (a).)*fn3

Since adopting the USMLE for use in California, the Board has not adopted a resolution or taken any specific, formal action setting a passing score for the USMLE. Instead, the Board has accepted the recommended passing score established by the FSMB as the standard to be applied to California applicants. The Board has not adopted a resolution or policy stating that fact.

On March 8, 2008, plaintiff registered to take Part III of the USMLE through the USMLE Web site. At that time, the USMLE passing score recommended by the FSMB and utilized by the Board for Part III was 184. The USMLE Web site disclosed this score. The USMLE Bulletin of Information, available at the Web site at the time plaintiff registered and at all times thereafter, also stated that the "`recommended minimum passing level is reviewed periodically and may be adjusted at any time. Notice of such review and any adjustments will be posted at the USMLE website.'"

On April 15, 2008, a notice appeared on the Web site stating that the minimum passing score for Part III had been raised from 184 to 187. The notice also stated the new passing score would be applied to all Part III examinations administered on or after May 1, 2008.

Plaintiff took the Part III examination on May 13, 2008, and she received a score of 184. Because this was the fourth time she had not passed the Part III examination, the Board informed her she was not eligible for a license. The Board subsequently denied plaintiff's request for a waiver from the four-attempt limitation of section 2177, subdivision (c)(1), and it denied her request for a formal hearing on the matter.

Plaintiff filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1085 seeking an order directing the Board to issue her a license. The trial court denied the petition. Acknowledging the Board had never adopted a resolution establishing a passing score, the court nonetheless determined the Board implicitly adopted the USMLE's score as the passing score when it adopted the USMLE, and that this satisfied the requirements of section 2177. The court reasoned: "[B]y adopting an examination developed and administered by an organization that had a practice of establishing its own recommended minimum passing score, [defendant] Board also effectively adopted that standard, including any changes that might be made to that standard from time to time, while reserving the right to review the standard over time. Although the intent to do so was not stated explicitly in [defendant's] formal action approving the USMLE, given the fact that the examination came with its own passing score standards, which could be changed from time to time, such intent was implicit therein."

The court also stated the Board's intent to adopt the USMLE's passing score was further shown by the Board's subsequent actions. The Board had accepted the USMLE's recommended score as the passing score in California since adopting the USMLE in the early 1990s. In addition, at its May 1999 meeting, the Board received a report on the December 1998 administration of the Part III examination. The Board noted the examination had a passing rate of 75 percent, a rate that was consistent with rates of previous examinations. The trial court stated this incident showed the Board had considered the appropriateness of the score used at that time to determine the passing rate and had left it unchanged.

The trial court also rejected plaintiff's argument that the Board had unlawfully delegated to the USMLE the Board's duty to establish the passing score. The court determined the Board had retained the ultimate power to determine the passing score for itself. This was demonstrated when the Board considered the passing rate at its May 1999 meeting.

Plaintiff also claimed the Board denied her due process and violated state open meeting laws when it raised the passing score in 2008 and did not give her personal notice of the ...

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