Carey v. Board of Medical Examiners

Opinion

HASTINGS, J.

Appellant Brian Carey, D.P.M. (doctor of podiatry) was convicted in the United States District Court on two counts of having violated 18 United States Code section 1001 (making false statements to a federal agency). The facts underlying the federal criminal case were that Dr. Carey submitted a claim for compensation to Medicare, stating that he performed surgery on the feet of a patient named Celious, and that he performed surgery on the feet of a patient named Grinner, when in fact no such surgeries were performed by him.

[540]

Dr. Carey’s criminal conviction was upheld on appeal by the Ninth Circuit Court of Appeals in

United States

v.

Carey,

475 F.2d 1019.

Based on the record , of conviction, as well as upon oral testimony relating to the same facts given at the administrative hearing, the Board of Medical Examiners, State of California

1

concluded that Dr. Carey had been convicted of crimes involving moral turpitude within the meaning of Business and Professions Code sections 2361, subdivision (e); 2383; and 2411. This appeal concerns section 2383.

2

By its decision, the board revoked Dr. Carey’s license to practice podiatric medicine, but stayed the revocation and placed Dr. Carey on probation to the committee for a period of five years on the condition, among others, that he serve an actual suspension of one year.

Dr. Carey prosecuted two appeals by way of writ of mandamus to the Los Angeles superior court. The first writ proceeding alleged that the board had failed to make a specific finding on moral turpitude. The superior court found this to be true and remanded the case back to the medical board for further findings. The board then made a specific, finding that Dr. Carey had been convicted of crimes involving moral turpitude. The second petition filed by Dr. Carey asserted that moral turpitude was not involved in the convictions. The superior court disagreed and denied his petition. This appeal followed.