STATE LICENSURE

Granek v. Tex. State Bd. of Med. Exam'rs, No. 03-03-00698-CV (Tex. App. Aug. 3, 2005)

An ophthalmologist appealed the state district court's order affirming the Texas State Board of Medical Examiners' ("Board") order imposing disciplinary sanctions against him. The Texas Court of Appeals found that the Board violated the doctor's due process rights by not prosecuting allegations that he improperly touched a female patient until 13 years after the complaint. However, the court found that a second allegation by a different female patient was timely because the doctor had been put on contemporaneous notice of her complaint and this patient was found to be a credible witness by the administrative law judge. The court also held that the correct standard of proof in agency license-revocation proceedings was by the preponderance of the evidence and not by a "clear and convincing" standard. That higher standard was only used in civil commitment hearings and termination of parental rights. The court also found that the Board's conclusion that the doctor "failed to practice medicine in an acceptable professional manner" and that he "committed unprofessional conduct" was supported by the preponderance of the evidence. However, the court reversed the Board's sanctions, finding that the language used by the Board was not supported by the evidence and in fact was contradictory to the Board's findings. Since the sanctions required that the doctor notify all health care facilities where he had or sought privileges of the disciplinary actions, and the sanctions contained nonsubstantiated language, the Board's sanctions were found to be arbitrary and capricious. The court then remanded that finding back to the Board.