The Medical Board of California
FACTS AND PROCEDURAL BACKGROUND
In April 1990, the Board filed an accusation charging Leo F. Kenneally, M.D., with gross negligence and incompetence in performing abortions on six patients, three of whom died. The accusation also charged that Dr. Kenneally's failure to use general anesthetics and to have intravenous lines available when conducting second trimester abortions fell below the standard of care. The disciplinary hearing was set for October 1991. In October 1991, Dr. Kenneally filed an action in the United States District Court for the Central District of California alleging the Board's action was brought in bad faith, for purposes of harassment and as the result of bias. The disciplinary hearing was stayed. The district court dismissed the action, based upon the abstention doctrine of Younger v. Harris (1971) 401 U.S. 37 [27 L.Ed.2d 669, 91 S.Ct. 746]. Dr. Kenneally appealed and the Ninth Circuit affirmed the decision. (Kenneally v. Lungren (9th Cir.1992) 967 F.2d 329.) The stay of the disciplinary hearing was lifted.
The disciplinary hearing was rescheduled for April 1993. In February 1993, two supplemental accusations were filed by the Board charging Dr. Kenneally with gross negligence and incompetence in the performance of abortions on two additional patients. Also in February 1993, Dr. Kenneally noticed the depositions of the Board's two expert witnesses, the seven
In April 1993, Dr. Kenneally filed a complaint for declaratory and injunctive relief in the superior court.
The parties stipulated to the issuance of an order to show cause for a preliminary injunction to enable the trial court to consider whether the disciplinary hearing should be stayed until Dr. Kenneally had the opportunity to take the depositions he requested. After a hearing, the trial court issued the preliminary injunction. The trial court found that "Government Code section 11511 on its face and as applied to [Dr. Kenneally] denied him the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution and by article I, section 7 of the California Constitution, because the section denies him the right to take pre-administrative hearing depositions, while lawyers who face license revocation proceedings are accorded such a right."
The Board filed a petition for writ of mandate with this court which we denied because an adequate remedy by appeal existed. In May 1993, the Board filed a petition for writ of supersedeas and request for stay. On May 4, 1993, we issued a temporary stay of the preliminary injunction and expressly stated that the disciplinary hearing, set for May 6, 1993, was not stayed. After Dr. Kenneally's opposition to our temporary stay order was considered, we continued the temporary stay order. The petition for writ of
Dr. Kenneally argues Government Code section 11511 must be reviewed under strict scrutiny analysis for equal protection purposes, based on his contention that his right to continue to practice his licensed profession is fundamental. The Board contends the right is not fundamental and the statute need only be rationally based. We first determine the appropriate standard of review and then review the statute under that standard.
Standard of Review
Recognizing it is the Legislature's responsibility to draw distinctions between groups, and the lines can rarely be precisely drawn, courts generally apply the rational basis test to most legislation. The rational basis test is routinely applied in areas of economic regulation. (Rittenband v. Cory (1984) 159 Cal.App.3d 410, 417 [205 Cal.Rptr. 576].) "The `standard formulation of the test for minimum rationality' [citation] is whether the classification is `rationally related to a legitimate governmental purpose.' [Citation.] Put another way, the classification must bear some fair relationship to a legitimate public purpose." (Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 913.)
"As to the assertion of a right to continued employment, there is no fundamental constitutional right to work for, or to have continued employment with, a particular public or private employer." (Graham v. Kirkwood Meadows Pub. Util. Dist. (1994) 21 Cal.App.4th 1631, 1643-1644 [26 Cal.Rptr.2d 793] [residence requirements for public utility employees]; Rittenband v. Cory, supra, 159 Cal.App.3d 410 [mandatory retirement age for judge]; Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 549 [173 Cal.Rptr. 539] [mandatory retirement age for college professor]; Hetherington v. State Personnel Bd. (1978) 82 Cal.App.3d 582,
Nor is there a distinction for equal protection purposes between the obtaining of a professional license and the maintaining of that license. (Board of Medical Quality Assurance v. Superior Court (1980) 114 Cal.App.3d 272, 277 [170 Cal.Rptr. 468].)
In Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392 [188 Cal.Rptr. 891, 657 P.2d 383], the Supreme Court found a right to a driver's license to be "fundamental" such that an administrative decision relating to the license deserved independent judicial review, but not fundamental such that in an equal protection analysis, strict scrutiny was to be applied. "`[T]he standard of review question with which [the administrative review] cases deal relates to the appropriate relationship between administrative and judicial adjudicatory decisions, and does not concern the constitutional legitimacy or validity of legislative policy judgments at all. Thus, ... the "fundamental right" category does not identify areas in which substantive legislative judgments are in any manner constitutionally suspect or justify unusual judicial scrutiny; rather, that category simply encompasses those quasi-judicial administrative decisions that have "an impact on the individual `sufficiently vital ... to compel a full and independent review' by the court." [Citation.] [¶] Indeed, even a cursory review of the [administrative review] line of decisions makes it abundantly clear that the applicability of the independent judgment standard of review does not in any sense suggest that legislative measures pertaining to the individual interest at issue are properly subject to strict scrutiny review.'" (Id. at pp. 396-397, italics in original; accord, Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 81, fn. 12, 82-85 [177 Cal.Rptr. 566, 634 P.2d 917].) "The Supreme Court cautioned against any `blurring of two separate and distinct senses in which the term "fundamental" is used....'" (Graham v. Kirkwood Meadows Pub. Util. Dist., supra, 21 Cal. App.4th at p. 1643.)
We conclude Dr. Kenneally's right to continue to practice his licensed profession is not a fundamental right for equal protection purposes. Accordingly, in evaluating whether the prehearing deposition provision of Government Code section 11511 denies Dr. Kenneally equal protection, we apply the rational basis test.
Government Code Section 11511
In addition to delay prevention, the restricted use of depositions reduces the overall cost of disciplinary proceedings for all parties. The discovery limitations permit scarce taxpayer resources to be devoted to the investigation and prosecution of more cases. Fewer cases could be processed if extensive depositions were permitted in each case. (Cf. Bowens v. Superior Court, supra, 1 Cal.4th at p. 43.)
These dual purposes of streamlining and reducing the cost of disciplinary proceedings in general obtain even greater importance in the context of physician disciplinary hearings. The medical profession is technically complex and is intertwined in an intimate relationship with the public interest and welfare. (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 18.) The work of physicians has life and death consequences for their patients. Negligent or incompetent physicians endanger the physical and mental health and lives of their patients. There is no profession in which it is
Dr. Kenneally does not seriously contend that the deposition restrictions applicable to physicians are inherently irrational, as it is apparent that the overall discovery procedures available in physician disciplinary proceedings are rationally based. Rather, Dr. Kenneally merely asserts that attorneys have the right to broader discovery than do physicians and that this distinction is irrational. This contention must be rejected.
First, as we have previously pointed out, the Legislature is free to eliminate problems as to one profession without being required to treat all professions identically. Second, the legal profession is not similar to other professions with regard to the imposition of regulations. Unlike other professions, as officers of the court, attorneys have public duties and responsibilities and are ultimately regulated by the Supreme Court. (Cohen v. Hurley (1961) 366 U.S. 117, 123-124 [6 L.Ed.2d 156, 161-162, 81 S.Ct. 954], overruled on other grounds in Spevack v. Klein (1967) 385 U.S. 511 [17 L.Ed.2d 574, 87 S.Ct. 625]; Cammer v. United States (1956) 350 U.S. 399, 405 [100 L.Ed. 474, 478-479, 76 S.Ct. 456]; Keller v. State Bar (1989) 47 Cal.3d 1152, 1160-1161 [255 Cal.Rptr. 542, 767 P.2d 1020], overruled on other grounds in Keller v. State Bar of California (1990) 496 U.S. 1 [110 L.Ed.2d 1, 110 S.Ct. 2228]; Jacobs v. State Bar (1977) 20 Cal.3d 191, 196 [141 Cal.Rptr. 812, 570 P.2d 1230].) Attorney admission and discipline are judicial functions. An exclusive system has been established to admit, regulate and discipline attorneys, including a State Bar, a separate State Bar prosecutorial system and a State Bar Court with its own review department and rules of procedure, all under the auspices of the Supreme Court. (Bus. & Prof. Code, § 6000 et seq.; Cal. Rules of Court, rule 950 et seq.; Keller v. State Bar, supra, 47 Cal.3d at pp. 1159-1163.) The historical position of the legal profession, and the fact that its regulatory system is controlled by the Supreme Court, make it unlike other professions. Finally, physicians have a far greater and immediate impact on the health and life of those they serve than do attorneys. Thus, reduction of delay is more imperative in physician disciplinary proceedings than in attorney disciplinary proceedings.
The discovery legislation concerning physician disciplinary proceedings is presumed valid and will not be found unconstitutional unless it is not rationally related to a legitimate governmental purpose. Here, the limitation on depositions is rationally related to the governmental purposes of reducing
The order issuing a preliminary injunction is reversed. Respondents shall bear appellants' costs on appeal.
Turner, P.J., and Armstrong, J., concurred.
A petition for a rehearing was denied August 23, 1994, and respondents' petition for review by the Supreme Court was denied October 13, 1994.