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Texas Appeals Court Holds Medical Board's Disciplinary Action Not Barred By Issue Or Claim Preclusion


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 judgment.

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 court.

Berezoski v. Texas State Bd. of Med. Exmn'rs, No. 03-03-00735-CV, 2004 WL 1573870 (Tex. Ct. App. July 15, 2004).

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