Metropolitan News-Enterprise


Monday, April 26, 2010


Page 3


Board Must Publish Information About Discipline of Former Doctors, Court Rules

Malpractice Judgment Properly Publicized, Even Though License Was Surrendered, Panel Says


By a MetNews Staff Writer


This district’s Court of Appeal on Friday rejected a former doctor’s lawsuit against the Medical Board of California for having published disciplinary information about him on its website after he agreed to surrender his license.

Div. Four agreed with Los Angeles Superior Court Judge Richard L. Fruin’s interpretation of Business and Professions Code Secs. 803.1 and 2027, and concluded that the board had acted within its statutory mandate in disclosing a malpractice judgment against James Fulton Jr. and his loss of his medical licenses in several states on its website.

Sec. 803.1(a) imposes a duty on the board to disclose “any enforcement actions taken against a licensee,” which include “[r]evocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a…stipulated agreement,” while Sec. 2027(b)(1) requires the board to make available information regarding such enforcement actions on the Internet.

In 2003 the board placed information on its website about the surrender, retirement, and indefinite suspension of Fulton’s medical licenses in Florida, New York, and Louisiana. It also disclosed a malpractice judgment entered against Fulton in the Orange Superior Court, but did not include actions initiated after the doctor voluntarily surrendered his California license as part of a stipulated settlement in 2003 or the 2005 revocation of his Tennessee license.

Fulton testified that he continued working in fields closely related to medicine after he lost his medical licenses, giving lectures for the Advanced Aesthetics Training Institute about diseases of the skin, the causes and treatments of acne, and other dermatological topics. He also promoted dermatological products from Vivant Pharmaceuticals.

In his action against the board, Fulton alleged that the disclosures of his disciplinary record caused him to lose work opportunities and suffer “public and private ridicule and embarrassment.” He sought a declaratory judgment that the board was not statutorily required to publish the disciplinary information about him since he was no longer a “licensee,” and an injunction prohibiting the board from posting any information about him on its website. 

Fruin, however, found Secs. 803.1 and 2027 required the Board to publish the information and entered judgment in favor of the board.

Writing for the appellate court, Presiding Justice Norman L. Epstein acknowledged that the statutes do not explicitly say the board must make disclosures about individuals who no longer hold a license to practice medicine in this state, but reasoned the Legislature had intended the disclosure requirements to apply to such persons.

“By definition, ‘revocations’ include licenses that have been revoked and hence are no longer valid,” and so “it is reasonable to interpret this provision to apply to former license holders,” he said.

The justice also emphasized that Sec. 2027 requires the board to post information regarding enforcement actions, including license revocations and malpractice judgments, for a period of 10 years after the information comes within its possession, without providing for its removal if that person is no longer licensed in California. “Limiting required disclosures to current licensees would render this provision ineffectual,” Epstein added.

He further posited that the facts of Fulton’s case “illustrate the correctness of the Board’s interpretation of the statutes” since Fulton “repeatedly held himself out as a physician when marketing products and giving lectures in California.” Although it is a misdemeanor for individuals who are not licensed to practice medicine to use the title “M.D.” in advertising materials, no criminal charges were apparently ever brought against Fulton.

Since “[t]he public has an interest in the professional disciplinary history of an individual who affiliates with the practice of medicine,” and the board’s disclosure of such information would “further the public safety and welfare,” Epstein concluded that the trial court’s interpretation of Secs. 803.1 and 2027 as requiring publication of information about enforcement actions initiated while an individual is licensed to practice medicine in California was reasonable.

Justices Thomas L. Willhite Jr. and Nora M. Manella joined Epstein in his decision.

The attorneys on the case, Fulton v. The Medical Board of California, 10 S.O.S. 217, were John D. Martin and Kathy J. McCormick of Martin & McCormick and Deputy Attorneys General Paul C. Ament and Vladimir Shalkevich.


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