Dotson v. Texas State Bd. of Medical Examiners
| Decision Date | 04 March 1981 |
| Docket Number | No. B-9952,B-9952 |
| Parties | Daniel Anthony DOTSON, M. D. et al., Petitioners, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent. |
| Court | Texas Supreme Court |
Stubbeman, McRae, Sealy, Laughlin & Browder, Tom Sealy and Joe R. Greenhill, Jr., Austin, Neal, Sweatt & Teis, Graham, for petitioners.
Mark White, Atty. Gen., Bill Campbell, Asst. Atty. Gen., Austin, for respondent.
Petitioners, Beverly Ann Dotson, M.D. and Daniel Anthony Dotson, M.D., appealed from orders of respondent, Texas State Board of Medical Examiners, suspending their licenses to practice medicine for ten years and five years respectively. The suspensions of both doctors were probated under certain stated terms and conditions. The trial court sustained the Board's orders and the court of civil appeals affirmed. 607 S.W.2d 36. We reverse the judgments of the courts below and render judgment vacating the orders of suspension.
The Board found that on twelve stated occasions Dr. Beverly Dotson (Dr. Beverly) prescribed drugs for John T. Richter, alias Johnny Kyle, in a non-therapeutic manner in that Richter had no illness, injury or disease for which the drugs would have had any therapeutic value. The Board further found that on one occasion Dr. Dan Dotson (Dr. Dan) prescribed drugs for Richter and on four occasions he prescribed drugs for Barbara Foreman, alias Brandie Hart, in a non-therapeutic manner in that Richter and Foreman had no illness, injury or disease for which the drugs would have had any therapeutic value. The Board concluded that both doctors had issued those prescriptions in a non-therapeutic manner in violation of Article 4505(4)(E) 1 and therefore suspended the license of each doctor as authorized by Article 4506.
Article 4506, as amended in 1967, authorizes an appeal from such orders of license suspension under the "substantial evidence rule." Our guidelines for review of this type appeal are set forth in Section 19 of the Administrative Procedure and Texas Register Act, (APA), Article 6252-13a. The review is conducted by the court sitting without a jury and is confined to the record made before the agency with certain exceptions not applicable here. The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part. The court shall reverse or remand the case for further proceedings if substantial rights of the appellant party have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (as applicable here):
(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; ....
The correct substantial evidence rule test is whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. See: Imperial Am. Resources Fund v. R. R. Com'n of Tex., 557 S.W.2d 280 (Tex.1977).
The record before the Board shows that the only evidence presented against either petitioner was the testimony of Richter and Foreman. Both of these persons were investigators for the Board who are specially trained in the art and technique of investigating medical professionals. The record does not reveal why Richter or Foreman was directed by a representative of the Board to go to the Dotson Clinic in Graham to investigate Dr. Beverly and Dr. Dan. 2 Nevertheless, the record shows that both Richter and Foreman carried out their undercover assignment of seeking to secure prescription drugs from Dr. Beverly and Dr. Dan through the use of deception.
Richter first contacted the Dotson Clinic on December 9, 1975. Dr. Beverly and Dr. Dan, who are husband and wife, have operated this general practice medical clinic in Graham since 1972. Richter filled out a patient information sheet under the name of "Johnny Kyle," with residence in Graham, and gave his occupation as that of an oil field worker. He advised the nurse that he was suffering from headaches and had so suffered for a long time. On subsequent visits, he was treated for obesity and depression. Although Richter requested to see Dr. Dan, he was sent to Dr. Beverly. He remained her patient during the course of his three year investigation, during which time she saw him thirteen times. However, he did see Dr. Dan on three or four occasions during this period for reasons which are not apparent in the record.
Barbara Foreman, who had worked for the Board as an investigator since 1977, first contacted the Dotson Clinic on September 15, 1978. She filled out a patient information sheet under the name of Brandie Hart, said she resided in Graham and worked as a waitress and salesclerk. She complained of inability to keep up with the two jobs she was required to maintain in order to support herself and her children. She was seen by Dr. Dan after an examination by a nurse. She was treated for fatigue and depression.
Both doctors first prescribed a non-controlled drug, but after the patients complained in subsequent visits that this medication was not giving any relief, the doctors prescribed a controlled drug as requested by the patient. 3 Since neither investigator took any of the prescribed drugs, the doctors obviously could detect no signs of addiction or ill effects. Both investigators told their respective doctor that they were doing well under their medication program.
The record establishes that Dr. Beverly and Dr. Dan prescribed the drugs at the times, dosages and amounts as found by the Board. The problem is that there is no expert testimony to support the Board's factual conclusion that these drugs were non-therapeutic in the manner such drugs were...
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