California Courts of Appeal Reports

SARKA v. REGENTS OF UNIV. OF CALIFORNIA, B181753 (Cal.App.
12-28-2006) GEORGE SARKA, M.D., Petitioner and Appellant,
v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,
Defendants and Respondents. B181753 Court of Appeal of
California, Second District, Division Three. Filed December
28, 2006 CERTIFIED FOR PUBLICATION

Appeal from a judgment of the Superior Court of Los Angeles
County, No. BS 087030, David P. Yaffe, Judge. Affirmed.

Hosey & Bahrambeygui and Sherry Bahrambeygui; Karen G.
Sarames for Petitioner and Appellant.

James E. Holst and Michael R. Goldstein for Defendants and
Respondents.

Catherine I. Hanson and Gregory M. Abrams for California
Medical Association as Amicus Curiae on behalf of
Petitioner and Appellant.

ALDRICH, J.

INTRODUCTION

Petitioner George Sarka, M.D. was employed as a primary
care physician at the student health services` Arthur Ashe
Student Health and Wellness Center (SHS) at the University
of California at Los Angeles (the University). He filed a
grievance challenging the University`s decision to
discharge him for repeatedly refusing to follow the
directions of his superior to modify his approach to
patient care to be more in accord with his SHS colleagues.
The administrative hearing officer upheld the termination.
Dr. Sarka appeals from the trial court`s judgment that
denied his petition for writ of administrative mandate (Code
Civ. Proc., § 1094.5) seeking to overturn the
hearing officer`s decision.

At issue is whether the hearing officer and the trial court
committed legal error by failing to apply Business and
Professions Code section 2056, which declares it a
violation of public policy for employers to penalize
physicians “principally for advocating for medically
appropriate health care.” (§ 2056, subd. (c).) The
record shows that both the hearing officer and the trial
court considered and properly applied section 2056 and that
substantial evidence supports the trial court`s conclusion
that Dr. Sarka was discharged for insubordination.
Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. General background.

Reviewing the administrative record as we are required
(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 810, 824),
it shows that for 14 years, Dr. Sarka was employed at SHS
as a primary care physician. For most of his employment at
SHS, Dr. Sarka reported directly to Dr. Jo Ann Dawson,
Director of Primary Care at SHS. Beginning in February 2001,
he began reporting to Assistant Vice Chancellor Edward
Wiesmeier, M.D.

The mission of SHS is to “promote and enhance the health
and wellbeing of UCLA students.” SHS functions, in part, as
a health maintenance organization for students.
Registration fees prepay most of the services SHS provides.
At SHS, students see primary care physicians who treat them
directly, or when appropriate, refer them to other health
care professionals for more specialized treatment. Dr.
Sarka`s job description included, among other things, “case
management, the judicious use of all resources, and the `[
. . . ] competent provision of personal, medical care,
including diagnosis and treatment. . . .` ” (Italics
added.)

In August 2002, the University notified Dr. Sarka that he
was being dismissed from his position at SHS for refusing
to modify his approach to patient care to make it more
consistent with his colleagues in being less wasteful of
resources by relying less on diagnostic testing and more on
” `optimal clinical judgment.` ”

2. Dr. Sarka`s grievance.

Dr. Sarka filed a grievance pursuant to the University`s
Personnel Policies for Staff Members (PPSM) alleging the
University violated PPSM 65 and PPSM 70H. PPSM 65 provides
for the termination of managers and senior professionals
“when, in management`s judgment, the needs or resources of
a department or the performance or conduct of an employee
do not justify the continuation of an employee`s
appointment.” PPSM 70H forbids retaliating against
employees for participating in the complaint resolution
process. Dr. Sarka alleged that his termination was, in
relevant part, “clearly retaliatory for advocating
appropriate patient care. . . .”

Following step one of the PPSM grievance process, Dr.
Sarka`s case was reviewed by the interim Vice Chancellor.
Discerning no violation of the PPSM, the Vice Chancellor
found that the “dismissal was caused by Dr. Sarka`s refusal
to abide by the instructions given to him by his
supervisor, Dr. Wiesmeier, regarding his tendency to, among
other things, rely too heavily on `diagnostic testing,
repeated visits and referrals` and `over-doctoring.` ”

Dr. Sarka requested his grievance be moved to step two, an
administrative fact-finding hearing in front of a hearing
officer, called an independent party reviewer (IPR).

3. The evidence in the administrative record.

a. The University`s case.

At the hearing, the University took the position that Dr.
Sarka`s termination was reasonable and for good cause.
Although Dr. Sarka was board-certified in neurology and
rheumatology, he was clearly and repeatedly told he was
hired and expected to function as a primary care physician.
His case load was no more complicated than were those of
other primary care doctors at SHS. Dr. Sarka`s “dismissal
was not, as he claim[ed], an act of retaliation for . . .
patient advocacy,” but because of his wasteful use of
resources by over-reliance on diagnostic testing in lieu of
relying on medical judgment.

The University`s evidence showed that the patients at SHS
are predominantly young, healthy, highly functional
students “in an extremely selective and competitive
academic setting.” This patient population generally has
infrequent, insignificant chronic problems. SHS`s patients
present with very common symptoms, which are due “[f]or the
most part” to “self-limited issues.” They suffer from colds,
eating the wrong food, staying up late, or being under
tremendous stress, all of which result in headaches,
stomach aches, or other garden-variety problems.

The University issued two memoranda, in early 2000 and the
spring of 2001, reminding the SHS staff that Dr. Sarka was
a primary care physician and that despite his expertise and
training in specialty areas, ” he is not to be a referral
source for Neurology and Rheumatology patients by any SHS
staff member. Furthermore, clinical staff may not
selectively book such patients for Dr. Sarka.” (Italics
added, underlining original.) Dr. Wiesmeier`s review of Dr.
Sarka`s charts showed that his patients generally had
conditions that were no more complicated than those seen by
his colleagues at SHS.

Despite Dr. Sarka`s position as a primary care doctor, he
treated every patient “as though his patient was a medical
emergency, disaster or crisis . . . .” Dr. Sarka`s patient
notes indicated that he repeatedly ordered “very
extensive[,] multiple tests with the outcome of normal
results, some of which the patients had to pay for that
really didn`t add anything to the final outcome . . . .” He
ordered many tests — many of them to be run
immediately — which tied up exam rooms, used up
resources, threw other clinicians off their schedules, and
overwhelmed the clinical support staff.

The University`s evidence included references to articles
in the Journal of the American Medical Association[fn1] and
the handbook of the Accreditation Association for
Ambulatory Health Care, Inc. (AAAHC);[fn2] references to
generally accepted community standards of practice; along
with data and charts showing the utilization of resources by
all of the primary care physicians at SHS generally, and
some comparisons to other University of California
campuses.

Compared to test utilization levels of other primary care
physicians at SHS, Dr. Wiesmeier found that Dr. Sarka`s was
much higher. As examples, for students with possible
urinary tract infections, Dr. Sarka routinely ordered both
labor-intensive urine microscopic evaluations and urine
dipstick analysis. While his colleagues at SHS ordered both
tests 44 percent of the time, Dr. Sarka did so 99 percent
of the time. Dr. Sarka persisted in high rates of double
testing despite a concerted organizational effort since
1998, as evidenced by numerous communications with clinical
staff, to reduce urine microscopic testing by ordering it
only when the physician felt it was needed, in accordance
with other facilities. In another example, Dr. Sarka`s
pattern of testing for DHEA and testosterone in female
patients was “far in excess” that of his colleagues at SHS
and at other University of California campuses. Dr. Sarka
was asked to reduce his reliance on this test by 80 percent
to bring it more in line with his colleagues. Also, on
average, Dr. Sarka saw his patients two visits per student,
while his colleagues saw patients from the same pool 1.3
visits per student in the same five-month period. Finally,
Dr. Sarka`s use of x-rays “far exceed[ed]” that of his SHS
colleagues and posed a particular problem because of the
exposure of young, generally healthy students to radiation.
Not only did Dr. Sarka`s performance evaluations over time
reflect the University`s concerns about these practices,
but both Dr. Dawson and Dr. Weismeier repeatedly spoke to
Dr. Sarka directly about his over-use of resources, and
requested he modify his management and care-delivery
patterns.

Dr. Wiesmeier concluded that Dr. Sarka`s practice style was
wasteful of resources and medically unjustified. In Dr.
Wiesmeier`s view, Dr. Sarka`s failure to use adequate
clinical judgment caused him to use too many clinically
unnecessary diagnostic services and visits to manage his
patients` ailments. Dr. Sarka`s conduct not only violated
the SHS mission to ensure the academic success of students,
but it was not an efficient and effective use of resources.
It absorbed students` time, had a negative impact on their
academic success, and confused and alarmed students, who
would come to believe they were sicker than they actually
were. Dr. Wiesmeier stated ” I am not in a position to
comment on the appropriateness of [Dr. Sarka`s] approach to
medicine in other settings, but I can, and have, shared
with [Dr. Sarka] that it is not appropriate in a student
health center where many of the presenting issues revolve
around young healthy adults with underlying stress and
anxiety. This does not mean that there is no pathology in
this cohort. Nonetheless, [Dr. Sarka`s] approach
unnecessarily exacerbates this for [Dr. Sarka`s] patients
because of [his] over-reliance on diagnostic testing,
repeated visits and referrals. ” (Italics added.)

b. Dr. Sarka`s case.

Dr. Sarka claimed he was using his best clinical judgment
and that he was discharged for advocating for his patients.
He argued that specialty cases were referred to him because
of his board certification in neurology and rheumatology,
with the result that his patient mix was more complex than
that of the other clinicians at SHS. He asserted that
management used flawed data and data analysis in assessing
his performance and placed cost containment above
appropriate patient care.

As evidence, Dr. Sarka submitted, among other things, his
correspondence with attachments. Therein, he asserted that,
although he was hired as a generalist, and initially also
because of his specialization, he later became exclusively
a primary care doctor. Still, “there was a deluge of
specialty referrals to [him] in Neurology and
Rheumatology,” and so it was “inappropriate to expect him to
adhere to these same utilization profiles for testing and
patient visits.” Dr. Sarka claimed to have complied with
every written directive. He felt, as a board-certified
rheumatologist and neurologist, that he was “being
efficient, effective, and appropriate in [his] medical
care.” (Italics omitted.) Dr. Sarka stated that he
“appropriately order[s] tests to aid in the assessment and
treatment of patients” when tests were “clinically
indicated.”

Dr. Sarka`s witnesses testified that Dr. Sarka did not
over-test or see patients too frequently and that he
exercised good clinical judgment, was consistent and
thorough, made appropriate diagnoses, and his workup was
“relevant” to the complaint presented. One of Dr. Sarka`s
witnesses testified “as an expert witness in medical
management” and addressed efficiency in managed care. He
did not testify about whether Dr. Sarka`s conduct in
opposition to Dr. Wiesmeier`s directives was medically
appropriate. One doctor testified that, while Dr. Sarka was
asked to reduce his reliance on DHEA testosterone tests, the
University of Southern California required its primary care
physicians to conduct those tests rather than to refer such
patients to specialists.[fn3]

c. The dismissal.

Finding Dr. Sarka to be steadfast in his unwillingness to
accept Dr. Wiesmeier`s directions, and that Dr. Sarka had
no intention of modifying his practice as requested, the
University sent Dr. Sarka its final notice of dismissal.
Therein, Dr. Wiesmeier stated that Dr. Sarka “continue[d]
to be unwilling to accept my directions to you, and that
you see no reason and have no intention of modifying your
practice as I have repeatedly requested of you.” (Italics
added.) Notwithstanding 15 months of warning, Dr. Sarka had
not modified his workplace behavior or made progress in
meeting Dr. Wiesmeier`s requests and expectations. To the
degree Dr. Sarka complied with Dr. Wiesmeier`s requests, it
was “by [Dr. Sarka`s] own admission, under protest and even
then only minimally.” In rebuttal to Dr. Sarka`s charge
that Dr. Wiesmeier was ” `placing cost containment above
appropriate patient care,` ” Dr. Wiesmeier cited a “recent
study comparing UCLA`s practice to that of other similar
schools nationally [that had been] presented to and
accepted by our Continuous Quality Improvement Committee.”
It showed that SHS “continues to have more pre-paid
services available for its students than do the other 8
University of California Schools. . . . It indicates that
the UCLA Ashe Center practice is far and away the most
heavily reliant on laboratory testing. . . . It is in this
setting that your practice and ordering patterns are by far
the highest (in some cases more than double) of all your
colleagues at the Ashe Center. Recent reports reflect a
decline in reliance on laboratory testing in our setting.
Your use continues to be excessive.” (Italics added.) In
short, Dr. Sarka`s ” reluctance to modify aspects of [his]
practice, that are so obviously out of line with everyone
else`s at the Ashe Center, and at benchmark universities,
caused [Dr. Wiesmeier] great concern. . . .” (Italics
added.) Dr. Sarka was terminated from his employment as of
August 23, 2002.

d. The IPR`s ruling.

According to the IPR`s 27-page report, the issue presented
was “whether Dr. Sarka failed to comply with clear and
reasonable expectations provided by his supervisor as to
how he carried out his assigned duties at SHS.” The IPR
concluded, “[i]n the end, this case is about authority.”

With respect to Business and Professions Code section 2056,
the IPR observed that the first time Dr. Sarka raised the
statute was in his closing brief. The IPR stated that Dr.
Sarka`s section 2056 “argument cannot prevail in this
report because it is not properly before the hearing
officer; it was not raised in a timely fashion as part of
the formal Complaint (nor was it mentioned during the
related hearings). Further, the [IPR] is constrained to
decide on the Complaint at hand within the context of
established University policy. Neither is he adequately
versed in this area of statutory or case law. However, it
may be worth noting that, based on a plain reading of
language of the statute referenced, the facts of the record
would not support a contention that Dr. Sarka was
terminated principally or primarily because he advocated
appropriate health care. Further, nothing in the record
suggests that Dr. Sarka was more caring about the quality
of health care received by the patients at SHS than was Dr.
Wiesmeier or the many other health care professionals who
work there. [¶] . . . [¶] But that is not why
he was terminated. Rather, his termination resulted from a
considered and extended lack of compliance related to Dr.
Wiesmeier`s requests that he modify his patterns of practice
in a way consistent with that of his physician colleagues
at SHS and with the characteristics of the patient
population. Dr. Sarka was not asked to suspend his clinical
judgment; indeed, he was encouraged to develop it and rely
less on the mechanics of laboratory testing.” (Italics
added, original underscoring.) The IPR concluded, “[a]fter
a thorough and thoughtful review of the record . . . [it]
does not support Complainant`s allegation that his
termination was in retaliation for . . . patient care
advocacy. . . . Based on the totality of evidence created
in this record, it is the judgment of the Independent Party
Reviewer that no violations of University personnel policy
occurred related to Dr. Sarka`s termination.” (Italics
added.) The IPR`s findings and conclusions were affirmed by
the Executive Vice Chancellor and so Dr. Sarka`s grievance
was denied.

4. Dr. Sarka`s petition for administrative mandamus.

Dr. Sarka commenced the underlying action by filing his
petition for peremptory writ of administrative mandamus
(Code Civ. Proc., § 1094.5) and for damages
(§ 1095). The petition alleged abuse of discretion
and insufficient evidence to support the IPR`s finding that
Dr. Sarka was not discharged principally in retaliation for
patient care advocacy.

The trial court denied Dr. Sarka`s writ petition.[fn4] The
court ruled that Dr. Sarka “was not fired for
[incompetence, discipline, or] . . . for advocating for
medically appropriate healthcare for the students of UCLA
[pursuant to] section 2056(a). . . . Petitioner was fired
for insubordination. ” (Italics added.) The court explained
that one of the doctors is superior to the other, and that
as subordinate employee, Dr. Sarka had the duty to obey
orders given by his superior as long as those orders fell
within the scope of his authority and were not improper.
(Italics added.) The record contained substantial evidence
that the directives given to Dr. Sarka were proper under
the circumstances. Dr. Sarka`s timely appeal followed.

DISCUSSION

1. Standard of review.

Pursuant to Code of Civil Procedure section 1094.5, when
the trial court reviews an administrative decision that
substantially affects a fundamental vested right, the trial
court “not only examines the administrative record for
errors of law but also exercises its independent judgment
upon the evidence. . . .” (Bixby v. Pierno (1971) 4 Cal.3d
130, 143; see Code Civ. Proc., § 1094.5, subd.
(c).)[fn5]

Under the independent-judgment standard, “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, supra, 20 Cal.4th at p. 817.) “[The] trial court
must accord a ` “strong presumption of . . . correctness” `
to administrative findings. . . .” (Ibid.) The trial court
begins its review with the presumption that the
administrative findings are correct, and then, after
according the respect due these findings, the court
exercises independent judgment in making its own findings.
(Id. at p. 819.) Hence, when a court exercises its
independent judgment, there is a ” limited trial de novo.”
(Bixby v. Pierno, supra, 4 Cal.3d at p. 143, italics added,
fn. omitted.)

On appeal, we review a trial court`s exercise of
independent review of an agency determination for
substantial evidence. (Fukuda v. City of Angels, supra, 20
Cal.4th at p. 824.) To the extent the trial court decided
pure questions of law on undisputed facts, we review the
judgment de novo. (Anserv Ins. Services, Inc. v. Kelso
(2000) 83 Cal.App.4th 197, 204.)

2. Neither the IPR nor the trial court committed legal
error in their application of Business and Professions Code
section 2056.

Dr. Sarka`s sole challenge on appeal concerns Business and
Professions Code section 2056. He states: “In this appeal,
Dr. Sarka contends that the trial court judge (and the IPR)
admittedly failed to properly consider — much less
correctly apply — Business and Professions Code
section 2056. Thus, the heart of this appeal involves legal
error.” (Emphasis omitted.)

Manifestly, Dr. Sarka is wrong that both the trial court
and the IPR “failed to properly consider ” Business and
Professions Code section 2056. Both reviewers addressed
that statute. The IPR incorrectly stated initially that Dr.
Sarka had not properly raised the statute; the grievance
actually stated “I believe that my termination is clearly
retaliatory for advocating appropriate patient care. . . .”
Notwithstanding that portion of its ruling, the IPR went on
to apply the statute to the facts presented. The IPR
stated: “it may be worth noting that, based on a plain
reading of language of the statute referenced, the facts of
the record would not support a contention that Dr. Sarka
was terminated principally or primarily because he advocated
appropriate health care.” (Italics added, original
underscoring.) Likewise, the trial court considered the
statute. It ruled that Dr. Sarka “was not fired for
advocating for medically appropriate healthcare [pursuant
to] section 2056(a). . . .” (Italics added.)

We conclude that both the IPR and the trial court properly
applied Business and Professions Code section 2056 in this
case. That statute was sponsored by the California Medical
Association. It declares the policy of California “to
encourage two types of advocacy for medically appropriate
health care: (1) an appeal from a payor`s decision to deny
payment, and (2) a protest of a decision, policy, or
practice that the physician reasonably believes impairs his
or her ability to provide medically appropriate health
care.” (Khajavi v. Feather River Anesthesia Medical Group
(2000) 84 Cal.App.4th 32, 47.) Business and Professions
Code section 2056 “was intended `to provide an express
statutory public policy in favor of physicians` advocacy
for appropriate health care of their patients and against
employment termination or penalization of physicians for
such advocacy` and to `state that a physician who has an
employment or other contractual relationship with a person
should not be terminated or otherwise penalized principally
for advocating for appropriate health care for his or her
patient.` [Citations.]” (Khajavi, supra, at pp. 49-50,
italics added; original italics deleted.)[fn6]

The record contains substantial evidence to support the
trial court`s conclusion, after exercising its independent
judgment, that the weight of the evidence before the IPR
supported its finding that Dr. Sarka was not terminated
“principally for advocating for medically appropriate
health care” (Bus. & Prof. Code, § 2056, subd. (c)),
but for refusing to modify his practice in response to SHS
requests, to perform as a primary care physician and to be
less wasteful of health-service resources and of student
time. Specifically, the University submitted evidence
supporting the testing and follow-up practices by which it
expected Dr. Sarka to abide. Yet, Dr. Sarka did not comply
with the University`s repeated requests, over 15 months, to
utilize resources more judiciously by relying more on his
own clinical judgment. Rather, he resisted those requests.
The University`s witnesses testified about the deleterious
effect on other physicians and staff at SHS and on patients
because Dr. Sarka wasted resources, squandered students`
time, and caused them needless concern about their health.
The final notice of dismissal stated unequivocally that Dr.
Sarka was discharged because he “continue[d] to be
unwilling to accept my directions to you, and that you see
no reason and have no intention of modifying your practice
as I have repeatedly requested of you.” Therefore, the
evidence supports the trial court`s conclusion Dr. Sarka
was discharged for insubordination.

Dr. Sarka quotes from the court that it had “neither the
expertise nor the duty to decide which of the two
physicians [Dr. Sarka or Dr. Wiesmeier] is right.” He
argues this quotation demonstrates that the court
improperly refused to apply Business and Professions Code
section 2056. We disagree. Looking at the statute, its
application requires expert testimony about whether a
physician`s advocacy was “medically appropriate.” (See,
Khajavi v. Feather River Anesthesia Medical Group, supra,
84 Cal.App.4th at p. 42 [the physician-employee introduced
expert testimony that his advocacy was “medically
appropriate” and why].) Trial courts are not trained in
medicine and are not equipped to make judgments between
different physicians` approach to the practice of medicine;
nor should courts be expected to make those determinations
in a vacuum. That is the very reason expert opinion
testimony is required. (Landeros v. Flood (1976) 17 Cal.3d
399, 410; cf. Flowers v. Torrance Memorial Hospital Medical
Center (1994) 8 Cal.4th 992, 1001 [the standard of care is
peculiarly within the knowledge of experts and can only be
proved by expert testimony]; Alef v. Alta Bates Hospital
(1992) 5 Cal.App.4th 208, 215; Keen v. Prisinzano (1972) 23
Cal.App.3d 275, 279.)

Expert testimony was provided in the context of Business
and Professions Code section 2056 in Khajavi v. Feather
River Anesthesia Medical Group, supra, 84 Cal.App.4th 32.
There, Khajavi, an anesthesiologist, disagreed with a
surgeon about the medical wisdom of subjecting a particular
patient to cataract surgery and quit the surgery just
before it commenced. After the employer medical group
declined to renew Khajavi`s contract, he sued alleging he
was discharged from employment in violation of Business and
Professions Code section 2056. The medical group moved for
nonsuit arguing Khajavi had failed to establish that he had
been terminated in retaliation for his disagreement with
the surgeon. (Khajavi, supra, at pp. 44-45.) The appellate
court reversed the nonsuit judgment holding that section
2056 protects physicians and surgeons from being penalized
for advocating for medically appropriate health care.
There, Khajavi “introduced expert testimony that his
withdrawal from the cataract surgery was medically
appropriate . . . .” and the reason why. (Khajavi, supra, at
p. 42, italics added.)

Here, the trial court correctly applied Business and
Professions Code section 2056. The University substantiated
its position with medical literature and references to
generally accepted standards of practice in the community
of primary health care physicians at SHS, at student health
centers at the other University of California campuses, and
at “benchmark universities.” No one at SHS had been sued
for malpractice. Thus, the University`s evidence
established that the University`s policies were medically
appropriate for student health care at large university
campuses and the reason Dr. Sarka`s failure to abide by the
practice requirements was harmful to SHS and students.

By contrast, Dr. Sarka presented evidence that his
performance did not fall below the standard of care. But
this case is not about negligence or malpractice.[fn7] What
was relevant to Business and Professions Code section 2056
in this case was whether, in refusing to rely more on his
own medical and clinical judgment and less on diagnostic
testing, Dr. Sarka was “advocating for medically
appropriate health care.” (§ 2056, subd. (c).)
Toward that end, Dr. Sarka was obligated to demonstrate
that his advocacy was “medically appropriate” for primary
care physicians in a large university`s student health
service. This he did not do. Nor did he undermine the
medical appropriateness of the University`s directives to
him.[fn8] Generally, in mandamus proceedings where the
independent judgment standard of review applies, the trial
court is limited to consideration of the evidence presented
to the administrative board. (Bixby v. Pierno, supra, 4
Cal.3d at p. 143, fn. 10 [trial court reviews evidence
before administrative agency, or which could have been
adduced at administrative hearing, or which was improperly
excluded from that hearing]; Los Angeles Superior Court
Rules, rule 9.5(g).) Thus, insofar as the evidence here did
not include relevant expert testimony on whether Dr.
Sarka`s advocacy was “medically appropriate” (§
2056, subds. (b) & (c)), the trial court clearly did not
have the expert evidence to make a decision under this
statute. Given the omission of the necessary testimony
here, Dr. Sarka failed to present the trial court with
evidence that it could weigh against that of the
University. Thus, the evidence supports the trial court`s
conclusion that Dr. Sarka was not discharged principally
for advocating medically appropriate health care.

Amicus insists that to properly rebut the University`s
aggregated statistical data, Dr. Sarka had to rely on
patient charts and his expert should have been able to
review information that directly shows facts upon which the
doctor relied in making his medical decision for each
patient. Yet, Dr. Sarka`s witnesses testified after looking
at specific patient charts, that Dr. Sarka met the standard
of care in that he was thorough and did not misdiagnose.
What was relevant was whether Dr. Sarka`s refusal to rely
more on his medical judgment and less on testing was
medically appropriate. Even assuming his practice was
medically appropriate, however, because Dr. Sarka did not
demonstrate that the University`s requirements were not
medically appropriate, the IPR and the trial court were
left only with the conclusion that Dr. Sarka`s refusal to
comply with the University`s request constituted
insubordination.[fn9]

Dr. Sarka justifies his practice pattern by arguing that he
saw a special mix of patients compared with that of his
colleagues because of his certification in neurology and
rheumatology. His witnesses testified to this and discussed
the patients they referred to him in his capacity as a
specialist. However, not only did the University repeatedly
tell Dr. Sarka and his colleagues that Dr. Sarka was a
primary care physician and was not to receive referrals,
but the record shows that Dr. Wiesmeier reviewed Dr.
Sarka`s charts and discovered that his patient mix was not
special, but resembled that of the other primary care
doctors at SHS. Therefore, the trial court had a basis for
rejecting Dr. Sarka`s rationale for his conduct. While Dr.
Sarka contends that he was advocating for appropriate
health care for his special patients pursuant to Business
and Professions Code section 2056, the University`s
evidence provided a basis for the trial court to conclude
that Dr. Sarka was not advocating “medically appropriate”
health care for a large university`s student health
service.

To summarize, the record is replete with documentation and
testimony supporting the University`s position. Dr. Sarka`s
claim he was practicing the best medicine he could does not
transform his termination into a violation of Business and
Professions Code section 2056. Even if his discharge
penalized him for advocating appropriate medical care
— a position that was not supported by expert
testimony — he was not fired ” principally ” for
that reason. (§ 2056, subd. (c), italics added.)
Therefore, neither the IPR nor the trial court abused its
discretion or committed error. (Code Civ. Proc., §
1094.5, subd. (c); Fukuda v. City of Angels, supra, 20
Cal.4th at p. 824.)

DISPOSITION

The judgment is affirmed.

We concur:

CROSKEY, ACTING, P. J.

KITCHING, J.

[fn1] The article from the Journal of the American Medical
Association addressed the dramatic increase in use and
sensitivity of diagnostic testing and its unintended,
negative consequences. (Fisher, M.D. et al., Avoiding the
Unintended Consequences of Growth in Medical Care, How
Might More be Worse? (Feb. 3, 1999) 281 JAMA 5.)

[fn2] According to the AAAHC handbook, to provide
high-quality health care services, there should be, inter
alia, an “absence of clinically unnecessary diagnostic or
therapeutic procedures . . . [¶] . . . [¶]
absence of duplicative diagnostic procedures . . .
[¶] . . . [¶] the appropriateness of
treatment frequency.”

[fn3] After oral argument, the parties provided this court
with additional briefing that discussed the testimony in
this case about the standard of care and whether Dr. Sarka
breached it.

[fn4] At the direction of the trial court, the parties
notified this court that Dr. Sarka filed a second petition
for peremptory writ of administrative mandamus in the same
court as the first petition. Apparently, the trial court
ordered the second petition abated pending the outcome of
this appeal. Neither party has explained whether or how the
second petition is relevant to the instant appeal.

[fn5] Subdivision (c) of section 1094.5 of the Code of Civil
Procedure states, “Where it is claimed that the findings
are not supported by the evidence, in cases in which the
court is authorized by law to exercise its independent
judgment on the evidence, abuse of discretion is
established if the court determines that the findings are
not supported by the weight of the evidence. In all other
cases, abuse of discretion is established if the court
determines that the findings are not supported by
substantial evidence in the light of the whole record.”

[fn6] The relevant portions of Business and Professions Code
section 2056 read:

“(b) It is the public policy of the State of California
that a physician and surgeon be encouraged to advocate for
medically appropriate health care for his or her patients.
For purposes of this section, ` to advocate for medically
appropriate health care` means . . . to protest a
decision, policy, or practice that the physician,
consistent with that degree of learning and skill ordinarily
possessed by reputable physicians practicing according to
the applicable legal standard of care, reasonably believes
impairs the physician`s ability to provide medically
appropriate health care to his or her patients.

“(c) The application and rendering by any person of a
decision to terminate an employment or other contractual
relationship with, or otherwise penalize, a physician and
surgeon principally for advocating for medically
appropriate health care consistent with that degree of
learning and skill ordinarily possessed by reputable
physicians practicing according to the applicable legal
standard of care violates the public policy of this state.
No person shall terminate, retaliate against, or otherwise
penalize a physician and surgeon for that advocacy . . . .

“(d) This section shall not be construed . . . to prohibit
a medical group, independent practice association,
preferred provider organization, foundation, hospital
medical staff, hospital governing body acting pursuant to
Section 809.05, . . . from enforcing reasonable peer
review or utilization review protocols or determining
whether a physician has complied with those protocols.
[¶] . . . .

“(f) Nothing in this section shall be construed to prohibit
the governing body of a hospital from taking disciplinary
actions against a physician and surgeon as authorized by
Sections 809.05, 809.4, and 809.5.”

(Italics added.)

[fn7] Although one of Dr. Sarka`s witnesses testified about
the University of Southern California`s practice with
respect to the DHEA testosterone test, that testimony does
not undermine the medical appropriateness of UCLA`s general
practice, particularly given UCLA also considered the
patterns of other University of California campuses.

[fn8] Dr. Sarka`s argument that “cost became more important
and patient welfare correspondingly declined in
importance,” (italics added) at SHS is not supported by the
record. The evidence shows, among other things, that the
tests Dr. Sarka over-ordered were paid for directly by the
students and had little impact on the University`s bottom
line. Moreover, Dr. Wiesmeier demonstrated his sincere
concern about the students` well-being. He repeatedly
pointed out to Dr. Sarka the deleterious effect the
latter`s practice was having on students and their welfare
caused by unnecessary anxiety about being ill and extra
time they were spending in the SHS offices for repeat
visits. That was one of the reasons cited for Dr. Sarka`s
termination from employment. In any event, the University`s
notice of dismissal to Dr. Sarka set forth its rebuttal to
Dr. Sarka`s charge by citing a recent study comparing
UCLA`s practice to that of other similar schools nationally,
which study was accepted by the University`s Continuous
Quality Improvement Committee.

[fn9] We reject the argument of amicus that the PPSM
prohibits raising this statute in a grievance. We see no
reason why doctors should not be able to raise this statute
and adduce the necessary evidence at an administrative
hearing.