Van Boven v. Freshour
| Decision Date | 03 June 2022 |
| Docket Number | 20-0117 |
| Parties | Robert W.Van Boven M.D., D.D.S., Petitioner, v. Scott Freshour, Margaret McNeese, Chris Palazola, Amy Swanholm, Timothy Webb, and Sherif Zaafran, M.D., in their Official Capacities as Officers of the Texas Medical Board, Respondents |
| Court | Texas Supreme Court |
Argued September 29, 2021
On Petition for Review from the Court of Appeals for the Third District of Texas
OPINION
Federal and state law require the Texas Medical Board to report a disciplinary action against a physician to the National Practitioner Data Bank[1] in order "to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance."[2] A report is generally considered confidential but is available to healthcare entities with which a physician is or may be affiliated.[3] Reports must be made "according to applicable federal rules and statutes."[4] The question before us is whether the Board is required by federal law or permitted by Texas law to merely revise an initial report of a temporary sanction- rather than void it-when the Board later finds that the allegations have not been proved. We answer no. Board officials making the revised report are therefore acting ultra vires and are subject to suit despite the Board's sovereign immunity. We reverse the judgment of the court of appeals[5] and remand the case to the trial court.
The Board regulates the practice of medicine in Texas[6] and is authorized to take disciplinary action against a physician found to have engaged in certain conduct prohibited by statute.[7] When Board staff determine there is evidence of such conduct, an informal show compliance proceeding and settlement conference-ISC-is scheduled before at least two Board members.[8] A disciplinary panel of three Board members may also be convened "to determine whether a person's license to practice medicine should be temporarily suspended or restricted."[9] The panel may suspend or restrict a physician's license without prior notice or a hearing if notice of the action is provided immediately and a hearing is scheduled as soon as possible after ten days.[10] Otherwise, the physician and Board staff may appear before the panel, call witnesses, and submit evidence.[11] "If the disciplinary panel determines from the evidence presented to the panel that a person licensed to practice medicine would, by the person's continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend or restrict the license of that person."[12]
A disciplinary panel was convened February 29, 2016, to consider complaints by two patients, referred to as Patients A and B, against Dr. Robert Wayne Van Boven, a board-certified neurologist. Van Boven then age 56, had received a D.D.S. degree and practiced dentistry for 10 years before earning his M.D. degree. He had then practiced neurology for some 17 years, had never been the subject of a professional disciplinary action, had never had a claim for malpractice against him, had never been reported to a professional database, and had no arrest record. A sole practitioner, Van Boven had associated with Lakeway Regional Medical Center (Lakeway) since its opening in 2012.
Van Boven and the Board were not strangers. He had repeatedly complained to the Board of poor practices at Lakeway resulting in multiple findings of violations and impositions of fines. In turn, Lakeway had made 15 complaints against Van Boven, but unlike Van Boven's complaints, all but one of Lakeway's had been dismissed. A factor in the dysfunctional relationship between Lakeway and Van Boven may have been, according to one of his colleagues, that the doctor's zeal for patient care could be viewed as arrogant or insulting. In any event, as another colleague observed, Van Boven became a thorn in the side of Lakeway's administration and was viewed as a troublemaker.
The two patients' complaints before the disciplinary panel had been lodged within a few months of each other and pertained to medical examinations Van Boven had conducted a few weeks apart. The day after the hearing, the panel temporarily restricted his license. The panel's Order of Temporary Restriction was to remain in effect until "superseded by subsequent Order of the Board." The Board filed an Initial Report of the adverse action with the National Practitioner Data Bank in accordance with the Data Bank's Guidebook, which sets out reporting procedures.[13]
The statutory and regulatory provisions specifically applicable to physician discipline do not provide for an administrative appeal from a disciplinary panel order, and Van Boven did not attempt to seek judicial review.[14] The Board is instead required to initiate a proceeding before the State Office of Administrative Hearings-SOAH- .[15] The Board filed a formal complaint against Van Boven six months after the disciplinary panel's Temporary Order issued. The record contains no explanation for the delay, other than the Board's offer of settlement in an ISC process a month after the Temporary Order, which Van Boven quickly rejected.
The complaint contained the same allegations made by Patients A and B in the disciplinary panel hearing along with those of a third patient and the one complaint by Lakeway that the Board had not rejected. The SOAH hearing began on May 22, 2017-well over a year after the Temporary Order issued-and lasted five days. Board staff offered evidence from the three patients along with family members of the third patient. Van Boven offered the testimony of 14 witnesses, including himself, four physicians with whom he had practiced, and two medical assistants.
After reviewing and analyzing all the evidence in a 77-page Proposal for Decision issued September 15, 2017, the Administrative Law Judge (ALJ) found that the Board staff had failed to prove any of their allegations. Specifically, the ALJ found that "[b]ecause there are so many implausibilities and issues of doubt raised by the evidence, [Board staff] failed to prove that the allegations of Patients A and B are true." Thus, the ALJ concluded, "[s]taff failed to prove, by a preponderance of the evidence, that Dr. Van Boven is subject to sanction under [the] Texas Occupations Code". Staff strongly insisted to the Board that the case had been wrongly decided. The Board had the right to seek judicial review of the ALJ's findings and conclusions[16] but chose instead to adopt them. The Board's Final Order issued December 8, 2017. The order recited the ALJ's findings and conclusions as the Board's own, including the finding that Board staff had failed to prove the allegations of Patients A and B and the conclusion that Board staff had not proved that Van Boven was subject to sanction. The Final Order stated that "[t]his matter is hereby dismissed" and that "[t]his Order supersedes the Order of Temporary Restriction issued on February 29, 2016 and Respondent's license to practice medicine in Texas is no longer restricted."[17] The temporary restriction of Van Boven's license, premised on grounds that the Board ultimately could not prove, lasted more than 21 months.
The Board was required to report its Final Order to the Data Bank. The Data Bank's Guidebook provides for three types of reports after an Initial Report of an adverse action taken against a physician, which the Board had filed following its Temporary Order. A Correction Report "corrects an error or omission in a previously submitted report by replacing it."[18] A Void Report is "the withdrawal of a[n] [Initial] [R]eport in its entirety" and is filed when the adverse action is "overturned on appeal".[19] "A Revision-to-Action Report is a report of an action that modifies an adverse action previously reported" to the Data Bank.[20] It "does not replace a previously reported adverse action but rather is treated as a separate action that pertains to the previous action."[21] Then "[b]oth reports become part of the disclosable record."[22]
Van Boven requested that the Board file a Void Report, insisting that the initial temporary sanction be completely removed as a blot on his record. The Board refused and instead filed a Revision-to-Action Report that simply described the Final Order.[23] Van Boven complained to the Data Bank, but it refused to take action, stating: "We are not authorized to substitute our judgment for that of the Board concerning the language contained in its Orders, its sanctioning authority or the intention of the Board in regard to the Initial and Final Orders in your case." Bound by the Board's explanation of its action, the Data Bank opined that the Board was "legally required to file the Revision to Action Report."
Van Boven brought this ultra vires action against Board officials[24] for injunctive, declaratory, and mandamus relief directing them to file a Void Report with the Data Bank, which would remove the Initial Report and the Revision-to-Action Report from disclosure. Van Boven asserts that the reports have "forever tarnished" his reputation and prevented him from obtaining employment.[25] The trial court denied defendants' plea to the jurisdiction, which asserted sovereign immunity. The court of appeals reversed, holding that "the Board's authority to determine the legal effect of the Final Order as it relates to [Data Bank] reporting requirements" is not clearly limited by statute and therefore Board officials did...
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