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Andrew J. Kahn #129776
DAVIS, COWELL & BOWE, LLP
100 Van Ness Avenue, 20th Fl.
San Francisco, California 94102
(415) 626-1880 tel.
(415) 626-2860 fax

Attorney for Amicus Curiae
Union of American Physicians & Dentists




IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO


ROBERT SINAIKO, M.D.,

Petitioner,

v.

MEDICAL BOARD OF CALIFORNIA,

Respondent.

CASE NO. 99 CS 02275

APPLICATION OF UNION OF
AMERICAN PHYSICIANS AND
DENTISTS FOR LEAVE TO FILE
BRIEF AMICUS CURIAE
IN SUPPORT OF PETITIONER;
MEMORANDUM IN SUPPORT
THEREOF

DEPT: 41
Judge Ronald Robie

Date Action Filed: 10/99

TRIAL DATE: Not set


Union of American Physicians & Dentists ("UAPD")
applies for leave to file the attached amicus brief in this matter.

UAPD is an unincorporated association existing for the purpose of representing physicians and dentists. It has several thousand members, and is headquartered in Oakland, California. The bulk of its members live and practice medicine in California. UAPD's concern with the instant case arises out of its longstanding view that physicians should not be disciplined because they try treatments supported by at least a respectable minority in the profession. UAPD was granted leave to present a brief amicus curiae on this issue in Seymour v. Board of Medical Quality Assurance (Cal.Ct. App., 3rd Dist. 1987)(App. A to attached brief; P15 of administrative record).

UAPD has a particular interest in Dr. Robert Sinaiko's case for the following reasons:

  1. Hundreds of its members who are not psychiatrists are being called upon to treat youngsters suspected of Attention Deficit Hyperactivity Disorder (known variously as "ADD" or "ADHD");

  2. There is enormous scientific disagreement about the techniques for diagnosing and treating ADD, as noted recently by the National Institute of Health Consensus Development Conference Statement (Appendix B to attached brief). If discipline here is upheld, that suggests UAPD's members outside psychiatry can lose their licenses for not following the protocol established by psychiatry for dealing with ADD -- without any prior warning from the Medical Board (or other professional sources) that non-psychiatrists must follow this protocol;

  3. This case may well decide whether it is constitutionally permissible for MBC to require payment of investigation and prosecution costs by physicians because they exercised their right to an administrative hearing over loss of licensure.

UAPD's counsel is familiar with the questions involved in this case and the scope of their presentation, and believes further argument is needed on the following points made by Dr. Sinaiko:

  1. Discipline cannot be based on techniques of diagnosis and treatment which are supported by a substantial number of reputable physicians, even if a majority has not yet recognized the effectiveness of such techniques. This is simply because lawyers and others unfamiliar with the medical specialty involved (such as the ALJ, the prosecutors and most Board members) should not indeed, cannot be in the business of deciding questions of medical science. What UAPD adds on this point is a number of precedents not cited by Petitioner.

  2. The Seymour decision to the above effect is binding upon Respondent here as a matter of collateral estoppel. Petitioner and UAPD argued this below and hence the argument is no surprise to Respondent. Courts regularly rely on arguments which an amicus alone presents. See, e.g., Mapp v. Ohio (1961) 367 US 643, 646 n. 3 (deciding to impose exclusionary rule on states even though that position urged only by an amicus); Kolstad v. Am. Dental Ass'n (1999) 527 US 526 (relying on argument made only by amici that employers should be exempted from vicarious liability for certain damages if they make good faith efforts to comply with Title VII).

  3. UAPD cites additional authorities and analysis on the issue of whether it violates due process for the MBC to assess physicians for investigation costs and attorneys' fees for the prosecution.

"Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear upon important legal questions." Bily v. Arthur Young (1992) 3 Cal. 4th 370, 405 n. 14. No court rule is required for a trial court to be able to accept amicus briefs: it is something which falls within a judge's inherent discretion. Hoptowit v Ray (CA 9 1982) 682 F.2d 1237, 1260. The fact that an organization seeking to file an amicus is generally aligned with one party or another is immaterial: "[t]here is no rule, however, that amici must be totally disinterested.". Id. Accord, Strasser v. Doorley (CA 1 1970) 432 F.2d 567, 569("by the nature of things an amicus is not normally impartial.")

UAPD respectfully requests leave to file the attached brief.

DATED: November 8, 2001    Respectfully,

DAVIS, COWELL & BOWE, LLP



By:
Andrew J. Kahn

Attorney for Amicus Curiae
Union of American Physicians & Dentists


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