Borden

Larry Igor Borden, M.D., filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) to review a decision of the Division of Medical Quality (the Division) of the Medical Board of California (the Board) revoking Borden’s license to practice medicine. The trial court granted the petition in part on the basis that 1990 amendments to Business and Professions Code 1 section 2229 cannot be applied retroactively. The Board appeals. We reverse with directions to enter a new judgment denying the petition.

Facts

On February 9, 1987, the Board filed an accusation alleging that Borden, an anesthesiologist, committed acts of gross negligence, repeated negligent *877 acts and acts of incompetence (§ 2234, subds. (b), (c) & (d)), and practiced medicine while intoxicated (§ 2240) in his treatment of Keona Murphy, a six-week-old girl who died following surgery in 1984. In a supplemental accusation filed August 31, 1990, the Board added allegations that Borden committed the same violations except for practicing while intoxicated in his treatment of Harold Nordquist, a 68-year-old man who died following surgery in 1989.

The case was tried before an administrative law…

I respectfully dissent.

The sole issue in this appeal is whether the 1990 amendments to Business and Professions Code 1 section 2229 should have been applied retroactively in determining Borden’s penalty in this disciplinary proceeding.

The majority circumvents this issue by declaring that those amendments were not real changes but mere clarifications of the law. By so doing, the majority can reach the result it desires, but the effort does no justice either to the law or Borden, for whom the change in law clearly was detrimental.

A comparative reading of the plain language of section 2229 before and after the amendment demonstrates that the amendments constituted a change in the law. Prior to January 1,1991, section 2229 provided: “In exercising its disciplinary authority the Division of Medical Quality or a medical quality review committee or panel thereof shall, wherever possible, take such action as is calculated to aid in the rehabilitation of the licensee, or where, due to lack of continuing education or other reasons, restriction on scope of practice is indicated, to order such restrictions as are indicated by the evidence. It is the intent of the Legislature that the…

Larry Igor Borden, M.D., filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) to review a decision of the Division of Medical Quality (the Division) of the Medical Board of California (the Board) revoking Borden's license to practice medicine. The trial court granted the petition in part on the basis that 1990 amendments to Business and Professions Code [1] section 2229 cannot be applied retroactively. The Board appeals. We reverse with directions to enter a new judgment denying the petition.

On February 9, 1987, the Board filed an accusation alleging that Borden, an anesthesiologist, committed acts of gross negligence, repeated negligent acts and acts of incompetence (§ 2234, subds. (b), (c) & (d)), and practiced medicine while intoxicated (§ 2240) in his treatment of Keona Murphy, a six-week-old girl who died following surgery in 1984. In a supplemental accusation filed August 31, 1990, the Board added allegations that Borden committed the same violations except for practicing while intoxicated in his treatment of Harold Nordquist, a 68-year-old man who died following surgery in 1989.

The case was tried before an administrative…