Metropolitan News-Enterprise


Monday, August 18, 2003


Page 1


Appeals Court Says Discipline of Doctor Must Be Based On More Than Failure to Complete Diversion Program


By a MetNews Staff Writer


A doctor cannot be disciplined solely because he failed to complete a substance abuse diversion program, the First District Court of Appeal has ruled.

Writing for Div. Five, Justice Linda M. Gemello said the Medical Board of California exceeded its authority under Business and Professions Code Sec. 2354 when it revoked the license of Lee Roy Liskey. The decision, filed July 25, was certified for publication Thursday.

Liskey agreed in 1997 to enter an alcohol and substance abuse program. He successfully completed an outpatient program, but was ordered back into treatment the next year, this time as an inpatient, after twice testing positive for cocaine.

Liskey contended the results were false positives and refused to enter the second program. The board then brought proceedings against him.

An administrative law judge ruled Liskey was not impaired and that the failure to complete the diversion program could not be used as a basis for discipline. The ALJ changed his mind on the latter issue after the board declined to adopt his findings, but still ruled Liskey should not be disciplined.

The board revoked Liskey’s license anyway, and the doctor challenged the ruling in San Francisco Superior Court, where Judge A. James Robertson II overturned the revocation.

Gemello said Robertson’s ruling was correct. She wrote:

“When a physician ‘flunks out’ of a diversion program, the Medical Board of California is authorized by statute to file an accusation charging any acts committed before, during, or after the physician’s agreed-upon participation in the diversion program. It must then prove impairment or unprofessional conduct by clear and convincing evidence. Where the circumstances of the physician’s termination from the diversion program do not otherwise evidence unprofessional conduct or impairment by this standard, we hold that the Board does not have authority to revoke or suspend a license based on the failure to complete the diversion program.”

Gemello noted that the version of the statute in force at the time the accusation was filed against Liskey provided that failure to complete a treatment program “may result in the filing of an accusation for discipline which may include any acts giving rise to the original diversion.”

Neither the language of the statute nor the printed forms signed by Liskey when he agreed to diversion clearly stated that discipline could be imposed for failure to complete treatment, the justice said.

“To satisfy the due process considerations that attach in disciplinary actions against a professional license, we conclude that section 2354 must provide some reasonable indication that a failure to complete diversion successfully constitutes unprofessional conduct before it may be applied to impose discipline solely on that ground,” Gemello declared. “The fact that it does not, and the fact that the Board’s printed agreements of understanding also fail to do so, strongly militate against interpreting section 2354 as creating an independent basis for discipline.”

Under the Court of Appeal’s 1982 decision in Ettinger v. Board of Medical Quality Assurance, 135 Cal.App.3d 853, the board’s disciplinary actions must be supported by clear and convincing evidence, the appellate justice said.

She added:

“To say that section 2354 authorizes discipline for failure to complete diversion successfully whenever the failure is accompanied by some evidence of impairment would essentially permit discipline to be imposed on the basis of a lesser standard of proof. The Board’s interpretation would allow it to evade the burden of proving by clear and convincing evidence that Liskey’s ability to practice medicine was impaired due to misuse of drugs or alcohol.”

Justice Laurence T. Stevens and Presiding Justice Barbara J.R. Jones concurred. The case is Medical Board of California v. Superior Court (Liskey), 03 S.O.S. 4492.


Copyright 2003, Metropolitan News Company