Metropolitan News-Enterprise


Wednesday, March 3, 2010


Page 3


Appellate Court Allows Medical Student to Retake Licensing Exam


By SHERRI M. OKAMOTO, Staff Writer


The Third District Court of Appeal has ruled that the Medical Board of California’s failure to pass a resolution establishing the passing score for its licensure examination entitled an unsuccessful candidate to retake the exam.

In a decision Monday, Justice George Nicholson explained that the board’s acquiescence to the scoring recommendation of the administrator of the United States Medical Licensing Examination did not meet the board’s statutorily-mandated obligation to establish a passing score by resolution.

The examination is a three-part test, administered by the Federation of State Medical Boards. In order to practice medicine in California, Business and Professions Code Sec. 2184 requires that examinees obtain “a passing score, established…pursuant to Section 2177.”

Sec. 2177 states that a passing score, “as established by resolution of the Division of Licensing,” is required for each part of the examination and that an applicant must pass the third section of the exam in no more than four attempts in order to be eligible for a license.

Yvette Marquez, a graduate of Stanford University and the University of Rochester School of Medicine and Dentistry, registered to take the third segment of the exam for the fourth time in March 2008. At that time, the passing score recommended by the FSMB and utilized by the California board for the third segment of the exam was 184, which was disclosed on the USMLE website.

About one month later, a notice appeared on the website stating that the minimum passing score for the third segment had been raised from 184 to 187. It also said the new passing score would be applied to all examinations administered on or after May 1, 2008.

Marquez took the third segment of the examination on May 13, 2008 and received a score of 184. The board subsequently informed her that she had not received a passing score and therefore was not eligible for a license.

She then sought a writ compelling the board to comply with Sec. 2177, to deem her to have passed the exam and to issue her a license, but Sacramento Superior Court Judge Patrick Marlette denied her petition.

Marlette found that the board had never formally adopted a resolution establishing a passing score, but that it had implicitly adopted the FSMB’s recommended score, satisfying Sec. 2177’s requirements.

But on appeal, Nicholson, joined by Presiding Justice Arthur G. Scotland and Justice Ronald B. Robie, disagreed.

“If a statute requires an agency to dot its ‘i’s’ and cross its ‘t’s,’ the Legislature’s will must be done…,” he wrote.

“The Legislature used the term ‘resolution’ in section 2177 to require the Board to adopt a passing score by means of a formal, memorialized public vote. This single, unambiguous statutory burden obviously serves to keep the Board accountable to the Legislature, the medical profession, medical license applicants, and the public, and it prevents the Board from delegating this responsibility to anyone else.”

Nicholson said that allowing the board to impliedly establish a passing score by consistently acquiescing to the recommended score “would negate the statute and render it meaningless,” adding:

“Requiring the Board to adopt the passing score by means of a resolution is the only interpretation that fulfills the Legislature’s express intent.”

The justice explained that the court could not compel the board to find Marquez’s score was sufficient to pass the exam without a valid resolution establishing a passing score, but posited that the absence of such a standard at the time Marquez took the third segment of the exam rendered her effort a “futile act.”

He wrote that “[i]t would be unjust to treat such an examination as a legitimate and, in plaintiff’s case, last attempt to become licensed to practice medicine,” and said Marquez should be offered another opportunity to take the exam once the board establishes a passing score by resolution.

The case is Marquez v. Medical Board of California, 10 S.O.S. 1080.


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