ROBERT SINAIKO, M.D., Petitioner V. MEDICAL BOARD OF CALIFORNIA, Respondent.

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No. PETITION FOR WRIT 0F ADMINISTRATIVE MANDAMUS AND SUPPORTING MEMORANDUM 0F POINTS AND AUTHORITIES (CCP SECTION 1094.5) TRIAL DATE: DEPARTMENT:

TO THE ABOVE COURT:

Petitioner, ROBERT SINAIKO, M.D., petitions this Court for a writ of mandate under Code of Civil Procedure Section 1094.5, directed to Respondent, MEDICAL BOARD OF CALIFORNIA,, and by this verified petition, alleges as follows:

1. Petitioner, at all times mentioned in this Petition, has been and now is licensed as a physician, under a license issued by Respondent and has for more than 29 years engaged in the practice of medicine.

2. At all times mentioned in this petition, Respondent has been and now is the agency charged with administering the provisions of the Medical Practice Act, Business and Professions Code Sections 2000, et. seq.

3. On November 16, 1996, an accusation was filed by Respondent (hereinafter also referred to as "Board") alleging that Petitioner had violated various provisions of the Medical Practice Act.

   On February 27, 1997, a First Amended and Supplemental Accusation was filed.^[1] A six-week hearing was held before an administrative law judge, who thereafter rendered a proposed decision revoking Petitioner's license. On August 4, 1998, Respondent adopted that decision as its own, making the decision effective September 3, 1998. At Petitioner's request, the effective date was stayed. Petitioner then filed a Petition for Reconsideration with Respondent, which was granted. After hearing, by way of briefs and oral argument, the Board filed its Decision after Reconsideration, Exhibit A, the effective date of which was 5:00 p.m. October 4, 1999. The Board revoked Petitioner's license, stayed the revocation, and placed Petitioner on probation under terms and conditions of probation.

4. Respondent's decision is invalid under Code of Civil Procedure Section 1094.5 for the following reasons:

   a.    The decision is in excess of Respondent's jurisdiction, in that:

   1. The following charges in the Accusation, and the consequent findings and determination of issues in the Decision, are barred by the Medical Practice Act Statute of Limitations (Business and Professions Code section 2230-5):

      (a) Regarding patient LTS:

      All charges are barred. Findings 4-25 and Determination of Issues 1. The Accusation was filed November 1, 1996, more than 3 years after the Board was aware of the alleged facts concerning LTS.

      (b) Regarding patient JH:

      Paragraphs 50-53, First Amended and Supplemental Accusation. Findings 26-27 and Determination of issues 2-3. The charges allege incidents which occurred 7 years before the First Amended Accusation was filed.

      (c) Regarding patient SL:

      All charges are barred. The First Amended Accusation was filed more than 7 years after the alleged incidents occurred. Paragraphs 61-70, First Amended and Supplemental Accusation. Findings 37-48 and Determination of Issues 4-5.

   2. The Board has improperly assumed the role of a "court of science," improperly setting standards for the medical profession rather than deciding whether there was a departure from a set standard, thereby punishing Petitioner for being on one side of legitimate, disputed treatment methodologies.

   3. The "cost recovery" found to be "reasonable" by the Board for the sum of $98,945.57, but reduced by the Board in a charitable gesture to only $49,472.79, and the statue permitting such a cost recovery, are unconstitutional because, among other reasons, of its chilling effect on the due process right to a hearing, a right every physician has when accused of violations of the Medical Practice Act by the Board, a right guaranteed by both the United States and California Constitutions.

   b.    Respondent committed a prejudicial abuse of discretion, in that:

   1. The following findings re not supported by the weight of the evidence:

      Findings:

      3a, 3c, 4, 7, 11, 12, 20, 22, 23, 24, 25 (regarding patient LTS); 34, 35, 36 (regarding patient JH); 39, 45, 46, 47, 48 (regarding patient SL); 64, 65, 66 (regarding patient RS); 67, 68, 69, 70, 71, 72, 73, 76, 77, 78, 79, 80, 82.

   2. The following determination of issues are not supported by the findings:

      Determination if Issues:

      1, 2, 3, 4, 5, 6, 7, 8, 19, 11, 12 14, 15, 16, 17.

   3. Petitioner did not receive a fair hearing because:
      • (a) The prosecution committed prejudicial misconduct by using name-calling and slurs against Petitioner in an attempt to brand him as a doctor to be reviled and despised regardless of the facts.

      • (b) The prosecution committed prejudicial misconduct by submitting to the Board Panel conducting the hearing on Petitioner's Request For Reconsideration a document it knew was excluded from evidence by an Administrative Law Judge in a written pre-trial order and which contained known false allegations.

      • (c) The Administrative Law Judge failed to allow Petitioner the opportunity to challenge the reasonableness of the alleged "costs" at the administrative hearing.

      • (d) The Decision After Reconsideration was not written by the Administrative Law Judge sitting with the Panel of the Board considering reconsideration, but by counsel for he Complainant (the Executive Officer of the Board who signed and filed the Accusation), one John Puente, thereby violating the due process prohibition of a combination of prosecutorial and adjudicatory functions when an administrative agency exercises its adjudicatory responsibility.

      • (e) The Board refused to consider evidence proffered at the hearing on reconsideration, admissible pursuant to Government Code Section 11521(b), which was directly relevant to the medical issues, which contradicted the allegations in the accusations, and which showed beyond doubt that Petition's treatment methodologies were accepted by substantial numbers of physicians and by peer-reviewed articles in medical and scientific journals.

   c.    The penalty imposed on Petitioner is arbitrary and capricious, in that:

   1. Other licentiates disciplined by Respondent who have committed far more grievous acts than those alleged against Petitioner have received far less punishment and less onerous terms of probation.

   2. The terms of probation which require that Petitioner have a physician "monitor" his practice, and the conditions under which such monitoring/control must occur, in their practical effect, mean that Petitioner may not practice medicine and his license is effectively revoked.

   3. There is no justification for imposing such supervision on Petitioner, a successful practitioner for over 29 years with no prior discipline, an unblemished reputation for treating difficult patients, and no evidence having been produced that he has ever harmed a patient.

   4. The financial penalty imposed on petitioner ($49,472.79), which he is ordered to pay within 90 days of the effective date of the decision, has no basis in fact, is unreasonable, and cannot be paid by Petitioner because he has no funds left after defending himself in this matter. If he doesn't pay it, he will be deemed by the Board to have violated his probation, and his license is subject to revocation. Thus, the Board may take Petitioner's license for not complying with an order of probation with which it is impossible for him to comply. Because of the capricious and harsh order, Petitioner had no choice but to close his medical practice, and he has done so.

5. Petitioner has exhausted his administrative remedies.

6. Petitioner does not have a plain, speedy, and adequate remedy at law.

7. Petitioner is personally obligated to pay his attorney for legal services to prosecute this action. Petitioner is entitled to recover attorneys' fees as provided in Government Code Section 800 if he prevails in this matter, on the ground that Respondent's decision was the result of arbitrary and capricious action.

8. Petitioner has ordered and received a copy of the administrative record. A copy of the record will be lodged with the Court well before the hearing date. Before the hearing, on a schedule to be set by the Court, Petitioner will file his Memorandum of Points and Authorities.

WHEREFORE, Petitioner prays that:

1. A peremptory writ of mandate issue, pursuant to Code of Civil Procedure section 1094.5, directed to Respondent, and compelling Respondent to set aside its decision;

2. Petitioner recovers his costs in this action, including attorneys' fees pursuant to Government Code section 800;

3. Such other relief as the Court considers proper.

_______________________________
Richard K. Turner
Attorney for Petitioner

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