HLD, v. 32, n. 8 (August 2004)
Texas Appeals Court Holds Medical Board's Disciplinary Action
Not Barred By Issue Or Claim Preclusion
On September 5, 1995, Robert Berezoski, M.D. performed nasal surgery
on a patient in an outpatient surgery center. Present in the room were Berezoski,
a nurse, and a scrub technician. The parties dispute the amount of anesthesia
administered to the patient. During surgery, the patient experienced complications
resulting in cardiac arrest. Paramedics were called and observed Berezoski trying
to administer first aid with an endotrachial tube used for resuscitation inserted
in the patient's stomach instead of her lungs. The patient suffered a severe
brain injury and died three days later.
On September 15, 1995, the Texas State Board of Medical Examiners
(Board) filed a formal complaint against Berezoski seeking to revoke his license
or institute other disciplinary action. The complaint was referred to the State
Office of Administrative Hearings and was assigned to an Administrative Law
Judge (ALJ). The ALJ held a hearing and made recommendations for discipline,
which the Board adopted. On November 15, 1996, the Board entered an order concluding
that Berezoski's conduct amounted to "professional failure to practice medicine
in an acceptable manner consistent with public health and welfare in violation
of section 3.08(18) of the Texas Medical Practice Act." The Board imposed a
two-year suspension of Berezoski's medical license, eight years probation, and
a $5,000 fine. Berezoski appealed the order to the district court and the court
reversed the Board's order.
On remand, the Board deleted three finding of fact related to whether
Berezoski was qualified to administer general anesthesia and entered a second
order suspending Berezoski's license until "he can show that he is safe and
competent to practice medicine," and imposing a $5,000 fine. Berezoski again
appealed the Board's order and the district court affirmed. Berezoski appealed.
The Texas Court of Appeals affirmed. The appeals court first addressed
Berezoski's argument that the Board's second order was precluded by res judicata,
collateral estoppel, and "the law of the case." The court found these arguments
unavailing as the first element of res judicata is proof of a prior final judgment.
Here, said the appeals court, the district court's action did not so much render
judgment as remand the cause back to the Board. "Because the first judgment
did not dispose of the Board's claim, it was not final for purposes of
res judicata," said the appeals court. In addition, Berezoski's collateral estoppel
claim must fail because no specific issue was "determined" by the district court's
Regarding Berezoski's "law of the case" argument, the appeals court
found that the doctrine--which mandates that the ruling of an appellate court
on a question of law raised on appeal will be regarded as the law of the case
in all subsequent proceedings--did not apply here. "By remanding the case instead
of rendering judgment for appellant, and by limiting remand to the previously
developed record, the district court implicitly allowed the Board to conduct
subsequent deliberations," said the appeals court.
Next the appeals court turned to Berezoski's argument that the
Board's second order was not based on substantial evidence. However, after reviewing
the record, the court concluded that there was "ample evidence that appellant
over administered anesthesia" to the patient, "failed to properly monitor her
while she was sedated, and failed to properly respond" when the patient went
into respiratory arrest.
Accordingly, the appeals court affirmed the judgment of the district
Berezoski v. Texas State Bd. of Med. Exmn'rs, No. 03-03-00735-CV,
2004 WL 1573870 (Tex. Ct. App. July 15, 2004).