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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-12-2019 1:19 pm
Case Number: CPF-19-516480
Filing Date: Mar-12-2019 1:19
Filed by: MARIA BENIGNA GOODMAN
Image: 06722312
ORDER
WILLIAMS S EIDELMAN MD VS. MEDICAL BOARD OF CALIFORNIA
001006722312
Instructions:
Please place this sheet on top of the document to be scanned.XAVIER BECERRA
Attorney General of California
E. A. JONES III
Supervising Deputy Attorney General
EDWARD KIM.
Deputy Attorney General
State Bar No, 195729
California Department of Justice
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6000
Fax: (213) 897-9395
Attorneys for Respondent
F
San Francisco County Superior Court
MAR 1 2 2019
CLERK OF THE COURT
u Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Case No. CPF-£9-516480
WILLIAM S. EIDELMAN, M.D.,
ae [P: ie
Petitioner, | ORDER DENYING PETITION FOR
v. WRIT OF ADMINISTRATIVE
MANDATE
MEDICAL BOARD OF CALIFORNIA,
Respondent.
Hearing: March 12, 2019, 9:30 a.m.
Location: Dept. 302
This matter came before this Court on March 12, 2019, for hearing on the petition for writ
of administrative mandate filed by Petitioner, William S. Eidelman, M.D. Petitioner was
represented by the ADLI Law Group, P.C., by Anthony K. McClaren, Esq. Xavier Becerra,
Attorney General, by Edward Kim, Deputy Attorney General, appeared as attorneys for
respondent Medical Board of California.
The Court, having read and considered all pleadings and documents on file in this action,
having heard oral argument, and having exercised its independent judgment, hereby ORDERS as
follows:
Petitioner’s petition for writ of administrative mandamus is denied. In making this
decision, the Court has considered all of the papers filed and lodged with the Court. The Court
will refer to the actual pages of the reporter’s transcript (“RT”) rather than the Bates-stamped
pages attached to the petition. The Court will also refer to the actual pages of the ALJ’s Decision.
Jennifer Burkhart’s e-mail package that was forwarded to respondent constitutes a
ORDER (CPF-19-516480)“complaint” within the meaning of 16 CCR § 1356.2(b)(1). A proper “complaint” under the
regulation is simply “a written complaint from the public...that names a particular physician.”
Nothing more is required. There is no authority that the complaint needed to be submitted on a
particular type of form. Business and Professions Code. § 800(b)(1) merely provides that
respondent shall promulgate forms that members of the public may use to report misconduct.
Those forms are not the exclusive means to report wrongdoing and adopting petitioner’s
argument would seriously undermine public safety.
The court rejects petitioner’s argument, raised for the first time in the reply, that respondent
proceeded in excess of its jurisdiction because Eric Ryan forwarded Ms. Burkhart’s e-mail
package to respondent rather than informing Ms. Burkhart to contact the respondent herself. (See .
Civ. Code § 43.96(a).) The Court does not consider arguments raised for the first time in the
reply because of due process concerns. In any event, there is no cited authority holding that Mr.
Ryan’s purported failure to comply with the Civil Code would have any effect on respondent’s
power to conduct investigations and file accusations.
Respondent’s accusation was not time-barred. Business and Professions Code § 10101 is
an inapposite statute of limitations that pertains to real estate licenses. Petitioner’s reply concedes
that the governing statute of limitations is found in Business and Professions Code § 2230.5(a).
Under that provision, the accusation needed to be filed “within three years after the board”
discovered the alleged wrongdoing. In this case, the respondent board discovered the alleged
negligence on November 25, 2014, when Eric Ryan forwarded the information to respondent.
Respondent subsequently filed a timely accusation on November 22, 2017. (RT, 19:19; 20:13-
14)
Eric Ryan’s receipt of the information on November 14, 2014 did not give respondent
notice to trigger the statute of limitations. “Each of the boards comprising the department [of
consumer affairs] exists as a separate unit...” (Bus. & Prof. Code § 108; see also Greyhound
Lines, Inc. v. Cal. Highway Patrol (2013) 213 Cal.App.4th 1129, 1134 [CHP and Caltrans have
separate identities even though they are both part of the same agency]; (People ex rel. Lockyer v.
Superior Court (2004) 122 Cal.App.4th 1060, 1078 [“Each agency or department of the state is
2
ORDER (CPF-19-516480)established as a separate entity, under various state laws or constitutional provisions.”].) When
Eric Ryan received the e-mail from Burkhart, he worked for the Health Quality Investigation
Unit. He did not work for respondent. Ryan’s unit is a subdivision of the Department of
Consumer Affairs Investigation Division. (RT, 22:2-24.) The Health Quality Investigation Unit
serves respondent as well as other boards. (See Bus. & Prof. Code §§ 159.5(b)(1), 160.5(b).)
Therefore, the ALJ’s determination that respondent did not receive the complaint when Eric Ryan
received it was correct.
Petitioner’s reply attacks the testimony of Kenneth Buscarino, which shows that respondent
no longer employed Mr. Ryan when the e-mail package was delivered. (RT, 22:2-24.) Since Mr.
Buscarino and Ryan worked in the same position, he was competent to testify regarding who
employed them. The Court further notes that petitioner does not highlight any evidence showing
that Mr. Ryan can be considered respondent’s agent for purposes of notice. As far as the Court
can discern, the only evidence before the ALJ was Buscarino’s testimony and it was petitioner’s
burden to establish the statute of limitations defense. (Decision at 20, citing Evid. Code §§ 115,
500; see Bohn v. Watson (1954) 130 Cal.App.2d 24, 36 [in administrative proceedings, “i]t is
well established that the statute of limitations is a personal privilege which is waived unless
asserted at the proper time and in the proper manner...”].)
The weight of the evidence supports respondent’s findings. “[I]n exercising its independent
judgment, a trial court must afford a strong presumption of correctness concerning the
administrative findings, and the party challenging the administrative decision bears the burden of
convincing the court that the administrative findings are contrary to the weight of the evidence.”
(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
Here, respondent’s expert (Dr. Raiss) persuasively testified that petitioner’s cursory
examination of 20-30 minutes was grossly negligent and violated the standard of care. (RT, 95:8-
96:18; 98:1-7; 100:20-101:14; 115:12-117:5; 187:7). Dr. Raiss stated that a meeting of at least an
hour is usually necessary and petitioner did not sufficiently review T.T’s medical history, prior
treatment, developmental history, etc. He further explained that petitioner should have reviewed
the diagnostic criteria in the DSM (Diagnostic and Statistical Manual of Mental Disorders). (RT,
3
ORDER (CPF-19-516480)102:24-104:14.) There is no evidence that that ever occurred. Petitioner also seemed to fail to
realize that a diagnosis of bipolar disorder in a 5-year old is extremely rare. (RT, 180:4-24; RT I,
98:12-99:6.) Petitioner was ignorant of the diagnostic criteria and admitted that he largely relied
on family history to make his diagnosis. (RT, 139:1-3; RT III, 205:7-9; Interview, 21:12-14.)
Family history is only one factor, however. (RT, 96:3-11.) Dr. Briggs believed that there should
have been a referral to a specialist to determine the existence of bipolar disorder. (RT II, 108:1-
24.)
Respondent did not violate the safe harbor of Business and Professions Code § 2234.1.
Petitioner was not disciplined for rendering treatment constituting alternative or complementary
medicine to T.T., much “solely” for doing so. Rather, respondent revoked his license because
petitioner was grossly negligent in his diagnosis of a minor patient without an adequate basis or
adequate research and study, as well as in basing care and treatment on that diagnosis; for
repeated negligent acts.(three erroneous diagnoses); for incompetence due to his ignorance of the
diagnostic criteria and failure to recommend assessment of the patient by a qualified specialist;
and for general unprofessional conduct. (Decision, pgs. 23-25.)
Petitioner fails to show that the penalty was excessive. Petitioner bears the heavy burden of
showing that the penalty was arbitrary. (See Cadilla v. Board of Medical Examiners (1972) 26
Cal.App.3d 961, 966.) Here, respondent’s decision was reasonable given that petitioner had been
placed on probation on two prior occasions and exhibited little remorse. (Decision, pg. 25; RT III
218:4-7; 220:15-22; 224:14-16.)
Lastly, the Court rejects petitioner’s new reply argument that he did not receive a fair trial
because the ALJ was biased and a “de facto agent” of respondent. (Reply, 14:8.) The moving
papers do not develop any of these issues and as stated, new reply arguments are improper. / ge
judge of the Superior Court
LA2019500034 ETHAN P. SCHULMAN
13532240
ORDER (CPF-19-516480)
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wun SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-12-2019 1:19 pm Case Number: CPF-19-516480 Filing Date: Mar-12-2019 1:19 Filed by: MARIA BENIGNA GOODMAN Image: 06722312 ORDER WILLIAMS S EIDELMAN MD VS. MEDICAL BOARD OF CALIFORNIA 001006722312 Instructions: Please place this sheet on top of the document to be scanned.XAVIER BECERRA Attorney General of California E. A. JONES III Supervising Deputy Attorney General EDWARD KIM. Deputy Attorney General State Bar No, 195729 California Department of Justice 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 269-6000 Fax: (213) 897-9395 Attorneys for Respondent F San Francisco County Superior Court MAR 1 2 2019 CLERK OF THE COURT u Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO Case No. CPF-£9-516480 WILLIAM S. EIDELMAN, M.D., ae [P: ie Petitioner, | ORDER DENYING PETITION FOR v. WRIT OF ADMINISTRATIVE MANDATE MEDICAL BOARD OF CALIFORNIA, Respondent. Hearing: March 12, 2019, 9:30 a.m. Location: Dept. 302 This matter came before this Court on March 12, 2019, for hearing on the petition for writ of administrative mandate filed by Petitioner, William S. Eidelman, M.D. Petitioner was represented by the ADLI Law Group, P.C., by Anthony K. McClaren, Esq. Xavier Becerra, Attorney General, by Edward Kim, Deputy Attorney General, appeared as attorneys for respondent Medical Board of California. The Court, having read and considered all pleadings and documents on file in this action, having heard oral argument, and having exercised its independent judgment, hereby ORDERS as follows: Petitioner’s petition for writ of administrative mandamus is denied. In making this decision, the Court has considered all of the papers filed and lodged with the Court. The Court will refer to the actual pages of the reporter’s transcript (“RT”) rather than the Bates-stamped pages attached to the petition. The Court will also refer to the actual pages of the ALJ’s Decision. Jennifer Burkhart’s e-mail package that was forwarded to respondent constitutes a ORDER (CPF-19-516480)“complaint” within the meaning of 16 CCR § 1356.2(b)(1). A proper “complaint” under the regulation is simply “a written complaint from the public...that names a particular physician.” Nothing more is required. There is no authority that the complaint needed to be submitted on a particular type of form. Business and Professions Code. § 800(b)(1) merely provides that respondent shall promulgate forms that members of the public may use to report misconduct. Those forms are not the exclusive means to report wrongdoing and adopting petitioner’s argument would seriously undermine public safety. The court rejects petitioner’s argument, raised for the first time in the reply, that respondent proceeded in excess of its jurisdiction because Eric Ryan forwarded Ms. Burkhart’s e-mail package to respondent rather than informing Ms. Burkhart to contact the respondent herself. (See . Civ. Code § 43.96(a).) The Court does not consider arguments raised for the first time in the reply because of due process concerns. In any event, there is no cited authority holding that Mr. Ryan’s purported failure to comply with the Civil Code would have any effect on respondent’s power to conduct investigations and file accusations. Respondent’s accusation was not time-barred. Business and Professions Code § 10101 is an inapposite statute of limitations that pertains to real estate licenses. Petitioner’s reply concedes that the governing statute of limitations is found in Business and Professions Code § 2230.5(a). Under that provision, the accusation needed to be filed “within three years after the board” discovered the alleged wrongdoing. In this case, the respondent board discovered the alleged negligence on November 25, 2014, when Eric Ryan forwarded the information to respondent. Respondent subsequently filed a timely accusation on November 22, 2017. (RT, 19:19; 20:13- 14) Eric Ryan’s receipt of the information on November 14, 2014 did not give respondent notice to trigger the statute of limitations. “Each of the boards comprising the department [of consumer affairs] exists as a separate unit...” (Bus. & Prof. Code § 108; see also Greyhound Lines, Inc. v. Cal. Highway Patrol (2013) 213 Cal.App.4th 1129, 1134 [CHP and Caltrans have separate identities even though they are both part of the same agency]; (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1078 [“Each agency or department of the state is 2 ORDER (CPF-19-516480)established as a separate entity, under various state laws or constitutional provisions.”].) When Eric Ryan received the e-mail from Burkhart, he worked for the Health Quality Investigation Unit. He did not work for respondent. Ryan’s unit is a subdivision of the Department of Consumer Affairs Investigation Division. (RT, 22:2-24.) The Health Quality Investigation Unit serves respondent as well as other boards. (See Bus. & Prof. Code §§ 159.5(b)(1), 160.5(b).) Therefore, the ALJ’s determination that respondent did not receive the complaint when Eric Ryan received it was correct. Petitioner’s reply attacks the testimony of Kenneth Buscarino, which shows that respondent no longer employed Mr. Ryan when the e-mail package was delivered. (RT, 22:2-24.) Since Mr. Buscarino and Ryan worked in the same position, he was competent to testify regarding who employed them. The Court further notes that petitioner does not highlight any evidence showing that Mr. Ryan can be considered respondent’s agent for purposes of notice. As far as the Court can discern, the only evidence before the ALJ was Buscarino’s testimony and it was petitioner’s burden to establish the statute of limitations defense. (Decision at 20, citing Evid. Code §§ 115, 500; see Bohn v. Watson (1954) 130 Cal.App.2d 24, 36 [in administrative proceedings, “i]t is well established that the statute of limitations is a personal privilege which is waived unless asserted at the proper time and in the proper manner...”].) The weight of the evidence supports respondent’s findings. “[I]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Here, respondent’s expert (Dr. Raiss) persuasively testified that petitioner’s cursory examination of 20-30 minutes was grossly negligent and violated the standard of care. (RT, 95:8- 96:18; 98:1-7; 100:20-101:14; 115:12-117:5; 187:7). Dr. Raiss stated that a meeting of at least an hour is usually necessary and petitioner did not sufficiently review T.T’s medical history, prior treatment, developmental history, etc. He further explained that petitioner should have reviewed the diagnostic criteria in the DSM (Diagnostic and Statistical Manual of Mental Disorders). (RT, 3 ORDER (CPF-19-516480)102:24-104:14.) There is no evidence that that ever occurred. Petitioner also seemed to fail to realize that a diagnosis of bipolar disorder in a 5-year old is extremely rare. (RT, 180:4-24; RT I, 98:12-99:6.) Petitioner was ignorant of the diagnostic criteria and admitted that he largely relied on family history to make his diagnosis. (RT, 139:1-3; RT III, 205:7-9; Interview, 21:12-14.) Family history is only one factor, however. (RT, 96:3-11.) Dr. Briggs believed that there should have been a referral to a specialist to determine the existence of bipolar disorder. (RT II, 108:1- 24.) Respondent did not violate the safe harbor of Business and Professions Code § 2234.1. Petitioner was not disciplined for rendering treatment constituting alternative or complementary medicine to T.T., much “solely” for doing so. Rather, respondent revoked his license because petitioner was grossly negligent in his diagnosis of a minor patient without an adequate basis or adequate research and study, as well as in basing care and treatment on that diagnosis; for repeated negligent acts.(three erroneous diagnoses); for incompetence due to his ignorance of the diagnostic criteria and failure to recommend assessment of the patient by a qualified specialist; and for general unprofessional conduct. (Decision, pgs. 23-25.) Petitioner fails to show that the penalty was excessive. Petitioner bears the heavy burden of showing that the penalty was arbitrary. (See Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.) Here, respondent’s decision was reasonable given that petitioner had been placed on probation on two prior occasions and exhibited little remorse. (Decision, pg. 25; RT III 218:4-7; 220:15-22; 224:14-16.) Lastly, the Court rejects petitioner’s new reply argument that he did not receive a fair trial because the ALJ was biased and a “de facto agent” of respondent. (Reply, 14:8.) The moving papers do not develop any of these issues and as stated, new reply arguments are improper. / ge judge of the Superior Court LA2019500034 ETHAN P. SCHULMAN 13532240 ORDER (CPF-19-516480)