Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CV040860
Kline, P.J.
INTRODUCTION
William (Chun Fu) Zhao appeals from the judgment entered following the order of the Humboldt County Superior Court denying appellant’s second amended petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) by which he sought to overturn the California Acupuncture Board’s (Board) revocation of his license to practice acupuncture.
Appellant contends that the charges on count one involving patient D.H. should have been dismissed on the basis of laches. He further contends that substantial evidence does not support the Board’s finding of gross negligence on count two involving patient J.H., or count three involving department investigator Nickie Bach. He further challenges the Board’s finding cause for discipline related to his business cards.
We shall affirm.
FACTS AND PROCEDURAL BACKGROUND
Much of the statement of facts and procedural background are taken from respondent’s brief, which contains a substantially accurate summary.
Appellant, who at the time of the administrative hearing was 77 years old, was born in China and graduated from medical school there in 1949. Appellant practiced Western and Chinese medicine, specializing in cardiology and surgery and acupuncture. In 1992, appellant moved to Eureka, California, at the invitation of Patrick McCarty and John Yamas, both of whom wanted appellant to teach them about acupuncture, massage, and Chinese herbal medicine. From 1992 until approximately January 1997, appellant worked for McCarty at the East-West Macrobiotic Center (East-West Center). Appellant was issued an acupuncture license by the Board in 1999, subject to a three-year probation, pursuant to a statement of issues filed as a result of appellant’s engaging in the unlicensed practice of acupuncture. At the date of the hearing, appellant’s license was “in full force and effect, with an expiration date of July 31, 2004.”
First cause for discipline—1996 patient D.H.
D.H. first saw appellant for acupuncture treatment in May 1996, at a personal residence at 1005 M Street in Eureka. At the time, D.H. was very depressed and in despair as a result of having suffered from autoimmune disease for several years. During her examination, appellant told D.H. that she had an irregular heart beat and that there was something wrong with her heart. He then unbuttoned her blouse, rubbed and fondled her breasts, and squeezed her nipples. Appellant had her lay on a floor mat and pull down her jeans so that he could examine the lymph nodes in her groin area. After inserting acupuncture needles, appellant began massaging D.H.’s clitoris, over her underwear, while telling her over and over, “I like you. You’re beautiful.” After the acupuncture treatment was completed, appellant advised D.H. that she needed to get tested because she had either cancer, AIDS or tuberculosis. D.H. did not immediately report appellant’s sexual misconduct to the police, nor did she tell her husband. D.H. testified she was in shock and felt ashamed. D.H. returned to appellant’s place of business some weeks later with her husband, hoping to confront appellant. However, when there, she became overwhelmed with shame and anger and did not tell her husband or confront appellant. Rather, she and her husband each received an acupuncture treatment from appellant.
In August 1999, when her symptoms were less severe and she was feeling emotionally stronger, and after she learned of other women who had been touched inappropriately by appellant, D.H. reported the May 1996 incident to the Eureka Police Department. She was advised by the police that a criminal action could not be initiated because the statute of limitations had run.
On February 15, 2000, D.H. filed a complaint with the Board reporting appellant’s misconduct.
Second cause for discipline—patient J.H.
In April 2002, J.H. was employed as an herbalist at Humboldt Herbals in Eureka. She obtained a copy of appellant’s business card from her work and contacted him for an appointment regarding digestive complaints and a possible kidney infection. Appellant’s business card included the designations “M.D.” and “O.M.D.” (Oriental Medical Doctor) though he was not authorized to use such designations. Based upon his business card, J.H. believed appellant to be a licensed acupuncturist and medical doctor.
On April 2, 2000, J.H. saw appellant at a residence on Myrtle Avenue in Eureka. Appellant examined her, checking her wrist pulse and lifting her shirt to listen to her heartbeat with a stethoscope. J.H. was not wearing a brassiere. Appellant advised J.H. that her wrist pulse showed that she was in the first stages of heart disease. Appellant pinched both nipples and noted that the nipple on the larger breast did not become erect. He told her that her breasts were two different sizes and that this difference and the fact that her nipple did not become erect on pinching, indicated that she might have breast cancer, if left untreated. J.H. did not complain to appellant of breast pain or of any symptom or condition related to her breasts. After acupuncture and massage treatment, appellant drew a picture of a breast and discussed the stages of breast cancer development with J.H. He did not refer J.H. to a specialist for further examination regarding possible breast cancer or a heart condition. Rather, he told her that the heart disease could be taken care of in a couple of weeks with further treatment and the cancer could be dealt with by visits over the next five years. A day or two later, J.H. saw another acupuncturist, Marlene Smith, who informed J.H. that breast exams were outside the scope of her practice, confirmed that J.H. had a possible kidney infection, and recommended J.H. see a urologist for that. Subsequently, J.H. had a breast exam at Planned Parenthood. They found nothing conclusive and referred her to a specialist, who informed her that everything looked fine. J.H. incurred out-of-pocket expenses of over $200 for these various medical examinations.
Third cause for discipline—undercover investigator Nickie Bach
In the spring of 2002, Department of Consumer Affairs Investigator Nickie Bach was assigned to investigate the complaint of patient J.H. As part of the investigation, she posed as a patient and saw appellant on July 2, 2002, with fabricated complaints of frequent urination at night and occasional numbness in her hand. Following examination, massage and acupuncture treatment, appellant suddenly and unexpectedly cracked Bach’s neck while she was seated in a chair. After Bach identified herself and explained that she was investigating J.H.’s complaint, appellant agreed to be interviewed by her. During the interview, he advised Bach that he disposed of used needles by melting them down on the kitchen stove until they formed a “clod,” which he then disposed of in his household garbage can located outside.
The accusation
On February 21, 2003, the Board issued an accusation against appellant, alleging numerous violations of the Business and Professions Code relating to the practice of acupuncture. An administrative hearing was held before an administrative law judge (ALJ) on January 5, 6, 7, 8 and 15 and February 18, 2004. D.H., J.H. and Bach testified, as did appellant.
All statutory references are to the Business and Professions Code, unless otherwise indicated.
Appellant’s testimony
Appellant denied that he ever saw or treated D.H. He based his defense primarily upon the claim that he did not reside at 1005 M Street in 1996. His testimony on this point changed repeatedly throughout the hearing. On January 5, 2004, the first day of the hearing, appellant testified that from the time he arrived with his son in Eureka in 1992, through December 1996, they lived in a room above the East-West Center, located at 1122 M Street in Eureka. He expressly denied having an apartment or any other place to live during that time period. On the second day of the hearing, he testified that he lived with his son in the room above the East-West Center until June 1996, and that he did not practice acupuncture anywhere other than the East-West Center during this time. On the third day of the hearing, appellant was impeached with evidence demonstrating he lived at the 1005 M Street address at least by December 1995. He then admitted he was living at 1005 M Street at least by December of 1995. On the fourth day of hearing, appellant testified that he considered both the East-West Center room and 1005 M Street to be his residences during December 1995 to June 1996.
Appellant testified that he had listened to patient J.H.’s heartbeat, and told her that her heartbeat was “disordered.” He acknowledged examining her breasts and identifying lumps, which he determined to be benign. He admitted he discussed the various stages of breast cancer development with J.H. He testified he did not refer J.H. for further medical testing because she told him she had lumps for years, and he believed it was unnecessary for him to recommend a further examination.
Appellant admitted cracking the neck of investigator Bach and testified that he routinely performed this procedure as part of his practice of Chinese medicine.
Appellant also acknowledged that his standard practice for the disposal of used acupuncture needles was to melt the needles on his kitchen stove and to dispose of them in his household trash. He asserted that his disposal method kills germs and is safe.
Expert testimony
The Board’s acupuncture expert, Mary Curry, L.Ac., O.M.D., PhD., testified that acupuncturists are not trained and are not qualified to perform any kind of examination of the breast. She testified that appellant’s touching of the breasts of patients D.H. and J.H., and his rubbing of D.H.’s clitoris, were extreme departures from the standard of practice for an acupuncturist. Appellant’s diagnosing of D.H. with AIDS, cancer or tuberculosis, and diagnosing J.H. with a heart disease and breast cancer or a precancerous condition, were outside the scope of practice and extreme departures from the standard of practice.
Appellant offered as an expert Jeffrey Kauffman, M.D., a licensed medical doctor who is trained in and practices acupuncture. A licensed medical doctor may practice acupuncture and is not required to separately possess an acupuncture license. (See Bus. & Prof. Code, § 4935, subd. (b).) However, Kauffman testified that he was not familiar with the laws regulating the practice of acupuncture in the State of California; that he was not familiar with the scope of practice permitted a licensed acupuncturist in California; and that he was only “somewhat” familiar with the standards of practice for acupuncturists. The ALJ permitted Kauffman to testify, noting that his lack of relevant expertise would affect the weight given his testimony and opinions.
Both expert witnesses Curry and Kauffman agreed that appellant’s cracking of Bach’s neck was outside the scope of practice for an acupuncturist and an extreme departure from the standard of practice. Both also agreed that appellant’s manner of needle disposal was in violation of the laws and regulations relating to the disposal of hazardous medical waste and an extreme departure from the standard of practice.
Board decision
On June 7, 2004, the Board adopted the proposed decision of the ALJ as its decision. On June 23, 2004, the executive officer of the Board filed a petition for reconsideration on the sole ground that the ALJ had failed to award costs, erroneously determining that no evidence had been submitted to establish costs. The Board granted the petition for reconsideration, remanding to the ALJ for reconsideration. After reconsideration by the ALJ, the Board on July 28, 2004 adopted the ALJ’s decision after reconsideration. This decision became effective on August 27, 2004.
The decision revoked appellant’s acupuncture license, finding cause for license discipline to exist under Business and Professions Code section 4955, subdivision (g) (now § 4955.2, subd. (a)) for gross negligence with respect to appellant’s conduct with patients D.H and J.H. and investigator Bach. In addition, with respect to patient D.H., cause for license discipline was found to exist (1) under section 4955, subdivision (f) (now § 4955, subd. (d)), by reason of violation of section 4935, subdivision (a) (practicing without a license); and (2) under section 726 (sexual abuse or misconduct with patient). Finally, cause for discipline was found to exist under section 4955, subdivision (e) for improper advertising (now § 4955, subd. (c)—false or misleading advertising).
Writ petition
Appellant filed a petition for writ of administrative mandamus in the Humboldt County Superior Court. Following a hearing, the court issued a ruling, denying the petition in its entirety, stating:
“The court finds that there is substantial evidence in the administrative record to support the finding of the administrative law judge, and the decision of the Acupuncture Board. Further, the court, exercising its independent judgment, finds that there is clear and convincing evidence to a reasonable certainty which supports the findings that petitioner touched D.H. in a sexual manner, and that the petitioner’s diagnosis was outside the scope of his license. The court also finds that the second cause for discipline is supported by the evidence, as well as the third. It should be noted that there was some disagreement at oral argument as to the correct standard to be used by the administrative law judge and Board. The correct standard is that used by the administrative law judge, pursuant to paragraph numbered 1, page 13 of the Proposed Decision After Reconsideration. [¶] With regard to the contention that the doctrine of laches should apply, the court finds that petitioner has not shown any actual prejudice. Even if such doctrine were to apply to the first cause of discipline, the remainder of the grounds proven was sufficient to justify the discipline imposed.”
Appellant filed a second amended writ petition that was also denied. The order denying the second amended petition and entering judgment in favor of the Board was filed on February 17, 2006. Appellant filed a notice of appeal on February 6, 2006 from the orders denying his writ petitions.
DISCUSSION
I. Standard of Review
Because the case involves appellant’s fundamental right to practice his profession, the trial court was required to exercise its independent judgment on the evidence presented in the administrative hearing and determine whether the weight of the evidence supported the Board’s decision. (Code Civ. Proc., § 1094.5, subd. (c); Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 8:127a, pp. 8-70 to 8-71.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda); see also Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1130; Eisenberg et al., Civil Appeals & Writs, supra, ¶ 8:127a, p. 8-71.)
Although the trial court was required to review the administrative decision under the independent judgment standard, and did so here, our standard of review on appeal of the trial court’s determination is the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824; Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10; Bernstein v. Board of Medical Examiners (1962) 204 Cal.App.2d 378, 385-386; Eisenberg et al., Civil Appeals & Writs, supra, ¶ 8:128, pp. 8-72 to 8-73.)
“ ‘ “When an appeal is taken from the trial court’s determination, it is given the same effect as any other judgment after trial rendered by the court: the only question is whether the trial court’s (not the administrative agency’s) findings are supported by substantial evidence. [Citation.] Conflicts in the evidence must be resolved in favor of the judgment and where two or more inferences can be reasonably drawn from the facts, the reviewing court must accept the inferences deduced by the trial court.” [Citation.] . . . [¶] “Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value.” [Citation.] Additionally, a reviewing court “may look to the findings in [the administrative agency’s] decision for guidance in determining whether the trial court’s judgment is supported by substantial evidence.” [Citation.]’ [Citation.]” (Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786, 796, quoting Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29, 35-36.)
As usual, we review issues of law de novo, applying our independent judgment. (Green v. Board of Dental Examiners, supra, 47 Cal.App.4th at p. 796.)
II. Laches
At the outset of the hearing, appellant raised the defense of laches to the causes for discipline relating to D.H. The Board rejected the defense on the basis that appellant had failed to demonstrate that the delay was unreasonable or that he was prejudiced by it. The superior court also rejected the laches defense, finding that appellant had “not shown any actual prejudice.”
The Board refused to import a three-year statute of limitations as the standard for reasonableness, relying upon Fahmy v. Medical Bd. of California (1995) 38 Cal.App.4th 810 (Fahmy), and concluding that appellant had failed to prove that the Board’s delay in filing the complaint was unreasonable and he had further failed to establish that he was prejudiced by the delay. Specifically, the Board found “[t]here is no reason to believe that [appellant] would have been better able to prepare a defense against the charges pertaining to D.H. had the accusation been filed one, two or three years ago.”
Appellant first argues that the ALJ refused to admit into evidence at the administrative hearing a report of a Board investigation into the complaint by D.H. Appellant contends the investigation report, dated October 20, 2000 (marked as Exhibit H at the administrative hearing) shows that the Board knew of D.H.’s complaint in 2000, investigated and then “dismissed” the complaint. However, appellant was unable to establish a foundation for the report at the hearing, as appellant testified he knew nothing about a Board investigation into D.H.’s complaint against him. No witness was called to testify regarding any details of the report, its manner of preparation, the nature of the statements documented in the report, or its conclusions. The document was not certified by any entity. The ALJ sustained an objection to its admission, finding no foundation had been laid for its admission into evidence. In the circumstances, this ruling was clearly correct.
Moreover, the report is entirely hearsay and appellant did not demonstrate any exception to the hearsay rule applied to render admissible the statements recorded in the report. Although appellant argued that the document was a “public record” at the hearing, he did not provide support for that claim at the hearing, nor did he make such a claim in his appellant’s opening brief. In his reply brief, appellant for the first time on appeal contends that either or both the business records exception (Evid. Code, § 1271) and/or the public records exception (Evid. Code, § 1280) to the hearsay rule applies. He has clearly waived that argument. (Eisenberg et al., Civil Appeals & Writs, supra, ¶¶ 1:44 at p. 1-10, 8:17.1 at pp. 8-5 to 8-6, 9:21 at p. 9-6, 9:78-9:78.2 at pp. 9-24 to 9-25.)
The question of laches remains however. It is undisputed that D.H. first filed her complaint with the Board on February 15, 2000. The Board filed its accusation three years later, on February 23, 2003. Relying upon Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1158 (Brown), appellant contends that this court should reverse the causes for discipline related to D.H. on the ground of laches. As summarized by the court in Lam v. Bureau of Security & Investigative Services, supra, 34 Cal.App.4th at pages 36-37:
“Statutes of limitation and the doctrine of laches are both designed ‘ “ ‘to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’ ” [Citations.]’ (Brown, supra, 166 Cal.App.3d at p. 1161.) These policies also guard against other injuries caused by a change of position during a delay. While a statute of limitations bars proceedings without proof of prejudice, laches ‘requires proof of delay which results in prejudice or change of position.’ (Ibid.) Delay alone ordinarily does not constitute laches, as lapse of time is separately embodied in statutes of limitation. (Id. at p. 1159.) What makes the delay unreasonable in the case of laches is that it results in prejudice. (Ibid.) [¶] It is undisputed that a trial court ‘has the inherent power to dismiss administrative proceedings brought to revoke a state-issued license where there has been an unreasonable delay between the discovery of the facts constituting the reason for the revocation and the commencement of revocation proceedings, and where the licensee has been prejudiced by the delay. The trial court’s determination here should be reversed only upon a showing of manifest abuse of discretion resulting in a miscarriage of justice.’ (Gates v. Department of Motor Vehicles (1979) 94 Cal.App.3d 921, 925.)
“There is one circumstance in which unreasonable delay may be found as a matter of law. ‘In cases in which no statute of limitations directly applies but there is a statu[t]e of limitations governing an analogous action at law, the period may be borrowed as a measure of the outer limit or reasonable delay in determining laches. [Citations.] Whether or not such a borrowing should occur depends upon the strength of the analogy.’ (Brown, supra, 166 Cal.App.3d at pp. 1159-1160.) The effect of the violation of the analogous statute of limitations is to shift the burden of proof to the plaintiff to establish that the delay was excusable and the defendant was not prejudiced thereby. (Id. at p. 1161.)” (Lam v. Bureau of Security & Investigative Services, supra, 34 Cal.App.4th at pp. 36-37.)
The Board relies upon Fahmy, supra, 38 Cal.App.4th 810, an appeal from discipline imposed on a medical doctor in which the appellate court expressly rejected the “borrowing” of an analogous statute of limitations “in the context of a revocation proceeding.” (Id. at p. 817; Green v. Board of Dental Examiners, supra, 47 Cal.App.4th 786, 795.) The basis upon which Fahmy rejected the analogy was the absence of any statute of limitations on physician disciplinary proceedings. (Fahmy, at p. 815.) The court found Brown, supra, 166 Cal.App.3d 1151, “inapposite in the context of a license revocation proceeding.” (Fahmy, at p. 817.) Fahmy noted “that in the 10 years since Brown was decided, the section of the opinion applying a statute of limitations to a laches defense in an administrative setting has never been followed, except by the same court in the recent case of Lam v. Bureau of Security & Investigative Services[, supra, ] 34 Cal.App.4th 29. Even then, the court in Lam refused to apply a statute of limitations by analogy to the laches theory asserted by a locksmith who was having his license revoked after using his professional skill to break into someone’s apartment.” (Fahmy, at p. 817, fn. 5.)
Although neither appellant nor the Board allude to it, the Legislature in 1998 did adopt a statute of limitations for the bringing of accusations against physicians by the Medical Board. Section 2230.5 requires, with some exceptions, accusations to be filed within three years after the board “discovers the act or omission alleged as the ground for disciplinary action, or within seven years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first.” (§ 2230.5, subd. (a).)
Appellant does not contend that this statute undermines the holding of Fahmy in any respect. Indeed, he does not reference Fahmy or this statute in his briefing at all. (Apparently, he did so contend at the hearing, as the decision of the ALJ, adopted by the Board, states: “[Appellant] contends that the holding in Fahmy v. Medical Board of California, supra, 38 Cal.App.4th 810, was undermined when the Legislature enacted a statute of limitations governing Medical Board actions. [Appellant’s] position is not persuasive. The burden remains on [appellant] to prove that complainant’s [Board’s] delay was unreasonable and that he was prejudiced by the delay.”) Appellant has clearly waived any argument that the holding of Fahmy does not apply here. (Eisenberg et al., Civil Appeals & Writs, supra, ¶¶ 1:44 at p. 1-10, 8:17.1 at pp. 8-5 to 8-6, 9:21 at p. 9-6, 9:78-9:78.2 at pp. 9-24 to 9-25.)
Absent importation of a statute of limitations from elsewhere and the shifting of the burden of proof to the Board, appellant bears the burden of showing that he was prejudiced by an unreasonable delay in the bringing of the complaint. We agree with the trial court and the Board that appellant has failed to shoulder that burden.
It is undisputed that D.H. first filed her complaint with the Board on February 15, 2000. The Board filed its accusation slightly more than three years later, on February 23, 2003. The record of the administrative hearing before us contains no explanation for the delay by the Board, nor does it contain any showing regarding prejudice or lack thereof to appellant from the delay. (The briefs of the parties on the laches claim were not included in the record and the oral argument on the issue apparently was not transcribed.) Although in his opening brief appellant contends the delay prejudiced him, he does not explain how. Nor does he cite to the record for evidence of such prejudice. In his reply brief he asserts that prejudice was shown because “the East West Center closed in 1997, and people, memory, and records presumably fade, get lost, are harder to retrieve.” He cites D.H.’s failure to remember the address of appellant’s residence on M Street as an example. However, D.H.’s recollection was refreshed by the police report and she was adamant that the residence at which she was treated by appellant was not the East West Center, with which she was also very familiar. By failing to specify at the administrative hearing how he was prejudiced (insofar as we can determine from the portion of the record before us) and by waiting until his reply brief to address the question in other than conclusory terms, appellant has waived the argument.
The Board clearly viewed any failure of recollection by D.H. as minor. It rejected appellant’s claim that he had never seen or treated patient D.H, which defense was based largely on his claim that in May 1996 he did not reside at 1005 M Street or treat patients there. The Board found appellant’s testimony about his connection with 1005 M Street “inconsistent and lacking in credibility.” It also found that “D.H. has experienced anger and rage at being victimized by [appellant], but there is no evidence that she has any bias or other motive that would cause her to fabricate charges of misconduct. The minor discrepancies among her report to the police, her complaint to the Board and her testimony at the hearing do not detract from the overall credibility of D.H.’s testimony.” Nor did her recollection of the dwelling at 1005 M Street as a single family residence, rather than an apartment building (as described by appellant) or as a duplex or triplex (as described by appellant’s character witnesses) undermine her credibility on the central issues.
Were we to entertain appellant’s prejudice argument, we would, nevertheless, find that the trial court did not abuse its discretion in concluding that appellant failed to carry his burden of showing prejudice from the delay. As we have recognized above, an appellate court reverses the trial court’s determination of a laches question “only upon a showing of manifest abuse of discretion resulting in a miscarriage of justice.” (Gates v. Department of Motor Vehicles, supra, 94 Cal.App.3d 921, 925.) No such abuse of discretion has been shown here.
The trial court concluded that even if laches were held to apply to the causes for discipline involving D.H., the remainder of the causes for discipline proven were sufficient to justify the discipline imposed. We turn to the question of substantial evidence supporting those other causes for discipline.
III. Substantial Evidence
Patient J.H. Appellant argues that various findings of the trial court with respect to patient J.H. are not supported by substantial evidence. He contends first, that his conduct with respect to J.H. did not amount to clear and convincing evidence of gross negligence. He admitted that he conducted a breast examination on J.H. and that he diagnosed her with precancerous lumps in her breasts and a heart disorder. The testimony of acupuncture expert Curry was that appellant’s conduct with respect to J.H. constituted extreme departures from the standard of practice for an acupuncturist.
Appellant further argues that he was not required to refer J.H. to another doctor, after diagnosing her with a heart disease and breast cancer or a precancerous condition because she already knew about her existing medical conditions (heart problems and lumps in her breasts). He discounts J.H.’s contrary testimony as “he said she said.” We point out that even were the conflict in the evidence limited to J.H.’s word against appellant’s, we would be required to find that substantial evidence supported J.H.’s description of events. Moreover, the record contains ample evidence corroborating J.H. Appellant’s diagnosis of a heart and breast condition clearly surprised and alarmed J.H. and this alarm was at odds with his assertion that she knew about these problems. She sought additional medical care for the conditions appellant “diagnosed,” spending out of pocket for such services. Finally, the trial court was entitled to determine, as did the Board, that appellant’s version of events regarding patient J.H. was “not credible.” The Board found appellant’s inclusion of a complaint of breast pain by J.H. in his proffered translation of his patient notes “highly suspect” in view of J.H.’s unequivocal testimony that she did not make such a complaint and the Board’s certified translation of appellant’s patient notes which did not mention breast pain. The Board further found appellant’s “rather feeble excuses for not referring J.H. to a specialist for her breast or heart condition are not believable.”
False Advertising. Appellant concedes his business cards violated the code section relating to the requirement that a person needs certain certifications before they can advertise using M.D. or OMD. (Now § 4955, subd. (c).) The Board advised him in writing of the requirements of the law in regard to advertising. Appellant asserts that he misunderstood the Board’s notice to him concerning what certificates were required before he could advertise using those designations. He argues that he sent the Board the certificates he had obtained in China in an attempt to comply and that the Board never responded to his letter. Such attempt to comply might mitigate the Board’s determination of punishment, but appellant has cited no case holding that the Board’s failure to respond should estop it from pursuing appellant’s violations in this regard or that his asserted ignorance of the requirements somehow undermined the substantial evidence supporting this cause for discipline.
Investigator Bach. Appellant contends that he told Bach he was going to crack her neck and she acknowledged it. He also asserts that his character witnesses supported his practice of telling patients what he was going to do and asking permission where needed. Appellant misapprehends the substantial evidence standard that we apply on review. Although contrary to appellant’s version of events and his assertion that neck cracking was a regular part of Chinese massage, Bach’s testimony as to what occurred and the testimony of Curry (and appellant’s own proffered expert Kauffman) that cracking Bach’s neck was outside the scope of acupuncture practice and an extreme departure from the standard of practice, provide substantial evidence supporting the findings here.
Appellant admits he violated the law in his disposal of used needles, referring to it as a “minor infraction.”
Substantial evidence supports the trial court findings that these causes for discipline were supported by clear and convincing evidence.
Administrative penalty. Appellant does not separately challenge the administrative penalty imposed. Were we to construe his appeal as doing so, we would conclude upon our de novo review of the agency’s determination, that the agency did not abuse its discretion in revoking his license. (See California Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1580 [“Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed”]; Eisenberg et al., Civil Appeals & Writs, supra, ¶ 8:128.3, p. 8-74; Anserv Ins. Services, Inc. v. Kelso, supra, 83 Cal.App.4th 197, 204-205.) Even if the causes for discipline relating to D.H. were eliminated on the basis of laches, it appears to us that ample grounds for revocation of appellant’s license remains, upon the evidence that appellant conducted a breast examination on J.H., that he diagnosed her with precancerous lumps in her breast and a heart disorder, that he cracked the neck of investigator Bach, and that he improperly and contrary to law disposed of hazardous medical waste in his household trash. Substantial evidence was presented that appellant’s breast examination and diagnoses of J.H., and his cracking of Bach’s neck, were outside the scope of practice and extreme departures from the standard of practice for a licensed acupuncturist, as was his method of needle disposal. Given these multiple instances of unprofessional conduct, we cannot say that the Board abused its discretion in revoking appellant’s license.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.