Med. Bd. of Cal. v. Superior Court,

Filed 1/7/2

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

MEDICAL BOARD OF CALIFORNIA,

C037790

Petitioner,

(Super. Ct. No. 99CS02282)

v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

Respondent;

WILLIAM BRYCE MCLEOD,

Real Party in Interest.

The Medical Board of California (Board), having found that

William Bryce McLeod, a licensed gynecologist and obstetrician,

had engaged in at least 15 acts of unprofessional conduct with

both patients and nurses, revoked but stayed the revocation of

his license, and placed him on probation with various

conditions. The superior court sustained the Board’s findings

of unprofessional conduct but concluded the penalty was too

severe and the conditions of probation were inappropriate.

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The Board seeks a writ of mandamus to set aside the judgment

reducing the penalty, contending that the trial court usurped

the Board’s discretion to determine the appropriate penalty.1

We issued an alternative writ of mandate. Having considered

the matter, we now agree with the Board and issue a peremptory

writ pursuant to Business and Professions Code section 2337.

FACTS

On remand from the superior court, the Board made

175 factual findings. Those voluminous findings form the basis

on which the Board revoked, and then stayed, McLeod’s license

and imposed terms of probation. We need only highlight a few of

his transgressions to demonstrate that the Board did not abuse

its discretion in penalizing him for his unprofessional conduct.

Our summary is, therefore, brief.

Many patients testified that Dr. McLeod made them extremely

uncomfortable with both what he said and what he did. While

squeezing one patient’s nipples during a breast examination, he

remarked, “I bet you don’t let your husband do this anymore,”

and during a pelvic examination he commented, “I bet you don’t

let your husband make love to you much these days.” With

1 McLeod contends the case is not ripe for appellate review
because the Board has not rendered a second decision following
the court’s second remand. Petition to this court for a writ of
mandamus is proper and is, in fact, the only vehicle to obtain
review by this court. (Bus. & Prof. Code, § 2337; Leone v.
Medical Board (2000) 22 Cal.4th 660, 663-664.) McLeod cites no
authority to compel the Board to issue yet another decision
before we can review the trial court’s ruling.

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another, he assured her that her sex life would improve after

she had a hysterectomy, as his wife’s had; thereafter, he tried

to rehook her brassiere without permission. When the elastic

popped loose, he reached for it and, in doing so, rubbed his

hand against her breast. He gave a third patient a breast

examination during almost every prenatal visit even though the

standard of care for a patient without specific complaints is

to give only one breast examination during a pregnancy. While

examining another patient’s breast, he pointed to bumps around

the nipple known as the “follicles of Montgomery” and told the

patient’s boyfriend he could see who had been pregnant by

looking for these bumps on the nipples of models in Playboy

magazine.

Dr. McLeod examined one of his patients very late in the

day. There was no chaperone present. He shaved her genital

area, closely examined her, and took photographs of her vulvar

lesions. Although the examination was finished, he stayed in

the room while she dressed. He then asked her about a lesion

below her shoulder, pulled up her brassiere without her consent,

and palpated her lower breast. Walking her to her car after

the examination, he asked her when she would stop being a “sex

slave” to her boyfriend.

What began as reciprocal horseplay with nurses at the

hospital escalated into unwelcome physical touching and resulted

in a group of nurses reporting McLeod’s behavior to their

supervisor. They reported that McLeod tried to unsnap the

ons of their work smocks, pretended to take off a nurse’s

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pants on several occasions, and pulled nurses to sit on his lap.

He put his hands on one nurse’s shoulders, backed her up against

a wall, and told her he wanted to touch her breasts. He was

warned by hospital administrators to refrain from unprofessional

conduct with the staff. Nevertheless, he later allowed nurses

to sit on his lap in the nurses’ station.

Based on these findings, the Board revoked his license,

stayed the revocation, and placed McLeod on probation for five

years subject to various terms and conditions. McLeod

petitioned the superior court for a writ of administrative

mandamus. Although the court upheld the factual findings, it

granted the petition for a writ of mandate and ordered the

matter remanded to the Board to issue a new decision. The Board

changed its conclusions of law consistent with the trial court

ruling. These conclusions are not challenged in these

proceedings. At issue is the penalty imposed by the Board. The

Board revoked McLeod’s license but stayed the revocation. It

also placed him on probation for five years with various terms

and conditions, including enrollment in an ethics course, the

presence of a chaperone during all examinations of female

patients, and clinical training through the University of

California’s physician assessment and clinical education program

(PACE program) to obtain an understanding of appropriate sexual

boundaries and an awareness of patient sensitivities.

McLeod filed a supplemental petition for a writ of

administrative mandate, challenging the Board’s decision on

remand. Again, the superior court granted the petition and

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ordered the Board to set aside its decision and to issue a new

decision.

DISCUSSION

“There is no other profession in which one passes so

completely within the power and control of another as does the

medical patient. [Citation.] The physician-patient

relationship, built on trust, was violated by [Dr. McLeod].

[Citation.] Nor does the absence of any resulting physical harm

negate the damage done that relationship.” ( Shea v. Board of

Medical Examiners (1978) 81 Cal.App.3d 564, 578-579.)

McLeod minimizes the seriousness of his conduct, accusing

the Board of imposing prudish, Victorian standards. He ignores,

however, the fundamental principles limiting the scope of our

review of the Board’s determination of an appropriate penalty.

“[T]he propriety of a penalty imposed by an administrative

agency is a matter vested in the discretion of the agency and

its decision may not be disturbed unless there has been a

manifest abuse of discretion. [Citations.] ‘[I]n reviewing the

penalty imposed by an administrative body which is duly

constituted to announce and enforce such penalties, neither a

trial court nor an appellate court is free to substitute its own

discretion as to the matter; nor can the reviewing court

interfere with the imposition of a penalty by an administrative

tribunal because in the court’s own evaluation of the

circumstances the penalty appears to be too harsh. [Citation.]

Such interference . . . will only be sanctioned when there is an

arbitrary, capricious or patently abusive exercise of

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discretion.’ [Citation.]” (Cadilla v. Board of Medical

Examiners (1972) 26 Cal.App.3d 961, 966 (Cadilla).)

We look to the action of the Board, not the trial court.

(Landau v. Superior Court (1998) 81 Cal.App.4th 191, 217.)

“One of the tests suggested for determining whether the

administrative body acted within the area of its discretion is

whether reasonable minds may differ as to the propriety of the

penalty imposed. The fact that reasonable minds may differ will

fortify the conclusion that there was no abuse of discretion.”

(Cadilla, supra, 26 Cal.App.3d at p. 968.) In medical cases

such as this, protection of the public is paramount. ( Bryce v.

Board of Medical Quality Assurance (1986) 184 Cal.App.3d 1471,

1476.)

McLeod specializes in gynecology and obstetrics, a

specialization requiring sensitivity to patients’ privacy and

respect for the patients’ sexual boundaries. The Board and the

trial court found multiple transgressions of those boundaries,

which amounted to unprofessional conduct. Similarly, the Board

and the trial court also found McLeod’s behavior with the

hospital nurses was unprofessional.

The Board is charged with protecting the public from

physicians whose personal sense of appropriate behavior with

patients and staff is skewed. The trial court’s barometer may

have differed from the Board’s, but it is the Board and not the

court that has the discretion to assess the nature of the

misconduct and to determine an appropriate penalty. When, as

here, reasonable minds may differ as to whether a stayed

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revocation was too harsh, we must defer to the professional

assessment of the Board.

We can find no abuse of discretion. McLeod emphasizes

that he was exonerated of sexual misconduct and negligence

allegations. The Board expressly found he was not a sexual

predator. But that is not to say the Board abused its

discretion by imposing a restrained penalty to curb

unprofessional conduct falling short of sexual misconduct.

Quite to the contrary, the Board was justified in revoking the

license of a physician who had demonstrated a pattern of making

offensive remarks to his patients and offensive physical contact

with hospital staff and with his patients. He retained the

ability to practice his profession, albeit with the benefit of

education and monitoring. Hence, the Board’s measured response

is well within the ambit of its discretion.

McLeod also objects to one of the conditions of his

probation. He contends that enrollment in the PACE program is

far too onerous a burden for the minor transgressions he

committed. He objects to the evaluation of his medical skills

as well as the appraisal of his psychological condition,

required of all participants in the program, insisting that

there were no findings reflecting a problem with either his

medical competence or his psychological health. The trial court

agreed.

Again, we must emphasize that neither a trial court nor a

Court of Appeal can interfere with the Board’s exercise of

discretion. The evaluations conducted by the PACE program are

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a routine component required of all participants. Because the

PACE program is individualized, the initial assessment is

necessary to facilitate the design of a custom program tailored

to meet the enrollee’s specific deficiencies. Whether the

assessment process is longer or more involved than McLeod needs

is not for an appellate court, or a trial court for that matter,

to determine. We must conclude that the Board did not abuse its

discretion by referring McLeod to the PACE program to curb his

unprofessional conduct, a program that reasonably includes a

comprehensive evaluation of the physician’s competence and

mental health.

We also conclude that enrollment in the PACE program is not

duplicative of a separate condition of probation to take an

annual course in patient boundaries and sensitivities. As the

Board points out, enrollment in the PACE program might satisfy

the condition for the first year of probation. Thereafter,

however, an annual course would help to prevent a relapse into

the kind of unprofessional conduct upon which the discipline was

based.

We need not consider whether the trial court erred by

directing the Board to modify one of its findings. As both

parties concede, the modification would not affect the basis for

discipline or the penalty imposed.

The judgment granting the peremptory writ of administrative

mandate is reversed and the case remanded to the trial court

with directions to recall the peremptory writ and to enter

judgment denying the petition. When this decision becomes

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final, the stay is to be vacated. The alternative writ, having

served its purpose, is discharged. Petitioner shall recover the

costs of this proceeding.

RAYE , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

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