Bryce v. Board of Medical Quality Assurance

SONENSHINE, J.,

I respectfully dissent. Bryce argues there must be some reasonable relationship between the offense and the penalty. I agree.

The authorities upon which the majority relies mandate this conclusion. In Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564 [146 Cal.Rptr. 653], the Court of Appeal reviewed the propriety of conditioning a physician’s recertification upon his submission to a psychiatric examination for determination of his capacity to resume practice. The doctor argued the order was in error because he was not charged in the accusation with being mentally ill. But the court upheld the order. “[T]he record amply supports the trial court’s findings that Dr. Shea on numerous occasions engaged in unprofessional conduct in that, upon believing a patient to be hypnotized he described to that patient, in the coarsest detail, both sexual foreplay and the mechanics of sexual congress without having been solicited to do so nor having first explained his plan; and further, that such course of treatment was not appropriate to any such patient’s medical complaint. Having read the testimony of Dr. Shea and of his patients, the board could reasonably question the doctor’s mental competence to practice medicine. [Citations.]” (Id., at p. 580.)

In Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461 [163 Cal.Rptr. 566], the court considered the discipline imposed on a doctor who had been convicted of income tax evasion. The doctor specifically attacked the provision requiring donation of his professional services free of charge to a community health institution for at least 20 hours a month for two years.

But the court upheld the provision finding the purpose of the discipline was to make him a better physician. The court explained “[c]harity has always been one of the attributes of a good doctor. . . . Clearly, the charitable work respondent is to do as a condition of probation is right in line with the purpose of the proceedings below.” (Id., at pp. 473-474.)

Unlike the courts in Shea and Windham, I cannot find any reasonable relationship between the discipline imposed and the charged offense.1

*1478Bryce was not accused of being incompetent. His crime was mismanagement at the least, or unethical conduct at the worst. Passing an oral clinical family practice examination will not in any way demonstrate he has become a better manager or is more ethical.

I would therefore find the trial court abused its discretion. The discipline imposed is not too harsh, but is arbitrary and capricious.

Nor am I impressed with the board’s arguments. It concedes “there were no specific findings that Dr. Bryce personally incompetently treated any patient . . . .” But the board argues “his general lack of regard for the welfare of the clinic’s patients as demonstrated by his disregard of medical convention creates a doubt as to Dr. Bryce’s knowledge and abilities to properly minister to his present patients.” This may be true, but what will a test *1478based on his medical skills accomplish?

The board further argues “it is not an abuse of its discretion to require any physician who has been significantly disciplined no matter what the violation, to pass an examination as a condition of probation.” (Italics added.) In support of that contention it cites People v. McDowell (1976) 59 Cal.App.3d 807 [130 Cal.Rptr. 839]. But McDowell does not help the Board. The court reiterated the rule in criminal cases that in the granting of probation the courts have very broad discretion to impose conditions. However, a condition of probation is invalid if it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” (Id., at p. 813.) This condition is invalid.