111111111111111111111111111111 - the patient safety …...mbagwu was honored as a two-time recipient...

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet Sep-01-2016 10:08 am

Case Number: CPF-16-515242

Filing Date: Aug-31-2016 1:14

Filed by: ARLENE RAMOS

Image: 05535735

PETITION FOR WRIT OF MANDATE/ PROHIBITION/ CERTIFICATION

NNEAMAKA MBAGWU MD VS. MEDICAL BOARD OF CALIFORNIA

001C05535735

Instructions: Please place this sheet on top of the document to be scanned.

A HORNEY OR PARTY WITHOUT A TT OR NEY (Name, State Bar numberband addressj; Marvin Firestone, MD, JD CA State Bar Num er 1036'/8 Michael Firestone, MBA, JD CA State Bar Number 282479 1700 South El Camino Real, Suite 204 San Mateo, CA 94402

TELEPHONE NO. 650 212-4900 FAX NO. 650-212-4905 ATTORNEYFOR(NameJ. Nneamaka Mba wu, M.D.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

STREET ADDRESS 400 McAllister Street MAI UNG ADDREss 400 McAllister Street

CITY AND z1P coDE San Francisco, CA 94102 BRANCH NAME Northern District

CASE NAME:

Nneamaka Mba wu, M.D. vs Medical Board of California CIVIL CASE COVER SHEET Complex Case Designation

CM-010 FOR COURT USE ONLY

F I LE .D S1,1Perior court of Calif,orrna

eounty of San Francisco

AUG 3 1 2016

CASE NUMBER:

42 [{] Unlimited D Limited D Counter D Joinder (Amount (Amount JUDGE demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT 302

Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case:

Auto Tort Contract

D Auto (22) D Breach of contracVwarranty (06) D Uninsured motorist (46) D Rule 3.740 collections (09) Other Pl/PD/WO (Personal Injury/Property D Other collections (09) Damage/Wrongful Death) Tort D Insurance coverage (18) D Asbestos (04) D Other contract (37) D Product liability (24) D Medical malpractice (45) D Other Pl/PD/WO (23) Non-Pl/PD/WO (Other) Tort

D Business torVunfair business practice (07) D Civil rights (08) D Defamation (13) D Fraud (16)

Real Property D Eminent domain/Inverse

condemnation (14)

D Wrongful eviction (33) D Other real property (26) Unlawful Detainer

D Commercial (31) D Residential (32) D Drugs(38) D Intellectual property (19)

D Professional negligence (25) Judicial Review D Other non-Pl/PD/WO tort (35) D Asset forfeiture (05) Employment D Petition re: arbitration award (11) D Wrongful termination (36) [{] Writ of mandate (02) D Other employment (15) D Other judicial review (39)

Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403)

D AntitrusVTrade regulation (03) D Construction defect (10) D Mass tort (40) D Securities litigation (28) D Environmental/Toxic tort (30) D Insurance coverage claims arising from the

above listed provisionally complex case types (41)

Enforcement of Judgment

D Enforcement of judgment (20) Miscellaneous Civil Complaint

D RIC0(27) D Other complaint (not specified above) (42) Miscellaneous Civil Petition

D Partnership and corporate governance (21) D Other petition (not specified above) (43)

2. This case LJ is W is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management:

a. D Large number of separately represented parties b.D Extensive motion practice raising difficult or novel

issues that will be time-consuming to resolve c. D Substantial amount of documentary evidence

3. Remedies sought (check all that apply): a.[ZJ monetary 4. Number of causes of action (specify): 5. This case D is CZJ is not a class action suit

d. D Large number of witnesses e. D Coordination with related actions pending in one or more courts

in other counties, states, or countries, or in a federal court f. D Substantial postjudgment judicial supervision

b. [ZJ nonmonetary; declaratory or injunctive relief c. D punitive

6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) ~

Date: August 31, 2016 Michael A. Firestone, MBA, JD

(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE

• Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions.

• File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all

other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onlv.

Flaae 1of2

Form Adopted for Mandatory Use Judicial Council of CalifOmia CM-010 [Rev. July 1, 2007]

CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30. 3.220, 3.400-3.403, 3.740; Cal. Standards of Judicial Administration, std. 3.10 www.couttinfo.ca.gov

MARVIN FIRESTONE, MD•JD & ASSOCIATES, LLP 1 Marvin H. Firestone, MD, JD I State Bar No. 103678

FI LED St,!Perior Court of Calffomia

County of San Francisco Michael A. Firestone, MBA, JD I State Bar No. 282479 2 1700 South El Camino Real, Suite 204 AUG 3 1 2016

CLERKJOFTHJ:~RT San Mateo, CA 94402

3 Tele: 650-212-4900 Fax: 650-212-4905

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B'f. \ &Ua.w :K-~ Deputy Clef1<

[email protected] I [email protected]

Attorneys for: Petitioner Nneamaka Mbagwu, M.D.

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO

) Case No.: CPF -16 - 5 15 2 4 Nneamaka Mbagwu, M.D., ) ) VERIFIED PETITION OR WRIT OF

Petitioner, ) ADMINISTRATIVE MANDATE )

vs. ) CCP §1094.5 )

Medical Board of California, ) )

Respondent )

Petitioner, Nneamaka Mbagwu, M.D. ("Dr. Mbagwu" or "Petitioner") submits this

Verified Petition for Writ of Administrative Mandate pursuant to the Code of Civil Procedure

section 1094.5 directed to the Medical Board of California ("Board" or "Respondent"), to set

aside its Decision Following Adoption ("Decision") dated May 12, 2016. The Decision places

Dr. Mbagwu on a five-year period of probation with numerous terms and conditions.

(Attachment 1). Dr. Mbagwu petitioned the Board for reconsideration of the Decision, but her

Petition for Reconsideration was denied on August 5, 2016, making the effective date of the

Decision August 5, 2016. 1

1 Petitioner has attached several numbered Attachments to this Verified Petition for Writ of Administrative Mandate and concurrent Ex Parte Application for Stay of Administrative Decision filed with this Court including the Board's Decision (Attachment 1), Declaration of Nneamaka Mbagwu (Attachment 2) and Petitioner's Petition for Reconsideration of the Board's Decision (Attachment 3). Citations to exhibits in this Verified Petition for Writ of Administrative Mandate will utilize the exhibit numbering format used in the administrative hearing (i.e., numbers for the Respondent and letters for the Petitioner). The administrative record has been requested from the Medical Board of California. Excerpts from the 2-day hearing's transcripts are attached as Attachment 5.

VERIFIED PETITION OR WRIT OF ADMINISTRATIVE MANDATE- I

1 By this Verified Petition for Writ of Administrative Mandate, Petitioner, Nneamaka

2 Mbagwu, M.D., states as follows:

3 I. BACKGROUND

4 A. Petitioner, Nneamaka Mbagwu, M.D.

5 Petitioner, Nneamaka Mbagwu, M.D., at all times mentioned in this Petition, has been

6 and now is licensed as a physician, under a license issued by the Medical Board of California,

7 specializing in Pediatrics and Neonatology, holding Certificate No. A-53749. She resides in

s Bakersfield, California. She was first licensed to practice as a physician in California in 1994.

9 Dr. Mbagwu has no prior record of discipline. Dr. Mbagwu has a vested property right in her

10 license, as Respondent has substantially impaired Petitioner's medical license. (Bixby v. Pierno

11 (1971) 4 Cal. 3d 130, at 144-145; Smith v. Board of Medical Quality Assurance (1988) 202 Cal.

12 App. 3d 316, 326).

13 Dr. Mbagwu received her M.D. from the University of Lagos College of Medicine in

14 1987 in Lagos, Nigeria. From 1987 to 1988, she interned at the Lagos University Teaching

15 Hospital, and from 1988 to 1989, she worked in Ibadan, Nigeria, both at the Catholic Hospital as

16 a general practitioner and also at the National Youth Service Corps. In 1993, she began a

17 Pediatric Internship and Residency at Martin Luther King Jr./Drew Medical Center in Los

is Angeles, which she completed in 1996. She became licensed with the California Medical Board

19 in 1994 and was certified for the first time by the American Board of Pediatrics in 1996, with her

20 most recent recertification lasting until 2023. After completing her Pediatric Internship and

21 Residency in 1996, Dr. Mbagwu began a Neonatology Fellowship, also at Drew Medical Center,

22 which she completed in 1999. During her time as a neonatology fellow, Dr. Mbagwu earned the

23 respect of her peers, being voted the Most Helpful Fellow. From 1999 to 2000, she worked as a

2 4 locum tenens physician in Pediatrics at Southern California Permanente Medical Group

25 (SCPMG), and in 2000, began her employment with them in Pediatrics and Neonatology, which

26 she continued until May 2012. Dr. Mbagwu was honored as a two-time recipient of service

27 excellence from SCPMG, the highest honor given to physicians in the group. From June, 2012

28 to June, 2013, she had privileges at Mee Memorial Hospital in King City, California, as a locum

VERIFIED PETITION OR WRIT OF ADMINISTRATIVE MANDATE- 2

1 tenens physician, some 160 miles from her home and family.

2 Due to the disciplinary proceedings brought against her, Dr. Mbagwu has not been

3 granted hospital privileges since July, 2013 through the present. From 2014-2015, she provided

4 outpatient care to ex-preterm infants discharged from the NICU who were high risk, with birth

s injury, congenital malformations and birth disorders. From 2015-2016, she worked at Altura

6 Centers for Health, but was told by the director to hold off obtaining hospital privileges until the

7 disciplinary proceedings against her were resolved in her favor, but because they were not, that

s employment was terminated. When she obtained employment with Family Healthcare Network

9 in late July, 2016, to take care of newborns at Adventist Hospital, Hanford, and at Valley

10 Children's Hospital, Hanford, she was told during the first week that her employment was

11 terminated because of the Board's Decision (on August 5, 2016) to place her on probation.

12 Given Dr. Mbagwu's devotion and commitment to her medical specialty throughout her years of

13 practice, Dr. Mbagwu has earned nothing but glowing reviews for her work and has had not one

14 instance of discipline but for this matter.

15 Dr. Mbagwu came to the attention of the Medical Board of California because a report

16 was sent by SCPMG relating to her care and treatment of a premature newborn known in these

17 proceedings as Baby H. Baby H's family never lodged any type of complaint or grievance

1s against Dr. Mbagwu. Indeed, other than this proceeding, Dr. Mbagwu's treatment of over

19 10,000 patients in California has not been called into question by any hospital staff, the Medical

20 Board or court proceeding. She has never been the subject of a medical negligence lawsuit.

21 B. Respondent

22 Respondent is the Medical Board of California, part of the Department of Consumer

2 3 Affairs of the State of California, acting through its Division of Medical Quality. Respondent is

2 4 charged with administering the provisions of the Business and Professions Code applicable to the

2 s licensure and discipline of licensed physicians and surgeons in the State of California.

2 6 Respondent is headquartered in the County of Sacramento.

27 C. Venue

2 s Venue is proper in the San Francisco County Superior Court pursuant to Business and


1 Professions Code section 2019, which provides:

2 "The office of the Board shall be in the City of Sacramento. Suboffices may be established in the Cities of Los Angeles, San Diego, and San Francisco or the environs of

3 such cities. Legal proceedings against the board shall be instituted in any one of these four cities .... "

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Code of Civil Procedure section 401(1) provides in pertinent part:

"Whenever it is provided by any law of this State that an action or proceeding against the State or a department, institution, board, commission, bureau, officer or other agency thereof shall or may be commenced in, tried in, or removed to the County of Sacramento, the same may be commenced in any city or city and county of this State in which the Attorney General has an office."

The Attorney General has offices in San Francisco; thus, venue is proper in San Francisco.

D. Beneficial Interest

Petitioner, Dr. Mbagwu, is a person beneficially interested in the issuance of the Writ of

Administrative Mandate by virtue of the fact that her license to practice medicine in the State of

California has been revoked; revocation stayed and placed on probation for five years under

terms and conditions pursuant to the Decision and Order of Respondent Board.

E. Exhaustion of Administrative Remedies

Petitioner has exhausted all available administrative remedies required to be pursued

prior to the filing of this Petition for Writ of Administrative Mandate.

F. There is No Other Plain, Speedy or Adequate Remedy Other Than This Petition

Petitioner, Dr. Mbagwu, has no plain, speedy or adequate remedy to review the Decision

and Order of Respondent other than that provided by way of Writ of Administrative Mandate

review pursuant to Code of Civil Procedure section 1094.5.

G. Procedural History

On November 27, 2013, the Board filed an Accusation against Dr. Mbagwu alleging

gross negligence and incompetence arising from her care and treatment of premature newborn

Baby H in the neonatal intensive care unit (NICU) at San Joaquin Community Hospital

(Hospital) on April 16-17, 2012. An evidentiary hearing took place on March 1-2, 2016 before

Administrative Law Judge (ALJ) Laurie R. Pearlman at the Office of Administrative Hearings in

Los Angeles, California. On May 12, 2016, ALJ Pearlman issued a Proposed Decision, which


1 the Board adopted on June 16, 2016 (the "Decision"). The Decision placed Dr. Mbagwu's

2 license in a probationary status for 5 years with numerous terms and conditions that are

3 unnecessary, unduly harsh, excessive, and punitive, as applied, such that they will effectively

4 prevent Dr. Mbagwu from practicing her profession and supporting herself and her family. For

5 these and other reasons, on July 29, 2016, Dr. Mbagwu filed a Petition for Reconsideration with

6 the Board, which was denied on August 5, 2016. The effective date of the Decision was August

7 5, 2016. Petitioner, Dr. Mbagwu, now seeks de nova review of the Decision by this Honorable

8 Court.

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H. Legal Standards of Review

Independent Judgment

11 The revocation or suspension of a professional license is reviewed under the independent

12 judgment standard. (See, e.g., Griffiths v. Superior Court (Med. Bd. of Cal.) (2002) 96CA4th

13 757; Clare v. State Bd. of Accountancy (1992) 10 CA 4th 294, 300; Board of Dental Exam 'rs v.

14 Superior Court (1976) 55 CA3d 811). Under the independent judgment standard, the court

15 determines whether the weight of the evidence supports the agency's findings. (Chamberlain v.

16 Venture County Civil Serv. Comm 'n (1977) 69 Cal. App. 3d 362, 368). In so doing, the trial

1 7 court has the duty to reweigh the evidence and make its own determination as to witness

18 credibility, independent of those made by the Board. (Barber v. Long Beach Civil Serv. Comm 'n

19 (1996) 45 Cal. App. 4th 652, 65 8). The independent judgment standard requires the trial judge to

20 weigh all of the evidence and resolve any conflicting testimony. (Bogart v. Board of Med.

21 Exam 'rs (1951) 105 CA2d 250, 253). Code of Civil Procedure section 1094.5( c) states that "in

22 cases in which the court is authorized by law to exercise its independent judgment on the

23 evidence, abuse of discretion is established if the court determines that the findings are not

24 supported by the weight of the evidence."

25 Where, as here, the findings are not supported by the evidence and/or the evidence does

26 not support the Board's Decision, the court must either set aside the final decision entirely, or at

27 the very least, remand the matter to the agency for additional findings (C.C.P. section 1094.5(b);

28 Topanga Ass 'nfor a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506) and is


1 authorized by law to exercise its independent review of the evidentiary record. (C.C.P. section

2 1094.5(c); Bixby v. Pierno (1971) 4 Cal. 3d 130, 137). The reviewing court sits as the trier of

3 fact, and the responsibility to make factual determinations is left with it, not the administrative

4 agency. (San Dieguito Union High Sch. Dist. v. Comm 'non Prof Competence (1985) 174 CA3d

5 1176). The trial court may substitute its own judgment to reject the findings of the agency once

6 it has examined those findings under the appropriate standard. (Fukuda v. City of Angels (1999)

7 20 CA 4th 805, 818; Mason v. Office of Admin. Hearings (2001) 89 CA4th 1119, 1130). The tria

8 court may properly rely on evidence, even if the administrative agency discounted it (see e.g.,

9 Tamble v. Downy (1951) 104 CA2d 810; Pittsburgh Unified Sch. Dist. v. Comm 'non Prof

10 Competence (1983) 146 CA3d 964 (trial court did not exceed scope of independent judgment

11 review in making findings contrary to the findings of the administrative agency) and may make

12 its own findings contrary to the findings of the administrative agency. (Levingston v. Retirement

13 Bd. (1995) 38 CA4th 996).

14 Abuse of Discretion

15 Code of Civil Procedure section 1094.5(b) provides in relevant part that in determining

16 the merits, the court's inquiry shall extend to whether there was any abuse of discretion by the

17 agency, and that "abuse of discretion is established if the respondent has not proceeded in the

18 manner required by law, the order or decision is not supported by the findings, or the findings are

19 not supported by the evidence."

2 o Findings that fail to bridge the analytic gap between the evidence and the final decision

21 are insufficient. (See, e.g., West Chandler Blvd. Neighborhood Ass 'n v. City of Los Angeles

22 (2011) 198 CA4th 1506, 1521 (findings insufficient to show how agency "traveled from

23 evidence to action"); Glendale Mem. Hosp. & Health Ctr. V. State Dep 't of Mental Health

24 (2001) 91 CA4th 129 (findings that were terse boilerplate statements did not provide sufficient

25 detail to bridge analytic gap between evidence presented and agency's ultimate decision)).

26 In reviewing the appropriate penalty, the trial court is free to substitute its own judgment

27 for that of the agency, ifthere was a manifest abuse of discretion (Cadilla v. Bd. of Med. Exam 'r

28 (1972) 26 CA3d 961, 967) or the penalty was "grossly excessive." (Richardson v. Bd. of


1 Supervisors (1988) 203 CA3d 486; Skelly v. State Personnel Bd. (1975) 15 Cal. 3d 194, 217;

2 Blake v. State Personnel Bd. (1972) 25 CA3d 541, 553; Magitv. Bd. of Med. Exam'rs (1961) 57

3 Cal. 2d 74, 88).

4 Arbitrary and Capricious

5 "Action is arbitrary not only when it is capricious, but when it lacks substantial support i

6 the evidence, when the facts do not reasonably justify the conclusion. [citations]." (Hollon v.

7 Pierce (1967) 257 Cal. App. 2d 468, 478). An agency decision can be found arbitrary and

8 capricious where the agency "entirely failed to consider an important aspect of the problem,

9 offered an explanation for its decision that runs counter to the evidence before the agency, or is

1 o so implausible that it could not be ascribed to a difference in view or the product of agency

11 expertise [citations]." (Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1122 (9th Cir.

12 1998); see Bicycle Trails Council of Marin v. Babbitt, 82 F. 3d 1445, 1460 (9th Cir. 1996)). "To

13 determine whether an agency action was arbitrary and capricious, the court must 'determine

14 whether the agency articulated a rational connection between the facts found and the choice

15 made."' (Baccarat Fremont Developers v. US Army Corps of Engineers, 327 F. Supp. 2d 1121,

16 1126 (N.D. Cal. 2003), cert. den. (2007), 549 U.S. 1206).

1 7 Court's Consideration of Legal Issues

18 The trial court reviews questions oflaw de novo. (Duncan v. Department of Personnel

19 Admin. (2000) 77 CA4th 1166; Usher v. County of Monterey (1998) 65 CA4th 210, 216).

20 Whether an administrative body failed to act as required by law is a legal issue for the superior

21 court to decide. (See McCormick v. County of Alameda (2011) 193 CA 4th 201, 207).

22 II. SUMMARY OF ARGUMENT

2 3 The evidentiary hearing was fraught with unfairness, from the negligent representation by

24 Dr. Mbagwu's former attorneys, to the exclusion ofrelevant exculpatory evidence, to the

25 improper reliance on the Board's medical expert (Eileen Hoke, M.D.), to the unduly harsh

2 6 sanctions ordered. Dr. Mbagwu became a victim of a system that allows the Board to

27 investigate, accuse, prosecute and decide her fate. The Board repeatedly found (with apparent

28 contempt) that Dr. Mbagwu "does not acknowledge any wrongdoing on her part, nor does she


1 take responsibility for her own actions or inactions" (Decision at 10, para. 26), "does not accept

2 responsibility for the events of April 17, 2012" (Decision at 13, para. 8) and was "neither

3 regretful nor remorseful for her actions and inactions" (Decision at 13, para. 9) with respect to

4 the treatment she provided Baby H. This is not the case at all. At the evidentiary hearing, Dr.

5 Mbagwu admitted that some of the information she provided at the Board's interview (May 13,

6 2013) was inaccurate and acknowledged that she contradicted some of the statements she gave at

7 that time because she had not had an opportunity to review the medical records or her cell phone

8 records.2

9 For the Board to find, however, that Dr. Mbagwu showed no regret or remorse for her

10 actions is manifestly against the weight of the evidence. Dr. Mbagwu elaborated fully on the

11 lessons she has learned from this experience and also that she has learned how important it is to

12 continuously document the care and treatment rendered to her patients (and has been doing so fo

13 the last four years). (Hearing Transcript of 3/2/16, pp. 126, 152). Specifically, Dr. Mbagwu

14 testified: "I have learned so many lessons. One thing I have learned throughout all this experience

15 is to always document. If only I had documented when I was at the hospital what I was doing simultaneously, even Dr. Hoke [Board's medical expert] with my charge, she

16 would not have said what she said. The other thing I learned and right now in my practice, I do document. Even if it's a late entry, I go back and I document it. One of the

17 reasons I'm here is I didn't document what I did. I was thinking about that patient's case, but it's also very important to document. The other lesson I also learned is even though I

18 told Dr. Patel to cover for me, ifl just sent like a quick text or quick email, thank you for covering me, I would not be here today. And one other thing I also learned is I relied on

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2 Dr. Mbagwu testified at the evidentiary hearing that prior to the May 9, 2013 Board interview, she was not given an opportunity to review the medical records of Baby Hand consequently, when she, with input from her former counsel, prepared her medical summary, there were many inaccuracies in that summary as well as in the statements she made that day, more than a year after she treated Baby H. She also testified at the evidentiary hearing that her former counsel advised her to say (and document in her medical summary) that she left the Hospital for lunch (not to attend her son's medical emergency), and that she relied on counsel's advice because she did not believe she had the right to contradict her lawyer. By so testifying, she was not failing to accept responsibility; rather, she was attempting to explain the truth of what occurred both at the interview and on the day of the treatment at issue. (Hearing Transcript of March 2, 2016, pp. 31-38). Although the Board more than once found Dr. Mbagwu's testimony "not persuasive," she wholeheartedly attempted to explain why her statements were inconsistent ("Some of the information was not accurate, but I am not a liar. I am a God-fearing person. I tell the truth, and that's why I'm happy I have the chance today to come in and tell the truth." (Hearing Transcript of 3/2/16, p. 75)


my counsel even though I knew what she was telling was not right. I accept 1 responsibility for that. I should have corrected the response when I went with counsel

that day. So that's one thing and I do take responsibility for not speaking up then .... 2 Yes. I accept that responsibility that I didn't document it [that she had identified PPHN].

I mean, that was a lesson I learned. (Hearing Transcript of 3/2/16, pp. 126-127). 3

4 Although Dr, Mbagwu has not admitted wrongdoing in her care and treatment of Baby H, that is

5 only because she believes that she appropriately diagnosed and properly treated Baby H.

6 These disciplinary proceedings stem from allegations that Dr. Mbagwu failed to provide

7 timely care to newborn patient Baby H, failed to provide direct patient care and failed to properl

8 tum over patient care when she left the Hospital for a family emergency (her then 8-year-old son

9 had an asthma attack and needed to be picked up from school). The "perfect storm" hit that

10 afternoon-her son became ill and needed to be picked up from school; her husband was out of

11 town so he could not pick him up; she was emergently called to assist with a high-risk caesarian

12 delivery ("Baby Doe"); Baby H was in need of medical attention; and the Hospital (as was

13 commonly the case) was understaffed so that Dr. Mbagwu was apparently the only physician at

14 the Hospital that afternoon who could attend to the high-risk delivery of Baby Doe and the needs

15 of Baby H.3 Contrary to the Board's findings, Dr. Mbagwu appropriately diagnosed Baby H's

16 medical condition, properly treated Baby H, and turned over patient care to Sudhir Patel, M.D.

17 (Dr. Patel and Dr. Mbagwu often covered each other's practices). Regrettably, however,

18 although Dr. Mbagwu told the backup NICU Charge Nurse over the telephone that Dr. Patel

19 would be covering for her, Dr. Mbagwu was not in the NICU to note in Baby H's medical

2 o records that she had turned over patient care to Dr. Patel. Had she done so, she most likely

21 would not be requesting relief from this Honorable Court.

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3 In fact, one of the findings in the Decision was that Dr. Mbagwu should have been at Baby H's bedside, even though she was in the operating room (OR) with Baby Doe. The Decision criticized Dr. Mbagwu for failing to corroborate her testimony that she was in the OR (certainly she did not fabricate that), even though the Board could have and should have requested those medical records from the Hospital. Further, on cross-examination, when the Board's counsel questioned Dr. Mbagwu about whether there was any mechanism in place at the Hospital for a physician such as herself to get emergency assistance when she was needed in the OR and in the NICU, Dr. Mbagwu explained that there was no such mechanism; the physicians in the emergency were not qualified to take care ofNICU patients; and that short-staffing at the Hospital was one of the complaints she repeatedly made, to no avail. (Hearing Transcript of 3/2/16, pp. 140-141, 144).


1 Moreover, had Dr. Mbagwu been allowed to present expert medical testimony and her

2 medical expert's written report4, her testimony as to her care and treatment of Baby H would

3 have been corroborated, and the Board would have been in a far better position to make accurate

4 and fair factual findings. Instead, the Board solely relied on its own medical expert (Dr. Hoke

5 who misapplied that requisite standard of care and who based her opinions on incorrect

6 assumptions) and the unreliable testimony of Dr. Patel who conceded that he could not

7 remember much, if anything, about the telephone conversation during which Dr. Mbagwu

8 requested he cover Baby H for her while she was out of the Hospital that afternoon.

9 Furthermore, many of the factual findings against Dr. Mbagwu concern medical record

10 keeping. Dr. Mbagwu testified that she should have documented Baby H's medical record more

11 adequately and specifically, that she should have documented when she was first at Baby H's

12 bedside at 8:00 a.m.; that she should have documented at about 11 a.m.-12:00 p.m. that she had

13 suspected Baby H was suffering from PPHN (she could not so document because she was in the

14 OR assisting in an emergency delivery); that she should have documented why she was not at

15 Baby H's bedside (while she was in the OR with Baby Doe); and that she should have

16 documented that she asked Dr. Patel to cover for her while she attended to a family emergency.

17 (Hearing Transcript of 3/2/16, pp. 58, 64, 65, 72, 87, 126, 127, 151).

18 Reversal of the Board's findings and sanctions is the only just result. The Board's

19 findings of fact are not supported by the weight of the evidence. Dr. Mbagwu's treatment was

2 o within the applicable standard of care and does not rise to the level of imposing discipline, much

21 less the excessive, unduly harsh, and punitive discipline ordered. 5

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4 Dr. Mbagwu's former attorneys were wholly deficient in their representation of her. As more fully set forth herein and in subsequent briefing, her former attorneys failed her on many fronts, including without limitation, by neglecting to disclose her medical expert witness, which she had obtained in 2013, and by failing to subpoena various important records and witnesses. 5 Dr. Mbagwu was sentenced to a five-year period of probation with the following terms: Term 1 requires Dr. Mbagwu complete annually at least 40 supplemental educational hours in the areas where deficiencies were found by the Board, in addition to her Continuing Medical Education (CME) requirements; Terms 2 and 3 require Dr. Mbagwu complete a course in medical record keeping as well as a course in professionalism and ethics, in addition to her CME requirements; Term 4 (Clinical Training Program) requires Dr. Mbagwu complete a clinical training or education program equivalent to PACE; Term 5 (Practice Monitor) requires Dr. Mbagwu hire a


1 The Decision's severe and unreasonable sanctions are not supported by the findings

2 because there was no evidence (a) that Dr. Mbagwu is incapable of practicing on her own; (b)

3 that she needs a practice monitor; nor ( c) that she needs to undergo clinical training, assessment

4 and excessive hours of education. Placing Dr. Mbagwu on probation for five years (rather than

5 issuing a Public Letter of Reprimand), in addition to ordering excessive and unnecessary

6 sanctions, serve only to punish Dr. Mbagwu, not to protect the public, as the Medical Practice

7 Act is intended to do. Dr. Mbagwu has served her community and patients well throughout her

8 entire career and clearly is not a danger to the public's safety or welfare, as evidenced by the fact

9 that the Board never sought an Interim Suspension Order, which would have immediately

10 prevented Dr. Mbagwu from continuing to practice medicine during the pendency of these

11 proceedings. The crux of the findings against Dr. Mbagwu pertains to communication with

12 hospital staff and inadequate medical record keeping (her failure to note in the medical record

13 that Dr. Patel would be taking over the care of Baby H during the time she was attending to her

14 son's emergency).6 Accordingly, the only sanction that may have a rational basis is Term 2

15 (requiring a medical records courses). Accepting responsibility for the deficiencies the ALJ (and

16 subsequently the Board) found, and demonstrating to the Board her regret and remorse for the

17 failures in care and treatment that the Board found she committed, Dr. Mbagwu immediately

18 enrolled in the courses mandated in Terms 2 and 3 of the Decision and will be completing those

19 courses later this month. (Attachment 2).

2 o This Honorable Court is required to use its independent judgment to review the evidence

21 de nova and determine whether the weight of the evidence supports the Board's findings and /or

22 whether the findings support the Decision. As more fully set forth below and in subsequent

23 briefing to follow, the Decision must be set aside because it was arbitrary, capricious and/or a

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practice monitor; and Term 6 (Solo Practice Prohibition) prohibits Dr. Mbagwu from engaging i solo practice, which includes, but is not limited to, a practice where she merely shares office space with another physician but is not affiliated for purposes of providing patient care, or where she is the sole physician practitioner at that location. 6 Dr. Mbagwu was in a rush to get to her son's aid, and in her haste to make sure Baby Doe and Baby H were stable, neglected to document that Dr. Patel was covering for her. (Hearing Transcript of 3/2/16, p. 80).


1 prejudicial abuse of discretion. Dr. Mbagwu appropriately treated Baby H and was neither

2 grossly negligent nor incompetent.

3 III. PETITIONER'S CONTENTIONS

4 Petitioner, Dr. Mbagwu, contends that the Board's Decision is invalid and unlawful

s pursuant to Code of Civil Procedure section 1094.5 in that Respondent has prejudicially abused

6 its discretion as follows and as set forth below: (1) the findings of the Decision are not supported by the weight of the evidence;

7 (2) the Decision is not supported by the findings; (3) the penalty is excessive as a matter oflaw in light of the findings because

8 discipline has been based, at least in part, on incorrect factual findings; (4) the penalties imposed are impermissible and excessive as a matter of law in light

9 of the findings and a prejudicial abuse of discretion in that the sanctions service to punish, rather than protect the public interest pursuant to Business and Profession

10 Code section 2229; and (5) as will be further raised by the administrative record and more fully elaborated in

11 subsequent briefing.

12 IV. INEFFECTIVE ASSISTANCE OF COUNSEL

13 All professions are held to specific standards of care. Here, it bears mentioning that the

14 ineffective representation of Dr. Mbagwu by her former attorneys directly resulted in the

1s erroneous findings made by the ALJ (and subsequently by the Board) and the excessive and

16 unreasonable punishment levied on Dr. Mbagwu. Although the Board is critical of Dr. Mbagwu

17 for "blam[ing] Dr. Patel, the Hospital and her former attorney," the purpose of disciplinary

18 proceedings is not to punish the physician for any reason, be it her own actions or the actions

19 others took on her behalf. Here, Dr. Mbagwu was sanctioned not only because of incorrect

20 factual findings based on her actions and inactions, but also because of the actions and inactions

21 her former attorneys took on her behalf. The incompetence of Dr. Mbagwu's former attorneys

22 permeated these proceedings to such a degree that only by this Court reviewing, at minimum, the

23 evidence that should have been subpoenaed and/or admitted at the evidentiary hearing, will this

24 Court be able to satisfy its duty of independent, de novo review. Her former attorneys' neglect

2 s should not serve as a basis for the factual findings made or the discipline ordered.

26 Significantly, Dr. Mbagwu's former attorneys (a) failed to investigate and interview

27 witnesses (including Dr. Patel and the NICU nursing staff); (b) failed to subpoena critical

28 witnesses (including the individuals in (a) above); (c) failed to subpoena Dr. Mbagwu's cell


1 phone records from AT&T; ( d) failed to timely disclose an expert witness despite having, for

2 three years, a written report from medical expert Dr. Gilbert I. Martin M.D., FAAP, who fully

3 supported Dr. Mbagwu's care and treatment of Baby Hand opined that her actions were within

4 the requisite standard of care; ( e) failed to subpoena the medical records of Baby Doe to

s corroborate that she was unavailable to see Baby Hat bedside because she was in the OR (which

6 was why she gave orders via telephone to intubate Baby H, check the endotracheal tube

7 placement with x-ray, to continue CPAP, and to advance blood gas); and (f) failed not only to

s object to the Board's motion in limine to preclude expert testimony in support of Dr. Mbagwu's

9 care, but in essence, agreed to it by affixing a hand-written note on the motion stating "no

10 objection." (See Attachment 4).

11 The ALJ and the Board should have reconvened the evidentiary hearing and required

12 further investigation before allowing such an unfair miscarriage of justice to take place, one that

13 will have permanently lasting consequences for Dr. Mbagwu.

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v. THERE WAS A PREJUDICIAL ABUSE OF DISCRETION IN THAT THE DECISION'S FINDINGS ARE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

16 The main thrust of the Board's Accusation involves allegations that Dr. Mbagwu

17 essentially abandoned a newborn under her care during a 3-hour window of time that she was

18 called away from the Hospital to take care of her young son's emergency medical condition and

19 allegedly did so without finding another physician to cover Baby H's care. However, these

20 allegations were not supported by the facts and the evidence presented. Dr. Mbagwu properly

21 diagnosed and treated Baby H and arranged for Dr. Patel to cover Baby H's care in her absence.

22 A. Summary of Findings Against Dr. Mbagwu

2 3 The Board found Dr. Mbagwu committed an extreme departure from the standard of care

24 and committed gross negligence in the care and treatment of Baby H, specifically stating:

2 s "Respondent did not come in to evaluate Baby H who was in respiratory distress requiring assisted ventilation on admission. She did not see the infant until 14 hours of

2 6 life. Despite multiple phone calls to Respondent from nursing staff, she never came back to reassess Baby H, and managed his care entirely over the telephone. She was then

2 7 unavailable, even by telephone, for several hours during which she failed to arrange for coverage or inform nursing staff of a transfer of care. This lack of direct observation and

2 s evaluation lead to a delay in the diagnosis of persistent pulmonary hypertension of the


newborn and subsequent poor management of Baby H. This also demonstrates 1 incompetence in her care and treatment of her patient." (Decision at 13, para. 7).

2 "The clear and convincing evidence in this case showed that Respondent failed to provide timely care and treatment to Baby H. Dr. Hoke [Board's expert] established that

3 Respondent exhibited an extreme departure from the standard of care, and was incompetent in her lack of direct patient care and her failure to properly tum over patient

4 care. This expert testimony was not refuted." (Decision at 14, para. 10).

5 The above findings, as well as other incorrect factual findings, will be briefly discussed

6 herein, but more fully explained in subsequent briefing.

7 B. The Board's Medical Expert, Dr. Hoke, Wrongly Applied the Standard of Care

8 The Board had the burden to prove, by clear and convincing evidence that Dr. Mbagwu's

9 actions deviated from the standard of care. (Hughes v. Board of Architectural Exam 'rs (1998)

10 17 CA4th 763, 789 n9). The standard of care in this case, as in any Medical Board matter, is the

11 "duty of the professional to use such skill, prudence, and diligence as other members of his

12 profession commonly possess and exercise" (Hanson v. Grode (1999) 76 Cal. App.4th 601, 606,

13 emphasis added) and whether the physician "failed to use the knowledge, skill and care

14 ordinarily exercised by members of the relevant community." (NN V v. American Assoc. of

15 Blood Banks (1009) 75 Cal. App.4th 1358, 1393, emphasis added). The standard of care is

16 evaluated based on the standards of care prevalent at the time the treatment under consideration

1 7 was rendered. (Brown v. Calm (1974) 11 Cal.3d 639).

18 Here, not only did Dr. Hoke apply the wrong standard of care to Dr. Mbagwu (see

19 below), but she also appears to have based her expectations of Dr. Mbagwu on her own practice

20 settings rather than with what Dr. Mbagwu faced at the Hospital during that time period. Dr.

21 Hoke practiced her entire career in a much different setting, working in well-staffed military

22 teaching medical facilities and currently at the Naval Medical Center in San Diego, a military

23 training hospital where residents, interns and fellows are readily available. That was not the case

24 at San Joaquin Community Hospital, and Dr. Mbagwu should not have been held to the same

25 standard of care to which Dr. Hoke would hold herself.

26 Dr. Hoke twice applied the wrong standard of care to Dr. Mbagwu. It was Dr. Hoke's

27 opinion that any management of Baby H's care by Dr. Mbagwu over the telephone (as opposed

28 to in person) was below the standard of care, even in this case when Dr. Mbagwu was attending


1 to Baby Doe in the OR. Dr. Hoke essentially expected Dr. Mbagwu to be in two places at once.

2 In her written report (heavily relied upon by the Board in making its findings), Dr. Hoke cited to

3 the American Academy of Pediatrics (AAP) guidelines on "Levels of Neonatal Care" to

4 determine the requisite standard of care and specifically assumed that the Hospital had a Level

5 III NICU, which means that it "must have equipment ... and personnel ... continuously available

6 to provide ongoing care, as well as to address emergencies." (Ex. 5, p. 5). Dr. Hoke incorrectly

7 conflated the Hospital's duties as a Level III NICU with the standard of care applicable to Dr.

s Mbagwu, entirely disregarding the circumstances under which Dr. Mbagwu was providing care,

9 i.e., in a facility that was short-staffed and which required Dr. Mbagwu to manage care over the

10 telephone when she was required to be present at an emergency delivery. Thus, while the

11 Hospital may have fallen below its applicable standard of care, Dr. Mbagwu should not have

12 been sanctioned for failing to meet AAP's Level III NICU standard. Dr. Mbagwu should not be

13 punished for the Hospital's failure to provide appropriate staffing (an issue about which Dr.

14 Mbagwu repeatedly complained to her superiors) and for allowing it to become commonplace

15 for neonatologists to be compelled to manage patient care over the telephone.7

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17 c. The Board's Medical Expert, Dr. Hoke, Wrongly Based Her Opinions on

Incorrect Facts and Assumptions

1 s "The value of opinion evidence rests not on the conclusion reached, but on the factors

19 considered and the reasoning employed. [citations] Where an expert bases his conclusion upon

20 assumptions which are not supported by the record, upon matters which are not reasonably relied

21 upon by other experts, or upon factors which are speculative, remote, or conjectural, then his

22 conclusion has no evidentiary value. [citation]." (Geffcken v. D 'Andrea (2006) 137 Cal. App.

23 4th 1298, 1311 ). Expert opinion may not be based on assumptions of fact that are without

24 evidentiary support or based on factors that are speculative or conjectural, for then the opinion

25 has no evidentiary value and does not assist the trier of fact. (Jennings v. Palomar Pomerado

26 Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1116-1118).

27

2 8 7 Dr. Mbagwu provided extensive testimony on the issue of staffing at the Hospital and how she had to treat over the telephone because she could not be two places at once.


1 Here, the Board's entire case was based on the assumption that Dr. Mbagwu did NOT

2 transfer her responsibility to Dr. Patel when she left the Hospital. However, if that assumption

3 were false (which Dr. Mbagwu will show herein and in subsequent briefing), then at most, Dr.

4 Mbagwu should be criticized for neglecting to document the transfer of responsibility to Dr.

s Patel in the patient's medical record. Dr. Mbagwu's testimony that she gave verbal instructions

6 to the nursing staff and obtained verbal confirmation from Dr. Patel was uncontroverted;

7 however, the ALJ (and subsequently the Board) found her testimony to be unpersuasive.

8 Moreover, the Board's medical expert admitted that ifthe above assumption (that Dr. Mbagwu

9 asked Dr. Patel to cover Baby H for her) were not true, then her criticisms of Dr. Mbagwu during

1 o the time she was away from the Hospital would fall away: Q: "So in my hypothetical, we're carving out 2:00 p.m. to 5:00 p.m., and we're saying

11 that during that time period Dr. Patel had agreed to take over for Dr. Mbagwu with respect to the care of Baby H. Making that assumption, does that change any of your

12 conclusions?"

13 A: "Yes. If that were the case, from 2:00 to 5:00, he would have been responsible, in that assumption." (80: 13-19).

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D. Dr. Patel's Testimony Should Be Given Little or No Weight Because It Was Unreliable and Contradictory

Contrary to the Board's findings, Dr. Patel's testimony did not clearly and convincingly

establish that Dr. Mbagwu failed to tum over patient care to Dr. Patel. Dr. Patel's testimony was

neither credible nor corroborated. Yet, the Board accepted his faulty recollection as fact and

wholly rejected Dr. Mbagwu's recall of their phone conversation.

Dr. Patel's testimony on this key issue (whether Dr. Mbagwu asked him to cover for her

in addition to reviewing an x-ray) was not at all clear and convincing. It's not even a "he said,

she said" because Dr. Patel admitted that he could not remember anything about the conversation

except for one part of it-that Dr. Mbagwu asked him to review an x-ray. Specifically, on direct

examination in response to a leading question ("She only asked you to review the x-ray

remotely; correct?"), Dr. Patel said "yes." (Hearing Transcript of 3/1/16, p. 33). However, on

cross-examination, when asked to state everything that was stated during this phone call, Dr.

Patel testified "I don't remember." (Hearing Transcript of 3/1116, p. 35). He also testified:


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(a) all he remembered from his conversation with Dr. Mbagwu was that she asked him to

review an x-ray (Hearing Transcript of 3/1/16, p. 35);

(b) "I really don't remember" what else was talked about "for the other few minutes"

(Hearing Transcript of 3/1/16, p. 35);

(c) "I can't remember" for the few minutes of the phone call whether "more than one

sentence" (Hearing Transcript of 3/1/16, p. 35) was uttered;

( d) he could not remember what time Dr. Mbagwu called him (Hearing Transcript of

3/1/16, p. 34);

(e) he could not remember how long the phone call lasted (Hearing Transcript of 3/1/16,

pp. 34-35);

(f) he could not remember what Dr. Mbagwu told him about the patient (Hearing

Transcript of 3/1/16, p. 27).

To the contrary, Dr. Mbagwu testified that during this two-minute phone conversation

with Dr, Patel, she "signed out"8 to Dr. Patel: she told him that she suspected PPHN, that Baby

H was intubated, that she had ordered an echocardiogram, and that Baby H was on 100%

oxygen, and further, asked him to review the x-ray and to cover Baby H because she had a

family emergency (Hearing Transcript of 3/2/16, pp. 79, 82-83). And that is precisely what he

did, despite his (incredible) testimony that he did not know what "taking over care" meant

(Hearing Transcript of 3/1/16, p. 37) or what a "primary physician" was (Hearing Transcript of

3/1/16, p. 41). Rather than quibbling about words as he did during his testimony, his actions

speak louder than words. What Dr. Patel actually did, as Dr. Mbagwu requested him to do. He

took over the care and treatment of Baby H while Dr. Mbagwu was out of the Hospital for a

family emergency.

Dr. Patel also testified that either before or after his meeting at the Hospital (unrelated to

Baby H), he went to the NICU to attend to Baby H. Dr. Patel clearly had not only been asked to

review an x-ray. If that were the case, why did he go see Baby Hin the NICU (when his meetin

8 Even though physicians are not required at San Joaquin Community Hospital to document when they "sign out" to another physician, the Board criticized her for not so doing. (Hearing Transcript of 3/2/16, pp. 79-83).


1 was elsewhere in the Hospital) when he had already viewed the x-ray remotely and reported his

2 findings? Further, looking at his testimony as a whole it became clear that he must have been

3 asked by Dr. Mbagwu to take over the care of Baby H while she was out, since he conceded that

4 he would never take over a patient's care without authorization from the patient's primary

5 physician (Hearing Transcript of 3/1/16, p. 36). Dr. Patel made decisions about the care of Baby

6 H (Hearing Transcript of 3/1/16, p. 3 7), testifying that he "took over primary responsibility for

7 making medical decisions" without further consulting Dr. Mbagwu until he relinquished primary

8 responsibility for Baby Hat approximately 5:00 p.m. when Dr. Mbagwu returned (Hearing

9 Transcript of 3/1/16, pp. 37-39).9

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E. The Board Incorrectly Found that Dr. Mbagwu Did Not Tell the NICU Nursing 11 Staff that Dr. Patel Was Covering For Her

12 The Board incorrectly found that Dr. Mbagwu did not tell the NICU staff that Dr. Patel

13 was covering for her, when in fact, she had spoken on the phone to the back-up charge NICU

14 nurse and informed her of this. At the time of the evidentiary hearing, Dr. Mbagwu had had the

15 opportunity to review Baby H's medical records and her phone records, and thus, had a better

16 recollection of the facts on this point than she had at her Board interview of May 9, 2013 (during

1 7 which she stated that she did not inform the NICU nursing staff). At the evidentiary hearing,

18 Dr. Mbagwu testified in detail (and such testimony went unrebutted by the Board) as to why she

19 made that incorrect statement during the interview. On the two-hour ride to the interview, her

2 o former counsel had told her that she should tell the Board that she had made a mistake, and that

21 her mistake was not informing the NICU nurses that she transferred care to Dr. Patel; "I relied on

22 her [former counsel]. She was the expert .... I believed her. I do regret saying that .... I should

23 not have said that. [My former counsel] told me to make that type of statement. That's why I

24 said I made a mistake [of not informing the nurses.]. I should not have said that." (Hearing

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9 It was disingenuous for the Board to argue (in its Opposition to Petitioner's Motion for Reconsideration) that Dr. Patel was a "good Samaritan" here. To the contrary, Dr. Patel did wha he was requested and obligated to do. As a licensed physician with privileges at the Hospital who received a request from a colleague whom he often covered for (and who covered for him), he did what he was requested and duty bound to do, took charge of and treated Baby H.


1 Transcript of 3/2/16, pp. 86-87). 10 Her testimony that she told the NICU nurse that Dr. Patel was

2 covering her was not rebutted by anyone, and the Board erred in not finding Dr. Mbagwu's

3 explanation about her contradictory statement at her Board interview persuasive. (Hearing

4 Transcript of March 2, 2016, pp. 84-85, 134-135).

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VI.

A.

THERE WAS A PREJUDICIAL ABUSE OF DISCRETION IN THAT THE DISCIPLINE ORDERED IS NOT SUPPORTED BY THE FINDINGS AND IS EXCESSIVE, UNDULY HARSH AND PUNITIVE.

The Board Failed to Articulate How the Discipline Ordered Is Appropriate Based on Its Findings

9 The Medical Practice Act is not meant to punish a physician, but to protect the public.

10 (Griffiths v. Superior Court (2002) 96 Cal. App. 4th 757, 768). The Administrative Procedure

11 Act [Govt. Code, section 11400 et seq.], by which Board decisions in disciplinary proceedings

12 are governed (Bus. & Prof. Code, section 1000-10), requires that all Board decisions in

13 disciplinary proceedings include a statement of the factual and legal bases for the decision.

14 (Gov. Code sections 11425.10, 11425.50). Similarly, all such decisions, reviewable under

15 C.C.P. section 1094.5, must meet the requirements laid down in Topanga Assoc. for a Scenic

16 Community v. County of Los Angeles (1974) 11 Cal. 3d 506. Chief among these is that the

1 7 agency "set forth findings to bridge the analytic gap between the raw evidence and ultimate

18 decision or order ... [and] draw legally relevant subconclusions supportive of its ultimate

19 decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the

20 agency will randomly leap from evidence to conclusion ... [and also to] enable the reviewing

21 court to trace and examine the agency's mode of analysis." (Id. at 515-516). The Board has not

22 met these requirements in its Decision.

23 The Board's Decision does not clearly specify the Board's "mode of analysis" nor

24 "bridge the analytic gap" between the facts of the case and the imposition of discipline the Board

25 ordered. In particular, the Board did not articulate a rational connection for its Decision (a) to

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10 Dr. Mbagwu did not understand at the time of her interview that she could take issue with and disagree with her former counsel: "I did not even understand that, that I could correct my counsel during the hearing .... I just listened to what she was saying." (Hearing Transcript of3/2/16, p. 88).


1 require Dr. Mbagwu to complete educational courses in the area she was found deficient under

2 Term 1; (b) to require Dr. Mbagwu complete a competency training program under Term 2; (c)

3 to require Dr. Mbagwu have a practice monitor under Term 5; and (d) to prohibit Dr. Mbagwu

4 from engaging in solo practice under Term 6. It appears that the disciplinary terms of this

5 Decision were taken by rote from the Manual of Model Disciplinary Orders and Disciplinary

6 Guidelines ("Manual") without considering what the ordered sanctions would actually

7 accomplish, especially in terms of making Dr. Mbagwu a "better physician." (Windham v.

8 Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 473). The Board erred by

9 failing to use the discretion it possesses to make exceptions to the Manual's guidelines and to

10 appropriately tailor the discipline ordered to the specific circumstances of this case.

11 Further, the probationary restrictions placed on Dr. Mbagwu are overly broad and

12 excessive because the sanctions apply to her practice as a whole (including her care and

13 treatment of infants and children), rather than strictly care and treatment provided to neonates.

14 Terms 5 and 6 of the Decision are particularly troubling because at no time during the

15 lengthy pendency of these proceedings was there evidence of a necessity for the Board to place

16 any type of practice restrictions on Dr. Mbagwu, such as the requirement of a practice monitor or

1 7 that she be barred from solo practice, nor did the Board request an Interim Suspension Order,

18 which would have immediately prevented Dr. Mbagwu from continuing to practice medicine.

19 Yet, the Board ordered sanctions which do just that and do not serve any rehabilitative purpose,

20 all without explaining its reasons for so doing. Moreover, Terms 1 and 4, requiring additional

21 clinical training and education are unnecessary-Dr. Mbagwu accurately diagnosed and

22 appropriately treated Baby H for PPHN (persistent pulmonary hypertension of a newborn). Had

23 the expert report she obtained from Dr. Martin been considered as it should have been, Dr.

24 Mbagwu's testimony on these points would have been corroborated. Indeed, not even the

25 Board's expert testified that Dr. Mbagwu failed to accurately diagnose or properly treat Baby

2 6 H's condition; her criticism was that "perhaps" she should have done so earlier ("Dr. Mbagwu

27 made the diagnosis correctly but perhaps too late." (Decision p. 8). The Board erred in ignoring

28 Dr. Mbagwu's testimony that she had, in fact, made the diagnosis earlier and began appropriate


1 treatment of Baby H for PPHN. (Hearing Transcript of 3/2/16, pp. 24, 60-62).

2 The unduly harsh sanctions ordered extend far beyond what can be reasonably said to be

3 necessary to protect the public.

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B. The Discipline Ordered Is Punitive As Applied and Will Effectively Terminate Dr. Mbagwu's Ability to Practice her Medical Specialty

The discipline ordered in the Decision is not supported by the findings and is manifestly

excessive, punitive and will effectively end the esteemed career of this experienced and hard-

working physician. As a result of Dr. Mbagwu having been accused of mistreating Baby H, she

was terminated from her employment with SCPMG, which led to her having to relinquish her

privileges at three hospitals because the basis for those hospitals extending her privileges was to

admit and treat patients from SCPMG, which she could no longer do. Although Dr. Mbagwu

was able to find employment for a year immediately after she was terminated, the position was

some 160 miles from her home so she could only provide service as a locum tenens. Now that

Dr. Mbagwu has been branded by this Decision, she is more than hard-pressed to find another

practice with which to affiliate, since no practice will want to take her on, given her probationary

license status and sanctions detailed in the Decision which she is required to submit to any

prospective employer and insurance panel. Moreover, it is unlikely that another hospital would

grant her practice privileges at this time, given the fact that the Decision must be disclosed to any

such hospital. (Attachment 2).

Although the Board mentioned numerous letters ofreference praising Dr. Mbagwu's

integrity, professionalism and compassion, as well as character testimony by two physicians

(Seyed A. Tamjidi, M.D. and Hasmukh Sheth, M.D.) in its Decision, the Board apparently

placed no weight (given the Board's findings that "Dr. Mbagwu's testimony was not

persuasive") on this evidence which goes directly to Dr. Mbagwu's character and integrity.

(Decision at pp. 10-11 ).

2 6 VII. THERE WAS A PREJUDICIAL ABUSE OF DISCRETION IN THAT THE BOARD DID NOT PROCEED IN A MANNER REQUIRED BYLAW

27 BECAUSE IT IMPROPRERL Y IGNORED AND EXCLUDED COMPETENT AND MATERIAL EXCULPATORY EVIDENCE.

28


1 Petitioner will offer, in subsequent briefing and at the hearing on this Petition, relevant

2 evidence that supports her defense but was wrongly excluded and disregarded. Except for

3 privileged and unduly repetitious evidence, the Administrative Practice Act makes all relevant

4 evidence admissible, even if excludable in ordinary civil actions, as long as it is "the sort of

5 evidence on which responsible persons are accustomed to rely in the conduct of serious affairs."

6 (Govt. Code section 11513(c)). Evidence is "relevant" ifit tends to make any disputed fact that

7 is important to the outcome of the hearing more or less likely to be true. (Evid. Code section

8 210). The Board repeatedly found that Dr. Mbagwu failed to corroborate her assertions, yet

9 wrongly excluded and neglected to rely on expert testimony/report and the phone log Dr.

1 o Mbagwu produced.

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A. Wrongly Excluded Expert Testimony and Expert Report

The ALJ wrongly excluded the written report of Dr. Mbagwu's expert witness, Dr.

Martin, which was obtained in April, 2013 (Attachment 6). 11 Dr. Gilbert Martin is the Medical

Director Emeritus of the Neonatal Intensive Care Unit in the Family Birth & Newborn Center of

Citrus Valley Medical Center. He is double board certified in Pediatrics and Neonatal-Perinatal

Medicine, and is a Fellow of the American Academy of Pediatrics. He is the past Editor-in-

Chief of the Journal of Perinatology, the national journal for the practice of Neonatal and

Perinatal Medicine, a position he held for over 20 years. He is the past president of the

California Association ofNeonatologists, and is on the Executive Committee of the Perinatal

Section of the American Academy of Pediatrics. He is a reviewer for Pediatrics, the official

journal of the American Academy of Pediatrics, as well as for Obstetrics & Gynecology, the

official journal of the College of Obstetrics and Gynecology. He has published peer-reviewed

journal articles in Neonatology and Perinatology and holds Clinical Professorships in Pediatrics

11 The ALJ allowed no expert testimony on Dr. Mbagwu's behalf because her former attorney missed the required deadline to disclose experts pursuant to Business and Professions Code § 2334. The Board knew that Dr. Mbagwu obtained a medical expert who prepared an exculpato written report, but rather than admitting it into evidence even as administrative hearsay, the Board excluded it entirely. (Hearing Transcript of 3/1/16 at pp. 172-174). The Decision repeatedly found Dr. Mbagwu's testimony to be unpersuasive because it was not corroborated; yet, the corroborating evidence that Dr. Mbagwu possessed was either excluded, as in the case of Dr. Martin, or ignored, as in the case of the phone records Dr. Mbagwu produced.


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at the USC School of Medicine, the UC Irvine Medical Center, and Loma Linda University

Medical Center.

Dr. Martin's expert report details the care and treatment rendered to Baby Hand

categorically concludes that Dr. Mbagwu met the requisite standard of care until the transport

team arrived and assumed care of Baby H. Dr. Martin's analysis walks chronologically through

the phases of Dr. Mbagwu's care of Baby Hand repeatedly indicates that she took the

appropriate actions that comported with the applicable standards of care. Specifically, the report

includes the following findings which the Board, in adopting the Proposed Decision, had not

considered: a. This was an extremely ill premature infant who had a diagnosis of respiratory distress

syndrome and/or congenital pneumonia. b. Dr. Mbagwu's initial evaluation and orders comported with the standard of care. c. The medications offered and the changing requirements for oxygen and assistance

with ventilation for 4/16112 were appropriate. d. Through the early morning hours of 4/17/12, the infant's condition worsened and

changes to the respiratory status were appropriate. e. From 0700-1300, Dr. Mbagwu increased FI02 and increased CPAP, which was

appropriate and comported with the standard of care. f. The chest X-ray obtained at 1325 revealed improved aeration; the baby's heart rate

remained stable; saturations were within acceptable limits. g. From 1500-1600, the baby's condition was unchanged with saturations 89%-90%. h. Dr. Patel assumed care of Baby Hom from 1610 to 1700. 1. It was clear that in the ensuing hours, Baby's [sic] Hom's respiratory failure was

increasing hence the need to switch from SIMV to HFV. Dr. Mbagwu made this switch.

j. Finally, Dr. Mbagwu decided that the baby needed a higher level of care and required transfer.

k. It is my understanding that the allegations are that there was lack of follow up and delays in care which had a high potential to have caused significant harm to Baby Hom.

1. Review of the medical records and nursing documentation reveal that necessary changes to worsening respiratory failure were made and that Dr. Mbagwu was under the impression that Dr. Patel was in fact caring for the patient from 1610-1700.

m. Although there is always a high potential for deterioration in a baby such as Baby Hom, this deterioration was treated appropriately and Dr. Patel (physically present) was the primary physician in charge of caring for the patient from 1610 to 1700. Dr. Patel signed off the baby to Dr. Mbagwu at 1710. Dr. Mbagwu was physically present and in charge of caring for the patient from 1700 to 2200 until the transport team arrived and assumed care of the infant.

The Board did not proceed in a manner required by law by excluding this relevant

exculpatory evidence which responsible persons are accustomed to rely upon in the conduct of

serious affairs and abused its discretion by neglecting to consider this medical expert's articulate

and sound written report wholly supportive of Dr. Mbagwu's care and treatment of Baby H.


1 (Hearing Transcript of 3/1/16, at p. 174).

2 B. Evidence of Cellular Phone Calls Wrongly Ignored

3 The Board abused its discretion by summarily discrediting the cell phone records Dr.

4 Mbagwu produced from her cellular carrier, AT&T. (Attachment 7). This error was compounded

s by the fact that Dr. Mbagwu's cell phone records should have been and could have been (but

6 were not) subpoenaed by any number of individuals (including her former attorneys, the Board's

7 investigators, and the Board's attorneys). It is indisputable that these cell phone records shed

8 light on who called whom and when, as well as whether Dr. Mbagwu's cell phone was on or off

9 and whether both incoming and outgoing calls were included. Given that Dr. Mbagwu had just

10 assisted with a complicated emergency caesarian delivery of Baby Doe and had been attending t

11 the changing medical needs of Baby H, in addition to attending to an emergency with her son,

12 she certainly would have answered any incoming call as all three situations were important to

13 her. (Hearing Transcript of 3/1/16, p. 162). Rather than reconvening the hearing until those

14 crucial records were obtained, the Board wrongly determined in adopting its Decision, with no

15 factual basis, (a) that the cell phone records that Dr. Mbagwu produced showed only outgoing

16 calls; (b) that Dr. Mbagwu turned off her cell phone; and ( c) that Dr. Mbagwu ignored alleged

17 incoming calls from the nursing staff. (Decision at 11, para. 33, at 13, para. 7). The erroneous

18 nature of these findings is highlighted by Dr. Mbagwu's undisputed testimony. 12 Had the Board

19 (or Dr. Mbagwu's former attorneys) subpoenaed the NICU nursing staff, there may have been

2 o testimony as to what telephone number they allegedly called when they allegedly attempted to

21 reach Dr. Mbagwu (the nursing notes, upon which the Board solely relied to reach its faulty

22 findings are devoid of any reference to the actual telephone number dialed).

23 VIII. THE BOARD'S DECISION WAS AN ABUSE OF DISCRETION AND/OR ARBITRARY AND CAPRICIOUS IN THAT THE BOARD'S DECISION IS

24 NOT BASED ON CLEAR AND CONVINCING EVIDENCE.

2 s "The proper standard of proof in an administrative hearing to revoke or suspend a

2 6 doctor's license should be clear and convincing proof to a reasonable certainty and not a mere

27 preponderance of the evidence." (Ettinger v. Board of Medical Quality Assurance (1982) 135

28 12 This evidence will be more fully set forth in subsequent briefing.


1 Cal. App. 3d 853 (emphasis in original)). "The Board must prove ... unprofessional conduct by

2 clear and convincing evidence and where evidence of unprofessional conduct is not met by this

3 standard ... the Board does not have authority to revoke or suspend a license." (Medical Board

4 of California v. Superior Court of San Francisco (Liskey), (2003) 111 Cal. App. 4th 163, 169).

5 Clear and convincing evidence requires a finding of high probability or evidence so clear as to

6 leave no substantial doubt; sufficiently strong to command the unhesitating assent of every

7 reasonable mind. (Katie V v. Superior Court (2005) 130 Cal. App. 4th 586, 594).

8 "The state's power to regulate a profession cannot be used arbitrarily to penalize conduct

9 having no demonstrable bearing upon fitness for its practice ... a statute can constitutionally bar

10 a person from practicing a lawful profession only for reasons related to the fitness or competence

11 to practice that profession ... There must be a logical connection oflicensees' conduct to their

12 fitness or competence to practice the profession or to the qualifications, functions, or duties of

13 the profession in question." (Clare v. State Bd. of Accountancy (1992) 10 Cal. App. 4th 294, 302,

14 Griffiths v. Superior Court (2002) 96 Cal. App. 4th 757).

15 The Board wholly failed to meet this standard by, among other things, discounting and

16 essentially ignoring Dr. Mbagwu's testimony, as well as a medical report from a competent

1 7 expert witness, on issues central to these proceedings, including without limitation, whether Dr.

18 Mbagwu properly diagnosed and treated Baby Hand whether Dr. Mbagwu properly

19 communicated with Dr. Patel and the NICU nursing staff. The discipline ordered is not

20 consistent with the findings made nor is the discipline justified because many findings were

21 erroneous and against the manifest weight of the evidence.

22 PRAYER FOR RELIEF

23 WHEREFORE, Petitioner prays as follows:

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1.

2.

For issuance of a peremptory writ of mandate pursuant to the Code of Civil Procedure

section 1094.5 directed to Respondent Board compelling Respondent Board to set

aside its Decision in this matter;

An ex parte order be issued staying Respondent's Decision and ordering Respondent

to show cause why an order should not be granted further staying that Decision;


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3.

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For a written statement of decision pursuant to section 632 of the Code of Civil

Procedure explaining the factual and legal basis for the Court's decision as to each of

the controverted issues;

This Court grant Petitioner her reasonable attorneys' fees and costs of suit, including

cost of preparing the original administrative record, pursuant to Code of Civil

Procedure section 1028.5 or, in the alternative, Government Code section 800;

Pursuant to Code of Civil Procedure section 1095, Dr. Mbagwu also requests that this

Court allow an award of damages, ancillary to the issuance of the Writ, as relief for

the damages that this action has caused to her medical practice and professional

reputation; and

For such other relief as the Court may deem just and proper.

12 Respectfully Submitted,

13 Dated: '6(31I16 14

15 Attorney for Petitioner Nneamaka Mbagwu, M.D.

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VERIFIED PETITION OR WRIT OF ADMINISTRATIVE MANDATE-26

1 VERIFICATION

2 STATE OF CALIFORNIA )

3 )

4 COUNTY OF SAN MATEO)

5 I represent Nneamaka Mbagwu, M.D., the Petitioner in this action. Dr. Mbagwu lives

6 outside the County of San Francisco and the County of San Mateo. I am familiar with the

7 allegations contained in this Petition for Writ of Mandate and on that ground allege that the

8 matters stated in this Petition are true.

9 Executed on Av-5 rr i t 1 / , 2016, at San Mateo, California. 10

11 I declare under penalty of perjury under the laws of the State of California that the foregoing is

(

1fwad!/. ~~ 12 true and correct.

13 Michael A. Firestone, MBA, JD

14 Attorney for Petitioner Nneamaka Mbagwu, M.D.

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PROOF OF SERVICE

I, the undersigned, hereby certify and declare as follows: I am over 18 years of age and not a party to this action. My business address is 1700

South El Camino Real, Suite 204, San Mateo, CA 94402, which is located in San Mateo County, California. On the date shown below, I served a true and correct copy of each of the documents described here:

VERIFIED PETITION OR WRIT OF ADMINISTRATIVE MANDATE

by the method or methods stated herein below, to each of the persons identified in the attached Service List, as follows:

By placing the same in a sealed envelope and depositing same in the United States Mail, first-class postage prepaid and affixed.

By transmitting the same by facsimile to the telephone number shown for each such person, and noting my office fax machine's indication that such transmission was successful;

By placing the same into a drop box designated for deposit of packages, or by handing it to a courier employed by, a private courier or delivery service, for delivery on the second business day or sooner;

j_ By other method described here: Personal Service 16 I declare under penalty of perjury that the foregoing is true and correct.

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Executed this 31st -----=--'°"------

Medical Board of California 2005 Evergreen Street, Suite 1200 Sacramento, CA 95815-3 831

dayof Augu~2016 & _ ~ ~~N

SERVICE LIST


Attachment 1

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation ) Against: )

) )

NNEAMAKA MBAGWU, M.D. ) )

Physician's and Surgeon's ) Certificate No. A 53749 )

) Respondent )

Case No. 08-2012-223450

OAH No. 2015040191

DECISION

The attached Proposed Decision is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California.

This Decision shall become effective at 5:00 p.m. on July 15, 2016.

IT IS SO ORDERED: June 16. 2016.

MEDICAL BOARD OF CALIFORNIA

ff:/ lf·· 41 oward usst M.iJ':, Chair PanelB

Attachment 1

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

NNEAMAKA MBAGWU, M. D.,

Physician's and Surgeon's Certificate No. A-53749,

Respondent.

Case No. 08-2012-223450

OAH No. 2015040191

PROPOSED DECISION

This matter came on regularly for hearing on March 1 and 2, 2016, in Los Angeles, California, before Laurie R. Pearlman, Administrative Law Judge, Office of Administrative Hearings, State of California.

Rebecca L. Smith, Deputy Attorney General, represented Kimberly Kirchmeyer (Complainant), Executive Director of the Medical Board of California (Board).

Edward 0. Lear, Attorney at Law, represented Nneamaka Mbagwu, M.D. (Respondent), who was present.

Oral and documentary evidence was received. The record was held open until April 15, 2016, for the parties to file written closing briefs (marked for identification as Exhibits 14 and DD) and for complainant to file a motion for sealing order to protect confidential documents (marked for identification as Exhibit 15). These documents were timely filed, the record was closed, and the matter was submitted for decision on April 8, 2016.

PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION

This case involves Respondent's care and treatment of Baby H. (referred to in the Accusation as Patient C.G.V.) The Administrative Law Judge granted Complainant's motion for a protective order sealing certain exhibits in order to maintain patient privacy, and the court reporter was instructed to use the patient's initials in any transcript in lieu of his name.

Ill

Attachment 1

FACTUAL FINDINGS

Jurisdiction

1. On November 27, 2013, Complainant made and filed the Accusation in her then official capacity as the Interim Executive Director of the Board. Respondent filed a timely notice of defense and this matter ensued. All jurisdictional requirements have been met.

Respondent's license

2. On December 7, 1994, the Board issued Physician's and Surgeon's Certificate Number A 53749 to Respondent. It is current and is due to expire on June 30, 2016. Respondent has no history of license discipline.

805 Report

3. From 2000 to May 2012, Respondent worked as a physician in the pediatrics and neonatology department at San Joaquin Community Hospital (Hospital), in Bakersfield, California. Review by the Board was initiated after the Hospital filed a Business and Professions Code section 805 Health Care Facility report with the Board in August 2012, following Respondent's resignation from the Hospital's medical staff:

Care and Treatment

7. On April 17, 2012 at 10:55 a.m., Respondent was at Baby H.' s bedside performing her first in-person evaluation of the patient. At that time, she was aware that Baby H.' s clinical picture was consistent with respiratory distress syndrome. Baby H. required increased oxygen to maintain oxygen saturations between 90-94 percent. CP AP was increased to 6.

8. On April 17, 2012 at I :00 p.m., Baby H. was on 100 percent oxygen. Nursing staff telephoned Respondent to inform her that the newborn was having oxygen desaturation despite being on a ventilator. Respondent gave telephone orders to increase the ventilation settings, ordered an immediate echocardiogram, and a blood gas to be taken at 4:00 p.m.

9. On April 17, 2012 at 1 :20 p.m., Baby H. was intubated by a respiratory therapist and placed on conventional mechanical ventilation with l 00 percent oxygen. At 1 :25 p.m., a chest x-ray for endotracheal tube placement was taken, with results obtained at I :39 p.m. Nursing staff called Respondent at approximately 1 :40 p.m., 10 minutes after she had left the hospital, to ask that she come to Baby H.'s bedside to review the chest x-ray and update his parents, but she did not do so. At 2: 14 p.m., the chest x-ray was reviewed by a radiologist who reported no definite pneumothorax.2 The radiologist described Baby H. as having stable to moderate respiratory distress syndrome with a high endotracheal tube.

10. On April 17, 2012, Respondent left the Hospital from 1 :30 p.m. until 5:00 p.m. in response to a call from her son's school, stating that he was having an asthma attack. After she left the Hospital campus, Respondent telephoned Dr. Sudhir Patel3 to ask him to review Baby H. 's x-ray for an opinion. Dr. Patel told Respondent that he was not physically at the Hospital, but could remotely review the x-ray, and Respondent was agreeable to having Dr. Patel review the infant's x-ray remotely. Respondent did not ask Dr. Patel to take over the care of Baby H. or any other patient in her absence, nor did she inform the nurses that Dr. Patel, or anyone else, would be covering any of her patients that afternoon. The nurses on duty made several unsuccessful attempts to contact Respondent regarding Baby H. They left messages, but Respondent did not respond.

11. In the early afternoon, Dr. Patel reviewed Baby H.'s x-ray and determined that it showed signs of respiratory distress syndrome. When he tried to reach Respondent by telephone to notify her of his findings, she did not answer.

12. On April 17, 2012, Dr. Patel went to the Hospital for an unrelated meeting. At approximately 3:00 p.m., he went to the NICU to follow up with Respondent regarding Baby H.'s chest x-ray. NICU nurses informed Dr. Patel that Baby H. was in distress and they had

2 A collection of air between the lungs and chest. 3 Dr. Patel is board certified in neonatology by the American Board of

Pediatrics, with subspecialty certification in Neonatal-Perinatal Medicine. He has privileges at the Hospital, and treats patients in the newborn nursery and NICU. II

3 Attachment 1

been unable to reach Respondent concerning his deteriorating condition.4 Dr. Patel evaluated the infant and noted a left pneumothorax. Because this was an urgent condition which needed to be treated, and could not be delayed until Respondent was reached or returned, Dr. Patel intervened and stabilized Baby H. by perfonning a needle aspiration of the pneumothorax. Shortly thereafter, at 4:43 p.m., surfactant was administered, and Dr. Patel placed an umbilical arterial and venous catheter.

13. On April 17, 2012, at approximately 5:00 p.m., Respondent came to the NICU and assumed care of Baby H. At 5:25 p.m., the infant's blood gas test measured 7.24/52/31/ -5 (100 percent oxygen.) Baby H's respiratory distress continued to worsen. At approximately 6:50 p.m., Respondent elected to transfer th

111111111111111111111111111111 - the patient safety …...mbagwu was honored as a two-time recipient...

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