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Ophelia Lee v. Board of Registered Nursing

September 26, 2012

OPHELIA LEE, PLAINTIFF AND APPELLANT,
v.
BOARD OF REGISTERED NURSING, DEFENDANT AND RESPONDENT.



Super. Ct. No. CPF10510561) Trial Court: Superior Court of the City and County of San Francisco Trial Judge: Hon. Peter J. Busch

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

CERTIFIED FOR PUBLICATION

(San Francisco City & County

Sections 820 and 821 of the Business and Professions Code*fn1 authorize revoking of the license of a health care professional for failure to comply with an order requiring a mental fitness examination. Here, following a hearing before an administrative law judge, the Board of Registered Nursing (Board) revoked the registered nurse license of Ophelia Lee after she refused to submit to such an examination. The trial court denied Lee's petition for a writ of administrative mandate seeking to overturn the revocation. Lee appeals that denial. We affirm.

BACKGROUND

Lee has been a registered nurse since 2000. In 2007, her employer, Eden Medical Center, began to have doubts about Lee's mental condition to continue working in the surgical unit. During that year, Lee was examined by five mental health professionals. Two, Drs. Zhalkovsky and Kirz, diagnosed her as suffering from delusions that would impair her ability to function as a nurse. Three others, Drs. Webber, Ho, and Spivey, found no such impairment.

On April 22, 2009, the Board ordered Lee to submit to an examination by a psychologist or psychiatrist selected by the Board no later than May 22. Because Lee did not meet that deadline, the Board in June 2009 filed an "accusation," the initial document looking to revoke Lee's license. But the Board let Lee know that the accusation would be withdrawn if she was examined by Dr. Bertagnolli no later than August 14. Lee tried to have the examination conducted by a psychiatrist of her choosing, but the Board insisted on Dr. Bertagnolli. Lee missed the Board's deadline for examination by Dr. Bertagnolli. Lee did schedule an appointment with Dr. Bertagnolli for August 28, but on August 19 her counsel advised the Board that she would not submit to an examination by Dr. Bertagnolli.

Nevertheless, the Board spent the next three months trying to find a replacement for Dr. Bertagnolli who would be acceptable to Lee. In November 2009, the Board arranged for a replacement examiner, but Lee told the Board she "will not accept any psychiatric or psychological exams whatever." The Board then proceeded with the accusation. After an evidentiary hearing, an administrative law judge concluded that Lee's license should be revoked, and the Board agreed.*fn2 The trial court denied Lee's petition for a writ of administrative mandate under Code of Civil Procedure, section 1094.5.

DISCUSSION

Ordinarily, "[w]hen a trial court rules on a petition for writ of mandate following a license revocation, it must exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision. [Citations.] After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court's function 'is solely to decide whether credible, competent evidence supports [the trial] court's judgment.' " (Finnerty v. Board of Registered Nursing (2008) 168 Cal.App.4th 219, 227, quoting Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69; accord, Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195, 1200.) But this is not an ordinary case.

The Board is responsible for administering the Nurse Practice Act (§ 2700 et seq.), the statutory scheme governing the licensing of registered nurses such as Lee.*fn3 (§ 2732; Cal. Code Regs., tit. 17, § 50501, subd. (a)(15).) Concomitantly, the Board is also responsible for disciplining the registered nurses it has licensed, up to and including revocation of that license. (§ 2701, 2750, 2759.) Discipline may be imposed on a number of grounds, the most prominent of which are specified types of "unprofessional conduct" and "[c]onviction of a felony or of any offense substantially related to the qualifications, functions, and duties of a registered nurse." (§ 2761, subds. (a), (f).) These are the grounds ordinarily presented. But not here.

Sections 820-822--which are not limited to nurses but apply to all licensed health care professionals--establish another significant basis for discipline. These statutes respectively provide in pertinent part:

"Whenever it appears that any person holding a license, certificate or permit under this division . . . may be unable to practice his or her profession safely because the licentiate's ability to practice is impaired due to mental illness, or physical illness affecting competency, the licensing agency may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency. The report of the examiners shall be made available to the licentiate and may be received as direct evidence in proceedings conducted pursuant to Section 822." (§ 820.)

"The licentiate's failure to comply with an order issued under Section 820 shall constitute grounds for the suspension or revocation of the ...


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