By: J.J. Hitt Re: Boylan's Appeal - End of Story * Original To : All, 1:308732 * Original

By: J.J. Hitt
Re: Boylan's Appeal - End of Story

 * Original To  : All, 1:30873/2
 * Original From: Ed Stewart, 88:4602/17
 * Original Area: I_UFO
 * Original Date: Feb 16 16:29
 * Forwarded on  by J.J. Hitt of 1:106/9788.2

               THE SUPERIOR AND MUNICIPAL COURT OF CALIFORNIA
                     IN AND FOR THE COUNTY OF SACRAMENTO

                                                    -------------------
RICHARD J. BOYLAN, PH.D.                                  ENDORSED
    Petitioner                                           FEB -8 1996
                                                    By R. ROUSE, Deputy
MEDICAL BOARD OF CA,                                -------------------
BBSE, DCA AND THE STATE
OF CALIFORNIA
    Respondents


                        DECISION ON SUBMITTED MATTER
                              Case No. 95CS02187


        This Petition for Writ of Mandate came on regularly for hearing on
January 19, 1996, in Department 7 of the Sacramento Superior Court, the
Honorable Thomas M. Cecil presiding. Petitioner was present and represented
by counsel, Mr. Richard S. Linkert. Repondents were represented by counsel,
Mr. Arthur D. Taggart. The matter was argued and deemed submitted.

        For reasons set forth below, as well as those stated during the
hearing of January 19, 1996, the Petition for Writ of Mandate is denied.

        This Petition was filed under the authority of section 1094.5 of the
Code of Civil Procedure. It is undisputed that vested rights of petitioner
are at stake. Accordingly, this court has reviewed the administrative record
and exercised its independent judgment. With the exception of one of
respondents' findings, the court has determined that the findings are
supported by the weight of the evidence. Specifically, the court finds the
evidence relative to Determination of issue II insufficient.

        With regard to each of the other Determinations found true by the
ALJ (Nos. 3, 4, 5, 7, 9, and 10), the court finds the evidence in support
overwhelming. Further, separate from the issue of whether evidence in support
of the acts comprising the Determination of issues was presented, the court
specifically notes that in each instance, expert testimony was presented in
support of these determinations. Petitioner's contrary assertion is not
supported by the record.

                                       1

        Petitioner accurately asserts that basic concepts of due process
requires certainty and clarity of the accusations being filed as well as the
need for fundamental fairness in the hearing process. Contrary to
petitioner's assertions, however, the court finds no prejudice occasioned by
the amendments to the accusation. Petitioner was afforded ample opportunity
to address the amendments with the presentation of his evidence and in cross
examining respondents' witnesses.

        In his moving papers as well as during oral arguments on January 19,
petitioner referred to the "thrust" or "focus" of respondents case,
asserting that the resulting "moving target" was constitutionally defective
and required reversal of the administrative decision. As already noted, the
record demonstrates that petitioner was afforded substantial leeway in terms
of responding to changes made to the accusation. Moreover, the mere fact that
petitioner misconstrued the "focus" or "thrust" of respondent's case, does
not diminish or negate the end product. It is commonplace for arguments
originally envisioned to be "winners" to be tossed aside during the course
of trial. Concepts or tactics first deemed unwise often blossom before the
eyes of the litigants.

        In no respect does this court find any violation of the due process
rights of petitioner nor has petitioner been able to demonstrate any
prejudice stemming from the amendments to the accusation.

        Petitioner takes issue with the "delay" in pursuing the complaint
originally lodged with BOP by KG. It should be noted that KG advised the
board of her inability to go forward - alone. It appears that the BOP
acceded to her wish until such time as additional complaints were filed
against the petitioner. Moreover, petitioner is unable to demonstrate any
prejudice resulting from the delay.

        Lastly, petitioner has challenged the level of discipline ordered
by the boards. It is well-established that a penalty determination will
not be disturbed by a reviewing court absent a finding of a manifest abuse
of discretion. The fact that reasonable minds could differ as to the
propriety and necessity of a given sanction is insufficient justification
to overturn a penalty decision.

        The court concurs with the analysis of respondents, both legally
and factually as set out in respondents' Points & Authorities in Opposition.
Moreover, notwithstanding petitioner's efforts to demonstrate that he poses
no risk to the public, his own "Responsive Brief" forcefully reinforces the
position of _respondents_. Petitioner consistently references the notion
that his patients "misconstrued" his intent, or that it was "misunderstood",
or that the risk was "minimal."

                                       2

        Obviously, petitioner holds licenses that confer upon him substantial
obligations. His chosen professions require that he exercise good judgment,
respect his patients' feelings and their needs. Contrary to the position of
petitioner, this court finds almost no evidence of insight into the
inappropriateness of his conduct. To the extent that it exists, it appears
to relate solely to the potential ramifications on his licenses rather than
an acknowledgement of misconduct or grossly inappropriate behavior.

        Petitioner does not comprehend what all of the experts clearly
understood. Petitioner continues to assert that this case is about his
beliefs in alien encounters. It is not. Petitioner fails to grasp the
significance of the expert testimony and the findings as to matters
completely unrelated to aliens. Petitioner's conduct was outrageous,
especially in the light of the underlying reasons for treating these
particular patients. His conduct fell well below the standard of care
expected of his professions and constituted gross negligence. Revocations
are appropriate.

        Respondent is directed to prepare an appropriate order in accord
with this decision, obtain approval as to form from petitioner's counsel
and submit it to this Court.

Dated: 2-8-96 [handwritten]

                                       By: [signature]
                                           ---------------------------
                                              Thomas M. Cecil
                                           Judge of the Superior Court

                          [Superior Court
                           County of Sacramento, California] seal

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