Foster v. Medical Bd. of California

Filed 1/10/07 Foster v. Medical Bd. of California CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

INTRODUCTION

This case concerns whether the immunity from suit provided to public employees pursuant to Government Code section 821.6 immunizes employees of the Medical Board of California from suit when they falsely report to a third party that a doctor has been the subject of discipline and must take and pass a professional competency examination. We hold that it does. Accordingly, we affirm the trial court's judgment entered upon a demurrer sustained without leave to amend.

FACTS AND PROCEDURAL BACKGROUND[1]

Appellant Lionel S. Foster, M.D., is a licensed medical doctor board certified in urology. In 1998 the San Jose Medical Clinic, Inc. transmitted to respondent Medical Board of California a report that appellant's clinical privileges were restricted as a result of quality of care concerns. Respondents[2] commenced an investigation regarding the circumstances surrounding the suspension of appellant's clinical privileges.

In the course of the investigation, appellant informed respondents that an arbitration proceeding concerning the allegations made against him resulted in an award in his favor and the restoration of his clinical privileges. Thereafter, respondents sought an expert opinion from a urologist concerning the charges of unprofessional conduct made against appellant. Materials forwarded to the urologist by respondents did not include any mention of the arbitration or the outcome in favor of appellant. The urologist prepared a report that concluded appellant had departed from the standard of care. Notwithstanding appellant's earlier vindication in the arbitration proceeding, respondents concurred in that conclusion and referred appellant for disciplinary action. A disciplinary accusation was filed against him.

There was an attempt to resolve appellant's disciplinary case by a stipulation that would have required him to take a professional competency examination. If he passed the examination, the accusation against appellant was to have been withdrawn. The lawyer prosecuting the accusation against appellant was unaware of the arbitration that ended in appellant's favor. So, the stipulation was not acted upon, and instead the accusation was referred for another clinical opinion. This time, the reviewing physician concluded that appellant had not departed from the standard of care. So, pursuant to an agreement reached following the ineffective stipulation, the accusation against appellant was withdrawn by respondents and the disciplinary proceeding was terminated in appellant's favor.

Notwithstanding the termination of the disciplinary proceeding in appellant's favor, respondent reported to the Federation of State Medical Boards[3] that appellant was the subject of a September 24, 1999, disciplinary order that required him to take and pass an oral clinical examination in urological surgery.

Based upon this false reporting by respondents of a disciplinary order against him, appellant filed suit for libel, invasion of privacy, a violation of the Medical Practices Act and a violation of the Information Practices Act. Respondents demurred, in part, on the grounds that they were immune from suit under Government Code section 821.6.[4] The trial court sustained the demurrer without leave to amend.

DISCUSSION

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