Esther Tenao Atam
13621 Arcturus Ave.
Gardena, CA 90249
Natashchan1@yahoo.com

Plaintiff in Pro Per

BEFORE THE

BOARD OF REGISTERED NURSING
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Petition and Order
Compelling Mental and/or Physical
Examination of:

ESTHER TENAO ATAM,
13621 Arcturus Ave.
Gardena, CA 90249
Registered Nurse License No. 761179

Case No.: 4002021005658

RESPONSE TO PETITION AND ORDER
COMPELLING MENTAL AND/OR
PHYSICAL EXAMINATION

Respondent ESTHER TENAO ATAM (hereinafter “Respondent”) hereby files this
Response to Petition and Order Compelling Mental and/or Physical Examination. Respondent
therefore OBJECTS to being compelled to a mental and/or physical examination on the
following grounds:

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RESPONSE TO PETITION AND ORDER COMPELLING MENTAL AND/OR

PHYSICAL EXAMINATION.

i. The Board of Registered Nursing is Relying on Hearsay from Respondent’s former
employer, to compel Respondent to a mental and/or physical examination
Pursuant to California Evidence Code 1200, hearsay is generally inadmissible unless it is
within some statutory exception to the hearsay rule. The California Supreme Court in People v.
Sanchez, 63 Cal.4 th 665, 674 (2016) held in that regard that a hearsay statement is one in which a
person makes a factual assertion out of court and the proponent seeks to rely on the statement to
prove that the assertion is true.
Here, the Board alleges that the Respondent’s ability to practice as a registered nurse may
be impaired due to mental and/or physical illness. The Board bases its decision on an account of
August 28, 2020, when staff members allegedly reported that Respondent was having a mental
breakdown.
On the contrary, Respondent maintains that the Board of registered nursing interviewed
her on or about July 2021 and received her complete medical record on August 3, 2021.
Respondent is waiting for an attestation from the mental health clinic that states that her health
records were faxed to BRN on the said August 3, 2021.
Upon receiving Respondent’s records, the Board found no issue. Notably, nowhere in
Respondent’s history of nursing was there any record of bad patient care or any medical errors.
The averments in the petition are influenced by the erroneous report from Kaizer,
Respondent’s previous employer. The correct version of facts for the August 28, 2020 incidence
is that Respondent was engaged in a casual conversation with Mr. Edwards, a previous co-
worker, when Respondent mentioned that she had been harassed by two males within the last
year at another job she held before. At that time, Respondent considered Mr. Edwards to be a
friend since they often worked in the same shift as nurses. It is after this incidence that Mr.
Edwards started making negative remarks about Respondent to the hospital’s patients and staff,
in an effort to discredit her and make her appear as incompetent and incapable of performing her
duties as a nurse.

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RESPONSE TO PETITION AND ORDER COMPELLING MENTAL AND/OR

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Respondent believes that these actions by the management at SCPMG were acts of
retaliation against her and their effort to portray Respondent as mentally unbalanced because she
had complained about bullying by her co-worker, Xavier Edwards. Furthermore, Respondent
believes that her mistreatment was substantially motivated by hostility to her ethnic
background and foreign accent, and for this reason, the staff at Kaizer attempted to portray
Respondent as having suffered a psychotic break and also portray her as unfit to work as a
registered nurse.
ii. The Board has not produced any credible evidence to Respondent or to any court of
law, to prove why she should undergo a mental and/or physical examination.
According to the California Business and Professions Code section 820, licensing boards
governing the healing arts professions can order physical and mental examinations where
impairment of the ability to safely practice is apparent. Section 820 provides specifically
that:
Whenever it appears that any person holding a license, certificate or permit
under this division or under any initiative act referred to in this division may
be unable to practice his or her profession safely because the licentiate’s
ability to practice is impaired due to mental illness, or physical illness
affecting competency, the licensing agency may order the licentiate to be
examined by one or more physicians and surgeons or psychologists designated
by the agency (emphasis added).
Here, the Respondent asserts that the Board has not presented any evidence that
Respondent is unable to practice her profession safely due to mental or physical illness. In fact,
there is no evidence of the Respondent’s alleged mental and/or physical illness. Notably, the
Board only rely on an erroneous report from Kaizer, Respondent’s former employer. The said
report attempted to portray Respondent as having suffered a psychotic break and also portray her
as unfit to work as a registered nurse.
Besides, as proof of Respondent’s fitness in service, she has worked at three other
hospitals doing travel nursing in the ED, from 11/2020-04/2022. On July 22, 2022, Julie
Bonsack, Respondent’s recruiter, wrote that Respondent received a good recommendation from

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RESPONSE TO PETITION AND ORDER COMPELLING MENTAL AND/OR

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supervisor Jennifer Tyo. She further provided the following comment from the AMN Traveler
Qualification Rep: “We are thrilled to have Esther here and would love to keep or have her come
back as the need arises.”
Therefore, as it stands, Respondent cannot be subjected to any mental and/or physical
examination because there is no evidence to show that she is mentally and/or physically ill.
iii. Respondent has no obligation to comply with an illegal order and in the event
Respondent fails to undergo the examination, she is at risk of illegally losing her
Registered Nurse License, suspension from practicing or being put on probation
The Business and Professions Code or associated regulations defines the requisite
threshold for an order under section 820. Accordingly, section 820 examinations "are permissible
if there is a showing of good cause." See Kees v. Medical Board, 7 Cal. App. 4th 1801 (Cal. Ct.
App. 1992). The Courts have held that a mental and/or physical examination should not be
performed where there is no good cause for the examination. See Alexander D. v. State Bd. of
Dental Examiners, 231 Cal.App.3d 92, 282 Cal. Rptr. 201 (Cal. Ct. App. 1991).
Courts have also interpreted section 820 to mean that it does not necessarily require a
mental assessment in every situation. A mental examination only if such an examination is the
least intrusive means of determining a physician’s mental condition. See Kees v. Medical Board,
7 Cal. App. 4th 1801 (Cal. Ct. App. 1992).
Proceedings by the Board, regarding mental and/or physical examinations of the
licentiate are subject to the Administrative Procedure Act mandating full due process
considerations. See Gov. Code, § 11500 et seq. Accordingly, failure to respect the licentiate’s
due process rights in the Board’s conduction of proceedings under section 802 et seq. is a
violation of the Administrative Procedure Act.
Respondent avers that the Board’s decision to Order Respondent to do a mental
examination without credible evidence of the Respondent’s illness is a violation of the
Respondent’s due process rights. Besides, the Board of registered nursing interviewed her on or

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about July 2021 and received her complete medical record on August 3, 2021. Upon receiving
Respondent’s records, the Board found no issue with Respondent. Nowhere in Respondent’s
history of nursing was there any record of bad patient care or any medical errors.
Therefore, the Board’s reliance on a false report and its failure to produce credible
evidence in support of their assertions regarding the Respondent’s illness violated her due
process rights.
Respondent further avers that she has since worked at three other hospitals doing travel
nursing in the ED, from November/2020 to April 2022. As a result of the Board’s actions and/or
inactions, obviously cannot go back to work at this time due to what is going on. The Board’s
illegal Order further jeopardizes Respondent’s prospects for employment and service.
iv. The order contains defamatory remarks that are tarnishing to Respondent’s
reputation.
Defamation is the intentional publication of a statement of fact that is false, unprivileged,
and has a natural tendency to injure or that causes special damage.” Grenier v. Taylor (2015) 234
Cal.App.4th 471, 486 [183 Cal.Rptr.3d 867].
‘A statement is defamatory when it tends “directly to injure [a person] in respect to [that
person’s] office, profession, trade or business, either by imputing to [the person] general
disqualification in those respects which the office or other occupation peculiarly requires, or by
imputing something with reference to [the person’s] office, profession, trade, or business that has
a natural tendency to lessen its profits.” ’ ” Issa v. Applegate (2019) 31 Cal.App.5th 689, 702
[242 Cal.Rptr.3d 809].
The Petition from the Board stated false allegations including, that: Respondent displayed
concerning behavior by claiming bizarre ideas about voodoo and vampires, which allegedly
showed Respondent’s mental health. The Board also alleges that when the Respondent left
Kaizer began sending threatening and disturbing emails.

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On the contrary, Respondent avers that the foregoing is not true at all, as it has already
been discussed above. Notably, Respondent is an innocent worker, who got retaliated upon at
Kaizer after she reported harassment from her colleagues.

WHEREFORE, the foregoing premises considered, Respondent maintains that the
Order be dismissed with immediate effect. Respondent also prays for any other relief deemed
just.

DATED:
Respectfully submitted,

____________________________
ESTHER TENAO ATAM

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CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], a copy of the foregoing document has been
sent to the Petitioner and/or the Board in the following address:

DATED:

____________________________
ESTHER TENAO ATAM

[ENTER ADDRESS]

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