Petrucci v. Board of Medical Examiners

[86]

Opinion

EMERSON, J.

*

Appellant’s license to practice medicine in California was revoked by the Board of Medical Examiners (Board) after a hearing in its case No. D-1082. He petitioned the superior court for a writ of administrative mandamus to review the Board’s decision. Upon the hearing of the petition the court entered a judgment denying the writ, from which appellant takes this appeal.

He first attacks the sufficiency of the evidence to support the findings of the trial court.

The accusation filed by the Board in the instant case consisted of nine causes of action. The first was an allegation that appellant had previously been convicted of violating two sections of the Health and Safety Code. The trial court’s finding that this allegation was supported by the weight of the evidence cannot be questioned, since the record shows that appellant pleaded guilty to the offenses and was sentenced as charged by the accusation.

The remaining eight causes of action charged, with reference to some five different persons, that appellant wrote false and fictitious prescriptions purporting to be for said persons and prescribing dangerous drugs; that by means of said prescriptions appellant obtained and had in his possession such drugs. As to seven of the eight charges, the trial court found them to be supported by the weight of the evidence.

The independent judgment rule must be applied by the trial court in reviewing administrative findings in a case such as this. If a vested right is involved and the determination is by an administrative agency lacking judicial powers, the independent judgment rule should be invoked by the trial court and the evidence should be weighed. (See

Bixby

v.

Pierno

(1971) 4 Cal.3d 130 at pp. 139-140 [93 Cal.Rptr. 234, 481 P.2d 242].) It has been held that the Board of Medical Examiners does not exercise judicial functions, and that revocation of a professional license involves deprivation of a vested right. Hence, the sufficiency rule applicable in the instant case is that of independent judgment pursuant to Code of Civil Procedure section 1094.5, subdivision (c). (See