MEDICAL BOARD
MAY ISSUE 30 DAY STAY BEYOND EFFECTIVE DATE OF DECISION
In Bonnell v.
Medical Board of California (2002) 02 CDOS 1960, the Board filed an
Accusation against a physician alleging gross negligence, repeated acts of
negligence, and incompetence. After a hearing prosecuted by the Attorney
General, an administrative law judge issued a proposed decision dismissing
the Accusation. The Board then adopted the proposed decision.
However, two
days before the decision was to become final, the Attorney General
petitioned the Board to reconsider its decision to adopt the proposed
decision. Two days later, the Board granted the Attorney General’s request
for stay and stayed its decision for 28 more days. The physician filed a
petition for writ of administrative mandate with the court on the ground
that the law allowed only a ten day stay. The Board then granted the
Attorney General’s petition for reconsideration. In response, the court
agreed with the physician and issued an alternative writ ordering the
Board to set aside its stay order or show cause why it should not be set
aside.
The Court of
Appeal held that the law permitted the 28 day stay beyond the date the
decision was to be final, and was not limited to a ten day stay.
When the Board
granted the stay requested by the Attorney General, the stay order was
authorized by the acting deputy chief of enforcement for the Board because
the chief of enforcement was on vacation. The stay order was signed by a
staff services manager for the Board’s enforcement division because the
acting deputy chief was out of the office on the day the order was
prepared. The appellate court held that Title 16, section 1356 of the
California Code of Regulations permitted the chief of enforcement to
delegate authority to authorize stays to the acting chief deputy.
The Bonnell
case highlights the difficult battle health professionals have in fighting
disciplinary actions by their licensing boards and the prosecuting
Attorney General’s office. In Bonnell, the physician actually won his
administrative law hearing and the recommendation of dismissal by the
administrative law judge was adopted by the Board. However, when the
Attorney General petitioned the Board to reconsider its decision, the
Board reversed its earlier decision and rejected the administrative law
judge’s proposed decision. This court opinion does not reveal whether the
Board decided to utimately ignore the administrative law judge’s proposed
decision and discipline the physician anyway.
