Medical Board of California v. Superior Court

Opinion

PUGLIA, P. J.

Petitioner Medical Board of California (Board) commenced an administrative disciplinary proceeding against real party in interest Michael Victor Elam, M.D. (Elam). (Bus. & Prof. Code, § 2220 et seq.) The administrative law judge (ALJ) found several charges of unprofessional conduct to be true, and rendered a proposed decision revoking Elam’s license to practice as a physician. This decision was adopted by the Board, and Elam then sought judicial review via a petition for administrative mandate filed in respondent superior court pursuant to Code of Civil Procedure section 1094.5 (hereafter section 1094.5). Simultaneous with the filing of his petition in respondent court, Elam applied for a stay of the administrative order, which request was opposed by the Board. After a hearing, respondent court granted the stay pending resolution of the section 1094.5 proceeding. The Board, contending that the stay order is an abuse of discretion, petitions this court to set it aside. We shall grant the requested relief.

Elam’s practice is limited to cosmetic and plastic surgery. The charges which led to the order of revocation arose out of his treatment of two patients between 1981 and 1985. The ALJ found that Elam and his associate, Dr. Berkowitz, performed cosmetic surgeries on two female patients which would ordinarily not have been covered by their insurance carriers. In order to obtain reimbursement from the insurers, the doctors allegedly falsified office and hospital records, and submitted fraudulent claims information to the companies. These false documents represented that covered procedures had been performed. In addition, with regard to one of the patients, the ALJ found Elam performed surgical procedures beyond those originally consented to, knowing that the “informed consent” to the additional treatment was not freely and voluntarily given. The decision of the ALJ also commented on Elam’s credibility, concluding that he was dishonest, “has no compunction about lying, even under oath, ...” and was guilty of colluding with his office assistant in the giving of false testimony.

[1461]

Section 1094.5, subdivision (h)(1) grants the superior court authority to stay the decision of an administrative agency in a case involving a physician only if it finds that (1) “. . . the public interest will not suffer . . .” and (2) the “. . . agency is unlikely to prevail ... on the merits . . . .” The Board contends neither of these criteria was satisfied by Elam’s showing in respondent court. Because we agree Elam failed to establish the agency is unlikely to prevail, we need not consider the “public interest” criterion. We shall therefore not address the Board’s arguments that the respondent court improperly considered evidence in the form of letters from third parties and that it imposed conditions on the stay order which were beyond its jurisdiction, since both the challenged evidence and conditions relate to the issue of whether the public would be endangered by allowing Elam to continue practicing medicine during the pendency of his administrative mandate proceeding in respondent court.