Opinion
B327956
05-30-2024
GERALD BALTZ, Plaintiff and Appellant, v. CALIFORNIA BOARD OF REGISTERED NURSING, Defendant and Respondent.
Khouri Law Firm, Michael J. Khouri and Valery R. Polyakov for Plaintiff and Appellant. Rob Bonta, Attorney General, Carl Sonne, Senior Assistant Attorney General, David Brice, Nancy Kaiser, and Lisa Miller, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 22STCP00550 James C. Chalfant, Judge.
Khouri Law Firm, Michael J. Khouri and Valery R. Polyakov for Plaintiff and Appellant.
Rob Bonta, Attorney General, Carl Sonne, Senior Assistant Attorney General, David Brice, Nancy Kaiser, and Lisa Miller, Deputy Attorneys General, for Defendant and Respondent.
ADAMS, J.
The California Board of Registered Nursing (the Board) revoked Gerald Baltz's nursing license and certificates after finding that his treatment of a suicidal patient was grossly negligent, and further that he engaged in unprofessional conduct by having an intimate relationship with that patient after he stopped treating her. The trial court denied Baltz's petition for a writ of mandate to set aside the Board's decision. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
From 2015 to 2018, Baltz worked as a psychiatric nurse at Insight Choices, a clinic in West Hollywood. Patient S.R. received treatment at Insight Choices from 2012 to 2017. Baltz treated S.R. once in April 2015. He assumed responsibility for S.R.'s treatment in April 2016 and saw her several times over the next year.
According to S.R.'s medical records, she expressed a "passive death wish" during her first visit with Baltz and two subsequent visits. She also reported feeling "terrible" during three visits and "depressed" during two other visits. Baltz prescribed medications to S.R., including antidepressants and antipsychotics, and he adjusted the dosages. S.R.'s medical records do not reflect that Baltz ever took her vital signs or conducted a psychological assessment.
During S.R.'s last visit with Baltz, she reported feeling suicidal and having "persistent horrible negative thoughts." Therapy and medications were not effective. Baltz referred S.R. to his supervising physician, Dr. Robert Chang, for Transcranial Magnetic Stimulation (TMS), a treatment for major depressive disorder which, in Baltz's view, was a higher level of care. The medical records do not indicate that Baltz otherwise collaborated with Dr. Chang or any other medical professional regarding S.R.'s treatment.
At the last treatment visit on April 5, 2017, S.R. asked Baltz out on a date. They exchanged personal cell phone numbers and began communicating extensively by text message. On April 9, Baltz texted S.R. that "it would be unethical" for him to begin an intimate relationship with her. He told S.R. she was not thinking clearly and they should wait to see how she felt when her mood was improved. Baltz acknowledged that if he did anything to "harm" her, it "could cause 10 years of school and work to disappear for me and injure you in some way." He also noted he could "seriously lose [his] license ...." Nonetheless, they subsequently went on two dates and had sex. Baltz twice asked S.R. to delete their text messages.
Baltz and S.R. stopped communicating by text in late April 2017. In their last messages, S.R. described feeling depressed. Baltz told her: "you need to magnetize your brain," and also texted, "I made a horrible error in judgment. You needed help and I worsened the situation." However, he told S.R. he missed her and asked if she wanted to go out that weekend. On the last day of their texts, Baltz wrote that "people want to know if you are following up with [TMS] here it's weird so I hope you called." S.R. responded: "I'm going to call today. Been kinda busy. I am gonna do it there I'm sorry." Baltz replied: "That's fine but he wants you to follow with me as the person who referred you so that will be fun." In response, S.R. stated: "Fuck it I'm not doing it. It's too much drama." Baltz replied that he felt "terrible about this whole thing. Most important thing is your mental health. This is exactly why I'm an idiot." He added that he felt "nauseous," and "horrible," and "selfishly hope[d]" S.R. would "never say anything." S.R. reassured Baltz that she would not say anything. About three weeks later, S.R. began TMS treatment at Insight Choices.
S.R. committed suicide in July 2017, the day after her grandfather passed away.
The Board's investigation
In August 2018, the Board received a complaint about Baltz. The Board began investigating his treatment of and relationship with S.R.
During an interview with the Board investigator, Baltz claimed he did not have any contact with S.R. after he referred her to Dr. Chang. Baltz denied he went on a date with S.R. or had sex with her. The investigator showed Baltz screenshots of some of the text messages described above. Baltz "implied the screenshots of the text message[s] were 'photo-shopped' and questioned the source of the screenshots." The investigator allowed Baltz to scroll through the screenshots. Baltz stated," 'I completely deny' when asked if they were text messages between him" and S.R. Text messages from S.R.'s phone revealed that she told friends in early April 2017 that she had asked out her "doctor," and he agreed but said she would have to switch doctors.
Administrative proceedings
In June 2020, the Board filed an Accusation against Baltz. The Accusation alleged causes for discipline for gross negligence, under Business and Professions Code section 2761, subdivision (a)(1), based on Baltz's improper treatment of S.R.; unprofessional conduct, under section 2761, subdivision (a), based on his intimate relationship with S.R.; and sexual misconduct under section 726.
All undesignated statutory references are to the Business and Professions Code. Section 2761 was amended effective January 1, 2024. (Stats. 2023, ch. 510, § 35.) The amendment made no substantive changes to the provisions applicable to this appeal. In this opinion, we refer to the subdivisions and numbering of section 2761 in effect at the time of the trial court's ruling.
The Accusation also alleged a cause for discipline for incompetence, under section 2761, subdivision (a)(1). That cause for discipline is not at issue on appeal.
Nurse Practitioner Mary Meiselman testified as an expert witness on behalf of the Board. Meiselman opined Baltz's treatment of S.R. was an extreme departure from the standard of care because Baltz (1) failed to conduct an adequate initial psychiatric assessment of S.R., (2) failed to properly document his treatment for S.R., (3) failed to provide comprehensive treatment of S.R., and (4) failed to escalate S.R.'s treatment to a higher level of care after learning she was suicidal.
Baltz did not submit any expert testimony. He testified that he was known as "the golden boy" at Insight Choices. Baltz disagreed with Meiselman's opinions as to the standard of care, and did not believe his actions fell below that standard.
As to Baltz and S.R.'s intimate relationship, the parties stipulated the text messages described above were exchanged between Baltz and S.R. Meiselman opined the relationship was unethical and unprofessional.
Baltz testified that he lied to the Board's investigator because he was "guilty beyond belief, ashamed, really afraid," and he "panicked." He admitted that he went on two dates with S.R. and had sex with her. Baltz felt guilty and terrible about the relationship.
After S.R.'s death, Baltz changed his life by "reach[ing] out to colleagues and to professional therapists" and "look[ing] at boundaries" to ensure he was "functioning to the best of [his] ability ...." Baltz was drinking "pretty heavily" when he started the intimate relationship with S.R. He stopped drinking a few weeks after their relationship ended. He did not blame his decisions relating to S.R. on his drinking.
With respect to gross negligence, the Administrative Law Judge (ALJ) found Meiselman's opinions credible and afforded them significant weight. Based on those opinions, the ALJ determined there was clear and convincing evidence Baltz "provided an inadequate psychiatric assessment of S.R.," "failed to properly document his treatment of S.R.," provided noncomprehensive treatment to S.R., and "failed to seek a higher level of care for S.R., a suicidal patient." The ALJ thus found cause to discipline Baltz for unprofessional conduct in the form of gross negligence under section 2761, subdivision (a)(1).
The ALJ also found cause to discipline Baltz for unprofessional conduct under section 2761, subdivision (a), based on his intimate relationship with S.R. The ALJ found that Baltz's "breach of professional boundaries with a former patient with known mental health infirmities evinces a serious lapse in judgment," "was unbecoming [of] a member in good standing of the medical profession and demonstrated an unfitness to practice nursing," citing Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 575 (Shea).
The ALJ concluded cause did not exist to discipline Baltz for sexual misconduct under section 726. Section 726, subdivision (a), provides that a sexual relationship with a patient constitutes unprofessional conduct and grounds for disciplinary action. The ALJ concluded this section was inapplicable because Baltz did not begin his intimate relationship with S.R. until after their professional relationship had ended.
Next, the ALJ discussed the appropriate remedy. California Code of Regulations, title 16, section 1444.5 requires the Board to consider the Recommended Guidelines for Disciplinary Orders and Conditions of Probation. For gross negligence and "[o]ther actions which constitute unprofessional conduct," the recommended discipline is revocation of the nurse's license, and the minimum discipline is revocation stayed with three years' probation. The guidelines instruct that the following factors should be considered in determining the appropriate discipline: "1. Nature and severity of the act(s), offenses, or crime(s) under consideration. [¶] 2. Actual or potential harm to the public. [¶] 3. Actual or potential harm to any patient. [¶] 4. Prior disciplinary record. [¶] 5. Number and/or variety of current violations. [¶] 6. Mitigation evidence. [¶] 7. Rehabilitation evidence. [¶] 8. In case of a criminal conviction, compliance with conditions of sentence and/or court-ordered probation. [¶] 9. Overall criminal record. [¶] 10. Time passed since the act(s) or offense(s) occurred. [¶] 11. If applicable, evidence of expung[e]ment proceedings pursuant to Penal Code Section 1203.4."
Applying these factors, the ALJ reasoned that Baltz failed to provide adequate care for S.R., which may have compromised her safety. Baltz's failure to set appropriate boundaries "could have caused S.R. to be susceptible to confusion and potential exploitation." The ALJ recognized four years had passed and Baltz had no history of discipline. However, there were several aggravating factors. Baltz lied to the Board's investigator repeatedly, despite having several opportunities to tell the truth. He presented little evidence of rehabilitation, conceded no wrongdoing at the hearing, and did not acknowledge "S.R.'s distinct vulnerabilities as a psychiatric patient who had expressed suicidal thoughts." Although Baltz completed courses on professional boundaries, he failed to identify any "concrete plans" to avoid a similar situation in the future.
The ALJ concluded Baltz's license and certificates must be revoked. The Board adopted the ALJ's decision in full, effective February 18, 2022.
Trial court proceedings
In February 2022, Baltz filed a petition for a writ of mandate under Code of Civil Procedure section 1094.5. Baltz argued the ALJ misinterpreted section 2761, subdivision (a); the gross negligence finding was not supported by the testimony of the Board's expert witness; and the Board's decision to revoke his license and certificates was improper and punitive.
The trial court rejected Baltz's argument that unprofessional conduct under section 2761, subdivision (a), cannot, as a matter of law, encompass a nurse's intimate relationship with a former patient. The court also rejected Baltz's contention that the ALJ improperly relied on Shea, supra, 81 Cal.App.3d at page 575, concluding the ALJ properly determined unprofessional conduct is that which shows unfitness to practice medicine. The court further rejected Baltz's argument that the lack of any statute or regulation expressly defining unprofessional conduct to include a nurse's relationship with a former patient necessarily meant the Legislature had excluded such an interpretation. The court reasoned that Baltz was not just a nurse, but a mental health professional. He therefore knew his patients might have a greater propensity to develop "strong emotional dependence" on him. The court found Baltz's "breach of professional boundaries with a former patient with known mental health infirmities" showed Baltz was unfit to practice nursing, therefore his actions amounted to unprofessional conduct.
The court also concluded substantial evidence supported the ALJ's gross negligence finding. Baltz argued the court should reject Meiselman's opinions entirely because she failed to cite specific authorities in her report. The court found no such requirement exists, reasoning that an expert may rely on expertise, education, training, and knowledge. The court reasoned that an expert's failure to cite specific authorities goes only to the weight of the testimony. Moreover, Meiselman identified several specific authorities during her testimony. The court also rejected Baltz's contention that he could not be grossly negligent because he complied with Insight Choices' standardized procedures, as his compliance or noncompliance with those procedures had no bearing on the gross negligence charge or the standard of care. The court further found sufficient evidence supported the gross negligence charge, citing Meiselman's opinions that Baltz's treatment of S.R. was an extreme departure from the standard of care.
Finally, the court rejected Baltz's argument that the revocation was punitive rather than protective of the public. The court described the ALJ's analysis and concluded the Board did not abuse its discretion.
The trial court denied Baltz's petition and entered judgment for the Board. Baltz timely appealed.
DISCUSSION
I. Standard of Review
Code of Civil Procedure section 1094.5 allows a party to petition the trial court for a writ of mandate to reverse an administrative decision. In ruling on such a petition, the trial court reviews the administrative record and assesses "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
When an administrative decision revokes a person's professional license, the trial court must exercise its independent judgment in reviewing the facts underlying the decision. (Lone Star Sec. &Video, Inc. v. Bureau of Security &Investigative Services (2012) 209 Cal.App.4th 445, 452.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).)
" 'On appeal from a decision of a trial court applying its independent judgment, we review the trial court's findings rather than those of the administrative agency.' [Citation.]" (Yazdi v. Dental Bd. of California (2020) 57 Cal.App.5th 25, 32 (Yazdi).)
"Even when, as here, the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court's determination is the substantial evidence test." (Fukuda, supra, 20 Cal.4th at p. 824.) "However, we are not bound by any legal interpretations made by the administrative agency or the trial court; rather, we make an independent review of any questions of law." (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 575 (Rand).) We also "review de novo whether the agency's imposition of a particular penalty on the petitioner constituted an abuse of discretion by the agency. [Citation.] But we will not disturb the agency's choice of penalty absent' "an arbitrary, capricious or patently abusive exercise of discretion"' by the administrative agency." (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627-628 (Cassidy).)
II. A Nurse's Intimate Relationship with a Former Patient May Constitute Unprofessional Conduct Under Section 2761, Subdivision (a)
Baltz argues his relationship with S.R. could not, as a matter of law, constitute unprofessional conduct under section 2761, subdivision (a). The interpretation of a statute is a legal question we review de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Rand, supra, 206 Cal.App.4th at p. 575.)
Section 2761, subdivision (a) allows the Board to take disciplinary action against a nurse based on his or her unprofessional conduct. While section 2761, subdivision (a) lists specific acts that constitute unprofessional conduct, as do other statutory provisions," '[a]dditional forms of conduct may be deemed unprofessional' because section 2761(a) provides that unprofessional conduct' "is not limited to"' the examples given."(Moustafa v. Board of Registered Nursing (2018) 29 Cal.App.5th 1119, 1136 (Moustafa).) In assessing whether certain behavior is unprofessional conduct, the key factor is whether the behavior reflects" 'unfitness to practice medicine.' [Citation.]" (Id. at p. 1137; Shea, supra, 81 Cal.App.3d at p. 575.) Consistent with this standard, the trial court determined Baltz was subject to discipline for unprofessional conduct because his intimate relationship with S.R. "demonstrated an unfitness to practice nursing."
Other provisions describing unprofessional conduct include section 2762 (designating certain drug- and alcohol-related misconduct as unprofessional conduct), section 725 (excessive prescribing of drugs), section 731 (engaging in or aiding and abetting certain crimes), section 733 (interference with a patient's access to a drug or medical device), section 810 (insurance fraud), and California Code of Regulations, title 16, section 1441 (failure to cooperate with the Board).
Baltz argues the Board's determination that he was not subject to discipline under section 726 precluded the trial court's finding that he engaged in unprofessional conduct under section 2761, subdivision (a) as a matter of law. We disagree. Under section 726, subdivision (a), a sexual relationship between a medical professional and a patient "constitutes unprofessional conduct and [is] grounds for disciplinary action ...." In Poliak v. Board of Psychology (1997) 55 Cal.App.4th 342 (Poliak), the court interpreted section 726 and a separate former statutory provision relating to discipline of psychologists, to mean that section 726 concerns a psychologist's sexual conduct with a current patient, not a former one. (Id. at pp. 361-363 [interpreting former section 2960].)
However, no language in section 726 limits the meaning of unprofessional conduct more generally, nor does section 726 itself constrain other statutory provisions in any way. Even accepting that section 726 applies only to current patients, reading that statute with section 2761, subdivision (a), does not suggest that the Legislature intended to categorically exclude sexual relationships with former patients from ever being considered unprofessional conduct of a nurse. (Cf. Poliak, supra, 55 Cal.App.4th at p. 362 [enactment of provision related to psychologist sexual relationships with former patients indicated Legislature drew distinction between current and former patients that would apply to former section 2960 and 726].) That the ALJ and the trial court concluded Baltz's intimate relationship with S.R. was not a basis for discipline under section 726 had no bearing on whether he could be disciplined under section 2761, subdivision (a), if the intimate relationship demonstrated unfitness to practice medicine.
Poliak addressed the distinction between a current and former patient under section 726, but it did not consider whether unprofessional conduct under section 2761, subdivision (a) may encompass a nurse's intimate relationship with a former patient. Instead, the court considered former section 2960, which set forth the grounds for the revocation of a psychologist's license, and, unlike section 2761, specifically identified certain forms of sexual behavior with a patient as a basis for revocation.
Baltz contends section 729 also indicates the Legislature did not intend for unprofessional conduct under section 2761, subdivision (a) to encompass a nurse's consensual intimate relationship with a former patient. Under section 729, a physician, surgeon, psychotherapist, or alcohol and drug abuse counselor commits sexual exploitation-a criminal offense-by engaging in a sexual relationship with a former patient, when the relationship was terminated primarily for the purpose of engaging in the sexual acts. According to Baltz, the lack of any statute specifically addressing a nurse's intimate relationship with a former patient necessarily means the Legislature did not intend for such a relationship to constitute unprofessional conduct.
That the Legislature chose to create criminal penalties for certain types of sexual misconduct committed against former patients by a specific subset of medical professionals does not suggest the Legislature intended to limit discipline for an entirely different subset of medical professionals. Again, under section 2761, subdivision (a), unprofessional conduct "is not limited" to the specific acts listed in that provision or in any other statutory provision. Baltz essentially asks us to ignore this language, but"' "[c]ourts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage."' [Citations.]" (Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4th 1106, 1118.) Because unprofessional conduct is not limited to statutorily specified activities, it may encompass a nurse's intimate relationship with a former patient, if the relationship shows the nurse is unfit to practice medicine. (Moustafa, supra, 29 Cal.App.5th at p. 1137.)
Baltz also argues the ALJ erred in relying on Shea, supra, 81 Cal.App.3d 564. However," '[o]n appeal from a decision of a trial court applying its independent judgment, we review the trial court's findings rather than those of the administrative agency.'" (Yazdi, supra, 57 Cal.App.5th at p. 32.) Baltz does not contend the trial court improperly relied on Shea, or that it adopted any of the ALJ's reasoning based on Shea. Indeed, the record does not indicate the trial court relied on Shea, only that it referenced the case when describing and rejecting Baltz's arguments. Baltz's contentions regarding the ALJ's reliance on Shea do not provide a basis for reversal on appeal.
Here, substantial evidence supports the trial court's finding that Baltz's actions reflect unfitness to practice nursing. At her last treatment visit, S.R. told Baltz she felt "really bad and suicidal and terrible," felt "crazy," and had "persistent horrible negative thoughts." S.R.'s emotional state was serious enough for Baltz to refer S.R. to his supervising physician for TMS treatment, which Baltz described as a higher level of care. Yet, when S.R. asked Baltz out that same day, he did not decline and instead exchanged telephone numbers with her. Baltz began texting S.R. romantically a few days later, then he went on two dates with S.R. and had sex with her. He texted S.R. that their intimate relationship could harm or injure her. Baltz also acknowledged it would be unprofessional to begin a relationship with her, and that he risked losing his nursing license. He still proceeded with an intimate relationship. Although Baltz was no longer treating S.R., she remained a patient of the same clinic, leading to clinic staff asking Baltz-presumably as her former primary clinician-if S.R. had received the TMS treatment. By the end of their relationship, S.R. was hesitant to receive TMS treatment at Insight Choices because of the "drama" of the prospect of Baltz being asked to provide follow up care for her.
In short, Baltz prioritized his romantic desires over S.R.'s health and safety. Baltz then took steps to cover up his behavior by telling S.R. to delete the text messages, expressing his hope that she would "never say anything," and lying to the Board investigator. Although the trial court did not focus on this conduct, "dishonesty to the Board investigating plaintiff's alleged malfeasance constitutes unprofessional conduct and demonstrates an unfitness to practice nursing." (Clawson v. Board of Registered Nursing (2021) 72 Cal.App.5th 996, 1008.) Substantial evidence supports the trial court's finding that Baltz was unfit to practice medicine and therefore engaged in unprofessional conduct. (Fukuda, supra, 20 Cal.4th at p. 824; Moustafa, supra, 29 Cal.App.5th at p. 1137.)
Baltz also argues "there was no finding that [his] conduct demonstrated a substantial relationship to his fitness to practice nursing ...." Baltz appears to allude to the requirement that "a statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession." (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 788.) However, the trial court's finding that Baltz's unprofessional conduct demonstrated an unfitness to practice nursing "necessarily shows a substantial relation to the practice of nursing."
III. The Gross Negligence Finding Was Proper
Baltz argues the finding of gross negligence must be reversed because the expert's opinions were insufficient and the evidence established he followed the procedures at the clinic where he worked. We disagree.
Section 2761, subdivision (a)(1) allows the Board to take disciplinary action against a nurse for "gross negligence in carrying out usual certified or licensed nursing functions." Gross negligence "includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life." (Cal. Code Regs., tit. 16, § 1442.)" '[E]xpert opinion testimony is required to prove that a defendant nurse did not meet the standard of care and therefore was negligent, "except in cases where the negligence is obvious to [laypersons]."' [Citations.]" (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.) Here, the trial court found Baltz was grossly negligent based on Meiselman's expert opinion that Baltz's treatment of S.R. constituted an extreme departure from the standard of care.
Baltz contends the trial court should have excluded Meiselman's opinions under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon), because she did not identify "applicable professional standards or guidelines" to support them. Baltz did not object to the admissibility of Meiselman's expert opinions during the administrative hearing. He therefore forfeited any argument that the opinions should be excluded. (Jaramillo v. State Bd. for Geologists &Geophysicists (2006) 136 Cal.App.4th 880, 893; In re Joy M. (2002) 99 Cal.App.4th 11, 19.)
Even if this argument were not forfeited, however, we would reject it. An expert may base his or her opinions on" 'matter . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates ....'" (Sargon, supra, 55 Cal.4th at p. 769.) Meiselman testified that her opinions were based on her experience as a nurse practitioner, including information learned from her supervising physician; handbooks, including Steven Stahl's Prescriber Guide, Psychiatry Today, Up to Date, Medscape, Carlat, and Fitzpatrick; and the websites of the California Nurses' Association of Nurse Practitioners and the American Nurse Association of Nurse Practitioners. The evidence amply supports that Meiselman's opinions were properly based on sources on which an expert would rely in forming an opinion on the standard of care in the field of nursing. (Ibid.)
The trial court found Baltz was grossly negligent because "(1) his psychiatric assessment of S.R. was inadequate; (2) he failed to properly document his treatment of S.R; (3) his treatment of S.R. was non-comprehensive; and (4) he failed to seek a higher level of care for S.R." Meiselman testified that these failures constituted extreme departures from the standard of care. (Cal. Code Regs., tit. 16, § 1442 ["an extreme departure from the standard of care . . . means the repeated failure to provide nursing care as required"].) Her opinions were supported by detailed testimony about Baltz's conduct and how it fell short of the standard of care. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1053 [the testimony of a single expert "may provide substantial evidence to support a finding of gross negligence"].)
Baltz contends Meiselman's testimony did not clearly and consistently articulate whether her opinions related to a standard of care or a "good practice." He notes that the ALJ prompted Meiselman twice to frame her opinions in terms of the standard of care. Yet, as noted above, Meiselman testified at length regarding the standard of care and identified numerous specific ways Baltz's treatment of S.R. fell short of that standard. Baltz cites two pages of the appellate record as supporting his argument, but neither demonstrates any inconsistency in Meiselman's opinions supporting the gross negligence finding. Further, as the trial court properly recognized, Baltz's contention that Meiselman's testimony involved "confused statements" related only to the weight of the testimony and her credibility. On appeal, we do not re-weigh the evidence or second guess the factfinder's credibility determinations. (Yazdi, supra, 57 Cal.App.5th at p. 32; James v. Board of Dental Examiners (1985) 172 Cal.App.3d 1096, 1115.)
As he asserted below, Baltz also argues that, as a matter of law, he could not be found grossly negligent because he followed Insight Choices' standardized procedures. He claims there was no evidence that these procedures "were not compliant with the applicable standard of care required by" section 2836.1 and California Code of Regulations, title 16, section 1474. Section 2836.1 provides that no law may be construed to prohibit a nurse from providing drugs to a patient when doing so in accordance with standardized procedures or protocols developed by the nurse and the supervising physician. California Code of Regulations, title 16, section 1474 sets guidelines for establishing such procedures.
The term "standardized procedure" has a specific definition, which is set forth in section 2725, subdivision (c): "(1) Policies and protocols developed by a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code through collaboration among administrators and health professionals including physicians and nurses," or "(2) Policies and protocols developed through collaboration among administrators and health professionals, including physicians and nurses, by an organized health care system which is not a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code."
Meiselman did not testify that Baltz was grossly negligent based on California Code of Regulations, title 16, section 1474 or section 2836.1. Indeed, there was no allegation that Baltz was grossly negligent for failing to follow standardized procedures or protocols, or that he was prohibited in general from prescribing medication. Further, the provisions Baltz invokes concern the acts a nurse practitioner is authorized by law to perform. They do not generally immunize a nurse practitioner from discipline for failing to provide adequate care. The provisions are not inconsistent with the finding that Baltz's conduct, even if compliant with Insight Choices' procedures, constituted gross negligence because it did not meet the standard of care. Baltz has not otherwise articulated any reasoned argument or cited any authority demonstrating his compliance with the clinic's standardized procedures are relevant to our analysis. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075 [appellant's failure to support point with reasoned argument and citations to authority forfeits that point].)
IV. The Agency Did Not Abuse Its Discretion in Revoking Baltz's License and Certificates
Baltz also contends the Board abused its discretion in revoking his nursing license and certificates. We disagree.
"[W]e review de novo whether the agency's imposition of a particular penalty on the petitioner constituted an abuse of discretion by the agency. [Citation.] But we will not disturb the agency's choice of penalty absent' "an arbitrary, capricious or patently abusive exercise of discretion"' by the administrative agency." (Cassidy, supra, 220 Cal.App.4th at pp. 627-628.) The Board's discretion in determining the appropriate level of discipline is "virtually unfettered ...." (Morton v. Board of Registered Nursing (1991) 235 Cal.App.3d 1560, 1567 (Morton).)
The Board disciplined Baltz for both gross negligence and unprofessional conduct, and Baltz has not established any basis to reverse those findings. Board guidelines recommend revocation as the penalty for both causes for discipline. In determining whether to impose the recommended penalty, the ALJ recognized that four years had passed since the incident, Baltz had no prior history of discipline, and Baltz completed courses on setting professional boundaries. The ALJ also discussed several aggravating factors. Baltz's grossly negligent treatment of S.R. could have compromised her safety, and his failure to set appropriate boundaries may have caused S.R. to be susceptible to exploitation. Baltz lied to the Board, did not concede wrongdoing, and failed to acknowledge S.R.'s vulnerabilities. He also articulated no concrete plans to prevent a similar incident in the future. Nothing in the ALJ's analysis reflects an"' "arbitrary, capricious or patently abusive exercise of discretion ...." '" (Cassidy, supra, 220 Cal.App.4th at pp. 627-628.)
Baltz argues revocation of his license and certificates was excessive, citing Shea, supra, 81 Cal.App.3d 564. In Shea, a physician was disciplined for unprofessional conduct after he "attempted to hypnotize four patients on separate occasions and while believing them to be under hypnosis, and without solicitation, described to them in lurid and salacious detail sexual foreplay and the act of sexual intercourse." (Id. at pp. 569-570.) Baltz claims the conduct in Shea was more "egregious" than his consensual relationship with S.R., yet the Board of Medical Examiners allowed the physician to resume practice after psychiatric assessments and five years' probation. (Id. at p. 580.) However, that a different administrative board issued a more lenient penalty, applying a separate regulatory framework to a different set of facts, does not indicate the Board's chosen penalty in this case was an abuse of discretion.
Baltz also contends the Board abused its discretion because "nothing in the record suggests [he] lacks the capacity to practice safe nursing." This argument ignores the extensive, unrebutted expert testimony supporting a finding that Baltz was grossly negligent in treating a suicidal patient. It also omits that, in Baltz's own words, an intimate relationship with S.R. was "unethical" and put him at risk to "seriously lose [his] license." He nonetheless proceeded. The Board did not abuse its discretion. (Cassidy, supra, 220 Cal.App.4th at pp. 627-628; Morton, supra, 235 Cal.App.3d at p. 1567.)
DISPOSITION
The judgment is affirmed. Respondent to recover its costs on appeal.
We concur: EDMON, P. J., EGERTON, J.