Stewart

Robert H. Stewart, a medical doctor, appeals from an order of the superior court granting a new trial on grounds of an error in law in a mandamus proceeding (Code Civ. Proc., § 1094.5) instituted by Dr. Stewart against the Board of Medical Quality Assurance, Department of Consumer Affairs, State of California (hereinafter referred to as the Board).

The Case

The chronology of events is as follows;

On February 10, 1976, the Board filed an accusation charging Dr. Stewart with committing in the practice of medicine acts and omissions which constituted gross negligence and incompetence and resulted in the death of a patient. Dr. Stewart filed a timely notice of defense (Gov. Code, §§ 11505, 11506).

The Board assigned the matter to an administrative law judge of the Office of Administrative Hearing, Helen L. Gallagher (hearing officer), who presided alone at the hearing held May 10 and 11, 1976, made findings of fact and determinations of law, and issued her proposed decision to the Board. The proposed decision incorporated findings that Dr. Stewart had committed the acts and omissions charged which constituted incompetence in the practice of medicine and it recommended,…