Marshall v. Medical Board of California CA2/7 ( 2022 )

Filed 8/23/22 Marshall v. Medical Board of California CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GRANVILLE H. MARSHALL, B308582
Petitioner and Appellant, (Los Angeles County Super.
Ct. No. 19STCP00889)
v.
MEDICAL BOARD OF
CALIFORNIA,
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Dismissed.
Pierce & Shearer and Andrew F. Pierce for Appellant.
Rob Bonta, Attorney General, Gloria L. Castro, Assistant
Attorney General, Robert McKim Bell and Trina L. Saunders,
Deputy Attorneys General, for Respondent.
__________________________
Granville H. Marshall, M.D., appeals from a judgment
entered after the trial court denied his petition for a writ of
administrative mandate challenging a decision of the Medical
Board of California (Board) revoking his surgeon and physician’s
license, staying revocation, and placing him on probation for
three years. Under Business and Professions Code section 2337,1
the trial court’s decision is reviewable only by filing a petition for
an extraordinary writ. Because this case does not present
unusual circumstances for treating Marshall’s improper appeal
as a writ petition, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND2
From April 30, 2012 through May 30, 2014 Marshall, a
physician practicing internal medicine in a solo practice, treated
Sabino Fosmire, a former chemical industry worker who suffered
from lung disease and brain lesions. Throughout his treatment of
Fosmire, Marshall prescribed numerous opioid medications,
including hydromorphone, morphine, oxycodone, hydrocodone,
and buprenorphine before discharging Fosmire for drug-seeking
behavior.
On August 1, 2014 Fosmire filed a consumer complaint
against Marshall with the Board, alleging Marshall had asked
him to harm two local physicians with whom Marshall had
grievances. In connection with the complaint, Fosmire
1 All undesignated statutory references are to the Business
and Professions Code.
2 Our summary of the facts is based on the undisputed
factual findings in the Board’s administrative decision.
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authorized the release of his medical records to the Board. A
Board investigator determined the allegations of the complaint
were unsubstantiated; however, the investigator began a quality
of care investigation into Marshall’s treatment of Fosmire.
David M. Olson, M.D., reviewed Fosmire’s medical records
as part of the Board’s investigation. Olson reported that during
Fosmire’s initial visit, Marshall did not perform a diagnostic
evaluation for pain or document the rationale for continuing to
prescribe opioids to Fosmire. Further, Marshall’s progress notes
of Fosmire’s 45 visits within the two-year treatment period were
“‘nearly illegible and quite cursory and failed to document
standard guidelines in the use of controlled substances for
patients with chronic pain conditions.’”
On September 5, 2017 the Board filed an accusation
alleging unprofessional conduct by Marshall in the care and
treatment of Fosmire.
The accusation alleged Marshall engaged in gross
negligence and repeated negligent acts in his treatment of
Fosmire for chronic pain (§ 2234, subds. (b) & (c)); Marshall’s
recordkeeping was inadequate and inaccurate (§ 2266); and
Marshall repeatedly failed to attend and participate in an
interview with the Board (§ 2234, former subd. (h)).
Administrative Law Judge (ALJ) Marilyn A. Woollard
conducted a six-day hearing on the accusation beginning on
April 9, 2018, in which Olson and two investigators testified for
the Board, and Marshall testified on his own behalf, along with a
character witness. The ALJ denied Marshall’s motion to exclude
Fosmire’s records and to strike Olson’s testimony based on the
records, finding Marshall did not have standing to assert
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confidentiality on behalf of Fosmire, who had authorized release
of his records.
On August 24, 2018 the ALJ issued an amended proposed
decision, which the Board adopted as its decision on October 9.
The ALJ found clear and convincing evidence supported each
count of the accusation, and based on these findings the Board
revoked Marshall’s physician and surgeon’s certificate. However,
the Board stayed the revocation and placed Marshall on
probation for three years effective November 8, 2018 with
conditions, including completion of courses on prescribing
practices and recordkeeping, monitoring by another physician,
and a prohibition on solo practice.
On March 22, 2019 Marshall, representing himself, filed a
petition for writ of administrative mandate (Code Civ. Proc.,
§ 1094.5) alleging the Board “failed to grant [Marshall] a fair
trial, in that this action was based on a fake complaint form and
a fake investigative report from investigator . . . . The [Board]
relied on medical record releases that were improper and
basically fake. Inadmissible hearsay and falsified information
was allowed into evidence, which was unfairly prejudicial to
[Marshall].” Further, the administrative decision was “not
supported by the findings, because [Marshall] did not violate any
medical standard of care and there was no evidence of negligence
or gross negligence . . . .” Marshall filed a trial brief, but as he
acknowledges in his opening brief, the trial brief “was admittedly
devoid of direct citations to the record or legal authorities.” After
receiving the Board’s opposition to the writ petition, Marshall
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filed a more detailed reply brief with citations to the
administrative record.
On July 21, 2020, after a hearing, the trial court denied the
writ petition. In its tentative ruling adopted as its order, the
court found Marshall’s “procedural failures,” including his failure
in the trial brief to cite any evidence in the administrative record
and his inclusion of extra-record evidence, “mean[t] that
[Marshall] has waived his claims, the Board’s objection to the
extra-record evidence is sustained, and the Petition must be
denied.” The court continued in a nine -page single-spaced
discussion of Marshall’s claims, “Assuming arguendo that the
court is required to address Marshall’s claims,” the decision was
correct on the merits, the ALJ’s evidentiary rulings were correct,
and the weight of the evidence supported the ALJ’s findings that
Marshall committed at least one act of gross negligence in
treating Fosmire without an initial pain diagnosis and repeated
acts of negligence in continuing to prescribe opioids to Fosmire,
and Marshall failed to maintain adequate records and participate
in Board interviews.
A judgment denying the writ petition incorporating the
court’s order was filed on August 18, 2020. Marshall appealed
from the judgment.
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DISCUSSION
The Board contends we should dismiss Marshall’s appeal
because under section 2337, review of a superior court judgment
granting or denying a writ petition challenging revocation of a
medical license is only available by filing a petition for
extraordinary writ. We agree dismissal is appropriate here.
Section 2337, which applies to medical licenses, provides,
“Notwithstanding any other provision of law, superior court
review of a decision revoking, suspending, or restricting a license
shall take preference over all other civil actions in the matter of
setting the case for hearing or trial. The hearing or trial shall be
set no later than 180 days from the filing of the action. . . . [¶]
Notwithstanding any other provision of law, review of the
superior court’s decision shall be pursuant to a petition for an
extraordinary writ.”
As the Supreme Court explained in Leone v. Medical Board
(2000) 22 Cal.4th 660, 670 in upholding the constitutionality of
section 2337, “In section 2337, the Legislature has determined
that for superior court decisions in certain physician licensing
matters, the mode of appellate review shall be an extraordinary
writ proceeding rather than direct appeal. . . . We conclude that
the appellate jurisdiction clause [of the California Constitution]
does not require the Legislature to provide for direct appeals in
all cases within the original jurisdiction of the superior courts;
that it permits some variation in and experimentation with the
procedures for appellate review of civil actions brought in the
superior courts, provided always that the constitutional powers of
the courts are not thereby impaired; and that in particular it does
not guarantee a physician a right to a direct appeal from a
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superior court administrative mandate judgment upholding the
[Board’s] revocation of the physician’s license to practice
medicine.” (Accord, Landau v. Superior Court (1998)
81 Cal.App.4th 191, 198-199 [“Effective January 1, 1996, the
Legislature has provided that appellate review of the superior
court’s decision shall be pursuant to a petition for an
extraordinary writ. [Citation.] This amendment eliminated
direct appeal via Code of Civil Procedure section 1094.5 from the
superior court decision granting or denying the petition for writ
of mandate and substituted discretionary writ review by the
appellate court.”]; Sela v. Medical Bd. of California. (2015)
237 Cal.App.4th 221, 228, 232 (Sela) [dismissing physician’s
appeal from trial court’s denial of writ petition challenging
Board’s revocation of medical license].)
In his reply brief, Marshall concedes that review of a trial
court order granting or denying a petition for writ of
administrative mandate with regard to physician licensing is
“ordinarily through extraordinary writ” under section 2337, but
he argues the policy justification behind section 2337—to
expedite review of adverse medical licensing decisions—does not
apply in this case because he remained on probation throughout
the judicial proceedings, so “there is no need for expedited
review.” This argument is unavailing. As the Court of Appeal
explained in Landau v. Superior Court, supra, 81 Cal.App.4th at
pages 205 to 206, “The legislative history of section 2337 makes
clear that the statute was a response to one aspect of a perceived
crisis in physician discipline procedures—that of lengthy delays
in the final imposition of discipline. The provision for writ review
in the Court of Appeal was intended to expedite the completion of
judicial review of physician discipline decisions and to shorten
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the overall time for these cases irrespective of which party
prevailed at the superior court level. [¶] . . . In cases where the
Board has imposed discipline suspending or revoking a license,
and the superior court has refused to issue a writ overturning
that decision, appellate review by writ of mandate enables the
appellate court to dispose of a petition that has no apparent merit
relatively quickly.” (Accord, Sela, supra, 237 Cal.App.4th at
p. 230 [“[W]rit review in this case would have served [the]
statutory purpose by enabling this court to dispose of plaintiff’s
request for penalty relief quickly and expeditiously, regardless of
whether the Board or plaintiff prevailed in the trial court.”].)
Here, although Marshall may have completed his probationary
period, the Board and the public have an interest in an
expeditious final determination of the validity of the Board’s
findings, including that Marshall was negligent in his treatment
of a patient.
Marshall argues in his reply brief that we should
alternatively exercise our discretion to construe his appeal as a
petition for extraordinary writ. While he is correct that appellate
courts “have power to treat [a] purported appeal as a petition for
writ of mandate,” courts “should not exercise that power except
under unusual circumstances.” (Olson v. Cory (1983) 35 Cal.3d
390, 401; accord, Curtis v. Superior Court (2021) 62 Cal.App.5th
453, 465.) Appellate courts have found unusual circumstances
where an appeal presents a discrete legal question and the
appealability of the trial court order at issue was uncertain. (See
Olson, at p. 401 [unusual circumstances warranted treating as
petition for writ of mandate an appeal from an interlocutory
order under Code of Civil Procedure section 437c, determining
that plaintiffs were not entitled to recover interest on retroactive
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salary and pension payments because “the issue of appealability
was far from clear in advance” and “all issues in this litigation
have now been resolved except for the one now presented to this
court—that of a plaintiff’s right to interest”]; Curtis v. Superior
Court, supra, 62 Cal.App.5th at p. 466-467 [treating an appeal
from an interlocutory discovery order compelling third party
witness to disclose name of his expert witness as writ petition
where witness had no adequate remedy at law to resolve privilege
issue because order may never be appealable and failure to
comply with order could result in witness being held in
contempt]; Rogers v. Municipal Court (1988) 197 Cal.App.3d
1314, 1317 [unusual circumstances existed to treat an appeal as a
writ petition where matter involved question of law that was
“issue of first impression””].) This case does not present any
unusual circumstances.
Marshall relies on Zabetian v. Medical Board (2000)
80 Cal.App.4th 462, 464-465 (Zabetian), in which a physician
appealed from the trial court’s denial of a petition for writ of
mandate to set aside the Board’s decision imposing a two-year
probationary period based on two acts of negligence by the
physician. The physician argued that section 2335, which
provides the Board may take action against a licensee charged
with “‘[r]epeated negligent acts,” required more than two acts of
negligence. (Id. at 464.) The Court of Appeal recognized that
section 2337 required review by extraordinary writ, but it
granted the Board’s request to treat the appeal as a writ petition,
explaining, “We may treat an improper appeal as a petition for an
extraordinary writ in unusual circumstances. [Citations.] Such
unusual circumstances are present where the matter presents an
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issue of first impression, the issue has been thoroughly briefed
and our determination is purely one of law.” (Id. at p. 466.)
More recently, in Podiatric Medical Bd. of California v.
Superior Court (Redko) (2021) 62 Cal.App.5th 657, 662, 666
(Podiatric Medical Board), the Court of Appeal agreed to treat as
an extraordinary writ petition a medical board’s appeal from a
trial court order granting a physician’s petition for writ of
administrative mandate to set aside the board’s decision to place
the physician on probation for unprofessional conduct. At issue
in the case was whether the ALJ had the power to exclude an
expert witness at the administrative hearing as a discovery
sanction. (Id. at p. 662.) The Court of Appeal agreed to treat the
appeal as a writ petition, reasoning, “Having become familiar
with the subject of this appeal, we realize it presents a pure issue
of law pertaining to the regulatory power of the Board to protect
patient safety and the public health. [Citation.] The case has
been thoroughly briefed and argued. Both sides were almost
equally tardy in raising the issue.” (Id. at p. 666.)
The present case is readily distinguishable from Zabetian
and Podiatric Medical Board. In his appeal Marshall argues the
ALJ erred in admitting Fosmire’s medical records, excluding
Marshall from testifying as an expert after he failed to make
expert disclosures required under section 2334, finding Marshall
had not cooperated in the Board’s initial investigation, and
finding Marshall’s failure to properly diagnose Fosmire for pain
was an “extreme departure” from the standard of care.
Marshall’s appeal is therefore a standard appeal of a medical
licensing decision that is not limited to “an issue of first
impression [that is] purely one of law.” (Zabetian, supra,
80 Cal.App.4th at p. 466; see Podiatric Medical Board, supra,
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62 Cal.App.5th at p. 666.) Moreover, the nonappealability of the
trial court’s order under section 2337 was well-settled at the time
of Marshall’s appeal, yet Marshall, then represented by counsel,
did not address section 2337 or request discretionary writ review
until his reply brief. (Cf. Olson v. Cory, supra, 35 Cal.3d 390, 401
[unusual circumstances where appealability was uncertain]; see
Sela v. Medical Board, supra, 237 Cal.App.4th at pp. 231-232
[dismissing physician’s appeal and declining to treat as writ
petition because physician’s request did not raise unusual
circumstances and “did not provide a sufficient justification for
the unreasonable delay in the disposition of this matter caused by
his failure to follow section 2337 and seek expedited review
pursuant to a petition for an extraordinary writ.”].)
DISPOSITION
The appeal is dismissed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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