Metropolitan News-Enterprise


Friday, January 7, 2005


Page 1


C.A. Rejects Ban on Medical Practice as Bail Condition


By a MetNews Staff Writer


A bail condition barring a physician from practicing violated the doctor’s due process rights, the First District Court of Appeal has ruled.

Div. Three Wednesday filed an amended opinion elaborating on its previous holding in favor of Jeffrey Thomas Gray, a Napa psychiatrist charged with sexually exploiting a former patient, possessing child pornography, and illegally prescribing and possessing a controlled substance.

The appellate court said that a doctor or other licensed professional may be ordered not to practice as a bail condition, but that it is unreasonable to make such an order without giving advance notice and an opportunity to be heard. The trial court must also consider less restrictive alternatives that would protect the public without depriving an accused of the right to practice his or her profession, the Court of Appeal held.

While the result is the same as that reached in the court’s Oct. 29 decision, the opinion was modified at the request of the Medical Board of California. The panel was sharply critical of the fact that an attorney for the Medical Board appeared at Gray’s arraignment, without prior notice, and asked for the bail condition.

“Some measure of due process must be given to a professional license-holder before license suspension,” Justice Joanne Parrilli said. “At a minimum, the suspension must be based on evidence showing an immediate risk to the public.”

Parilli noted that there are statutory procedures by which a doctor facing disciplinary action may be temporarily deprived of the right to practice, based on a conclusion by the Medical Board that the public would be harmed if the doctor were allowed to continue practicing during the pendency of the proceedings. But in each of those instances, the justice pointed out, the board must present evidence of the imminent public danger, and a hearing must be held soon afterward.

The jurist acknowledged, but gave little credence to, the board’s expressed concern that an unfavorable ruling in such an interim proceeding might have a collateral estoppel effect on the criminal case.

Parrilli, expressly declining to take a position on whether there would be any collateral estoppel effect, said even if there was, it did not justify the order by Napa Superior Court Commissioner Kelly Boyd.

The justice wrote:

“Even if a decision of the Medical Board would have a collateral estoppel effect in a later criminal trial, this concern cannot justify depriving Gray of his medical license without due process.  To be sure, the public safety is paramount, but some measure of due process must be given to a professional license holder before license suspension....In the case of an interim license suspension authorized by Government Code section 11529, the Medical Board must establish a ‘reasonable probability’ that it will succeed on the merits of the accusation before a physician’s license may be suspended...Yet, the Medical Board seems to suggest it can seek an immediate and indefinite suspension of a medical license without notice, evidence, or an adequate opportunity to litigate the issues, simply because criminal charges have been filed.  We find no support for the proposition that the due process and proof required for a license suspension may be ignored when a criminal complaint has been filed against a licensee.”

The case is Gray v. Superior Court (Medical Board of California), 05 S.O.S. 58.


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