Harrison v. Tex. State Bd. of Dental Examiners

• Decision Date: 23 January 2020
• Docket Number: NO. 03-18-00229-CV,03-18-00229-CV
• Parties: Field G. Harrison, D.D.S., Appellant v. Texas State Board of Dental Examiners, Appellee
• Court: Texas Court of Appeals

Field G. Harrison, D.D.S., Appellant v. Texas State Board of Dental Examiners, Appellee

NO. 03-18-00229-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

January 23, 2020

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-003434, THE HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

MEMORANDUM OPINION

This is an administrative appeal from a decision by the Texas State Board of Dental Examiners to sanction Field G. Harrison, D.D.S. for violations of the statutes and rules governing dentists in Texas. The district court affirmed in part and reversed in part the Board's order. We will affirm in part and reverse and remand in part the district court's judgment.

BACKGROUND

Harrison is a dentist licensed to practice in Texas. In 2015, the Board filed a complaint against Harrison alleging that he violated the Dental Practice Act and related administrative rules in connection with his treatment, billing, and record keeping on two patients in 2010 through 2012. More specifically, the Board asserted that Harrison had committed ten violations related to record keeping and three violations involving "unprofessional and dishonorable conduct." See Tex. Occ. Code § 263.002(a)(3), (4), (10) (authorizing Board to sanction dentists for dishonorable conduct, failure to meet dental standards of care, and failure to comply with Board regulations); 35 Tex. Reg. 3932, 3932-34 (2010), adopted by 35 Tex. Reg. 8344 (2010), amended by 39 Tex. Reg. 6855 (2014) (former 22 Tex. Admin. Code § 108.7 (Texas State Board of Dental Examiners, Minimum Standard of Care, General)) (hereinafter "Former Rule 108.7"); 34 Tex. Reg. 6741 (2009), adopted by 35 Tex. Reg. 634 (2010), amended by 35 Tex. Reg. 8344 (2010) (former 22 Tex. Admin. Code § 108.8 (Texas State Board of Dental Examiners, Records of the Dentist)); see generally Tex. Occ. Code §§ 251.001-267.006 (Dental Practice Act).

After an evidentiary hearing, the administrative law judge made the following conclusions of law regarding Harrison's alleged violations:

6. [Harrison] violated or refused to comply with a law relating to the regulation of dentists and failed to treat Patient 1 according to the standard of care in the practice of dentistry when he failed to record Patient 1's vital signs on September 21, 2010.

7. [Harrison] violated or refused to comply with a law relating to the regulation of dentists and failed to treat Patient 1 according to the standard of care in the practice of dentistry when he failed to include the SRP [scaling and root-planing procedure] performed on Patient 1 on September 21, 2010 in the treatment plan.

8. [Harrison] violated or refused to comply with a law relating to the regulation of dentists and failed to treat Patient 1 according to the standard of care in the practice of dentistry when he failed to maintain written informed consent for the SRP performed on Patient 1 on September 21, 2010.

9. [Harrison] violated or refused to comply with a law relating to the regulation of dentists and failed to treat Patient I according to the standard of care in the practice of dentistry when he failed to document the amount of the BLT used on Patient 1 on September 21, 2010.

10. By documenting the extraction of teeth numbers 17 and 32, and billing Patient 2's insurance provider for the same withouthaving extracted teeth numbers 17 and 32, [Harrison] practiced dentistry in a manner that constituted dishonorable conduct and failed in his duty of fair dealing for Patient 2.

11. [Harrison] failed to comply with the Board rules on minimal sedation for Patient 2 on April 13, 2012.

In addition to findings of facts related to and the above conclusions of law, the ALJ found the presence of various aggravating and mitigating factors, including two aggravating factors related to the tooth extractions. Based on all the conclusions, fact findings, and aggravating and mitigating factors, the ALJ recommended that the Board impose a reprimand, an administrative fine of $3,000, a requirement for eighteen hours of additional continuing-education (six hours each in ethics, minimal sedation, and risk management/recordkeeping), and a requirement for completion of a jurisprudence assessment. Ultimately, the Board adopted the ALJ's findings of fact and conclusions of law and it imposed the sanctions recommended by the ALJ.

After exhausting his administrative remedies, Harrison filed the underlying suit for judicial review of the Board's order in Travis County District Court. In his suit against the Board, Harrison challenged the sufficiency of the evidence supporting conclusion of law eight (written consent), conclusion of law nine (documenting anesthetic), conclusion of law ten (overcharging), and conclusion of law eleven (minimal sedation). After a hearing, the district court rendered judgment reversing the Board's conclusions of law nine and ten and affirming the remainder of the Board's order, thus leaving the Board's sanctions in place. Harrison perfected this appeal.

ANALYSIS

In his first issue, Harrison contends that the district court erred by not remanding his case to the Board for consideration of revised sanctions in light of the fact that the district court had reversed two of the violations that the board had considered and relied on in imposing its sanctions. In his second issue, Harrison raises a substantial-evidence challenge to the Board's conclusion and related findings that he violated Board rules by failing to obtain written consent for the SRP performed on Patient 1.

Standard of Review

The parties agree that our review of the Board's order is governed by the same analysis as in the district court—the familiar "substantial evidence" rule that is codified in section 2001.174 of the Administrative Procedure Act (APA). See Tex. Gov't Code § 2001.174. This standard requires that we reverse or remand a case for further proceedings "if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions" are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency's statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov't Code Ann. § 2001.174(a)(2); see Tex. Occ. Code § 263.009 (providing that APA governs judicial appeals from Board orders). Essentially, this is a rational-basis test todetermine, as a matter of law, whether an agency's order finds reasonable support in the record. Texas Health Facilities Comm'n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452-53 (Tex. 1984). "The test is not whether the agency made the correct conclusion in our view, but whether some reasonable basis exists in the record for the agency's action." Slay v. Texas Comm'n on Envtl. Quality, 351 S.W.3d 532, 549 (Tex. App.—Austin 2011, pet. denied) (citing Railroad Comm'n v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36, 41 (Tex. 1991)). We apply this analysis without deference to the district court's judgment. See Texas Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). We presume that the agency's findings, inferences, conclusions, and decisions are supported by substantial evidence, and the burden is on the contestant to demonstrate otherwise. See Charter Med.-Dall., 665 S.W.2d at 453. Ultimately, we are concerned not with the correctness of the agency's decision, but its reasonableness. See Sanchez v. Texas State Bd. of Med. Exam'rs, 229 S.W.3d 498, 510-11 (Tex. App.—Austin 2007, no pet.).

Substantial-evidence analysis entails two component inquiries: (1) whether the agency made findings of underlying facts that logically support the ultimate facts and legal conclusions establishing the legal authority for the agency's decision or action and, in turn, (2) whether the findings of underlying fact are reasonably supported by evidence. See Vista Med. Ctr. Hosp. v. Texas Mut. Ins. Co, 416 S.W.3d 11, 26-27 (Tex. App.—Austin 2013, no pet.) (citing Charter Med.-Dall., 665 S.W.2d at 453). The second inquiry, which has been termed the "crux" of substantial-evidence review, see Granek v. Texas State Board of Medical Examiners, 172 S.W.3d 761, 778 (Tex. App.—Austin 2005, no pet.), is highly deferential to the agency's determination: "substantial evidence" in this sense "does not mean a large or considerable amount of evidence"—in fact, the evidence may even preponderate against theagency's finding—but requires only "such relevant evidence as a reasonable mind might accept as adequate to support a [finding] of fact," Slay, 351 S.W.3d at 549 (citations omitted). Likewise, we "may not substitute [our] judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion." Tex. Gov't Code § 2001.174. In contrast, the first inquiry, concerning the extent to which the underlying facts found by the agency logically support its ultimate decision or action, may entail questions of law that we review de novo. See Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011); Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex. 2000) (citing Charter Med.-Dall., 665 S.W.2d at 453); City of El Paso v. Public Util. Comm'n, 344 S.W.3d 609, 618-19 (Tex. App.—Austin 2011, no pet.)). Guided by this well-established standard of review, we address Harrison's issues challenging the Commissioner's decision.

Remand

In his first issue, Harrison contends that it was error for the district court to affirm the Board's sanctions rather than remand for reconsideration because it had reversed two of the six violations found by the Board. We agree.

The Legislature has authorized the Board to discipline licensed dentists for violations of the Dental...