Board of Medical Examiners v. Nzedu

• Decision Date: 04 May 2007
• Docket Number: No. 03-05-00032-CV.,03-05-00032-CV.
• Citation: 228 S.W.3d 264
• Parties: BOARD OF MEDICAL EXAMINERS for the State of Texas and Donald W. Patrick, M.D., J.D., as Executive Director of the Board of Medical Examiners for the State of Texas, Appellants, v. Vivian Adaobi O. NZEDU, M.D., Appellee.
• Court: Texas Court of Appeals

228 S.W.3d 264

BOARD OF MEDICAL EXAMINERS for the State of Texas and Donald W. Patrick, M.D., J.D., as Executive Director of the Board of Medical Examiners for the State of Texas, Appellants, v. Vivian Adaobi O. NZEDU, M.D., Appellee.

No. 03-05-00032-CV.

Court of Appeals of Texas, Austin.

May 4, 2007.

Rehearing Overruled June 18, 2007.

Joseph A. Pitner III, Deputy Chief Administrative Law Division, Austin, for appellant.

Ace Pickens, Brown McCarroll, L.L.P., Austin, Peter Linzer, Sealy, and Jasper J. Nzedu, Houston, for appellee.

Before Chief Justice LAW, Justices PEMBERTON and WALDROP.

OPINION

G. ALAN WALDROP, Justice.

This case involves the application of the statute and board rules that limit the number of times an applicant for a medical license in Texas may attempt to pass qualifying examinations. See Tex. Occ.Code Ann. § 155.056 (West 2004). Appellant Texas State Board of Medical Examiners (the Board) denied appellee Dr. Vivian Nzedu's application for a medical license on the basis that she did not pass the United States Medical Licensing Exam (USMLE) within the permissible number of attempts allowed under the Medical Practice Act. See Tex. Occ.Code Ann. §§ 151.001-165.160 (West 2004 & Supp. 2006). The Board included in its calculation an examination attempt by Dr. Nzedu taken prior to the effective date of the amendment to the Medical Practice Act that limited the number of permissible attempts to three. The amended statute was effective September 1, 1993, and is sometimes referred to as the "three-attempts statute." The trial court reversed the Board's decision, granted summary judgment in favor of Dr. Nzedu, and declared that the Board may not count her attempt to pass the USMLE before September 1, 1993, as one of her permitted examination attempts. The trial court awarded Dr. Nzedu $45,000 in attorneys' fees through trial, and made a contingent award of appellate attorneys' fees.

The issue presented is whether counting Dr. Nzedu's pre-September 1, 1993, attempt to pass the USMLE as one of the total attempts allowed pursuant to post-September 1993 law is an unconstitutional retroactive application of section 155.056 of the Medical Practice Act. We conclude that the Board's inclusion of the pre-September 1993 attempt is not an unconstitutional application of section 155.056. Accordingly, we reverse the judgment of the trial court and grant judgment in favor of the Board denying Dr. Nzedu's request for declaratory relief.

Factual and Procedural Background

Dr. Nzedu was born and educated in Nigeria. She received her medical training and degree from the University of Nigeria College of Medicine in 1990. In 1993, while living and practicing medicine in Nigeria, Dr. Nzedu applied to take the USMLE. She wanted to join her husband, who was living in Texas,¹ and continue her medical practice in the United States.² She attempted Step 2 of the USMLE for the first time on March 30, 1993, but did not pass the examination.³ After September 1, 1993, when the three-attempts statute was enacted, Dr. Nzedu attempted Step 2 three more times, passing on her third post-September 1993 attempt but fourth overall attempt. Additionally, after September 1, 1993, Dr. Nzedu took four attempts to pass Step 1 and two attempts to pass Step 3 of the USMLE. She passed the last of the USMLE Steps on December 31, 1998, but she did not apply for a Texas medical license at that time. Under the law in effect in 1998 and most of 1999, Dr. Nzedu was not eligible to be licensed because she had taken four attempts to pass Step 1 of the examination (all taken after September 1, 1993), and the statute required an applicant to pass within three attempts. Under the state of the law at that time, Dr. Nzedu failed to qualify regardless of whether the pre-September 1993 attempt on Step 2 was counted.

The three-attempts statute was amended in 2001 to allow a fourth attempt on one of the three Steps of the USMLE:

[a]n applicant must pass each part of an examination within three attempts, except that an applicant who has passed all but one part of an examination within three attempts may take the remaining part one additional time.

Act of May 22, 2001, 77th Leg., R.S., ch. 1420, § 14.027, 2001 Tex. Gen Laws 4210, 4353 (codified at Tex. Occ.Code Ann. § 155.056(a)) (amended in 2005). In light of the 2001 amendment allowing one more attempt on one step of the examination, Dr. Nzedu applied to the Board in August 2002 for a license to practice medicine in Texas. She took the position that her four attempts on Step 1 were now allowed and her first (pre-September 1993) attempt on Step 2 should not be counted. Using this methodology, Dr. Nzedu would have passed the USMLE within the permissible number of attempts.

On November 14, 2002, the Board informed Dr. Nzedu that she was ineligible for licensure because she had required four attempts to pass both Step 1 and Step 2 of the USMLE. In reaching this determination, the Board included Dr. Nzedu's first attempt at Step 2, which occurred before September 1, 1993, in the total number of permissible attempts under the statute. Dr. Nzedu then withdrew her 2002 application for licensure and did not appeal the Board ruling. In April 2004, Dr. Nzedu resubmitted her application for licensure to the Board and simultaneously filed this suit seeking declaratory relief in the district court. Dr. Nzedu challenges the Board's interpretation of section 155.056 of the Medical Practice Act as an unconstitutional retroactive application of the statute.

The parties filed cross-motions for summary judgment. In her motion, Dr. Nzedu asserted that the presumptions in Texas law against retroactive legislation prevent section 155.056 from being interpreted to apply retroactively, and that neither the legislative history nor the language of the section suggest that the legislature intended the statute to apply retroactively. She also asserted that section 155.056 should be interpreted to avoid issues of unconstitutional retroactivity under the Texas and United States constitutions. In its motion, the Board contended that although section 155.056 allowed the Board to look back and consider events that occurred prior to its effective date, the statute is not unconstitutionally retroactive in its application. The Board also contended that section 163.4(a)(6) of the Board's administrative rules required Dr. Nzedu to meet the statutory requirements in effect when she applied for licensure in 2002 and not the requirements in effect when she first attempted Step 2 of the USMLE in March 1993.

The district court granted Dr. Nzedu's motion for summary judgment and held that (1) under section 155.056, Dr. Nzedu's attempts to pass the USMLE before September 1, 1993, may not be counted in the Board's consideration of eligibility for license; (2) the Board may not use Board Rule 163.4(a)(6) retroactively to count attempts to pass the USMLE that occurred prior to September 1, 1993; and (3) Dr. Nzedu meets the eligibility requirements under section 155.003(6) of the Act relating to passing within the statutorily prescribed number of attempts for an examination accepted or administered by the Board.

On appeal, the Board contends that (1) the inclusion of Dr. Nzedu's pre-September 1, 1993, attempt to pass the USMLE as one of the total attempts allowed pursuant to post-September 1993 law does not constitute an unconstitutional retroactive application of section 155.056 of the Medical Practice Act, (2) certain board rules permit the Board to consider Dr. Nzedu's one failed examination attempt prior to September 1, 1993, in their determination of her eligibility for licensure, and (3) the district court abused its discretion by awarding attorneys' fees to Dr. Nzedu.

Standard of Review

The material facts are not in dispute. Consequently, the propriety of summary judgment is a question of law. Westcott Communs., Inc. v. Strayhorn, 104 S.W.3d 141, 145 (Tex.App.-Austin 2003, pet. denied). We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When the material facts are not in dispute, both parties move for summary judgment, and the district court grants one motion and denies the other, we review the summary judgment evidence presented by both sides, determine all questions presented, and render the judgment the district court should have rendered. Texas Workers' Comp. Comm'n v. Patient Advocates of Texas., 136 S.W.3d 643, 648 (Tex.2004); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

The Medical Practice Act

The licensing portion of the Medical Practice Act begins by providing that the Board, at its sole discretion, may issue a license to practice medicine to applicants who meet certain eligibility and examination requirements. See Tex. Occ.Code Ann. § 155.002 (West 2004). It also requires an applicant for a medical license to pass a qualifying examination accepted or administered by the Board. See id. § 155.003. In addition, Board administrative rule 163.4(a)(6) requires applicants to meet the requirements for licensure that are in place at the time the application is filed with the Board. See 22 Tex. Admin. Code § 163.4(a)(6) (2002-2003).

At all times relevant to this appeal, the Medical Practice Act has required that an applicant for a Texas medical license pass each part of a qualifying examination, although the number of attempts allowed has varied. In March 1993, when Dr. Nzedu first attempted Step 2 of the USMLE, the relevant portion of the statute read as follows:

If any applicant, because of failure to pass the required examination, is refused a license, the applicant, at a time as the board may fix, shall be permitted to take a subsequent examination upon any subject required in the original examination as the board may prescribe. . . .

Former ...