By: J.J. Hitt Re: Boylan's Appeal - End of Story * Original To : All, 1:308732 * Original

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By: J.J. Hitt Re: Boylan's Appeal - End of Story * Original To : All, 1:30873/2 * Original From: Ed Stewart, 88:4602/17 * Original Area: I_UFO * Original Date: Feb 16 16:29 * Forwarded on by J.J. Hitt of 1:106/9788.2 THE SUPERIOR AND MUNICIPAL COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO ------------------- RICHARD J. BOYLAN, PH.D. ENDORSED Petitioner FEB -8 1996 By R. ROUSE, Deputy MEDICAL BOARD OF CA, ------------------- BBSE, DCA AND THE STATE OF CALIFORNIA Respondents DECISION ON SUBMITTED MATTER Case No. 95CS02187 This Petition for Writ of Mandate came on regularly for hearing on January 19, 1996, in Department 7 of the Sacramento Superior Court, the Honorable Thomas M. Cecil presiding. Petitioner was present and represented by counsel, Mr. Richard S. Linkert. Repondents were represented by counsel, Mr. Arthur D. Taggart. The matter was argued and deemed submitted. For reasons set forth below, as well as those stated during the hearing of January 19, 1996, the Petition for Writ of Mandate is denied. This Petition was filed under the authority of section 1094.5 of the Code of Civil Procedure. It is undisputed that vested rights of petitioner are at stake. Accordingly, this court has reviewed the administrative record and exercised its independent judgment. With the exception of one of respondents' findings, the court has determined that the findings are supported by the weight of the evidence. Specifically, the court finds the evidence relative to Determination of issue II insufficient. With regard to each of the other Determinations found true by the ALJ (Nos. 3, 4, 5, 7, 9, and 10), the court finds the evidence in support overwhelming. Further, separate from the issue of whether evidence in support of the acts comprising the Determination of issues was presented, the court specifically notes that in each instance, expert testimony was presented in support of these determinations. Petitioner's contrary assertion is not supported by the record. 1 Petitioner accurately asserts that basic concepts of due process requires certainty and clarity of the accusations being filed as well as the need for fundamental fairness in the hearing process. Contrary to petitioner's assertions, however, the court finds no prejudice occasioned by the amendments to the accusation. Petitioner was afforded ample opportunity to address the amendments with the presentation of his evidence and in cross examining respondents' witnesses. In his moving papers as well as during oral arguments on January 19, petitioner referred to the "thrust" or "focus" of respondents case, asserting that the resulting "moving target" was constitutionally defective and required reversal of the administrative decision. As already noted, the record demonstrates that petitioner was afforded substantial leeway in terms of responding to changes made to the accusation. Moreover, the mere fact that petitioner misconstrued the "focus" or "thrust" of respondent's case, does not diminish or negate the end product. It is commonplace for arguments originally envisioned to be "winners" to be tossed aside during the course of trial. Concepts or tactics first deemed unwise often blossom before the eyes of the litigants. In no respect does this court find any violation of the due process rights of petitioner nor has petitioner been able to demonstrate any prejudice stemming from the amendments to the accusation. Petitioner takes issue with the "delay" in pursuing the complaint originally lodged with BOP by KG. It should be noted that KG advised the board of her inability to go forward - alone. It appears that the BOP acceded to her wish until such time as additional complaints were filed against the petitioner. Moreover, petitioner is unable to demonstrate any prejudice resulting from the delay. Lastly, petitioner has challenged the level of discipline ordered by the boards. It is well-established that a penalty determination will not be disturbed by a reviewing court absent a finding of a manifest abuse of discretion. The fact that reasonable minds could differ as to the propriety and necessity of a given sanction is insufficient justification to overturn a penalty decision. The court concurs with the analysis of respondents, both legally and factually as set out in respondents' Points & Authorities in Opposition. Moreover, notwithstanding petitioner's efforts to demonstrate that he poses no risk to the public, his own "Responsive Brief" forcefully reinforces the position of _respondents_. Petitioner consistently references the notion that his patients "misconstrued" his intent, or that it was "misunderstood", or that the risk was "minimal." 2 Obviously, petitioner holds licenses that confer upon him substantial obligations. His chosen professions require that he exercise good judgment, respect his patients' feelings and their needs. Contrary to the position of petitioner, this court finds almost no evidence of insight into the inappropriateness of his conduct. To the extent that it exists, it appears to relate solely to the potential ramifications on his licenses rather than an acknowledgement of misconduct or grossly inappropriate behavior. Petitioner does not comprehend what all of the experts clearly understood. Petitioner continues to assert that this case is about his beliefs in alien encounters. It is not. Petitioner fails to grasp the significance of the expert testimony and the findings as to matters completely unrelated to aliens. Petitioner's conduct was outrageous, especially in the light of the underlying reasons for treating these particular patients. His conduct fell well below the standard of care expected of his professions and constituted gross negligence. Revocations are appropriate. Respondent is directed to prepare an appropriate order in accord with this decision, obtain approval as to form from petitioner's counsel and submit it to this Court. Dated: 2-8-96 [handwritten] By: [signature] --------------------------- Thomas M. Cecil Judge of the Superior Court [Superior Court County of Sacramento, California] seal 3

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