A Doctor’s Struggle to Clear His Reputation Got More Complicated When a Judge Found His Sanction Baseless

You could forgive Austin neurologist Dr. Robert W. Van Boven for believing he was caught, like Capt. John Yossarian, in a Catch-22.

Cleared of allegations that led the Texas Medical Board to sanction him with a temporary limit on his medical license – allegations found without support by an administrative law judge – Van Boven continued his fight when the board refused to remove its report of the initial disciplinary mark against his reputation from a federal database.

The initial temporary sanction against Van Boven resulted after two of his patients complained to the Texas Medical Board that he had engaged in inappropriate behavior at appointments. The board temporarily restricted Dr. Van Boven’s medical license – keeping him from treating or examining female patients as a response to a “continuing threat to public welfare.”

In defending the medical board the Texas attorney general’s office argued the final order “did not state or suggest” that the board’s temporary action unjustified.

Not so fast, the Texas Supreme Court held. The majority opinion by Chief Justice Nathan L. Hecht, over one dissent, stated the issue as whether federal law requires the medical board or Texas law permits it to merely revise an initial report of a temporary sanction — rather than void it — when the board later finds the allegations have not been proved.

“We answer no,” the court held. “Board officials making the revised report are therefore acting ultra vires and are subject to suit despite the Board’s sovereign immunity.”

As required by law, the medical board’s initial action against Van Boven was reported to a federal national database available to health-care providers. But Van Boven’s challenge to the disciplinary action against him resulted in the administrative-law judge’s finding that the medical board had not proven the complaints against him. The board could have sought judicial review of the judge’s findings and conclusions, but chose instead to adopt them.

A final order dismissed the action against Van Boven and removed the practice restriction against his license.

But the sanction against him remained in the database because the board issued a revision-to-action report. The AG, representing the medical board, said a void report required Van Boven to fight the initial sanction against him. He had not.

The temporary restriction of Van Boven’s license, the Supreme Court noted, lasted more than 21 months. But the Texas Medical Board refused to “void” the initial action against Van Boven in the national database, instead reporting to the database that the original action had been revised, leaving it undisturbed and available to all who looked.

Thus, the ALJ concluded, the medical board staff failed to prove, by the required preponderance of the evidence, that Dr. Van Boven should be sanctioned under applicable state law. The board’s staff “strongly insisted to the Board that the case had been wrongly decided,” the court noted.

Van Boven sued, alleging the board members acted without authority, for injunctive, declaratory and mandamus relief to directing them to file a void report with the database. That would remove the initial report and the revision-to-action report from disclosure.

The attorney general’s office insisted that the board had not acted ultra vires by revising the action against him: Time had expired for Van Boven to challenge the initial action against him, the AG argued, so the board’s only means to correct it was to submit a revision of its initial report.

The trial court denied the board’s plea to the jurisdiction, which asserted sovereign immunity. The appeals court reversed, holding that the board’s authority to determine the legal effect of the final order to be reported to the database “is not clearly limited by statute” and board officials did not act ultra vires in filing a revised report instead of a void report.

That left the temporary action against him for all the medical world to see.

Van Boven complained to the federal database, but it refused to take action because it told him the database supervisors were “not authorized to substitute our judgment” concerning the language contained in the medical board’s orders for the initial and final orders in his case.

Bound by the board’s explanation, the feds supervising the database said the board was “legally required” to file the “revision to action” report.

Not good enough, the Supreme Court held.

A revision-to-action report modifies an adverse action previously reported to the federal database, the Supreme Court’s decision explained. It does not replace a previously reported adverse action, “but rather is treated as a separate action that pertains to the previous action.” Both reports become part of the “disclosable record.”

The medical board’s disciplinary panel, in a brief hearing at the outset of considering the complaints against him, found Van Boven engaged in conduct proscribed by statute and a temporary sanction should be imposed, the court said. But after a full hearing before the State Office of Administrative Hearings, the administrative law judge found the misconduct that was the basis for the temporary sanction had not been proved. “That is,” the Supreme Court said, “from the evidence, one could not conclude that the misconduct likely occurred or that Van Boven was subject to sanction.”

In its final order, the medical board itself endorsed the administrative judge’s conclusion.

The court explained that the medical board officials were correct to insist that the temporary sanction against Van Boven was not under review in the administrative hearing “and that the ALJ had no authority to overturn or vacate it.” But the court determined the patient complaints against him were subject to review – “they were the same complaints made to the disciplinary panel” and were the only basis for the temporary order.

“According to the Board’s own final order,” Chief Justice Hecht decided for the majority, “the factual basis for the Temporary Order was baseless and Van Boven was not subject to sanction.”

In his singular dissent, Justice Jeff Boyd, reasoned the court held the medical board acted without authority – ultra vires – by filing the revision-to-action report. “But,” Boyd concluded, “the Court does not specify a single law with which the Board’s action conflicted or without reference to which the Board acted.”

It was a Catch-22 only in the way the medical board implemented its process, said David Tuckfield of Austin, Van Boven’s lead counsel. “The way the Supreme Court appropriately ruled (which is in accordance with the law), it is no longer a Catch-22.”

Van Boven argued his case before the Supreme Court. In addition to Tuckfield, with the AK Law Group in Austin, Casey Low and Elin Isenhower with Pillsbury Winthrop in Austin represented Van Boven (Isenhower is now at Winstead).

Assistant Solicitor General Bill Davis argued the case for the Texas Medical Board. Charles K. Eldred, special litigation counsel, and Assistant Attorney General Ted A. Ross, also represented the board.