(Super. Ct. No. 34200980000323)
The opinion of the court was delivered by: Raye , P. J.
Medical Bd. of Cal. v. Super. Ct. CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In January 2008 real party in interest Dr. Michael Menaster underwent a psychiatric evaluation ordered by petitioner Medical Board of California (Board). The evaluation found Dr. Menaster suffered from a mental illness that impaired his ability to practice medicine, and recommended treatment and monitoring.
The Board filed an accusation alleging Dr. Menaster was subject to discipline under Business and Professions Code section 822.*fn1 Following an administrative hearing, the Board adopted the administrative law judge's (ALJ) decision to place Dr. Menaster on probationary status for three years, require psychiatric evaluations, and have his practice monitored by another physician.
Dr. Menaster filed a petition for a writ of administrative mandate in respondent trial court, which the court granted. The court found Dr. Menaster's behavior was not sufficient to demonstrate that he could not practice safely in the absence of a disciplinary order.
The Board filed a petition for a writ of mandate in this court, arguing the trial court abused its discretion by interpreting section 822 to be solely concerned with public safety. Instead, the Board argues, section 822 also encompasses a physician who, by reason of mental illness, is unable to provide effective clinical treatment. We issued an alternative writ of mandate and shall deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Board is the agency within the Department of Consumer Affairs charged with administering the provisions of the Medical Practice Act, which governs licensing and discipline of physicians. (§ 2000 et seq.) Dr. Menaster is a licensed physician and surgeon in practice since 1991. Dr. Menaster currently has a private psychiatry practice in San Francisco.
The Board filed an accusation against Dr. Menaster on May 29, 2008, alleging the physician was subject to discipline under section 822. The accusation noted Dr. Menaster's physician's certificate had previously been revoked in 2000 and reinstated when he completed five years' probation.
According to the accusation, Dr. Menaster's ability to practice medicine safely is impaired due to a mental disorder. The accusation recounts Dr. Menaster's lengthy history of emotional and behavioral problems for which he received therapy and medication.
Weapon Incident and Certificate Revocation
In 1999 Dr. Menaster was arrested by police following an anonymous tip that he had an AK-47 assault weapon in his vehicle. A search revealed Dr. Menaster, who was attending college classes, was carrying a loaded .40-caliber semiautomatic handgun in his pants pocket and two loaded handguns, a bayonet-type double-edged knife, a loaded AK-47, ammunition, a camouflage jacket, a helmet, and packages of psychotropic medications in his car.
Psychiatrist James Rosenberg evaluated Dr. Menaster after the incident. Dr. Rosenberg found the physician suffered from a mental illness, personality disorder not otherwise specified (NOS) with histrionic, immature, and paranoid features. Dr. Menaster admitted sleeping with two handguns and a knife under his pillow. He carried a concealed weapon during sessions with patients. Dr. Menaster also played a "'Halloween prank,'" in which he entered two gun stores dressed in camouflage fatigues, brandishing a semiautomatic rifle and shouting, "'Die American scum.'" Dr. Rosenberg concluded Dr. Menaster "constitutes a substantial danger to the health and welfare of his patients and the public at large, and is not mentally fit to practice medicine."
The Board suspended Dr. Menaster's physician's certificate and placed him on five years' probation. As a condition of returning to his practice, Dr. Menaster submitted to a psychiatric analysis by Dr. Howard Dolinsky in March 2000. Dr. Dolinsky also diagnosed Dr. Menaster with personality disorder NOS. Dr. Dolinsky cited evidence of aberrant behaviors in addition to the physician's possession of numerous weapons, such as initiating 50 small claims debt collection actions against patients and unsolicited attempts to hug and kiss female co-workers. Dr. Dolinsky advised mandatory weekly psychotherapy sessions and supervision of Dr. Menaster's practice.
From June 2000 through June 2006 Dr. Marvin Firestone monitored Dr. Menaster's practice and provided therapy. In June 2006 Dr. William Tatomer began treating Dr. Menaster.
Incidents at Department of Social Services
In October 2005 Dr. Menaster began working for the Department of Social Services (DSS) as a medical consultant, analyzing written claims for disability. His position was purely administrative and did not involve any patient contact.
According to the accusation, at the DSS "Dr. Menaster engaged in inappropriate and disruptive workplace behavior. He constantly and inappropriately socialized, gossiped, shouted, and used profanity in the office; he broached personal topics with and made suggestive comments to female employees. He was not amenable to supervision and numerous attempts by management to correct Dr. Menaster's behavior were unsuccessful. On one occasion Dr. Menaster called his supervisor and began to rant, yell, and use profanity over the phone. At one point during the call Dr. Menaster 'let out a very loud and disturbingly frightful scream' and, as his supervisor was trying to calm him, Dr. Menaster hung up on her. Dr. Menaster's explanation for the phone call was that he was upset about an 'illegal' bake sale that was taking place near his work station and interfering . . . with his productivity. The ongoing, inappropriate, bizarre and disturbing conduct made Dr. Menaster's co-workers and supervisors increasingly uncomfortable and even fearful for their safety. DSS ultimately instituted a personnel action against Dr. Menaster, who resigned [in March 2006] in order to avoid being fired."
A Board investigator interviewed Dr. Menaster in February 2007. Dr. Menaster admitted suffering from a mental disorder that he described as characterized by extreme anxiety and depression. According to Dr. Menaster, the DSS failed to accommodate his disability by not providing a quiet workplace. Instead, he was subjected to disruptive bake sales, Girl Scout cookie sales, and other noisy activities. The DSS also demanded excessive productivity. Dr. Menaster believed the conduct the DSS described as "inappropriate" was misinterpreted or taken out of context. He was currently working with a psychiatrist to treat his condition.
In January 2008 Dr. Charles Seaman, a psychiatrist, evaluated Dr. Menaster for the Board. Dr. Menaster recounted his problems at the DSS and his difficulties with the working environment. He also acknowledged that many of the behaviors reported by the DSS did in fact occur, including inappropriate personal comments and inappropriate advances to female workers.
As for the incident over the bake sale, Dr. Menaster stated he had been under pressure to perform and was distracted by people talking loudly near his cubicle. He believed having a bake sale within a state building was illegal. Upset about the bake sale and anxious about his productivity, he called his union steward to complain. Dr. Menaster admitted using profanity and screaming into the telephone but explained "'it was just to vent.'" He did not threaten to hurt himself or anyone else.
Following the bake sale incident, Dr. Menaster resigned. He told Dr. Seaman that he saw the DSS's subsequent notification to the Board as retaliation for complaining to various agencies. Subsequently, Dr. Menaster filed a complaint with the Public Employee Relations Board. He also filed numerous complaints against a number of government agencies, including the DSS.
Dr. Menaster also discussed disciplinary action taken by the Board in 1999 because of three incidents. The first involved his treatment of a 71-year-old man. He mistakenly wrote a prescription for a very high dose of medication. He disregarded the pharmacy's warning about the prescription. After the patient became confused, Dr. Menaster did not associate the problems with the high dosage. In retrospect, Dr. Menaster stated: "'I should have not treated him or hospitalized him.' . . . 'I shouldn't have dismissed the pharmacy.'"
In the second case, Dr. Menaster treated a 10 year old who was experiencing hallucinations telling him to stab his parents. He recommended medication and psychiatric hospitalization. After the parents refused hospitalization, Dr. Menaster increased the boy's medication. The boy experienced negative side effects, and Dr. Menaster was told he prescribed the wrong medications and that the child should have been hospitalized.
The third incident involved Dr. Menaster's arrest for possession of firearms. Dr. Menaster stated he started carrying a gun because he had received anonymous, threatening voice mail messages. He also began collecting numerous guns as an investment, as well as a form of self-protection. He kept a bayonet in his car because he had heard about people getting trapped by their seat belts and he thought he might need the bayonet to cut himself free. After his arrest, Dr. Menaster got rid of all his guns and through therapy was able to realize he was overreacting and had some "'paranoid'" features.
Dr. Menaster agreed with the diagnosis of personality disorder NOS. He observed that "'I tend to personalize comments by ...