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Texas Appeals Court Affirms Most Of Medical Board�s Disciplinary Order Against Physician Accused Of Patient Abandonment

 
 

HLD, v. 33, n. 6 (June 2005)

Texas Appeals Court Affirms Most Of Medical Board's Disciplinary Order Against Physician Accused Of Patient Abandonment

A Texas appeals court found that the Texas Board of Medical Examiner's (Board's) expert testimony constituted sufficient evidence for disciplining an ophthalmologist accused of abandoning a patient under the Texas Occupational Code. The appeals court also found that the Board did not violate the physician's due process rights by waiting a number of years before prosecuting its allegations against him. The appeals court did conclude, however, that the Board acted arbitrarily and capriciously by including in its order unsupported assertions regarding the doctor's alleged conduct of fondling and molesting patients while performing ophthalmologic examinations.

Harold Granek, M.D., an ophthalmologist, appealed a district court order affirming an order of the Board imposing disciplinary sanctions against him. At the disciplinary proceedings in January 2001, an Administrative Law Judge (ALJ) issued a proposal for decision (PFD) concluding that the Board had established three grounds for discipline under the Texas Occupational Code. Specifically, the ALJ found that Granek had failed to attend to a patient after she presented herself at a hospital emergency room with severe pain caused by building pressure within in her eye; had been disciplined by the hospital board of trustees for refusing to provide the care after being asked to do so by the emergency room doctor and hospital chief of staff; and had improperly touched the breasts of female patients during the 1980s.

Based on the ALJ's proposed findings of fact and conclusions of law, the Board ordered that Granek's medical license be immediately revoked. Following additional proceedings, the Board issued a new order changing the sanction from immediate license revocation to a three-year probated license suspension, subject to certain terms and conditions. Granek appealed in state trial court. The court affirmed most of the Board's order except for an administrative penalty, no longer at issue. Granek appealed.

The Texas Court of Appeals affirmed the majority of the Board's order, but found the Board acted arbitrarily and capriciously in modifying the ALJ's PFD by adding certain unsupported assertions regarding Granek's conduct and therefore reversed and remanded on that issue.

The appeals court first concluded that the Board did not violate Granek's due process rights by waiting six years to prosecute its allegations against him. Noting that it was not addressing whether Granek was required to prove the additional element of tactical delay, the appeals court found that Granek failed to establish actual prejudice. In so holding, the appeals court examined case law discussing the degree or nature of delay in an agency disciplinary action that would give rise to constitutionally significant prejudice, taking into account such factors as the extent to which the agency delay has caused witnesses to become unavailable or the defendant or other witnesses to forget the relevant events, proof that exculpatory evidence had become unavailable, whether the relevant events were contemporaneously recorded, and whether the defendant had early notice of the allegations against him. Disregarding Granek's proof of actual prejudice and recognizing the role played by the ALJ in evaluating the witnesses and the staleness issue, the appeals court considered the factors and concluded that the Board's prosecution satisfied due process.

The appeals court next found substantial evidence to support the Board's conclusions that Granek violated the Texas Occupational Code by refusing to attend the emergency room patient. Noting that the legislature did not explicitly reference tort duties or other common law concepts when enacting these provisions, the appeals court found there was substantial evidence based on the unchallenged testimony of the Board's expert who, after reviewing the relevant medical records, opined that Granek's conduct did not meet the standard of care and constituted a professional failure to practice medicine consistent with the public health and welfare. The court noted that the expert's testimony also supported the Board's conclusion that Granek committed "unprofessional . . . conduct that is likely to . . . injure the public."

The appeals court then found sufficient evidence to support the second ground for discipline despite the fact that the final decision of the hospital board of trustees was missing from the hospital records. In doing so, the appeals court noted that it was enough that Granek testified that he was present when the hospital board orally announced its decision to affirm the recommendation of a probated twelve-month suspension with monitoring.

The appeals court agreed, however, with Granek's next arguement that the Board improperly modified the ALJ's order by including assertions that were impermissible under Texas law, unsupported by the evidence, and inconsistent with the Board's own findings. Specifically, the representations at issue stated that. Granek had engaged in the "conduct of fondling and molesting patients while performing ophthalmologic examinations on them," had "engaged in this conduct over a period of many years," had "an inability to control his prurient desires" and "defects in his character," and would continue "assaulting, fondling or molesting . . . patient[s] under the guise of practicing medicine" if allowed to retain his medical license. "None of these representations are supported by the Board's findings, and several are flatly contradictory," the appeals court said.

Finally, the appeals court disagreed with the Board's argument that the inclusion of these assertions did not prejudice Granek's substantial rights since they referred to the revocation sanction the Board no longer sought. The appeals court noted that the Board's order requiring Granek to provide a copy of the order to all healthcare facilities where he had or sought privileges gave it the "imprimatur of a legitimate adjudicative determination," violated Texas statutory law, and was arbitrary and capricious, especially considering the Board no longer sought to impose the revocation sanction.

Granek v. Texas State Bd. of Med. Exam'rs, No. 03-03-00698-CV (Tex. Ct. App. May 5, 2005). To read case, go to http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=13698

 

 

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