TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v. Jack Dunn, III,
Appellee
FROM THE DISTRICT
COURT OF TRAVIS COUNTY, 345TH JUDICIAL
DISTRICT NO. GN104061, HONORABLE SUZANNE COVINGTON, JUDGE
PRESIDING
In this case, we address the circumstances under which the Texas State
Board of Medical Examiners may reject an Administrative Law Judge's
findings of fact and substitute its own. We hold that the Board, which
does not have unlimited discretion to change an ALJ's findings of fact and
conclusions of law, did not establish a reasonable evidentiary basis for
rejecting the ALJ's findings and conclusions. For the following reasons,
we affirm the judgment of the district court. Appellee Jack Dunn, III, was a practicing anesthesiologist in July
1995, when he administered an epidural to M.J., a woman who went into
cardiac arrest and died during childbirth. In September 1997, the Board
and Dunn entered into an agreed order under which his license was
suspended until he showed that he was able to safely practice medicine
(the "Agreed Order"). According to the Agreed Order, at the time of M.J.'s
death, Dunn was abusing prescription drugs. The Agreed Order also
contained findings of fact that during 1995 and 1996, other doctors and
nurses raised concerns about Dunn's job performance and competency; he was
removed as a member of a physician group; his privileges at a Lubbock
hospital were suspended; he improperly prescribed prescription drugs to a
female patient with whom he had a romantic relationship; and he settled
for one million dollars a malpractice suit brought as a result of M.J.'s
death. About one year after his suspension, Dunn began to seek to have his
suspension lifted. In January 1999, an informal settlement conference
("ISC") was held before a panel including one or more Board members. The
ISC panel recommended that Dunn's suspension be lifted subject to
conditions that included practice restrictions and monitoring
requirements. When the recommendation was presented to the full Board, it
was rejected. Another ISC was held in October 1999, the panel again
recommended that Dunn's suspension be lifted subject to restrictions, and
the full Board again rejected the recommendation. In early 2000, after the
full Board rejected a third ISC panel recommendation that Dunn should be
reinstated, Dunn appealed the Board's decision. The matter was sent to the State Office of Administrative Hearings
("SOAH"). While the cause was pending with SOAH, Dunn and the Board
participated in a mediated settlement conference. During that mediation,
an agreement was reached under which Dunn's suspension would be lifted
subject to various requirements and conditions. When the agreement was
presented to the full Board, the Board rejected the agreement. The SOAH
proceeding was then reopened. Following a lengthy hearing, the ALJ issued a proposal for decision,
stating that the evidence established that Dunn was competent to again
practice medicine and recommending that the Board reinstate Dunn's medical
license subject to certain restrictions. The ALJ made extensive findings,
most of which were not challenged or changed by the Board and which
provide the underpinnings for the legal issues at hand. The Board rejected
several of the ALJ's findings of fact and conclusions of law and refused
to reinstate Dunn. Dunn appealed to the district court, which found that
the Board's decision lacked evidentiary support; it reversed the Board's
order and remanded it for further proceedings, restricting the Board to
consideration of the record previously developed. The district court also
ordered the Board not to bar Dunn from taking the Special Purpose Exam
("SPEX") and Jurisprudence Exam ("JE") to show his medical competence. It
is from the district court's order that the Board and its Executive
Director, Donald W. Patrick, M.D., J.D. (collectively, the "Board"),
appeal. The Board raises two issues on appeal: (1) whether the Board had a
reasonable basis to reject several of the ALJ's findings of fact and
conclusions of law, and (2) whether the district court erred in limiting
the scope of the Board's review of the cause on remand and in ordering the
Board not to "prevent or hinder" Dunn's applications to take the SPEX and
JE. Standard of Review The Board is the "primary means of licensing, regulating, and
disciplining physicians," and is statutorily authorized to adopt rules to
perform its duties and regulate the practice of medicine. Tex. Occ. Code
Ann. §§ 151.003(2), 153.001 (West Supp. 2004). Once a license has been
suspended, a doctor may seek reinstatement by showing that reinstatement
is in the best interests of both the doctor and the public. Id. §
164.151(c) (West Supp. 2004). The Board's decision to deny reinstatement
is subject to judicial review under the Administrative Procedure Act (the
"APA"). Id. §§ 164.007(a), .009, .151(d) (West Supp. 2004);
see Tex. Gov't Code Ann. §§ 2001.001-.902 (West 2000 &
Supp. 2004). We review the Board's actions under the substantial evidence
rule and will not substitute our judgment for that of the Board; we will
reverse only if the decision is not reasonably supported by substantial
evidence, is arbitrary or capricious, or is an abuse of discretion. Tex.
Gov't Code Ann. § 2001.174(2)(E), (F) (West 2000). The Board must show it
properly changed or disregarded the ALJ's findings and conclusions. The Board, like other agencies, does not have unlimited discretion to
change an ALJ's findings of fact. Generally, an agency may not change an
ALJ's findings of fact or conclusions of law or modify an ALJ's order
unless the agency determines that (1) the ALJ improperly applied or
interpreted the law, agency rules and policies, or prior administrative
decisions, (2) a prior administrative decision on which the ALJ's decision
was based was incorrect, or (3) a finding of fact contains a technical
error requiring correction; the agency must state in writing specific
reasons and legal bases for any changes. Id. § 2001.058(e)
(West 2000); see Flores v. Employees Retirement Sys., 74 S.W.3d
532, 539-40 (Tex. App.--Austin 2002, pet. denied); see also Montgomery
Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 564-65 (Tex. 2000) (once
school board chooses to send dispute to hearing examiner, statutory scheme
requires board to defer to fact findings and board may not reweigh
evidence and resolve questions of credibility; statute is more restrictive
than APA but agency retains authority to ultimately decide whether facts
show violation of board policy); Southwestern Pub. Serv. Co. v. Public
Util. Comm'n, 962 S.W.2d 207, 212-13 (Tex. App.--Austin 1998, pet.
denied) (PUC has statutory authority to supplant ALJ's findings and is not
bound by "the general, restrictive APA section 2001.058"). The Board, after receiving an ALJ's findings of facts and conclusions
of law, is to "determine the charges on the merits." Tex. Occ. Code Ann. §
164.007(a) (West Supp. 2004). The Board argues that it is not bound by
section 2001.058 because of this mandate to determine charges on the
merits. But the fact that the Board must determine the merits of such
cases is not inconsistent with the provisions of section 2001.058. This
Court has held that section 2001.058 applies to this agency to delineate
the allocation of fact-finding between the ALJ and the Board. Compare
Levy v. Texas State Bd. of Med. Exam'rs, 966 S.W.2d 813, 815-16 (Tex.
App.--Austin 1998, no pet.), with Southwestern Pub. Serv. Co.,
962 S.W.2d at 212-13 (section 2003.049 expressly provides broader PUC
review than section 2001.058); see also F. Scott McCown &
Monica Leo, When Can an Agency Change the Findings or Conclusions of
an ALJ?, 51 Baylor L. Rev. 63, 76-80 (1999) (discussing section
2001.058 and its application to agency decisions). Courts give deference to an agency's decision to modify or reject an
ALJ's conclusions or findings only when substantiated by the ALJ's
findings or when the basis for the change is fully articulated.
Compare Ramirez v. Texas State Bd. of Med. Exam'rs, 995 S.W.2d
915, 918-19, 925 (Tex. App.--Austin 1999, pet. denied) (order followed ALJ
recommendation; held substantial evidence supported board's decision),
with Employees' Retirement Sys. v. McKillip, 956 S.W.2d 795,
800-01 (Tex. App.--Austin 1997), overruled in part on other grounds by
Texas Natural Res. Conservation Comm'n v. Sierra Club, 70 S.W.3d 809,
814 (Tex. 2002) (after ALJ made findings of fact, agency made contrary
findings and decision; held, agency did not satisfy section 2001.058 and
did not show "rational connection between the stated policy and the change
ordered by the agency"), and Texas State Bd. of Med. Exam'rs v.
Scheffey, 949 S.W.2d 431, 432, 437 (Tex. App.--Austin 1997, writ
denied) (board adopted ALJ's findings of fact but rejected recommendation;
held, one of board's grounds for suspension was supported by substantial
evidence). An ALJ, as an independent and impartial fact finder, is better suited
to decide questions of so-called "adjudicative fact," meaning questions of
fact affecting only the parties to a contested case, "the 'who, what,
when, where and how' disputes of the case." On the other hand, agencies
are "relatively" free to review and correct an ALJ's "legislative facts,"
which "provide a foundation for developing law, rules, or policies and,
consequently, affect the outcome of many cases." McCown & Leo,
supra, at 68-69 (citing K.C. Davis, Treatise on
Administrative Law § 15.03, at 353 (2d ed. 1979)); see Exxon
Corp. v. Railroad Comm'n, 993 S.W.2d 704, 710 (Tex. App.--Austin
1999, no pet.) ("'adjudicative' facts [are those] for which one expects
perfectly explicit support in the body of evidence; . . . 'legislative
facts' [are those] that the Commission was authorized to determine based
on its judgment and expertise in light of what the evidence showed with
respect to the general situation"); Kenneth Culp Davis & Richard J.
Pierce, Jr., Administrative Law Treatise § 9.5, at 55 (3d ed.
1994) (distinguishing adjudicative facts from legislative facts); see
also Davis, 34 S.W.3d at 565-66 (comparing more restrictive education
code to APA; "the focus is on whether the issue determined is ultimately
one of policy, and if so, whether a school board's decision is supported
by substantial evidence and free of erroneous legal conclusions"). Thus,
the allocation of primary fact-finding to the ALJ, with any changes to be
appropriately substantiated by the Board, is a hallmark of the
administrative process. Analysis To earn reinstatement of a suspended medical license, a petitioning
doctor has the burden of showing that reinstatement is in his and the
public's best interests. Tex. Occ. Code Ann. § 164.151(c) (West Supp.
2004). Once an ALJ finds that a doctor has made such a showing, the Board,
if it disagrees, must explain how the ALJ's findings or conclusions were
erroneous, based on the administrative record as presented to the ALJ.
See Tex. Gov't Code Ann. § 2001.058(e). Here, the ALJ found that
Dr. Dunn carried his burden, and the burden then shifted to the Board to
controvert or establish why his reinstatement is not in his or the
public's best interest. We hold that the Board did not carry this
burden. The Board rejected the ALJ's findings that (1) before Dunn began
abusing drugs he was clinically competent and (2) he was physically,
mentally, and otherwise competent to safely practice medicine as long as
he continued in recovery.
(1) The Board refused to adopt the following conclusions of law:
(1) Dunn established that it was in his and the public's best interest to
have his license reinstated; (2) it would be appropriate to impose
practice restrictions and monitoring to assure Dunn's continued recovery
and clinical competence while he reentered the practice of medicine; and
(3) Dunn should be reinstated with the requirements that he continue to
submit to random urine tests, take a drug that blocks the brain's ability
to feel a "high" from opiates, pass the SPEX and JE, complete a residency
or fellowship, limit his practice to an institutional or group practice,
and have his practice monitored by another doctor. The Board attempts to characterize the rejected findings as legislative
facts, arguing that the determination of clinical competence impacts
future cases. However, we believe the specific questions here--whether
Dunn was competent before his drug abuse began and whether he is currently
competent to practice medicine--are instead adjudicative facts, tied to
and affecting only the parties to this particular contested case. The
overall definition of competence is a matter of policy; whether a
particular doctor under particular facts has carried his burden of
establishing his competence is not. Therefore, we will review the Board's
justifications for changing the ALJ's adjudicative facts under a stricter
standard than we would review a determination or alteration of legislative
facts. See Flores, 74 S.W.3d at 539-40; McCown & Leo,
supra, at 68-69. Finding of
Fact Number 38 The ALJ's finding of fact number 38 stated, "Before Dr. Dunn began
abusing drugs, he was clinically competent." The Board refused to adopt
that finding, instead stating that the finding contradicted findings in
the 1997 Agreed Order and that Dunn's "failure to recognize or acknowledge
that he did anything wrong in administering anesthetic to patient M.J.
after more than four years of sobriety is a further indication of a lack
of clinical knowledge or skill unrelated to his abuse of drugs." First, we note that on appeal and during the proceedings below, the
parties agreed that Dunn's competence before his drug abuse began in 1995
was not at issue. Therefore, the Board had no justification to change the
ALJ's finding related to his competence before his drug abuse began.
Furthermore, the Board, which presented no evidence at the hearing, did
not rebut the evidence demonstrating that Dunn was in fact competent
before his drug abuse began.
(2) The Board states that its change was supported by evidence
of Dunn's responsibility for M.J.'s death, concerns raised as to his
overall competence, his prescribing controlled substances to the woman
with whom he was involved, and the physician's group's termination of its
affiliation with him. However, M.J. died in July 1995, Dunn's physician's
group terminated his affiliation and questions were raised about his
competence during 1995, and Dunn prescribed controlled substances to the
woman in late 1995 and early 1996. These issues arose during the time Dunn
was abusing drugs and are not relevant to Dunn's competency before his
drug abuse began. Dunn had practiced medicine since 1989 and was certified
by the American Board of Medical Specialties in anesthesiology. Other
doctors presented evidence that Dunn was competent until 1995, and Dunn
testified that he had administered anesthetic in 4500 cases, including
about 500 epidurals, and that only one, M.J.'s case, gave rise to a
malpractice claim. We hold that the district court properly found that the
Board lacked substantial evidence or a reasonable basis to change the
ALJ's finding of fact number 38. Finding of
Fact Number 57 Finding of fact number 57 found that based on the ALJ's other findings,
Dunn is "physically, mentally, and otherwise competent to safely practice
medicine, contingent on his remaining in recovery." The Board rejected
this finding, stating that it was not supported by the evidence, based on
an insufficient review of the evidence and unsound medical principles, and
insufficient to protect the public. The Board quoted statistics related to
relapses in doctors recovering from drug abuse and stated that Dunn had
not proved his current competence, noting he had not practiced medicine
for over four years and had not passed any objective, recognized test or
completed an internship. The Board also stated that Dunn's testimony
showed a "failure to recognize his error," indicated a lack of clinical
ability, and contradicted other statements he had made in which he
acknowledged mistakes in M.J.'s treatment, thus casting doubt on his
credibility. Dunn objected to the admission of the Agreed Order into evidence,
stating he did not believe that all the facts recited in the Order were
true. Dunn testified that he signed the Agreed Order because, "I thought
it was time for me to get on with my recovery and as--I signed it as a
basis of, you know, coming to an agreement with the--with the Board where
I could be on the process to getting my license back. I wasn't so
concerned with the actual facts of it and there are several of them
that--that are not true." Dunn said his father, who is also a doctor,
advised him to sign the Agreed Order because it was the "only chance of
getting my license back, and . . . that's why I signed it." The ALJ ruled
that she would allow it as evidence of the allegations leveled against
Dunn, not as Dunn's absolute admission of the truth of the allegations.
The ALJ's proposed decision makes a similar recitation.
(3) The Agreed Order recites that M.J. had an uncomplicated pregnancy, that
Dunn, "in gross error, placed the epidural's catheter in her abdomen" and
administered "inappropriate dosages" of anesthetic, and that M.J. and her
unborn child died as a result of Dunn's actions and omissions. The Order
further recites that Dunn failed to recognize M.J.'s deteriorating
condition or to start lifesaving measures in a timely fashion. The autopsy report listed M.J.'s cause of death as complications of
epidural anesthesia, specifically finding that (1) the catheter was within
the retroperitoneum and (2) the circumstances suggested anesthetic
toxicity. The level of anesthetic in M.J.'s blood was not increased, but
time had passed from the anesthetic's administration and her time of
death. The report stated that the temporal relationship of the
administration of the anesthetic, the sequence of events preceding the
cardiac arrest, and the absence of other findings that might explain the
seizures and cardiac arrest, as well as the "epidural catheter's position
within the abdomen," all "compellingly indicate" that M.J. died as a
result of complications from the epidural. On cross-examination, the Board walked Dunn through the Agreed Order's
findings related to M.J.; Dunn denied that M.J. had an uncomplicated
pregnancy, saying instead that she had documented preeclampsia and was
showing signs of it when Dunn started her epidural. Dunn said as he
administered the epidural, he used a known technique to decide when the
needle was properly placed and "every indication that I had that I've been
trained to do to place an epidural indicated that it was in the correct
spot." He testified that during the autopsy, "the catheter tip had been
sheared off" and was found in M.J.'s abdomen. The medical examiner "asked
me where the epidural catheter tip should be and so it's my opinion that
he didn't even know where the epidural catheter was." Dunn said he had not
seen objective evidence that he had misplaced the catheter, and he
disagreed with several statements in the medical examiner's report. He
further testified that he had given a test dose of anesthetic and had
checked for symptoms that the epidural was incorrectly inserted; when no
such symptoms appeared, he injected the anesthetic very slowly and
carefully. He said patients with preeclampsia are prone to seizures that
can lead to cardiovascular collapse, and stated that when M.J. went into
seizures and cardiac arrest, he attempted to revive her to no avail. He
said, "I did do everything that I possibly could and in a timely manner,
and I am satisfied that I did everything that I possibly could and that I
was very careful about the way I did the epidural on this lady. . . . I'm
not trying to assess blame, but there were, you know, other circumstances
that were not ideal." Dunn also said that the medical examiner's report
found that M.J.'s blood level of anesthetic was within normal limits and
not elevated, "which is important . . . because elevated levels of
anesthetic can cause seizures." An unidentified consultant wrote a letter to the Board in 1996,
(4) following a review of M.J.'s records, stating that the most
likely cause of death was Dunn's failure to recognize that the catheter
was improperly placed and a "relative" overdose of anesthetic. The
consultant said M.J.'s medical records did not support Dunn's assertion
that preeclampsia had escalated to eclampsia with seizures. The consultant
said Dunn should not have administered more anesthetic after an initial
dose gave no result, indicating an improperly inserted catheter. The
consultant also faulted Dunn for not checking for resuscitation equipment
before administering anesthetic. There was extensive testimony from several doctors involved in Dunn's
recovery from drug abuse, testifying that Dunn had been in complete
compliance with their recommendations and requirements, was in "full
sustained recovery," and was at minimal risk for relapse. One of those
doctors testified that, with regard to M.J.'s death, "I think he [Dunn]
has accepted full responsibility for that. It's not possible to determine
to what extent substance abuse played a role in that with, you know, a
great deal of accuracy. . . . He does accept the understanding that we
have of chemical dependency, that part of that process is recovering from
its affects, being preoccupied with the drug to some extent, et cetera,
and he accepts that as something that was potentially interfering with his
normal functioning." Asked a second time about Dunn's drug abuse and its
involvement in M.J.'s death, the doctor said he did not believe Dunn was
using drugs or going through withdrawal symptoms at the time he
administered anesthetics to M.J., but, "Dr. Dunn has accepted that the
fact that he was abusing drugs at that time could play a role in any
untoward event." Asked about his professional performance in relation to and at about
the time of M.J.'s death, Dunn testified, "I feel like I--I did what I was
trained to do and I--although I am--I have a deeper understanding of what
substance abuse, how it can possibly have an affect on it. I do feel like
that I handled the situation as I was trained to do and I handled it in as
effective a manner as I could have." He said, "I'm comfortable with . . .
how drug addiction can--can possibly affect one's clinical judgment, I--I
realize that there--that it may have played a part in the unfortunate
outcome of that malpractice case and I'm comfortable with that." On
cross-examination, he stated, "I have come to realize that even though I
wasn't acutely intoxicated or in active withdrawals, that substance abuse
or alcohol abuse around that time can have an affect on someone's
judgment. And I--while I'm willing to admit that, you know, there's a
possibility that that--you know, that that's a possibility, I still feel
like I--I--I handled the--a difficult situation to the best of my ability
and training." He also stated that, although he believes he was practicing
medicine to the best of his ability, "I've come to realize that, you know,
substance abuse can affect one's judgment," and, "I agree that it's
possible that I wasn't at my optimal best." Dunn continued to take medical education courses during his suspension,
amassing 381 hours at the time of his ALJ hearing. Dunn testified that he
also tried to stay informed about medical issues without practicing by
reviewing medical cases for a law firm in Dallas. At the time of the
hearing, Dunn had taken more than seventy drug tests, all of which were
negative. He continues to take two or three random tests a month. Dunn
testified that it was only the last agreed ISC recommendation that would
have required him to take the SPEX and JE, for which he understood he had
to have Board approval, and that he then began to request permission to
take the exams. Dunn said he had not received Board permission to take
those two examinations. The Board argues that Dunn did not show current clinical competence
because he had not: (1) practiced medicine since his suspension in 1997,
(2) taken or passed any recognized examinations, or (3) completed an
internship or fellowship. However, had Dunn practiced medicine since his
suspension, he would have been guilty of the unauthorized practice of
medicine. See Tex. Occ. Code Ann. § 155.001 (West Supp. 2004).
Dunn agreed to all conditions the various ISC recommendations would have
imposed, including taking and passing the SPEX and JE, limiting his
practice to a group or institutional setting, continuing to take random
drug tests, being monitored by another doctor approved by the Board,
limiting or abstaining from the practice of anesthesiology, and completing
a six-month residency before resuming practice. The completion of a
residency program and passage of the examinations would seem to answer the
Board's concerns about Dunn's clinical competence and absence from the
practice of medicine since 1997. The Board also points to section 163.11(a) of the administrative code,
which requires that "[a]ll applicants for licensure shall provide
sufficient documentation to the board that the applicant has, on a
full-time basis, actively diagnosed or treated persons or has been on the
active teaching faculty of an acceptable approved medical school within
each of the last two years preceding receipt of an Application for
licensure." 22 Tex. Admin. Code § 163.11(a) (2003). However, section
163.11(c) allows an applicant lacking such recent experience to obtain a
license by meeting one or more conditions, such as certification by the
American Board of Medical Specialties, passage of the SPEX, completion of
continuing medical education hours, or a fellowship, mini-residency, or
other structured remedial education. Id. § 163.11(c). The Board also used relapse statistics quoted by the ALJ to support its
decision. The ALJ found, and the Board agreed, that a study indicated that
40 percent of anesthesiologists relapsed, versus 44 percent of other kinds
of physicians, and that 81 percent of anesthesiologists had sustained
recoveries longer than two years. The Board then states that a 40 to 44
percent chance that Dunn will relapse poses too great a risk to the
public. Under this rationale, however, no anesthesiologist who abused
opiates would ever be considered safe to be relicensed, because the
statistics would always indicate at least a 40 percent possibility of
relapse. The Board states that it doubts Dunn's competence because he has not
practiced medicine recently, while refusing to reinstate his license, even
with restrictions. The Board states that Dunn had not passed any
examinations, a point which has now become moot, while failing to give him
permission to take the SPEX or JE. The Board states that Dunn had not
completed an internship or residency program, while refusing to approve
the ISC recommendations that would require such a program's completion
before Dunn could return to practice. Finally, the Board states that
Dunn's refusal to accept responsibility for M.J.'s death indicates a lack
of clinical competence and raises credibility issues because Dunn had
previously accepted such responsibility.
(5) Issues of credibility are to be decided by the impartial
finder of fact, the ALJ, and the Board should not redetermine those issues
or reweigh the evidence. See Flores, 74 S.W.3d at 539-40
(resolution of adjudicative facts "often requires making credibility
determinations" and hearing examiner is better suited to make such
determinations than agency because hearing examiner has heard evidence and
observed witness demeanor and is disinterested party); Ford Motor Co.
v. Motor Vehicle Bd., 21 S.W.3d 744, 757 (Tex. App.--Austin 2000,
pet. denied) (quoting Southern Union Gas Co. v. Railroad Comm'n,
692 S.W.2d 137, 141-42 (Tex. App.--Austin 1985, writ ref'd n.r.e.)) ("The
ALJ was the sole judge of the credibility of the witnesses and was free to
accept the testimony of any witness or even accept 'part of the testimony
of one witness and disregard the remainder.'"); Southwestern Pub.
Serv. Co., 962 S.W.2d at 214 (Because PUC matters "often involve
objective evidence that is more conducive to review on the record than
evidence such as live witness testimony, which is subject to credibility
concerns. . ., section 2003.049(g) allows the Commission to substitute its
judgment for the ALJ's on questions of fact."). Further, Dunn, while
refuting some of the allegations in the Agreed Order and stating that he
believed other factors substantially contributed to M.J.'s death and that
he had handled the situation as effectively as he could have, also
testified that he understood that his drug abuse could have had an effect
on his performance. We further observe that when the Board refused to
reinstate Dunn's license after three ISC recommendations, Dunn had not yet
testified before the ALJ, thus raising the asserted credibility concerns,
and yet the Board denied each recommendation, even when they included
requirements that would protect the public and assure Dunn's clinical
competence. Based on the reasons put forth by the Board throughout these
proceedings, it appears that the Board is not hewing to the statutory
standard for reinstatement, but rather is acting consistent with the
intent that Dunn shall never practice medicine again.
(6) However, the Board entered into the Agreed Order,
suspending Dunn's license until he could prove his competence,
not revoking his license, as the Board is authorized to do. The
Board should be bound by the Agreed Order to at least the same degree as
it seeks to bind Dunn. The Board's reasons for changing the ALJ's findings of fact do not
reference an improper application of law, policy, or rule, nor do they
state that the ALJ relied on an incorrect prior decision or made a
technical error. Thus, the Board was not authorized by statute to change
the ALJ's findings of fact. See Tex. Gov't Code Ann. §
2001.058(e). Even if we assume that section 2001.058(e) does not apply,
the Board's reasoning states that the ALJ's findings were not supported by
the evidence, were based on insufficient review of the evidence and
unsound medical principles, and were insufficient to protect the public.
The Board opted not to present any evidence other than the Agreed Order,
which Dunn disputed in some detail. The Board chose to rely solely on the
Agreed Order and its cross-examination of Dunn's witnesses, and is
therefore bound by the evidence as presented by those witnesses. That
testimony indicates that Dunn has performed exceptionally well in his
rehabilitation efforts, has maintained his recovery, and shows no signs of
relapse. Dunn presented evidence of his clinical competence prior to his
drug abuse, something the Board did not dispute other than to point to
allegations of misconduct during the time Dunn was using drugs, and
presented evidence of his efforts to maintain his competence by taking
substantial numbers of continuing education courses and reviewing medical
records for a law firm. Dunn agreed to complete a residency program, pass
the SPEX and JE, and limit his practice. Dunn testified that he believed
his administration of the anesthetic was not the sole cause of M.J.'s
death, while admitting that his drug abuse may have affected his
performance. The evidence does not support the Board's changing of the
ALJ's finding of fact number 57. Conclusions
of Law 5 through 9 In conclusions 5 through 9, the ALJ concluded that Dunn had shown it
would be in his and the public's best interests for his license to be
reinstated, that practice restrictions and monitoring requirements should
be imposed to ensure Dunn's continued recovery and clinical competence,
and that the Board should lift the suspension of Dunn's license subject to
reasonable restrictions and requirements. As with the findings of fact
discussed above, the Board justified its changes by stating the ALJ's
conclusions were not supported by the evidence or based on insufficient
review of the evidence and unsound medical principles, and were
insufficient to protect the public, and by stating Dunn had "failed to
meet his burden of proof that he is currently competent to practice
medicine," again noting Dunn had not practiced in over four years, taken
recognized tests, or completed a recognized internship or fellowship. We
fail to see how a doctor whose license is suspended for a period of years
could possibly demonstrate competence under the Board's interpretation of
the requirements in this case. Based on the evidence as presented by Dunn
and cross-examined by the Board and as discussed above, we hold that the
reasons put forth by the Board do not justify the Board's changing of the
ALJ's conclusions of law. Can the District Court Limit the Board's Review on
Remand? We have held that on remand to an agency, a court may use its general
equity powers to control the scope of remand or to provide instructions to
the agency, as long as it acts within the bounds of the law. First
Sav. & Loan Assoc. v. Lewis, 512 S.W.2d 62, 64 (Tex. Civ.
App.--Austin 1974, writ ref'd n.r.e.). The APA authorizes a court to
"reverse or remand the case for further proceedings." Tex. Gov't Code Ann.
§ 2001.174(2). We have held that under a similarly worded statute
authorizing remand, a court may limit the scope of the remand to the
record previously established by the agency. Texas Health Facilities
Comm'n v. Nueces County Hosp. Dist., 581 S.W.2d 768, 770 (Tex. Civ.
App.--Austin 1979, no writ); see Lewis, 512 S.W.2d at 64 ("the
district court may control the scope of its remand"). The Board points to our ruling in BFI Waste Systems of North
America, Inc. v. Martinez Environmental Group that a "reviewing court
is empowered to issue only a general remand" under the statute in
question. 93 S.W.3d 570, 579 n.9 (Tex. App.--Austin 2002, pet. denied).
That case, however, is distinguishable because there the district court
gave the agency "detailed instructions on how the commission should
determine" the issue on remand. Id. Instructions to weigh the
evidence in a certain manner conflict with the prohibition that a court
shall "not substitute its judgment for the judgment of the state agency on
the weight of the evidence." Tex. Gov't Code Ann. § 2001.174. We do not
have such detailed instructions in this cause.
(7) Limiting the scope of the record on remand does not direct
the agency as to how it is to weigh the evidence and does not conflict
with any statute. The Board had more than enough opportunity at the ALJ
level to present evidence. Having chosen to rest on the Agreed Order
alone, the Board is bound by the evidence adduced. We hold that the
district court did not err in limiting the Board's consideration to the
ALJ record on remand. Conclusion After M.J.'s tragic death in 1995, the Board did not revoke Dunn's
license, instead opting to suspend the license with conditions under which
Dunn could seek reinstatement. We believe it is disingenuous for the Board
to purport to allow Dunn to seek reinstatement and then essentially make
it impossible for him to fulfill the Board's conditions by blocking him
from taking required exams or by holding it against him that he has not
practiced medicine while suspended or that he is resistant to take
complete responsibility for M.J.'s death. Furthermore, the Board states
that it denied Dunn's reinstatement in part because his testimony before
the ALJ was inconsistent with prior testimony and the Agreed Order.
However, the Board had already denied reinstatement three times before
Dunn gave that "inconsistent" testimony, and more importantly, the ALJ is
charged with resolving issues of credibility and evidentiary
conflicts. We recognize the Board's ultimate responsibility of policing the
medical profession to ensure the public's safety. Notwithstanding the
importance of this goal, it is not inconsistent with the allocation of
fact-finding between the ALJ and the Board and the requirement that the
Board establish an evidentiary basis in the record for any modification of
the ALJ's findings. We agree with the ALJ that Dunn carried his burden of
proof. We hold that the Board failed to carry its burden to articulate a
reasonable evidentiary basis for rejecting the ALJ's findings of fact and
conclusions of law. We affirm the district court's judgment reversing the Board's order and
limiting the Board's review on remand to the record that was before the
ALJ. __________________________________________ Jan P. Patterson, Justice Before Chief Justice Law, Justices B. A. Smith and Patterson Affirmed Filed: November 20, 2003
1. The Board also rejected several findings by the ALJ
related to the SPEX and JE. However, at oral argument, both parties agreed
that the issues related to Dunn's desire to take the examinations were
moot. Therefore, we will not address the Board's complaints related to the
ALJ's findings 44, 45, 46, and 47, and we will not address its complaints
related to the district court's order barring it from interfering with
Dunn's attempts to take the examinations.
2. At the hearing before the ALJ, counsel for the
Board stipulated that "at some point prior to 95 Dr. Dunn was competent.
As to the exact time period, we couldn't be specific as to what time
period he was competent."
3. Because the Board and Dunn, who was not represented
by an attorney and who signed the order without advice of counsel, opted
to enter into the Agreed Order in 1997 and Dunn settled the malpractice
suit, the actual facts of M.J.'s tragic death were never fully litigated.
The Board wishes to use Dunn's signature to the Agreed Order as an
absolute admission of all statements of fact in the order. However, the
Board, by its decision to enter into the Agreed Order, chose not to fully
explore the facts of the case. Dunn testified that he did not believe
every factual recitation was true, but that he signed the document in
order to get on with his recovery and his life. Having voluntarily entered into the Agreed Order, neither party may
collaterally attack the Order. However, we recognize that the Order is in
the nature of a compromise. We believe the ALJ properly admitted the
Agreed Order, not as "admissions by Dr. Dunn or . . . equivalent[s] to
adjudicated facts," but as an indication of the findings and events
surrounding M.J.'s death and Dunn's drug abuse. It is probative but not
utterly binding evidence. The ALJ took his testimony into account when
evaluating his credibility and competence. The record reflects that the
ALJ carefully considered Dunn's credibility, even reopening the SOAH
hearings to address inconsistencies in testimony that raised credibility
concerns.
4. This letter is unsigned and does not indicate by
whom it was written, that person's credentials or qualifications, or his
or her relationship to the Board or this case. It appears that it was
never admitted during the ALJ's hearing, but instead was attached as an
exhibit to one of the Board's pleadings.
5. The Board also refers to the allegations from 1995
and 1996. However, any concerns raised during the time Dunn was abusing
drugs are irrelevant to his competence now.
6. This is further indicated by the minutes from the
Board meeting at which the last ISC recommendation to reinstate Dunn's
license was discussed. At that meeting, a Board member stated "it is his
feeling that Dr. Dunn's actions were so egregious that he personally will
not vote to approve his request to terminate his suspension."
7. As noted earlier, the parties agree that the issues
related to Dunn's attempts to take the SPEX and JE are moot. We therefore
do not consider those instructions in this
discussion. |