Ettinger v. Board of Medical Quality Assurance

Opinion

STEPHENS, Acting P. J. This is an appeal from a judgment entered on May 13, 1981, denying appellant’s petition for writ of mandate. The sequence of events leading up to the denial of that petition is as follows:

On October 24, 1979, an accusation was filed before respondent, Board of Medical Quality Assurance of the Department of Consumer Affairs of the State of California (Board), alleging that appellant, Marvin Morris Ettinger, M.D., was incompetent and grossly negligent in his treatment of a patient, Solomon Kachok. A supplemental accusation was subsequently filed with respondent on May 30, 1980.1

Hearings were held on July 7, 8 and 9, and on October 6, 7 and 8, 1980. The hearing panel issued its proposed decision on November 4, 1980, and the Board adopted it by order dated January 7, 1981. The Board suspended appellant’s physician’s and surgeon’s certificate for one year but stayed the suspension and placed the appellant on probation for a period of one year.

Appellant filed a petition for reconsideration with the Board which was denied on February 6, 1981. A petition for writ of mandate was [855]then filed in the superior court and judgment denying the petition was entered. This appeal followed.

Appellant contends that the proper standard of proof to be applied at the administrative level is clear and convincing proof to a reasonable certainty. The hearing panel specifically rejected this standard and held that the proper standard of proof to be applied in the matter was preponderance of the evidence.

This presents the sole issue to be determined, whether the standard of proof in an administrative hearing to revoke or suspend a medical license should be preponderance of the evidence, or whether it should be clear and convincing proof to a reasonable certainty.

It has been generally recognized that administrative proceedings, including proceedings to revoke or suspend a license, are civil rather than criminal in nature. (Petrucci v. Board of Medical Examiners (1975) 45 Cal.App.3d 83, 88 [117 Cal.Rptr. 735]; Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 540 [92 Cal.Rptr. 525].) Generally, proof in civil cases is required by a preponderance of the evidence. However, in a number of situations, a greater degree of proof, usually clear and convincing evidence, is required. (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 388 [102 Cal.Rptr. 122]; Trujillo v. City of Los Angeles (1969) 276 Cal.App.2d 333, 343 [81 Cal.Rptr. 146].)