Rule That Person Who Flunks Examination for License As Physician Four Times Is Forever Barred Might Not Apply to Man Who Succeeded on Fifth Try After Receiving Prescription for Needed Medication, Opinion Says
By a MetNews Staff Writer
The Court of Appeal for this district has ordered reinstatement of a disability-discrimination action brought by a man who flunked a written examination for a medical license four times but was able to attain a passing score on a fifth attempt after being prescribed a drug to counteract his recently uncovered performance-anxiety, yet was denied a license based on a statutory bar on taking the test more than four times.
California’s “four-strikes-and-you’re-out rule,” as it was termed by Justice John L. Segal of Div. Seven in his unpublished decision filed Friday, is invalid, as applied in his circumstances, plaintiff Tajindir Singh contends. In light of his medical condition, Singh maintains, enforcement of the rule constitutes discrimnation in violation of the federal Americans with Disabilities Act (“ADA”), the federal Rehabilitation Act of 1973, and the state Fair Housing and Employment Act.
Taking cognizance of Singh’s success on the fifth test, Segal said, could be viewed as a “reasonable accommodation,” required in disability cases.
Sues Medical Board
Singh sued the Medical Board of California and Kimberly Kirchmeyer, its then-executive director, who was replaced as a defendant by her successor, William J. Prasifka.
While reversing the judgment of dismissal, entered after Los Angeles Superior Court Judge Barbara M. Scheper’s sustained of demurrers without leave to amend, Segal’s opinion affirms an earlier order by Los Angeles Superior Court Judge Mary H. Strobel axing a cause of action for a writ of mandate. Such a writ cannot issue in the case, Segal said, because Singh cannot point to a ministerial duty to issue a license to him.
Singh, who received his medical training in Dominica, in the Caribbean, passed “Step 1” and “Step 2” of the United States Medical Licensing Examination (“USMLE”) and gained residency in Modesto County, but on four occasions failed at the next and final step, a two-day examination featuring multiple-choice questions.
“Singh alleged his proposed accommodations—including that the Board allow his fifth, successful attempt at Step 3 of the USMLE to qualify him for medical licensure—are reasonable,” Segal wrote. “That factual allegation is one that at this stage we generally must accept as true.”
“Because we accept as true Singh’s allegation that using his fifth test score would accommodate his disability, and because the reasonableness of a proposed accommodation is a factual question on which the Medical Board has the burden of proof and which therefore cannot be resolved on demurrer, we reverse and direct the trial court to enter a new order overruling the demurrers to the disability discrimination causes of action….”
A requirement of a disability-discrimination suit against a public entity, the jurist noted, is that the plaintiff was “qualified” to receive a denied benefit from the agency. The medical board asserted that Singh is not qualified for a license in light of his statutory ineligibility, under Business and Professions Code §2177(c)(1), based on failing the “Step 3” exam four times.
But an applicant is “qualified,” Segal pointed out, where the person meets the test for eligibility with a reasonable accommodation being accorded.
He acknowledged the argument by the board that Singh sought an accommodation—honoring his score on a fifth test, taken while on medication—“after he became disqualified by operation of law.” The argument, Segal responded, is based on a “faulty premise: that the four-attempt rule is an essential eligibility requirement (and any modification of it would be an unreasonable accommodation) because it is statutory.” He quoted the Third District Court of Appeal’s 2002 opinion in Fry v. Saenz as saying that “statutes are no more immune to judicial scrutiny for ADA compliance than are rules or regulations.”
The board cited the Fifth U.S. Circuit Court of Appeals’ 2020 decision in Block v. Texas Board of Law Examiners. In that case, a Louisiana lawyer sued for admission to the State Bar of Texas after failing the state’s bar exam.
He would have been admitted through reciprocity had he been practicing in Louisiana in the previous two years; he had not practiced owing to a disability; he argued that it would constitute disability-discrimination to deny him admission. His contention was rejected.
“Here, in contrast, Singh has not proposed the Medical Board waive the requirement that he pass Step 3 of the USMLE, only that it modify the four-attempt rule to accommodate his disability (by accepting his passing grade on the fifth attempt), and the Medical Board has not shown that this accommodation is unreasonable as a matter of law.”
The case is Singh v. Prasifka, B302113.
Benjamin J. Fenton, Dennis E. Lee, and Alexandra de Rivera of the West Los Angeles firm of Fenton Law Group represented Singh. Deputy Attorneys General Peggie Bradford Tarwater and Claudia Morehead put forth the position of the board and its executive director.
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