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Aleman v. Texas Medical Board

Court of Appeals of Texas, Third District, Austin

March 2, 2017

Ruben Aleman, M.D., Appellant
v.
Texas Medical Board, Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-14-003480, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Scott K. Field, Justice

         Ruben Aleman, M.D., filed suit in Travis County seeking judicial review of the Texas Medical Board's order assessing an administrative penalty in the amount of $3, 000 for his violation of Texas Health and Safety Code section 193.005(h). See Tex. Health & Safety Code § 193.005(h) (requiring person completing medical certification on death certificate to submit information and attest to its validity using electronic process approved by state registrar). The trial court affirmed the order except to the extent the order waived a statutory notice requirement related to initiation of formal disciplinary action for non-compliance with the Board's order. We will affirm the trial court's judgment.

          BACKGROUND[1]

         In 2007, the Texas Legislature passed a statute that requires the person in charge of interment or in charge of removal of a body from a registration district for disposal to file a death certificate electronically. See id. § 193.002. The statute also requires that the person completing the medical certification portion of a death certificate "shall submit the information and attest to its validity using an electronic process approved by the state registrar." See id. § 193.005(h).[2] The Texas State Registrar[3] has established the Texas Electronic Registrar (TER) system for recording birth and death certificates. The Texas Electronic Death Registration (TEDR) is the portion of the system associated with certifying death certificates. To use the TEDR, a physician must submit an application, which can be done electronically or over the telephone. The State Registrar reviews the application and enters the physician's information into the TEDR system. Once enrolled in the TEDR system, a physician may use a password to access the TEDR system and may electronically submit, and attest to the validity of, the medical certification information for a death certificate.

         Aleman holds a license to practice medicine issued by the Board. On July 29, 2011, Aleman provided the medical certification of the cause of death of decedent J.S. by signing a paper death certificate instead of submitting the information electronically using the TEDR.[4] In May 2013, the Board filed a complaint at SOAH seeking disciplinary action against Aleman. The complaint alleged that Aleman failed to use the TEDR system to provide the medical certification for J.S. The Board asserted that it was authorized by the Texas Medical Practice Act to take disciplinary action against Aleman for his failure to submit the medical certification electronically because, by doing so, he violated section 193.005 of the Texas Health and Safety Code. See Tex. Occ. Code §§ 164.051 (Board may take disciplinary action against person who "commits an act prohibited under Section 164.052"), .052(a)(5) (physician commits prohibited practice if he "commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053"), .053(a)(1) (for purposes of Section 165.052(a)(5), "unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine").

         Aleman filed a motion to dismiss, asserting that the Board lacked jurisdiction over the proceeding because, according to him, the formal complaint that the Board's staff attorney filed to initiate the disciplinary proceeding did not to comply with section 164.005 of the Texas Occupations Code. See id. §164.005 ("Initiation of Charges; Formal Complaint"). Section 164.005 provides, in pertinent part:

(a) In this section, "formal complaint" means a written statement made by a credible person under oath that is filed and presented by a board representative charging a person with having committed an act that, if proven, could affect the legal rights or privileges of a license holder or other person under the board's jurisdiction.
(b) Unless otherwise specified, a proceeding under this subtitle or other applicable law and a charge against a license holder may be instituted by an authorized representative of the board.
(c) A charge must be in the form of a written affidavit that:
(1) is filed with the board's records custodian or assistant records custodian; and
(2) details the nature of the charge as required by this subtitle or other applicable law.

Id. Aleman argued that the formal complaint filed with the Board was not "in the form of a written affidavit" and that this failing constituted a jurisdictional defect requiring dismissal. After considering the motion and the Board's response, the ALJ denied Aleman's motion to dismiss.

         The contested-case hearing was held in December 2013. Testifying at the hearing were Geraldine R. Harris, State Registrar with the Texas Department of State Health Services; Victor Farinelli, the electronic registration group manager at the Texas Department of State Health Services Vital Statistics Unit; and Aleman. After the hearing, the ALJ issued a proposal for decision setting forth its findings of fact and conclusions of law, including that Aleman violated Texas Health and Safety Code section 193.005 and that the violation constituted "unprofessional or dishonorable conduct" prohibited by Texas Occupations Code section 164.052(a)(5). The ALJ also concluded that Aleman was not entitled to the attorneys' fees he requested as sanctions pursuant to either chapter 10 of the Texas Civil Practice and Remedies Code or rule 13 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code § 10.001-.006 (sanctions for frivolous pleadings and motions); Tex.R.Civ.P. 13 (sanctions for filing pleadings or motions that are groundless and brought in bad faith or groundless and brought for purpose of harassment).

         The Board adopted the ALJ's findings of fact and conclusions of law in their entirety. The Board ordered Aleman to (1) take and pass the Medical Jurisprudence Exam with a score of 75 or above; (2) pay an administrative penalty in the amount of $3, 000; (3) enroll in and complete sixteen hours of continuing medical education; and (4) give a copy of the Board's order to all hospitals, nursing homes, treatment facilities, and other health care entities where he has privileges, has applied for privileges, applies for privileges in the future, or otherwise practices. By its terms, the order automatically terminates upon Aleman's submission of sufficient evidence to the Board's Compliance Division that he has successfully completed the requirements in the ordering paragraphs. After the Board denied Aleman's motion for rehearing, he filed suit for judicial review of the Board's order in Travis County District Court. See Tex. Occ. Code § 164.009 (person subject to disciplinary action by board may appeal to Travis County district court). The district court affirmed the Board's order with the exception of its inclusion of certain language regarding waiver of statutory notice periods in the event of Aleman's non-compliance with the Board's order. Aleman then perfected this appeal.

         In eight issues, Aleman (1) argues that the Board did not have subject-matter jurisdiction over the disciplinary action due to its alleged failure to comply with mandatory and jurisdictional statutory requirements; (2) challenges the Board's finding that Aleman violated Texas Health and Safety Code section 193.005(h) and, as a consequence, committed an act prohibited by the Texas Medical Practice Act; (3) asserts that the administrative penalty and sanctions imposed were in excess of the Board's statutory authority and were arbitrary and capricious; (4) complains of alleged violations of his right to due process; and (5) ...


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