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Alexander Kirkpatrick Prevails in Critical Mandate Trial

Fenton Law Group Of Counsel Alexander Kirkpatrick recently prevailed for a doctor in a hard-fought mandate proceeding in Sacramento Superior Court. His client, a Los Angeles-based internal medicine specialist, had been removed without cause from his membership on a Panel of disability evaluators. The panel is maintained by the California Department of Social Services to evaluate applicants for disability benefits under the federal Social Security Act. In a final decision filed October 22, Judge James P. Arguelles ruled that the Department of Social Services improperly terminated the physician in 2017: “By removing Dr. X from the Panel without affording him a meaningful, pre-removal opportunity to dispute reasons for the removal, the Department deprived Dr. X of due process.” As a result, Judge Arguelles ruled the Department “must restore him to the Panel and may not permanently remove him without notice and a meaningful opportunity to be heard in advance.”

At the time of termination, Dr. X’s company–which was itself a member of the Panel–operated 17 offices throughout Southern California, from Bakersfield to San Diego, subcontracting with 20 to 25 physicians and psychologists to render disability evaluations. In the year prior to termination, Dr. X personally rendered over 2,000 evaluations, earning 94% of his professional income from that work. A grant of a temporary restraining order (TRO) in Dr. X’s favor in 2017 was withdrawn by a previous judge, giving rise to two years’ litigation over the due process of law issue. The Department of Social Services is represented by deputy attorneys general Grant Lien and Matthew Day.

As soon as judgment in favor of Dr. X is filed in the mandate aspect of the case, it will be assigned to a civil trial department in Sacramento for a trial on damages. Elements of damages which may be sought include: loss of earnings from the date of wrongful expulsion in violation of Dr. X’s right to due process of law until a due process-compliant procedure is conducted, negligent and intentional infliction of emotional distress, “tax neutralization” damages (recently described in Economy v. Sutter East Bay Hospitals (2019) 31 Cal.App.5th 1147, 1163 as calculated “to offset the increased tax burden on plaintiff resulting from a lump sum award of damages as compared to what plaintiff would have owed in taxes if the earnings had been received sequentially each year”), and future loss of earnings. Kirkpatrick estimates it may take as long as a year to fully litigate the issue of damages, which may exceed $1 million.

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