Court Orders California Medical Board to permit examinee to retake USMLE Part III and to establish a passing score by resolution

On March 1, 2010, the California Court of Appeal filed its decision in YVETTE MARQUEZ v. MEDICAL BOARD OF CALIFORNIA, California Court of Appeal Case No. C060456. Medical license applicants in California are required to pass certain examinations including the United States Medical Licensing Examination (USMLE). Applicants must pass each of three parts to the examination. To be eligible for a California license, an applicant must pass Part III of the exam within four attempts. The examination is administered by the Federation of State Medical Boards (FSMB), which establishes a recommended minimum score. Sections 2184 and 2177 of the Business and Professions Code, require the Medical Board of California to establish a passing score by resolution. Since adopting the USMLE, the Medical Board has failed to take any formal action to set a passing score. Instead, the Board has accepted the recommended passing score established by the FSMB as the standard to be applied to California applicants. The Board has not adopted a resolution or policy stating that fact. Plaintiff Yvette Marquez took the last part of the examination for the fourth time in May 2008 and was notified she had failed based on the passing score recommended by the national board that administers the examination. She filed a petition for writ of mandate seeking an order to compel the Board to comply with the statute, deem her to have passed, and issue her a license. The trial court denied the petition. The Court of Appeal reversed and ordered the Medical Board to establish a passing score by resolution and to permit plaintiff to take the examination for a fifth time.