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.