Opinion
C084573
10-31-2019
RAJWANT KAUR CHAHAL, Plaintiff and Appellant, v. BOARD OF REGISTERED NURSING, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201680002379CUWMGDS)
The Board of Registered Nursing revoked plaintiff Rajwant Kaur Chahal's license to practice as a registered nurse. It found plaintiff had committed gross negligence, incompetence, and professional misconduct.
Plaintiff petitioned the superior court for writ of administrative mandate, and now appeals the denial of her petition.
She contends the Board did not inform her of the grounds of her discipline, its decision is not supported by substantial evidence, and it wrongfully denied her petition for reconsideration. She also claims the trial court exceeded its authority by relying on grounds for discipline that had not been alleged by the Board to uphold the Board's decision.
We affirm the judgment.
FACTS AND PROCEEDINGS
The accusation against plaintiff was based on two incidents of malfeasance. The first involved her treatment of a patient who fell and was rendered unconscious for a time, and the second involved her failure to administer scheduled medications to three patients. We summarize the evidence that was presented at the administrative hearing.
First Incident
Shokoufeh Azima worked as an intake nurse at the Valley Medical Center's clinic in the Santa Clara County main jail. The intake nurses screen patients brought to the jail by arresting officers to determine whether they are medically stable for custody. If a patient is not stable, the intake nurse calls a "Code 3," stabilizes the patient, and arranges to have the patient transported to a hospital. A Code 3 is a medical emergency, like a Code Blue in a hospital.
No physicians work with the intake nurses. A physician is on call during regular hours. During off hours, the nurses rely on their clinical judgment to exercise their discretion. They follow standardized procedures, which are guidelines developed by the medical director to aid the nurse in making their decisions.
On September 9, 2012, Azima was working as the intake nurse. Peggy London and plaintiff, both registered nurses, were also working in the same area of the clinic, referred to as booking. That day, Azima and London were doing intake and plaintiff was doing TB screening.
Around 10:00 p.m., an arresting officer brought a patient, J.J., to Azima. J.J. had been medically cleared at a hospital to be taken into custody after being treated for a head injury. He injured his head by hitting it against a car window. He told Azima he had no medical problems and was on no medications. However, he had been masturbating excessively and his penis was bleeding.
Azima went back to ask for a sergeant to help her take J.J. into a room where she could examine him privately. But as she got up to go back to J.J., she heard a loud sound, like a bowling ball hitting the ground, and then screams. She went to see what had happened and found J.J. lying flat on his back on the concrete floor, unconscious. His eyes were closed, and foam was coming out of his mouth. Azima asked the officers to call a Code 3.
London saw J.J. fall. He fell flat backwards. She heard a thump hit the floor, screamed for Azima to come, and ran straight to J.J. London called the code.
Video from surveillance cameras recorded the incident. J.J. fell backward with his body completely straight. He did not bend at his knees. His head and back hit the floor.
Video also showed where plaintiff was when J.J. fell. Before he fell, plaintiff walked over to a wall where officers do fingerprinting. She was at the wall with her back toward J.J. when he fell. There was no possible way plaintiff could have seen J.J. fall.
With London helping, Azima assessed J.J. He had a pulse and was breathing. She could not open his eyes to check his pupils because his eyeballs were rolled back up. He was unresponsive. Azima rubbed his sternum with her knuckles, a procedure that is painful to the patient, to arouse him. After the sternal rub, J.J. opened his eyes and started talking incoherently.
Plaintiff came over and knelt by J.J. She said the patient was okay and they could get him up to a chair. Azima disagreed. She said to plaintiff, "He's not fine, and we're waiting for the Code 3 ambulance to arrive." London said, "This patient should not be moved. He hit his head. He's not supposed to be moved." But the officers quickly got J.J. up and into a chair. Plaintiff gave her directive to move J.J. even though J.J. was not her patient; he was Azima's patient. The nurses worked as a team, but Azima took the leadership role because J.J. was her patient.
Plaintiff announced she was going to call the on-call physician, Dr. Nguyen. She informed Dr. Nguyen that she witnessed the fall and that the patient was fine and did not need to go to the hospital. London heard plaintiff. She went up to plaintiff and yelled loud enough for Dr. Nguyen to hear, "No . . . [t]he patient is not okay. And [plaintiff] was not present when the patient fell. And the patient had a head injury, and he needs to go out Code 3." Then plaintiff said, "Per Dr. Nguyen, Code 3 has been cancelled." The officers cancelled the Code 3.
London said, "Raj [plaintiff], you did not see this patient fall. You were not there." Dr. Nguyen apparently heard London's yelling. Plaintiff acknowledged to the doctor on the phone that she had not seen J.J. fall. Dr. Nguyen then reinstated the Code. The correctional officers were told to call the Code 3 again and send the patient out.
The cancellation and reinstatement of the Code 3 delayed J.J. receiving treatment from 30 to 45 minutes. London reported the incident immediately to management.
Marian Anderson is the nurse manager at the main jail. She investigated the incident involving J.J. At a nursing leadership inquiry meeting with Anderson on February 14, 2013, plaintiff described what happened. She said she saw J.J. start to go down and then heard his head hit the floor. Asked if she saw J.J. fall, plaintiff said she saw him going down. She assessed him, and after seeing there was no bump on his head or other signs or symptoms of a head injury, she told the other nurses she would call Dr. Nguyen. On the phone, she told Dr. Nguyen that J.J. had no numbness and was moving all his extremities. She asked the doctor if J.J. could be accepted into the booking department and be monitored. Dr. Nguyen said it was okay.
The doctor heard the other nurses protesting and asked what they were saying. After she explained, Dr. Nguyen said J.J. needed to go out. Asked by Anderson why she contacted the doctor when the other two nurses had declared a Code 3, plaintiff said she was not aware a Code 3 had been ordered. Asked why she would call the doctor when the other two nurses told her the patient should go out, plaintiff said she just wanted a second opinion. She had not asked the other nurses about calling Dr. Nguyen; she initiated the call on her own. She said her not knowing what the other nurses were deciding to do with J.J. and her interfering with them was a miscommunication.
Anderson asked plaintiff what her plan of care was for J.J. if he had been accepted at the jail. She said she would do "neuro checks." Anderson asked what the signs and symptoms of a head injury were. Plaintiff said J.J. was confused at times and incoherent because he was a schizophrenic. Anderson said a head injury could also cause those symptoms. Plaintiff said she had looked at the electronic record and felt she had enough information to determine J.J. could be accepted.
Anderson asked plaintiff what signs and symptoms she would be looking for if J.J. had been accepted. Plaintiff was not able to give Anderson a complete picture of what she would be assessing. She again mentioned that J.J. had anxiety. Anderson asked if she was aware that a change in mentation or anxiety or confusion can be an initial sign of a head injury, and that there is no way to tell. Plaintiff said she had palpated J.J.'s head and did not feel a bump, so she believed he did not have a head injury.
Anderson testified that palpation is not how to rule out a head injury. She said, "The only way to rule out a head injury is to do an X-ray, CT scan."
Reviewing J.J.'s chart, Anderson saw that the arresting agency had stated J.J. had experienced a Total Appendage Restraint Procedure (TARP). Plaintiff said she was not aware of that. Anderson said had plaintiff read all the reports, she would have seen the TARP notation. Anderson testified that the jail automatically rejects patients who have experienced TARP until they have been medically cleared because of that procedure.
Anderson was concerned about plaintiff's level of knowledge about head injuries. She asked plaintiff if she knew the first signs of increasing cranial pressure, meaning there is bleeding or swelling in the brain. Plaintiff said it was dizziness or a headache and an unsteady change of pulse pressures. Anderson told her the earliest indicator of deteriorating neurological status is a change in the level of consciousness. To truly establish the patient's symptoms, the nurse must know the patient's baseline mentation. Plaintiff did not know J.J.'s baseline. Plaintiff's reliance on J.J.'s psychiatric history in his electronic record did not establish a baseline mentation. Without additional testing at the hospital, one could not establish whether J.J. was confused because of a psychiatric illness or an injury.
As part of her investigation, Anderson interviewed Azima and London and reviewed the applicable policies and procedures. Standardized procedures give the jail nurses the autonomy and authority to initiate certain types of medical care in the absence of a physician which otherwise only a physician could initiate. The nurses begin learning the standardized procedures as soon as they are hired and are trained on them regularly.
The standardized procedures for head injuries address the need for spine mobilization and the effect of the patient's losing consciousness. They direct the nurse to "[p]erform manual C-spine immobilization." They continue, "If the patient has no signs or symptoms listed above and has full head and neck range of motion, discontinue manual C-spine precautions."
J.J. was not immobilized after he fell. When he was on the ground, the nurses could not determine if he had full head or neck range of motion. Anderson stated that because J.J. had a scalp laceration, suffered a period of unconsciousness, was disoriented, and had fallen backward onto a cement floor, C-spine immobilization should have been initiated.
Regarding the effect of loss of consciousness when treating head injuries, the standardized procedures authorized the nurse to call the physician if the patient lost consciousness for less than five seconds. However, the procedures stated that if the patient lost consciousness for more than five seconds or it was after hours, "the patient needs to go out to Valley Medical Center Emergency Department, Code 3."
J.J. had been unconscious for about 30 seconds. Anderson testified that because J.J. lost consciousness for more than five seconds, he should have "gone out Code 3." Anderson could not think of anything that would have excused a nurse from sending J.J. out Code 3.
Anderson testified there was no rationale for plaintiff taking over J.J.'s care. It was not appropriate to do that in this circumstance. Plaintiff offered no explanation for why she took over J.J.'s care. Her doing so delayed his care in an emergency. Anderson found no reasonable explanation for why plaintiff delayed J.J.'s care or departed from the standardized procedures.
From her investigation, Anderson concluded that plaintiff's actions "were unprofessional." Anderson continued, "I believed that she was not truthful about the situation, that she misrepresented to the physician the patient's presentation. She minimized the patient or deliberately downplayed the potential for an injury there. And I found her actions to be unacceptable." Plaintiff misrepresented that she saw J.J. fall, and she was not able to reasonably explain her actions. Anderson recommended that plaintiff be suspended for one week. The suspension was not carried out because of a hearing officer "snafu."
Second Incident
Plaintiff conceded that she failed to give certain patients their required medication. On August 24, 2014, she was working at the jail as the day shift charge nurse. One of her duties was to distribute medications to inmates housed in a particular unit at 1:00 p.m. On this day, she forgot. She left the jail when her shift ended at 3:00 p.m. without informing the oncoming shift that she had not given the medications.
Three patients did not receive their medications. One was not given methadone, which was prescribed for chronic pain; another was not given Neurontin, which was prescribed as an anti-convulsant to treat a seizure disorder; and the third was not given Pentasa, which was prescribed to treat ulcerative colitis. The patients complained later that day, and they were given their medications. They suffered some discomfort but no significant harm.
The shift supervisor informed Anderson that medications had not been administered. Anderson learned it had been plaintiff's assignment. She investigated the incident, which included a meeting with plaintiff in an investigative interview on September 27, 2014. Plaintiff said she was relatively new to the charge nurse position and she forgot to give the medications. She said she forgot because there was "a man down." A man down is the term used to describe a medical emergency of some sort within the jail, like a Code Blue in a hospital. Anderson reviewed the officer logs for that day and determined there had not been a man down incident.
Anderson also learned that plaintiff had not completed a report about the failure to provide medication. A patient's safety network report is a self-reporting mechanism for nurses to notify the administration and the medical community in charge that medications had been missed or omitted. Plaintiff did not complete this report. Plaintiff remembered before her shift ended that she had forgotten to give the medications, but she did not do anything about it.
From her investigation, Anderson concluded that plaintiff had omitted the prescribed medications, had not been truthful about the man down incident, and did not self-report. Plaintiff also did not ask for help to distribute the medications, nor did she tell the incoming charge nurse about the omission.
Expert Opinion
Jeanette Kirschner testified at the administrative hearing as an expert witness for the prosecution. Kirschner had been a registered nurse for approximately 24 years, and she retired after working 10 years as a nurse in different correctional facilities for the Los Angeles County Sheriff's Department.
To reach her conclusions, Kirschner reviewed the various reports prepared about the two incidents, the standardized policies and procedures, and plaintiff's written statement, and she observed the testimony of the prosecution's other witnesses during the administrative hearing. She did not personally interview any of the witnesses, as the Board had instructed her not to. Instead, she relied on documented witness interviews performed by an investigator.
In Kirschner's opinion, plaintiff committed acts of gross negligence, incompetence, and unprofessional misconduct when she interfered with the treatment of J.J. It was gross negligence, incompetence, and unprofessional conduct not to recognize J.J.'s emergent situation that required him to be transferred to the emergency department. Plaintiff should have known that not transferring J.J. to the hospital after he suffered a head injury risked his life. Every RN should know that "[i]f someone receives a head injury, you have to have it cleared, at the very minimum, by having a CAT scan. And the only way to do that is to send the patient out to the Emergency Department."
It was gross negligence, incompetence, and unprofessional conduct not to immobilize J.J. When someone falls and hits his head, no one at that point can determine whether he incurred a neck injury or fracture. Moving the person could aggravate the situation, possibly injuring the patient's nerves and causing paralysis. Every RN should know that if a person falls, hits his head, and is rendered unconscious, the person should not be moved.
It was gross negligence, incompetence, and unprofessional conduct not to describe J.J.'s condition accurately to the on-call physician. Because plaintiff did not see J.J. fall, she could not give the doctor complete information about what happened. As a result, he based his initial decision to cancel the Code 3 on her incomplete description. Kirschner said cancelling the Code 3 in this case "was the wrong call." A nurse must be very objective when describing things to a physician, and the nurse can do that only if he or she witnessed the event. Plaintiff gave misinformation to Dr. Nguyen.
It was also unprofessional conduct for plaintiff, when she met with Anderson in the first investigative interview, not to report the incident involving J.J. accurately. Plaintiff was dishonest with nursing management, which is unprofessional. Nurses must be completely honest because they are dealing with people's lives.
In Kirschner's opinion, it was gross negligence, incompetence, and unprofessional conduct for plaintiff not to administer the medications to the three patients. The omission could have resulted in injury to the patients.
It was gross negligence, incompetence, and unprofessional conduct for plaintiff not to have alerted the oncoming shift or a physician that she did not administer the medications. By failing to report, she excluded vital information the oncoming staff could have used to give the patients relief.
Kirschner also stated it was incompetence and unprofessional conduct when plaintiff did not initiate an incident report on the missed medications and when she did not explain the incident honestly to Anderson in the second investigative interview.
Defense
English is plaintiff's third language. At the administrative hearing, plaintiff admitted she did not see J.J. fall, but she said she did not ever tell anyone that she saw him going down. She heard something fall, turned, saw London was by J.J., grabbed her gloves, and went to him. She never stated she saw J.J. sliding backwards towards the right. She asked the arresting officers how he fell, and that is what they told her. It was her practice to ask the first witness what happened. The officers told her how J.J. fell, and she put that in her report. She did so because the way it was explained, J.J. did not hit the ground directly on the back of his head. She told Anderson she saw J.J. standing there. She did not see him fall and hit the ground.
When she got to J.J.'s side, she watched Azima assess J.J. She held his neck with both hands to keep it straight. She saw Azima give J.J. a sternal rub. In her opinion, J.J. was Azima's patient. She was just there to help. In emergent situations, the nurses work as a team. She continued holding his neck to maintain a C-spine. When J.J. started moving and getting up on his own, the officers took over and she stepped back. The officers took J.J. to a chair. She did not instruct them to do that. She did not say a word at that time.
Plaintiff began talking with J.J. after he was seated in the chair. He said he had been hearing voices which told him to kill it, referring to his private area. She asked if he had any mental health issues. He said he had schizophrenia and schizoaffective disorder. She asked if he was in pain. He said he had no headache or numbness. He was alert and oriented at the time. Plaintiff noticed the laceration on J.J.'s forehead and asked the officers about it. They explained to her how he got it.
According to plaintiff, Azima told the officers she was not going to accept J.J. because he had the laceration. The officers said they had struggled with J.J. for the last four to six hours. They appeared upset with him. They did nothing to stop or break his fall.
Plaintiff called Dr. Nguyen because she was concerned about the officers and J.J. being upset with each other. She did not know if it was safe to send J.J. back to the hospital with these officers, so she asked Dr. Nguyen if they could accept J.J. and send him out later if something came up. She told him J.J. fell and that she did not see any serious injury, but he might have one. She asked if they could keep him in the lobby and monitor him. The doctor said it was okay to accept him.
When plaintiff announced the doctor's decision, London screamed at her and used swear words. Azima said they were not going to accept the patient. If plaintiff wanted to, she would be the one to accept him. Plaintiff agreed she would. London threatened to write plaintiff up and complain about her and said this was not right. Still on the phone, plaintiff asked Dr. Nguyen if he heard that. He had. She told him the other nurses thought that J.J. should go out now. He replied, "Okay. Be on the safe side, send him out then." By then, the other nurses had left J.J., so plaintiff took charge, informed the officers J.J. would go out with them, and completed the paperwork.
Plaintiff was not aware the other nurses had called a Code 3 when she spoke with Dr. Nguyen. She did not cancel a Code 3, and Dr. Nguyen did not ask to cancel or reset the code. A Code 3 was never cancelled because nobody called it. Plaintiff stated that Anderson's notes from her discussions with Dr. Nguyen and the Control while investigating this matter showed that Control said there was not a record of a cancellation or restart of any code. The ambulance that eventually came was called only one time.
Regarding the second incident, plaintiff testified that on that day, she was the charge nurse. Usually, she would have two support nurses to help her with the charge nurse work, but on that day, she was by herself. After her break around 12:00 or 1:00, as she planned the rest of her shift, she remembered she had to do pill call (give medication to patients). It was too early then, so she went back to her other duties. She got busy and forgot to do the pill call. She could not recall what made her busy. When patients don't receive their medication, they often ask the officer to call the nurse. That did not happen while she was there. The patients received their medications about one hour later than they would have had she not forgotten.
When plaintiff met with Anderson about the incident, she gave her a list of possibilities that could have happened that made her forget to give the medications. She said, " ' It might have been there's assessments, somebody has called me to assess the patient or something else or a man down.' " She said she initially remembered but afterward forgot.
On cross-examination, plaintiff admitted that after the J.J. incident, she sent an e-mail to the manager explaining what happened. She wrote, "I saw on my way out to the lobby this gentleman was standing then all a sudden, slowly, slide down on the floor on this right side then on back." She testified this was the explanation the officers gave her of what happened; she did not see J.J. fall.
Plaintiff prepared a declaration under penalty of perjury for the Board's investigator. She wrote, "I step in when I saw him going backwards and falling on the floor to help my coworkers." She testified that she meant to say his going back and falling on the floor was explained to her by the officers, but she didn't say that.
Asked why she called Dr. Nguyen if she did not know a Code had been called, and thus J.J. would have been staying there, plaintiff said she called in case she needed to send him out within 15 or 30 minutes. She denied telling the officers to move J.J.
Plaintiff testified that J.J. got up on his own; the nurses and the officers did not make him get up. In her e-mail to the manager, she wrote, "We made him to get up and sit on the chair."
Board's Action
The Board filed an accusation against plaintiff. It accused plaintiff of gross negligence, incompetence, and unprofessional conduct for failing to (1) recognize the emergency situation with J.J. that required him to be transported back to the emergency department; (2) immobilize J.J. after he fell and hit his head on the floor; (3) accurately describe J.J.'s condition to the attending physician; and (4) accurately report what she observed of the incident with J.J. when she met with Anderson.
The Board also accused plaintiff of gross negligence, incompetence, and unprofessional conduct for failing to (1) administer the medication to the three inmates; (2) be honest in her explanations of the events during the ensuing investigation; (3) initiate an incident report; and (4) alert the oncoming shift and/or physician that she had not administered the medications.
After hearing the evidence summarized above, the administrative law judge (ALJ) in its proposed decision revoked plaintiff's nursing license. The ALJ found Azima's and London's testimony more credible than plaintiff's and found the expert's opinion credible in every respect. Clear and convincing evidence established that plaintiff's conduct relating to J.J. and forgetting the pill call constituted gross negligence, incompetence, and unprofessional conduct. The ALJ wrote: "Under these circumstances, revocation of [plaintiff's] license is necessary for the protection of the public. [Plaintiff] cannot be trusted to serve the best interests of her patients and cannot be trusted to be honest with her employers or the Board. It would be against the public interest to allow her to retain her registered nursing license, even on a probationary basis."
The Board adopted the ALJ's decision as its own.
Plaintiff petitioned the Board for reconsideration. She sought to present character evidence in the form of numerous letters written by others and her job evaluations to show her genuine remorse and her rehabilitation, and to reassure the Board she was a safe and competent nurse. About one week after serving her petition, she received a letter from the Board's decisions and appeals analyst informing her that "no evidence outside of the administrative record [would] be permitted at this time." The Board also heavily redacted plaintiff's petition for reconsideration to remove all references to the character evidence she had sought to introduce. A few days later, the Board denied the petition.
Petition for Writ of Administrative Mandate
Plaintiff filed a petition for writ of administrative mandate in the Sacramento County Superior Court to set aside the Board's decision. She contended that revoking her license based on her alleged false statements was unlawful. The Board was legally required to inform her in its accusation of the acts or omissions with which she was charged, and the accusation did not inform her that she was being charged with making false statements.
Plaintiff also contended the Board denied her a fair hearing by denying her petition for reconsideration. Specifically, the Board violated the separation of powers principal when it had a staff analyst, instead of itself, determine that no evidence outside of the administrative record would be accepted for reconsideration. The analyst's actions also were an unlawful ex parte contact between the decision-maker and the Board's employees.
Further, plaintiff contended that the Board's decision to revoke her license was not supported by credible evidence, as the Board ignored evidence of her rehabilitation, relied on an expert witness who had not conducted an independent investigation or interviewed her, and relied on the testimony of witnesses who were biased against her.
The trial court denied the petition for writ of mandate. The court ruled that plaintiff received adequate notice of the charges against her. The Board did not rely on dishonesty as a separate ground for revoking her license. It referenced her dishonest conduct in discussing the factual circumstances in the two incidents that led it to conclude she committed gross negligence, incompetence, and unprofessional conduct.
The court also concluded that plaintiff was not denied a fair hearing when the Board refused to allow her to augment the administrative record with her petition for reconsideration and redacted portions of her petition. Plaintiff introduced no evidence showing a prosecutor, advocate, or investigator communicated ex parte with an agency decision-maker. Plaintiff also did not show the Board was required to consider her supplemental evidence on reconsideration, abused its discretion in not considering the material, or arbitrarily redacted portions of her petition for reconsideration.
Finally, the court rejected plaintiff's contention that the Board's decision was not supported by credible evidence. Exercising its independent judgment, the court determined the weight of the evidence supported the Board's determinations that Azima, London, Anderson, and the expert witness were more credible than plaintiff. The Board also did not abuse its discretion by revoking plaintiff's license as the discipline for her misconduct.
Plaintiff raises the same arguments before us as she raised in the trial court. She also contends the trial court exceeded its jurisdiction by relying on grounds for discipline not alleged in the Board's accusation for upholding the Board's decision.
DISCUSSION
I
Standard of Review
"When a trial court rules on a petition for writ of mandate following a license revocation, it must exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 & fn. 10; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69, (Yakov); Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568.) After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court's function 'is solely to decide whether credible, competent evidence supports [the trial] court's judgment.' (Yakov, supra, 68 Cal.2d at pp. 69, 72 ['the question before this court turns upon whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court's conclusion . . . '].)" (Finnerty v. Board of Registered Nursing (2008) 168 Cal.App.4th 219, 227.)
" ' "On questions of law arising in mandate proceedings, we exercise independent judgment." ' (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) Because 'the trial and appellate courts perform the same function' in addressing such questions, 'we apply our independent review without reference to the trial court's actions.' (Ibid.) Thus, 'it is a settled appellate principle that if a judgment is correct on any theory, [we] will affirm it regardless of the trial court's reasoning.' (Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-1193.)" (Moustafa v. Board of Registered Nursing (2018) 29 Cal.App.5th 1119, 1129.)
II
Adequate Notice of the Charges
Plaintiff contends the Board violated her due process rights, as codified in Government Code section 11503, by not fully informing her of the acts she committed and the statutes or rules she violated that justified discipline. Specifically, she claims the Board did not notify her it would impose discipline based on her dishonesty to her employer, nor did it inform her of the statute her dishonesty violated. We disagree.
A. The Accusation
The accusation against plaintiff charged her with violating Business and Professions Code section 2761, subdivision (a) and subdivision (a)(1), and sections 1442, 1443, and 1443.5 of title 16 of the California Code of Regulations. (Statutory section references that follow are to the Business and Professions Code, unless otherwise stated.) We recite section 2761 and the regulations as the accusation stated them.
Section 2761, subdivision (a), authorizes the Board to take disciplinary action against a licensed nurse for, among other things, "[u]nprofessional conduct, which includes, but is not limited to, the following: [¶] (1) Incompetence, or gross negligence in carrying out usual certified or licensed nursing functions."
As used in section 2761, " 'gross negligence' includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life." (See 16 Cal. Code Regs., § 1442.)
Also as used in section 2761, " 'incompetence' means the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse as described in [California Code of Regulations, title 16,] Section 1443.5." (See 16 Cal. Code Regs., § 1443.)
Section 1443.5 reads: "A registered nurse shall be considered to be competent when he/she consistently demonstrates the ability to transfer scientific knowledge from social, biological and physical sciences in applying the nursing process . . .," and lists a number actions the nurse must be capable of doing when caring for a patient. (See 16 Cal. Code Regs., § 1443.5.)
In its accusation, the Board alleged the primary facts regarding the incident with J.J. As part of those allegations, the Board alleged that "[d]uring a nursing leadership inquiry on February 14, 2013, [plaintiff] falsely reported that she had seen the arrestee/patient fall, when in fact, video surveillance depicts [plaintiff] with her back to the arrestee/patient as he fell."
The Board contended plaintiff committed gross negligence and incompetence under section 2761(a)(1), and unprofessional conduct under section 2761(a), in part because she "[f]ailed to accurately report what she observed during the February 14, 2013 nursing leadership inquiry."
The Board also alleged the primary facts regarding the incident where plaintiff forgot to give three patients their medication. It further alleged that plaintiff, during an investigative interview on September 27, 2014, said she forgot to administer the medications in part because "there was a 'man down' (the functional equivalent of a code blue in a correctional institution) situation and that she got busy. However, further investigation determined that there was no man down situation on August 24, 2014 and that [plaintiff] was dishonest with the facility's investigators."
The Board contended that plaintiff committed gross negligence and incompetence under section 2761(a)(1), and unprofessional conduct under section 2761(a), in part when she "[w]as dishonest in her explanation of events during investigation, as alleged . . . ."
B. Analysis
Government Code section 11503 required the Board in its accusation to allege the wrongful act and the statute or rule the act violated. The accusation must "set forth in ordinary and concise language the acts or omissions with which [plaintiff] is charged, to the end that [she] will be able to prepare . . . her defense. [The accusation] shall specify the statutes and rules that the [plaintiff] is alleged to have violated . . . ." (Gov. Code, § 11503, subd. (a).)
The accusation must include factual information supporting the alleged violation, not just a list of statutes or regulations that can be interpreted to encompass any activity the agency finds to be inappropriate. (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 242-244 [charge of sexual assault did not give student notice he would be disciplined for other students' conduct with the victim or his leaving the room afterward].) "Disciplinary action cannot be founded upon a charge not made." (Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522, 527-528 [charge of deceit, misrepresentation, or fraud for forester's estimation error did not inform him he would be disciplined for gross incompetence].)
However, administrative proceedings " 'are not bound by strict rules of pleading. . . . So long as the respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, he cannot complain of a variance between administrative pleadings and proof. [Citations.]' (Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 213.)" (Margarito v. State Athletic Com. (2010) 189 Cal.App.4th 159, 170 [no due process violation where agency accused licensed boxer of using adulterated material to wrap his hands but changed its theory to strict liability based on his trainer's actions where the boxer argued against strict liability at the administrative hearing]; cf. Smith v. State Bd. of Pharmacy (1995) 37 Cal.App.4th 229, 243-244 [accusation alleging pharmacist personally dispensed drugs unlawfully was inadequate to discipline pharmacist on theory of negligence for not supervising dispensing done by others where pharmacist had no opportunity to defend against a negligence charge].)
The Board's accusation against plaintiff sufficiently alleged both the acts of dishonesty for which she would be disciplined and the statute and rules which those acts violated. There can be no dispute that the accusation alleged the acts of dishonesty with which she was charged sufficiently for her to defend against them. It alleged she was dishonest when she told Anderson in their 2013 meeting that she saw J.J. fall. It also alleged she was dishonest when she told Anderson in their 2014 meeting that she forgot to administer the medications because there was a man down.
These factual allegations were pleaded with enough specificity that plaintiff was able to defend against them. And she did. At the administrative hearing, she admitted she did not see J.J. fall, but she said she did not tell anyone that she saw him going down or that she saw him slide backwards toward his right. She also testified that when she met with Anderson in 2014 to explain why she forgot to administer the medication, she gave Anderson a list of possibilities that could have explained why she forgot to give the patients their pills. A "man down" was only one of those possibilities; it was not a dispositive answer.
Where the accusation informs the person of the specific violation of which she is accused, and she is able to defend against that violation, no due process violation occurs. (Margarito v. State Athletic Com., supra, 189 Cal.App.4th at p. 171.)
Plaintiff, however, argues the accusation did not state what statute or rule her actions violated. She asserts dishonesty is not a stated ground for discipline under either subdivisions (a) or (a)(1) of section 2761. She states, "While . . . section 2761(a) lists a litany of possible actions that can be considered unprofessional conduct, neither the remaining criteria, nor the one specifically singled out in the Accusation, subsection (a)(1), incompetence or gross negligence . . . refer to dishonesty as an element for discipline." Plaintiff also accuses the Board of claiming at the trial court for the first time that dishonesty was a cause for discipline under a regulation not referenced in the accusation, section 1444 of title 16 of the Code of Regulations.
While dishonesty arguably does not fall within the regulatory definitions of gross negligence and incompetence, it stretches credulity to argue that an employee's dishonesty to her current employer who is investigating her alleged malfeasance on the job does not constitute unprofessional conduct—particularly in a trusted field such as nursing.
Section 2761 lists types of actions that constitute unprofessional conduct, but the list is not exclusive because subdivision (a) provides that unprofessional conduct "is not limited to" the examples given. (Moustafa v. Board of Registered Nursing, supra, 29 Cal.App.5th at pp. 1136-1137.) Thus, conduct may qualify as unprofessional conduct under subdivision (a), even if not listed elsewhere in section 2761. However, the unlisted conduct cannot by itself establish unprofessional conduct. The conduct is unprofessional conduct only if it sufficiently establishes that the person is unfit to be a nurse. (Id. at p. 1139.) The conduct must affect the person's "present or potential unfitness to practice nursing in a manner consistent with the public health, safety, or welfare." (Ibid.)
" '[A] statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession.' (Hughes v. Board of Architectural Examiners [(1998) 17 Cal.4th 763,] 788.) Thus the state can impose discipline on a professional license only if the conduct upon which the discipline is based relates to the practice of the particular profession and thereby demonstrates an unfitness to practice such profession. 'There must be a logical connection of licensees' conduct to their fitness or competence to practice the profession or to the qualifications, functions, or duties of the profession in question.' (Clare v. State Bd. of Accountancy (1992) 10 Cal.App.4th 294, 302.) [¶] . . . Where a licensing statute does not require a showing of a nexus between the licensee's conduct and the licensee's fitness or competence to practice, the statute must be read to include this 'nexus' requirement to ensure its constitutionality. (Marek v. Board of Podiatric Medicine [(1993) 16 Cal.App.4th 1089,] 1096.)" (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 769-770.)
The dishonest conduct alleged in the accusation demonstrates plaintiff's unfitness to practice nursing, and thus qualifies as unprofessional conduct on which discipline can be based under section 2761, subdivision (a). "[N]urses hold positions of extreme trust . . . ." (Moustafa v. Board of Registered Nursing, supra, 29 Cal.App.5th at p. 1140.) Expert witness Kirschner testified that nurses "have to be honest because we're dealing with people's lives here. And we have to be completely honest with what goes on." Supervisor Anderson testified it was critical for nurses to self-report their errors, especially in the jail setting where they have so much autonomy. She said nurses "have to have professionalism and the training and the integrity to self-report because there's so much at risk. If you give the wrong medication or you give - make a medication error, you have to report that, because it may require treatment. [¶] . . . [W]e have to self-report, we have to self-govern ourselves in our practice. And I have to trust that nurses do that." If a hospital cannot trust a nurse, it is putting itself and its patients at risk.
Plaintiff's dishonesty to her employer under these circumstances, dishonesty that was clearly alleged in the accusation, was conduct that demonstrated her unfitness to practice nursing consistent with public safety and welfare, and it was sufficient evidence on which the Board could discipline her for unprofessional conduct. Because plaintiff received notice of her actions that were the basis of the accusation and the statute they violated, she received adequate notice under Government Code section 11503 and due process protections.
Plaintiff contends the Board erred when it relied on a regulation not stated in the complaint, section 1444 of title 16 of the Code of Federal Regulations, to find her dishonesty constituted unprofessional conduct. She also contends the trial court erred by relying on additional statutes to uphold the Board's decision. Because we have upheld the Board's action based solely on section 2716, the statute on which the accusation is expressly based, we need not address these arguments.
III
Sufficiency of the Evidence
Plaintiff contends the Board's decision to revoke her license is not supported by substantial evidence because the expert witness based her opinion on an incomplete review of the evidence, and Azima and London were biased against her. She claims the Board erred "by not accurately characterizing these witnesses or according their testimony proper weight."
How the Board characterized the witnesses or weighed their testimony is not our concern. Our function is to decide whether substantial evidence supports the trial court's judgment. On that question, our power "begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . ." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original italics.) So long as there is substantial evidence, we must affirm. (Id. at p. 874.)
Substantial evidence is evidence that is " 'of ponderable legal significance. . . . It must be reasonable . . ., credible, and of sold value. . . .' (Estate of Teed (1952) 112 Cal.App.2d 638, 644.)" (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
When reviewing a record for substantial evidence, we do not evaluate the credibility or motives of witnesses except in the rarest of cases. " ' " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " (People v. Thornton (1974) 11 Cal.3d 738, 754.)' (People v. Maciel (2013) 57 Cal.4th 482, 519.) These appellate rules of review apply to the testimony of expert witnesses as well as that of lay witnesses. (Daly v. Wallace (1965) 234 Cal.App.2d 689, 693.)
"As the reviewing court, '[w]e resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' (People v. Maury (2003) 30 Cal.4th 342, 403.)" (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.)
This is not a case where we may weigh a witness's credibility. There is nothing in the record before us that indicates it is physically impossible for the testimony of the Board's witnesses to be true. Nor is the falsity of their testimony apparent without resorting to inferences or deductions.
We thus apply our traditional substantial evidence review, and in doing so, we conclude substantial evidence supports the trial court's judgment. We have recited above the evidence that supports the court's judgment and need not repeat it here.
IV
Petition for Reconsideration
Plaintiff contends the Board violated her right to a fair process by the way it handled her petition for reconsideration. She asserts she had a right to have the Board consider and review additional evidence she submitted with her petition before the Board ruled on the petition. She argues the decision by an agent of the Board not to consider additional evidence and to redact portions of the reconsideration petition violated Government Code section 11430.30, subdivision (a), which prohibits a Board adviser from diminishing or modifying evidence in the record. She also claims the agent's action violated the separation of powers doctrine, was an unlawful ex parte communication under Government Code section 11430.10, and arbitrarily denied the Board access to arguments and evidence she submitted in support of her petition. We do not agree.
A. Background
The Board issued its decision revoking plaintiff's license on May 24, 2016. It was set to become effective on June 23, 2016. Plaintiff timely filed a petition for reconsideration on June 15, 2016. The petition contained more than 100 pages of mitigation evidence she had not introduced before. Twenty-five pages consisted of letters vouching for plaintiff's character and ability and nine pages were continuing education certificates of completion. Except for plaintiff's resume, the remaining documents were copies of her job evaluations. On June 17, 2016, the Board stayed the effective date of its decision for seven days, to July 1, 2016, to allow it time to consider plaintiff's petition.
By letter dated June 22, 2016, Christyl Cobb, a decisions and appeals analyst for the Board, informed plaintiff that regarding her petition, "no evidence outside of the administrative record will be permitted at this time." At the same time, someone at the Board redacted all references to the new evidence from plaintiff's petition.
On June 28, 2016, the Board denied plaintiff's petition.
B. Analysis
Government Code section 11521, subdivision (b), grants the Board discretion to reconsider its decision "on all the pertinent parts of the record and such additional evidence and argument as may be permitted." Plaintiff reads this statute to grant the Board discretion to ignore the evidence she attached to her petition and to rule against the petition, but she asserts she is entitled to have the petition and its exhibits reviewed by the Board, and not an agent of the Board, before the Board makes either of those decisions. She is incorrect. The Board has the discretion not to accept or review any additional evidence attached to her petition for reconsideration that was not part of the record when the Board made its decision. (Gov. Code, § 11521, subd. (b).)
Plaintiff counters that an agent of the Board was not authorized to redact portions of her petition, and doing so violated Government Code sections 11430.10 and 11430.30, subdivision (a). Government Code section 11430.10 prohibits ex parte communications between agency employees and those who will adjudicate the accusation. Government Code section 11430.30 provides an exception to the rule prohibiting ex parte contacts. Under Government Code section 11430.30, an otherwise prohibited communication is allowed where the communication "is for the purpose of assistance and advice to the presiding officer from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall not furnish, augment, diminish, or modify the evidence in the record." (Gov. Code, § 11430.30, subd. (a).)
Plaintiff argues the redacted petition demonstrates there was an unlawful ex parte contact. She also claims her petition for reconsideration was part of the "evidence in the record," and thus the Board employee who redacted the petition and removed the exhibits violated Government Code section 11430.30, subdivision (a), violated the separation of powers doctrine, and acted arbitrarily. First, there is no evidence in the record that the Board employee who redacted the petition unlawfully communicated ex parte with the Board to make the redactions. No evidence shows that employee was an investigator, prosecutor, or advocated in the proceeding or it preadjudicative stage.
Second, although the petition was not part of the record that was before the Board when it ruled on the accusation, and no reported case discusses the situation before us, we agree the Board's striking of portions of the petition on its own motion without first notifying plaintiff appears contrary to principles of due process. However, without affirmatively deciding that issue, we hold any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.705].) All of the redacted portions of the petition referred to or quoted from the additional evidence which the Board had lawfully determined it would not accept. The redactions thus were not unjustified, arbitrary, or prejudicial. Had they not occurred, there is no reasonable doubt the Board would have denied the petition, as the redacted material referred to evidence that was not before it. Any error was harmless.
Finally, during oral argument, plaintiff suggested the Board erred when it failed to set forth in a written order its decision not to consider evidence outside the existing administrative record. We do not find that argument in appellant's briefing and, thus, may consider it forfeited. But in any event, plaintiff cites no authority for her argument and we are not aware of any requirement that the Board issue an order on its decision to disallow new evidence.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the Board. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
DUARTE, J.