Douglass v. Board of Medical Quality Assurance

Opinion

Defendant Board of Medical Quality Assurance (BMQA) appeals from the judgment in favor of plaintiff James Dewitt Douglass, a licensed medical doctor. In challenging the judgment arising from two distinct courses of conduct by Douglass reflected in BMQA’s accusation filed in April 1978 and a supplemental accusation filed in January 1979, BMQA asks us to define the parameters of official conduct with respect to an entrapment defense and to decide the admissibility of hearsay evidence which forms the basis for an expert’s opinion the physician acted unprofessionally. We conclude there is insufficient evidence to support the trial court finding of entrapment pertaining to the charges of the April 1978 accusation and therefore reverse the judgment on that accusation. We also decide the court prejudicially erred in ruling certain documentary evidence was hearsay and consequently reverse and remand to allow the court to reweigh the evidence.

Factual and Procedural Background

BMQA first accused Douglass of unprofessional conduct (former Bus. & Prof. Code, § 2361, subd. (a), current § 2234, subd. (a))^[1] in April 1978 alleging he failed to conduct good faith prior examinations (former § 2399.5, current § 2242, subd. (a)) and prescribed excessive amounts of drugs (former § 700, current § 725). In January 1979, BMQA filed a supplemental accusation alleging Douglass prescribed controlled substances without performing good faith prior examinations (former § 2399.5, current § 2242, subd. (a)). While the accusations were consolidated at the administrative hearing and have remained procedurally a single lawsuit, except for Douglass’ involvement the facts on which BMQA relied in each accusation are unrelated to the facts of the other. The legal issues are also distinct and accordingly we shall discuss them separately.

Facts—The Initial Accusation

The administrative hearing over which an administrative law judge (ALJ) presided was held in February 1979. BMQA introduced evidence through the testimony of three BMQA agents and an expert witness to support its first accusation Douglass acted unprofessionally.

Agent Simpson visited Douglass’ office and filled out two patient history forms after telling the nurse she had a sore throat. The nurse’s record of Simpson’s first phone call requesting an appointment indicated she had a backache. A nurse interviewed Simpson, weighed her and took her blood pressure, noting this information in Simpson’s chart. Simpson said Douglass saw her for five to seven minutes, discussed horse riding accidents and broken bones, and told him she had been under the care of a San Francisco physician who had prescribed Preludin. She asked Douglass to prescribe that drug for her; he did so.^[2]

Simpson returned four more times to Douglass’ office. Her blood pressure was taken on each occasion; she was weighed three times. In making her second appointment, Simpson told the receptionist she had a virus. At the office, however, she told the nurse she wanted a Seconal refill. The nurse wrote “sleeping pills” in her chart. Douglass came into the room, looked at the chart, and prescribed Seconal.

Simpson’s third, fourth, and fifth visits lasted about five minutes each. At the third, she requested refills of both Preludin and Seconal but Douglass prescribed only the Seconal. On her fourth visit, Douglass prescribed the Preludin refill. On her final visit, Douglass prescribed a Seconal refill after Simpson requested it.

Agent Dalton saw Douglass three times. Simpson had set up Dalton’s appointment by telling the receptionist Dalton suffered from weight problems. At her first visit, Dalton filled out both patient history forms and told the nurse she

Agent Miller saw Douglass twice. He filled out both patient history forms and told the nurse he wanted a checkup. A nurse took his blood pressure and weighed him. Douglass then saw him for about 15 minutes. They discussed items on Miller’s chart and Douglass asked him about his previous illnesses. Miller said he needed something to get him going in the mornings and mentioned he had on occasion taken friends’ Preludin tablets. Douglass said Preludin was a restricted drug and he could not write a prescription for it. He instead wrote one for Dexamyl.^[4] Douglass then listened to Miller’s heart and lungs and took his blood pressure. Miller’s second visit lasted five minutes. He asked Douglass for something stronger and Douglass wrote a prescription for Dexedrine.

Dr. Matthew J. Ellenhom, a medical doctor, testified as BMQA’s expert. He stated in his opinion a physician should personally spend 20-30 minutes with a patient on an initial visit. Although the physician need not conduct an extensive examination, the initial examination should include an extensive patient

Louise Knott, Douglass’ receptionist, was the final witness. She testified she received phone calls from patients making appointments and stating their com

Facts—The Supplemental Accusation

BMQA relied primarily on documentary evidence to support the allegations of the second accusation. This accusation concerned Douglass’ prescribing controlled substances to Joseph Scolaro on 17 occasions during a 3-month period in 1978.^[11] These documents consisted of photocopies of the prescriptions obtained from pharmacies where Scolaro had them filled and the medical records BMQA obtained from Douglass’ office pursuant to a search warrant. BMQA introduced the documents through the testimony of David T. Thornton, a BMQA investigator. He obtained the prescriptions from the pharmacies in the course of his duties as an investigator. The record is silent whether Thornton presented a subpoena or simply asked each pharmacy for the prescriptions. Thornton went to Douglass’ office with a search warrant to get the Scolaro file. The record contains the search warrant Thornton used to obtain the Scolaro file but the affidavit on which the court issuing the warrant relied is absent.^[12] At Douglass’ office Thornton identified himself and showed the receptionist the warrant. He told her he wanted Douglass’ records on Joseph Scolaro, watched her go to a file cabinet, remove a file and give it to him. He asked her whether this file was everything kept on Scolaro and she responded it was. He then gave her a copy of the search warrant and left.

The evidence presented reveals a physician quite willing to prescribe dangerous drugs to new patients with only cursory medical examinations. He provided Preludin, Seconal, Quaalude, Dexamyl, and Dexedrine in varying quantities to three “patients” whose complaints included “backache,” “virus,” “diet,” and the “need to get going in the early morning.” Once Douglass prescribed Quaaludes to an agent because she liked the way they made her feel. On several occasions, the agents simply requested specific drugs. Although Douglass did not always accede to these requests, he unfailingly prescribed some other controlled substance. Certainly the agents lied to Douglass. But Barraza does not prevent government agents from lying. “The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would . . . tend to limit convictions to only the most gullible offenders.” (People v. Barraza, supra, 23 Cal.3d at p. 690, fn. 4.) Here, the agents’ conduct simply provided Douglass the opportunity to engage in unprofessional conduct for the ordinary criminal motive of pecuniary gain. Douglass does not argue the agents “badgered” or “cajoled” him into providing the drugs and there is no evidence they did.

Ellenhom testified, without contradiction, a physician needed more information than knowledge of the patient’s blood pressure and his subjective complaint before prescribing the dmgs Douglass provided the agents. He maintained a responsible physician must personally spend 20-30 minutes conducting the initial physical examination. This was in addition to information supplied to the doctor by the nurse and noted in the patient’s medical chart. Ellenhom concluded on each occasion the agents presented Douglass no information representing a medical indication which should be treated by the dmgs Douglass prescribed. Thus, according to Ellenhom, had a physician accepted as tme all that the agents told Douglass, he should not have prescribed as he did. Accordingly, there is no evidence the agents entrapped Douglass.

We realize the facts here are similar to those in Patty v. Board of Medical Examiners, supra, 9 Cal.3d 356 . Nevertheless, the Patty court emphasized Dr. Patty’s naivete (9 Cal.3d at p. 369) and his severe illness (id., at p. 360) and

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Admissibility of Evidence

BMQA challenges the court’s ruling “[t]he Scolaro evidence should not have been considered.” At the administrative hearing, Douglass tendered six separate grounds against the introduction of the documentary evidence on which Dr. Ellenhom based his opinion.^[14] (7) At the superior court, however, Douglass argued the documents were hearsay on which the ALJ could not rely and BMQA had not properly laid the foundation for the introduction of documents.^[15] The superior court agreed, finding this evidence inadmissible hearsay and thus insufficient for reaching a decision and concluded BMQA’s findings were not supported by the weight of the evidence.

All relevant evidence is admissible at administrative hearings provided it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. (Gov. Code, § 11513, subd. (c).) Hearsay evidence can only supplement or explain other evidence; the decisionmaker may not rely on hearsay alone except when the evidence could be admitted as an exception to the hearsay rule in a civil action. (Ibid.)

BMQA strenuously argues, because the rules of evidence do not apply in administrative hearings, the ALJ correctly permitted it to introduce the documents. Moreover, BMQA maintains these documents are statements by Douglass and qualify under the party admission exception to the hearsay rule.^[16]

The records here, out-of-court statements purportedly made by Douglass,^[17] constitute hearsay. Douglass incorrectly argues the ALJ improperly permitted BMQA to introduce the documents before it laid a foundation to authenticate them. A trial court has the discretion to control the order of testimony and the introduction of evidence. (Code Civ. Proc., § 607; McLellan v. McLellan (1972) 23 Cal.App.3d 343 , 353 [ 100 Cal.Rptr. 258 ].) In a civil trial, a court could allow potentially inadmissible evidence to be introduced subject to the opponent’s motion to strike if the proponent of the evidence was unable to lay a foundation for the evidence. (Pacific Gas & E. Co. v. G. W. Thomas Dray age etc. Co. (1968) 69 Cal.2d 33 , 40, fh. 7 [ 69 Cal.Rptr. 561 , 442 P.2d 641 , 40 A.L.R.3d 1373 ].) Because administrative hearings are less formal than civil trials (see generally, Gov. Code, § 11513), the ALJ certainly would have the same discretion to control the order of evidence and testimony in an ad