Preview
MOA A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-27-2019 4:01 pm
Case Number: CPF-18-516396
Filing Date: Mar-27-2019 3:59
Filed by: WILLIAM TRUPEK
_ Image: 06743922
ORDER
RAJEEV ISAAC WINFRED M.D VS. MEDICAL BOARD OF CALIFORNIA
001006743922
Instructions:
Please place this sheet on top of the document to be scanned.wo ONIN DHA BRB WN &
Ee Be Be ew Be ee
ont Dn HW FP WN FEF
FLLED
San Francisce County ‘Superior Sour -
ee
OF THECOURT
See rity Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
RAJEEV ISAAC WINFRED, M.D., Case No. CPF-18-516396 Ksrended
Petitioner, ORDER GRANTING PETITION For (|
’ WRIT OF ADMINISTRATIVE
v. MANDATE
MEDICAL BOARD OF CALIFORNIA, .
Respondent.
Petitioner Rajeev Isaac Winfred, M.D.’s petition for writ of administrative mandate came
on regularly for hearing before the Court on March 18, 2019, Michee\ ei eshone appeared for
Petitioner; Supervising Deputy Attorney General Mary Cain-Simon appeared for Respondent
Medical Board of California. :
The Court concludes that on the record before it, Respondent Medical Board of California
abused its discretion in revoking Petitioner’s California medical license. Accordingly, the Court
grants the petition for writ of administrative mandate and remands the matter to the Board for
reconsideration of the penalty, if any, to be imposed. (Cooper v. State Board of Medical Examiners
(1950) 35 Cal.2d 242, 252; Pirouzian v. Superior Court (2016) 1 Cal.App.Sth 438, 451.)
: “ Case No. CPF-18-516396.
“Raven de ORDER GRANTING PETITION FOR WRIT OF ADMINISTRATIVE MANDATEoo rI AH FF WN
es
BEPESsSaetrtaararpere
23
‘The essential facts are undisputed: In 2004 and 2018, two other states’ medical boards
imposed discipline against Petitioner arising out of a 2002 examination of a patient in which
Petitioner was accused of sexual misconduct. In August 2004, following a complaint to the West
Virginia Board of Medicine, that Board entered a Consent Order against him. By the terms of that
Order, Dr. Winfred was publicly reprimanded for unprofessional and unethical conduct involving
the inappropriate touching of a patient without her consent, was required for a period of 5 years to
have a third-party female in the examination room with him while he was conducting any physical
examination on a female patient 13 years of age or older, and was required to take 6 additional
hours of continuing medical education in medical ethics, specifically on the subject of patient-
physician relationship and sexual boundaries. Petitioner disclosed the West Virginia discipline to
Respondent Board in December 2015, when he applied for a California medical license, which
Respondent Board issued on January 29, 2016 without any restrictions.
In 2018, on the basis of the West Virginia consent order, the Illinois Department of
Financial and Professional Regulation issued Dr. Winfred a license with a reprimand, on the
condition that he take the Ethics and Boundaries Asssessment Services, LLC’s Ethics and
Boundaries Examination within 6 months. The Board’s current proceeding was based solely on the
Illinois discipline, which in turn was based on the 2004 West Virginia discipline arising out of the
2002 incident.
The Board may impose discipline for unprofessional conduct when discipline is imposed by
another state medical board for conduct that would have been grounds for discipline in California.
@us. & Prof. Code § 2305; see id. § 726 [sexual misconduct is grounds for discipline in
California].) The out-of-state discipline, rather than the underlying conduct, is the act triggering
the discipline in California. (Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089,
1097-98.) Because the Board’s decision was based on unprofessional conduct under Business and
Professions Code section 2305, not the underlying sexual misconduct, Respondent errs in its
opposition brief in relying on the Board’s disciplinary guidelines regarding the minimum
punishment for the latter offense.Co en A uA fF W ND
Boe ee ee
eo UA adR DKS
19
Bus. & Prof. Code § 2227(a) provides that a licensee whose matter has been heard, or
whose default has been entered, and who is found guilty may:
(1) Have his or her license revoked upon order of the board.
(2) Have his or her right to practice suspended for a period not to exceed one year upon
order of the board.
(3) Be placed on probation and be required to pay the costs of probation monitoring upon
order of the board.
(4) Be publicly reprimanded by the board. The public reprimand may include a
requirement that the licensee complete relevant educational courses approved by the
board.
In revoking Petitioner’s license to practice medicine, the Board imposed the maximum discipline
available to it, one that is considered a “drastic penalty.” (Cooper v. State Board of Medical
Examiners (1950) 35 Cal.2d 242, 252.) On the undisputed facts in the administrative record, the
Court finds that the Board abused its discretion in imposing that remedy.
While a court normally affords deference to the Board’s determination as to the appropriate
penalty to be imposed, it may find a manifest abuse of discretion where under all the facts and
circumstances, the penalty imposed by the administrative agency was “clearly excessive.”
(Szmaciarz v. State Personnel Board (1978) 79 Cal.App.3d 904, 921; see, e.g., Magit v. Board of
Medical Examiners (1961) 57 Cal.2d 74, 88 [under circumstances of case, imposition of maximum
penalty (revocation of physician’s license) was a clear abuse of discretion]; Pirouzian, 1
Cal. App.5th at 448-450 [same].) As the Pirouzian court commented,
Although the Board has discretion in determining the discipline to impose for
unprofessional conduct, such discretion is not a whimsical, uncontrolled power, but a legal
discretion, which is subject to the limitations of legal principles governing the subject of its
action. Here, the Board’s discretion is subject to the Legislative mandate that the Board’s
highest priority be protection of the public; and, secondarily, discipline should aid in the
rehabilitation of the licensee.
(1 Cal.App.Sth at 448.) The court there found that despite the physician’s misrepresentations that
he had remained unemployed while receiving disability payments, which amounted to insurance
3fraud and resulted in his criminal conviction, revoking the physician’s license to practice medicine
‘was excessive and an abuse of discretion.
In this case, as in Pirouzian, the Court concludes that the Board’s imposition of the
maximum discipline of revoking Dr. Winifred’s license constitutes a manifest abuse of discretion
1
2
3
4
5 || and is clearly excessive as a matter of law. That conclusion is based on several factors, all of which :
6 || are undisputed in the record:
7 e The revocation was based solely on a 2018 disciplinary action by another state, which in
8 turn was based on a 2004 disciplinary action by a third state arising out of a 2002
9 complaint.
10 e The Board was aware of that complaint and of the 2004 disciplinary action when it issued
il Petitioner’s medical license in 2016, yet it took no action against Petitioner at that time, but
12. instead issued an unrestricted license.
13 e The Board had no evidence before it that Petitioner engaged in any other instance of
14 misconduct since 2002; more than 17 years ago.
15] | © The discipline imposed by the Respondent Board of revoking Petitioner’s license was far
16 | more severe than that imposed by the two states that had previously disciplined him. In
17 particular, Illinois issued a reprimand and required Petitioner to take the EBAS Ethics and
18 Boundaries Examination within 6 months.
19 e. There is no indication from the record that the Board considered Petitioner’s practice of
20 medicine a threat to the public. Petitioner represented to the Board that he no longer treats
» 21 patients in any state, having assumed an administrative medical director position without
22 any clinical care responsibilities. This strongly suggests that the risk to the public is de
23 minimis and a lesser penalty (or none at all) would be more appropriate than outright
24 revocation of Petitioner’s license.
25 e The Board’s decision to revoke Petitioner’s license appears inconsistent with Business and
26 Professions Code section 2229. That statute provides that while “[p]rotection of the public
27 shall be the highest priority” for the Board, the Board, “whenever possible, [shall] take
28 action that is calculated to aid in the rehabilitation of the licensee... .” (Bus. & Prof. Code
4oe YN DAH FF WN
10
«
§ 2229(a),(b); see also Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 446 [holding
that the object of the Board’s discipline is “not to punish” but to make the physician “a
better physician”].) Here, as in Pirouzian, the Board’s revocation of Dr. Winfred’s license
was not necessary to protect the public and did nothing to help make Dr. Winfred a better
physician. (1 Cal.App.Sth at 448.) There is no indication that the Board considered taking
any action calculated to aid in Dr. Winfred’s rehabilitation. Nor, indeed, is there any
convincing indication that there is any need for further rehabilitation, given that his West
Virginia medical license was fully restored in 2009 and that he evidently has recently
passed the examination required of him by the Illinois board.
e Finally, although of course every case is unique, the Court observes that even in cases
where physicians have committed far more serious and recent misconduct that arguably
posed an actual threat to the public, the Board has imposed, and courts have upheld,
substantially lesser penalties. (See, e.g., Medical Bad. of California v. Superior Court (2001)
88 Cal.App.4th 1001, 1006 [90-day suspension of license for out-of-state discipline]; Marek
v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089, 1093-1094 [revocation of
doctors’ licenses, stayed and placed on probation for three years, based on Nevada
discipline on similar terms].)
Under all of the facts and circumstances of this case, the maximum discipline is clearly
excessive. The Court has the power to set aside an excessive penalty and to require the Board to
reconsider the penalty to be imposed. (Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74,
_| 88.) The Board is ordered to vacate its Default Decision and Order revoking Petitioner’s California
medical license. Petitioner should be given an opportunity on remand to show that he has long
since complied with his probation terms in West Virginia and has completed his required course in
Illinois. The Board may within its sound discretion impose less severe disciplinary conditions, but
it must consider any evidence presented of Petitioner’s rehabilitation.
Reasonable litigation expenses including attorneys’ fees not to exceed $7,500 are
appropriate pursuant to Code of Civil Procedure section 1028.5 as the Board lacked substantial
justification to revoke Petitioner’s license and should have imposed—at most—a lesser form of
5 .wo ond DAH PF WN |
NNN BF eB Be eB eB ew ee Be
RBNRRRBRHRBESEFEWABTDRESERKS
discipline as explained above. Fees should be sought by Petitioner in a separate motion with
supporting evidence of fees reasonably incurred.
IT IS SO ORDERED.
Dated: . Har. qd ? bon EICPF-18-516396. RAJEEV ISAAC WINFRED M.D VS. MEDICAL BOARD OF
CALIFORNIA
I, the undersigned, certify that I am an employee of the Superior Court of California, County Of San
Francisco and not a party to the above-entitled cause and that on March 27, 2019 I served the foregoing
Amended order ORDER GRANTING PETITION FOR WRIT OF ADMINISTRATIVE MANDATE
on each counsel of record or party appearing in propria persona by causing a copy thereof to be
enclosed in a postage paid sealed envelope and deposited in the United States Postal Service mail box
located at 400 McAllister Street, San Francisco CA 94102-4514 pursuant to standard court practice.
Date: March 27, 2019
CAROLYNE EVANS (289206)
DEPUTY ATTORNEY GENERAL
455 GOLDEN GATE AVENUE
SUITE 11000
SAN FRANCISCO, CA 94102
MARVIN H. FIRESTONE (103678)
MARVIN FIRESTONE, MD-JD &
ASSOCIATES, LLP
1700 SOUTH EL CAMINO REAL
SUITE 204
SAN MATEO, CA 94402
Certificate of Service —
j=
By: WILLIAM TRUPEK.
Form C00005010
Preview
MOA A SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-27-2019 4:01 pm Case Number: CPF-18-516396 Filing Date: Mar-27-2019 3:59 Filed by: WILLIAM TRUPEK _ Image: 06743922 ORDER RAJEEV ISAAC WINFRED M.D VS. MEDICAL BOARD OF CALIFORNIA 001006743922 Instructions: Please place this sheet on top of the document to be scanned.wo ONIN DHA BRB WN & Ee Be Be ew Be ee ont Dn HW FP WN FEF FLLED San Francisce County ‘Superior Sour - ee OF THECOURT See rity Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RAJEEV ISAAC WINFRED, M.D., Case No. CPF-18-516396 Ksrended Petitioner, ORDER GRANTING PETITION For (| ’ WRIT OF ADMINISTRATIVE v. MANDATE MEDICAL BOARD OF CALIFORNIA, . Respondent. Petitioner Rajeev Isaac Winfred, M.D.’s petition for writ of administrative mandate came on regularly for hearing before the Court on March 18, 2019, Michee\ ei eshone appeared for Petitioner; Supervising Deputy Attorney General Mary Cain-Simon appeared for Respondent Medical Board of California. : The Court concludes that on the record before it, Respondent Medical Board of California abused its discretion in revoking Petitioner’s California medical license. Accordingly, the Court grants the petition for writ of administrative mandate and remands the matter to the Board for reconsideration of the penalty, if any, to be imposed. (Cooper v. State Board of Medical Examiners (1950) 35 Cal.2d 242, 252; Pirouzian v. Superior Court (2016) 1 Cal.App.Sth 438, 451.) : “ Case No. CPF-18-516396. “Raven de ORDER GRANTING PETITION FOR WRIT OF ADMINISTRATIVE MANDATEoo rI AH FF WN es BEPESsSaetrtaararpere 23 ‘The essential facts are undisputed: In 2004 and 2018, two other states’ medical boards imposed discipline against Petitioner arising out of a 2002 examination of a patient in which Petitioner was accused of sexual misconduct. In August 2004, following a complaint to the West Virginia Board of Medicine, that Board entered a Consent Order against him. By the terms of that Order, Dr. Winfred was publicly reprimanded for unprofessional and unethical conduct involving the inappropriate touching of a patient without her consent, was required for a period of 5 years to have a third-party female in the examination room with him while he was conducting any physical examination on a female patient 13 years of age or older, and was required to take 6 additional hours of continuing medical education in medical ethics, specifically on the subject of patient- physician relationship and sexual boundaries. Petitioner disclosed the West Virginia discipline to Respondent Board in December 2015, when he applied for a California medical license, which Respondent Board issued on January 29, 2016 without any restrictions. In 2018, on the basis of the West Virginia consent order, the Illinois Department of Financial and Professional Regulation issued Dr. Winfred a license with a reprimand, on the condition that he take the Ethics and Boundaries Asssessment Services, LLC’s Ethics and Boundaries Examination within 6 months. The Board’s current proceeding was based solely on the Illinois discipline, which in turn was based on the 2004 West Virginia discipline arising out of the 2002 incident. The Board may impose discipline for unprofessional conduct when discipline is imposed by another state medical board for conduct that would have been grounds for discipline in California. @us. & Prof. Code § 2305; see id. § 726 [sexual misconduct is grounds for discipline in California].) The out-of-state discipline, rather than the underlying conduct, is the act triggering the discipline in California. (Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089, 1097-98.) Because the Board’s decision was based on unprofessional conduct under Business and Professions Code section 2305, not the underlying sexual misconduct, Respondent errs in its opposition brief in relying on the Board’s disciplinary guidelines regarding the minimum punishment for the latter offense.Co en A uA fF W ND Boe ee ee eo UA adR DKS 19 Bus. & Prof. Code § 2227(a) provides that a licensee whose matter has been heard, or whose default has been entered, and who is found guilty may: (1) Have his or her license revoked upon order of the board. (2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board. (3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board. (4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board. In revoking Petitioner’s license to practice medicine, the Board imposed the maximum discipline available to it, one that is considered a “drastic penalty.” (Cooper v. State Board of Medical Examiners (1950) 35 Cal.2d 242, 252.) On the undisputed facts in the administrative record, the Court finds that the Board abused its discretion in imposing that remedy. While a court normally affords deference to the Board’s determination as to the appropriate penalty to be imposed, it may find a manifest abuse of discretion where under all the facts and circumstances, the penalty imposed by the administrative agency was “clearly excessive.” (Szmaciarz v. State Personnel Board (1978) 79 Cal.App.3d 904, 921; see, e.g., Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, 88 [under circumstances of case, imposition of maximum penalty (revocation of physician’s license) was a clear abuse of discretion]; Pirouzian, 1 Cal. App.5th at 448-450 [same].) As the Pirouzian court commented, Although the Board has discretion in determining the discipline to impose for unprofessional conduct, such discretion is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action. Here, the Board’s discretion is subject to the Legislative mandate that the Board’s highest priority be protection of the public; and, secondarily, discipline should aid in the rehabilitation of the licensee. (1 Cal.App.Sth at 448.) The court there found that despite the physician’s misrepresentations that he had remained unemployed while receiving disability payments, which amounted to insurance 3fraud and resulted in his criminal conviction, revoking the physician’s license to practice medicine ‘was excessive and an abuse of discretion. In this case, as in Pirouzian, the Court concludes that the Board’s imposition of the maximum discipline of revoking Dr. Winifred’s license constitutes a manifest abuse of discretion 1 2 3 4 5 || and is clearly excessive as a matter of law. That conclusion is based on several factors, all of which : 6 || are undisputed in the record: 7 e The revocation was based solely on a 2018 disciplinary action by another state, which in 8 turn was based on a 2004 disciplinary action by a third state arising out of a 2002 9 complaint. 10 e The Board was aware of that complaint and of the 2004 disciplinary action when it issued il Petitioner’s medical license in 2016, yet it took no action against Petitioner at that time, but 12. instead issued an unrestricted license. 13 e The Board had no evidence before it that Petitioner engaged in any other instance of 14 misconduct since 2002; more than 17 years ago. 15] | © The discipline imposed by the Respondent Board of revoking Petitioner’s license was far 16 | more severe than that imposed by the two states that had previously disciplined him. In 17 particular, Illinois issued a reprimand and required Petitioner to take the EBAS Ethics and 18 Boundaries Examination within 6 months. 19 e. There is no indication from the record that the Board considered Petitioner’s practice of 20 medicine a threat to the public. Petitioner represented to the Board that he no longer treats » 21 patients in any state, having assumed an administrative medical director position without 22 any clinical care responsibilities. This strongly suggests that the risk to the public is de 23 minimis and a lesser penalty (or none at all) would be more appropriate than outright 24 revocation of Petitioner’s license. 25 e The Board’s decision to revoke Petitioner’s license appears inconsistent with Business and 26 Professions Code section 2229. That statute provides that while “[p]rotection of the public 27 shall be the highest priority” for the Board, the Board, “whenever possible, [shall] take 28 action that is calculated to aid in the rehabilitation of the licensee... .” (Bus. & Prof. Code 4oe YN DAH FF WN 10 « § 2229(a),(b); see also Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 446 [holding that the object of the Board’s discipline is “not to punish” but to make the physician “a better physician”].) Here, as in Pirouzian, the Board’s revocation of Dr. Winfred’s license was not necessary to protect the public and did nothing to help make Dr. Winfred a better physician. (1 Cal.App.Sth at 448.) There is no indication that the Board considered taking any action calculated to aid in Dr. Winfred’s rehabilitation. Nor, indeed, is there any convincing indication that there is any need for further rehabilitation, given that his West Virginia medical license was fully restored in 2009 and that he evidently has recently passed the examination required of him by the Illinois board. e Finally, although of course every case is unique, the Court observes that even in cases where physicians have committed far more serious and recent misconduct that arguably posed an actual threat to the public, the Board has imposed, and courts have upheld, substantially lesser penalties. (See, e.g., Medical Bad. of California v. Superior Court (2001) 88 Cal.App.4th 1001, 1006 [90-day suspension of license for out-of-state discipline]; Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089, 1093-1094 [revocation of doctors’ licenses, stayed and placed on probation for three years, based on Nevada discipline on similar terms].) Under all of the facts and circumstances of this case, the maximum discipline is clearly excessive. The Court has the power to set aside an excessive penalty and to require the Board to reconsider the penalty to be imposed. (Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, _| 88.) The Board is ordered to vacate its Default Decision and Order revoking Petitioner’s California medical license. Petitioner should be given an opportunity on remand to show that he has long since complied with his probation terms in West Virginia and has completed his required course in Illinois. The Board may within its sound discretion impose less severe disciplinary conditions, but it must consider any evidence presented of Petitioner’s rehabilitation. Reasonable litigation expenses including attorneys’ fees not to exceed $7,500 are appropriate pursuant to Code of Civil Procedure section 1028.5 as the Board lacked substantial justification to revoke Petitioner’s license and should have imposed—at most—a lesser form of 5 .wo ond DAH PF WN | NNN BF eB Be eB eB ew ee Be RBNRRRBRHRBESEFEWABTDRESERKS discipline as explained above. Fees should be sought by Petitioner in a separate motion with supporting evidence of fees reasonably incurred. IT IS SO ORDERED. Dated: . Har. qd ? bon EICPF-18-516396. RAJEEV ISAAC WINFRED M.D VS. MEDICAL BOARD OF CALIFORNIA I, the undersigned, certify that I am an employee of the Superior Court of California, County Of San Francisco and not a party to the above-entitled cause and that on March 27, 2019 I served the foregoing Amended order ORDER GRANTING PETITION FOR WRIT OF ADMINISTRATIVE MANDATE on each counsel of record or party appearing in propria persona by causing a copy thereof to be enclosed in a postage paid sealed envelope and deposited in the United States Postal Service mail box located at 400 McAllister Street, San Francisco CA 94102-4514 pursuant to standard court practice. Date: March 27, 2019 CAROLYNE EVANS (289206) DEPUTY ATTORNEY GENERAL 455 GOLDEN GATE AVENUE SUITE 11000 SAN FRANCISCO, CA 94102 MARVIN H. FIRESTONE (103678) MARVIN FIRESTONE, MD-JD & ASSOCIATES, LLP 1700 SOUTH EL CAMINO REAL SUITE 204 SAN MATEO, CA 94402 Certificate of Service — j= By: WILLIAM TRUPEK. Form C00005010