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Swate v. Texas Medical Board

Court of Appeals of Texas, Third District, Austin

August 31, 2017

Tommy Ernest Swate, M.D., Appellant
Texas Medical Board, Appellee[1]


          Before Chief Justice Rose, Justices Goodwin and Bourland.


          Cindy Olson Bourland, Justice.

         Tommy Ernest Swate, M.D., appeals the district court's judgment affirming the final order issued by appellee, Texas Medical Board[2] (the Board), revoking his license to practice medicine in Texas. The Board revoked Dr. Swate's license after determining that he violated the Texas Medical Practice Act, see Tex. Occ. Code §§ 151.001-169.005 (the Act) and certain Board rules, see 22 Tex. Admin. Code §§ 160.1-190.16, in his treatment of chronic-pain and addiction patients. Specifically, the Board found that Dr. Swate failed to keep adequate medical records, including failing to document history, treatment goals, plans, and progress. In one case, the Board determined Dr. Swate failed to perform and document a proper physical examination. He was further found to have failed to follow through on signs of potential diversion[3] or abuse of medications he prescribed. In seven issues, Dr. Swate contends that the district court erred in affirming the Board's final order. Because we find no error in the Board's final order and conclude that it was supported by substantial evidence, we will affirm the district court's judgment.


         Dr. Swate practiced medicine in Texas under license number E-3781, which the Board issued to him in 1975. Initially practicing obstetrics and gynecology, in which he was board-certified, Dr. Swate completed additional training in addiction medicine, psychology, interventional pain management, and sports medicine over the course of his career. He earned certification by the American Society of Addiction Medicine. During the time period at issue, 2007 through 2010, Dr. Swate's Houston-area practice focused on treating addiction and chronic pain.

         The Board's staff filed its initial complaint against Dr. Swate with the Board and the State Office of Administrative Hearings (SOAH) in October 2011. The complaint alleged that between 2007 and 2010, Dr. Swate prescribed controlled substances to ten patients (Patients A, B, C, D, E, F, G, H, I, and J) for the treatment of chronic pain and anxiety without meeting the standard of care for such treatment or maintaining adequate records. Dr. Swate responded that his treatment of the ten patients at issue complied with the Act and met the standard of care, as did his record-keeping.

         After an unsuccessful informal settlement conference, the case proceeded to a contested-case hearing before two SOAH Administrative Law Judges (ALJs). The Board amended its complaint on April 30, 2013, adding allegations that Dr. Swate violated the Act by failing to document any rationale supporting the prescriptions he wrote and failing to document treatment plans and periodic reviews related to the patients' progress. Dr. Swate maintained that he had not violated the Act and that his practices fell within the standard of care. The ALJs conducted a four-day evidentiary hearing, during which the Board offered more than 1600 pages of medical and pharmaceutical records and the expert testimony of Dr. Gregory Powell, a board-certified pain and rehabilitation specialist. Dr. Swate offered his own testimony as well as the report and deposition testimony of Dr. Joseph Cotropia and the deposition testimony of expert Dr. Robert Chabon. The parties also submitted post-hearing briefing.

         After the record was closed, the ALJs issued a proposal for decision (PFD) that included 212 findings of fact and 19 conclusions of law. The ALJs concluded that Dr. Swate: (1) failed to keep adequate medical records for Patients A, C, D, E, G, H, I, and J because he failed to obtain records from previous providers or other adequate medical history; (2) failed to document an initial problem-focused physical examination of Patient F that met the standard of care; (3) failed to appropriately document chronic pain treatment goals or objectives or any information detailing progress toward those goals for Patients A, B, C, D, E, F, G, H, I, and J; and (4) failed to use diligence and safeguard against potential complications from the medications he prescribed to Patients A, E, F, G, and J by not following through on signs of potential diversion or abuse. Based on these findings, the ALJs determined Dr. Swate had violated multiple provisions of the Act, for which the Board was authorized to take disciplinary action. The ALJs also concluded that the Board should consider the fact that Dr. Swate had previously been the subject of disciplinary action to be an aggravating factor and could consider the fact that the ALJs found more than one violation for more than one patient to be an aggravating factor. The ALJs did not make a recommendation as to what, if any, disciplinary action the Board should take.

         The Board reviewed the ALJs' proposal and adopted it in full, adding ordering paragraphs that provided that Dr. Swate's license to practice medicine was immediately revoked and permitted Dr. Swate to petition the Board for re-issuance of his license after one year. Dr. Swate sought judicial review of the Board's order in district court. After a hearing on the merits, the district court affirmed the Board's final order. This appeal followed.


         Dr. Swate raises seven issues on appeal. The first four challenge the ALJs' admission of the testimony of the Board's expert witness, Dr. Powell. Dr. Swate contends that the ALJs abused their discretion in admitting Dr. Powell's testimony because Dr. Powell's methodology had not been shown to be reliable, and because Dr. Powell was allowed to present subjective opinions. In his fifth issue, Dr. Swate challenges the admission of twelve Board exhibits because the authenticating witnesses were not disclosed in discovery. In his sixth issue, Dr. Swate contends that the Board's final order is not supported by substantial evidence. Lastly, in his seventh issue, Dr. Swate contends that the Board acted in an arbitrary and capricious manner in issuing its final order by disregarding certain findings of fact and conclusions of law.

         Admission of Board expert's testimony

         In his first and fourth issues, Dr. Swate argues the ALJs erred in admitting the testimony of the Board's expert witness, Dr. Powell, because the expert's methodology was not first shown to be reliable. Administrative rulings on the admission or exclusion of evidence, including expert testimony, are reviewed under the same abuse-of-discretion standard applied to trial courts. Scally v. Texas State Bd. of Med. Exam'rs, 351 S.W.3d 434, 450 (Tex. App.-Austin 2011, pet. denied); Fay-Ray Corp. v. Texas Alcoholic Bev. Comm'n, 959 S.W.2d 362, 367 (Tex. App.-Austin 1998, no pet). A court abuses its discretion if it acts without reference to guiding rules and principles. Bennett v. Grant, No. 15-0338, 2017 WL 1553157, at *7 (Tex. Apr. 28, 2017) (citing Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985))). We will reverse the trial court's ruling only if it was arbitrary or unreasonable. Downer, 701 S.W.2d at 242.

         If expert opinion testimony will help the factfinder understand the evidence or determine a fact at issue, it should be admitted. See Tex. R. Evid. 702; Scally, 351 S.W.3d at 450; Fay-Ray Corp., 959 S.W.2d at 367. Qualified experts may offer opinion testimony if it is "both relevant and based on a reliable foundation." Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex. 2015); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). When assessing an expert's reliability, the trial court is required to "evaluate the methods, analysis, and principles relied upon in reaching the opinion, " and "should ensure that the opinion comports with applicable professional standards outside the courtroom and that it 'will have a reliable basis in the knowledge and experience of [the] discipline.'" Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997) (quoting Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 (1993)) (quoted in Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725-26 (Tex. 1998)). The abuse-of-discretion standard "applies as much to the trial court's decision about how to determine reliability as to its ultimate conclusion." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

         Dr. Swate based his reliability challenge on the application of Robinson to the methodology Dr. Powell used in reviewing Dr. Swate's records. In Robinson, the Texas Supreme Court established that an expert's "underlying scientific technique or principle must be reliable." Robinson, 923 S.W.2d at 557. It identified six factors that courts may consider when determining whether an expert's scientific testimony is reliable and thus admissible. See id. The factors are: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. Id. Generally, these factors are applied to methodologies used by experts to form, justify, and explain their opinions regarding the facts of a case, rather than the methodology used by experts to gather those facts. See, e.g., Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 217 (Tex. 2010) (assessing expert's use of differential diagnosis to provide opinion on cause of death); Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 639 (Tex. 2009) (assessing electrical engineer's analysis of whether defect in dryer design caused fatal fire); Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802-03 (Tex. 2006) (assessing witness's theory of wax contamination to explain cause of tire failure); Constancio v. Shannon Med. Ctr., No. 03-10-00134-CV, 2012 WL 1948345, at *3 (Tex. App.-Austin May 22, 2012, no pet.) (mem. op.) (assessing reliability of theories underlying causation opinion rather than methodology of reviewing medical records, deposition testimony, and medical literature).

         Subsequent to Robinson, the court clarified that its six factors are nonexclusive and "do not fit every scenario." TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 235 (Tex. 2010); see Gammill, 972 S.W.2d at 726; Constancio, 2012 WL 1948345, at *3. Where, as here, experts rely on principles and analysis rather than on a particular methodology to reach their conclusions, we must assess reliability by determining whether there is "'simply too great an analytical gap between the data and the opinion proffered'" for the opinion to be reliable. Gammill, 972 S.W.2d at 726 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see TXI Transp. Co., 306 S.W.3d at 239 ("Reliability may be demonstrated by the connection of the expert's theory to the underlying facts and data in the case."); Constancio, 2012 WL 1948345, at *3. In determining whether there is too great an analytical gap, we look to the facts the expert relied on, the facts in the record, and the expert's ultimate opinion. Gharda USA, Inc., 464 S.W.3d at 349. The Texas Supreme Court has elaborated that analytical gaps "may include circumstances in which the expert unreliably applies otherwise sound principles and methodologies, the expert's opinion is based on assumed facts that vary materially from the facts in the record, or the expert's opinion is based on tests or data that do not support the conclusions reached." Id. (internal citations omitted).[4]

         Dr. Powell testified that he relied upon his experience and training, as well as Board rules and other professional associations' published guidelines, to formulate his opinion regarding the standard of care for treatment of chronic pain and documentation of that treatment. He applied his expertise to the specific data provided to him, which were Dr. Swate's patient records. Reading Dr. Swate's records to form an opinion about standard of care and documentation was necessarily part of Dr. Powell's methodology used to arrive at his expert opinion. We must review the reasonableness of Dr. Powell's analysis not generally, but "regarding the particular matter to which the expert testimony was directly relevant." Kumho Tire Co., 526 U.S. at 154. In this case, the particular matter was whether Dr. Swate met the standard of care for treating chronic pain. The requirements of the standard of care to which Dr. Powell testified, and on which the ALJs identified that they relied, are outlined below, followed by Dr. Powell's stated reasoning.

Physician must perform an initial physical examination, the results of which should be documented in the record. This provides the basis for his rationale for each medication prescribed, which is useful to subsequent practitioners treating the same patient and protects the physician if something goes wrong.
Physician must formulate a specific, individualized treatment plan for chronic pain and document it in the records. This assists the physician in justifying his actions, particularly in prescribing controlled substances, and provides a measure by which the effectiveness of a given treatment might be determined.
Physician must document reasons a patient is taking medication prescribed by a different doctor. This may cause changes to the treatment plan, and the behavior may cause concern as to whether medication was obtained legitimately.
Physician must take some action in response to aberrant behavior regarding prescribed medications and document the action. Evidence of illegal drug use, chronic opioid dependence, non-compliance with prescribed dosing, or other aberrant behavior can be a sign of abuse or diversion, which Board rules direct should be strictly monitored and addressed in chronic pain patients. Actions can include patient counseling, adjusting or stopping prescriptions, referring the patient to a specialist, or termination from the practice.

         Dr. Powell's explanations allowed the ALJs to assess whether his testimony was opinion evidence connected to existing data by more than the ipse dixit of the expert. See id. at 157 (citing Joiner, 522 U.S. at 146). We review the relevant facts in the record below in addressing Dr. Swate's substantial evidence challenge. Having reviewed the entire record, we see no indication that Dr. Powell's opinions were based on an unreliable application of otherwise sound principles and methodologies, on assumed facts that varied materially from the facts in the record, or on data that did not support the conclusions reached. See Gharda USA, Inc., 464 S.W.3d at 349.

         Additionally, courts have looked to whether experts' methods and conclusions are generally accepted in the relevant professional community as a measure of reliability. See Kumho Tire Co., 526 U.S. at 151. Although Dr. Swate's expert, Dr. Cotropia, generally disagreed with Dr. Powell's conclusion that Dr. Swate did not meet the applicable standards of care, he agreed with Dr. Powell's explanation of the standard of care on many material issues. Dr. Cotropia agreed that Board Rule 170.3 provides a guideline of the standard of care for treatment of chronic pain. He agreed that the standard of care requires a treatment plan, which provides the physician's rationale and should explain how the physician is treating the source of the patient's pain. Dr. Cotropia testified that a focused physical examination is required by the standard of care, as is keeping accurate medical records. He agreed that the standard of care requires a physician to assess patients' progress toward treatment goals. Lastly, Dr. Cotropia testified that abuse of illicit drugs and non-compliance with a dosing schedule are aberrant behavior that should be addressed with the patient. On this record, the determination that Dr. Powell's ultimate opinion was reliable was not an abuse of discretion.

         Lastly, this Court has previously noted that bench trials allow the trial court to act as both gatekeeper and factfinder. See Scally, 351 S.W.3d at 451 (citing Olin Corp. v. Smith, 990 S.W.2d 789, 796-97 & n.1 (Tex. App.-Austin 1999, pet. denied)). The confluence of these two roles allays certain concerns about potential prejudicial impact of expert testimony because the judges are able to conduct ongoing assessment regarding an expert's reliability, expertise, and the principles on which he relied when reaching his opinions. See id. The record indicates that the ALJs conducted such an assessment here.[5] Thus, we conclude the ALJs did not abuse their discretion in assessing the reliability of the methodology underlying Dr. Powell's analysis and admitting his testimony. We overrule Dr. Swate's first and fourth issues.

         Dr. Swate's experts' testimony

         In his second issue, Dr. Swate contends that the ALJs abused their discretion by rejecting Dr. Swate's experts' testimony without explanation. Dr. Swate argues that because Drs. Cotropia and Chabon testified that Dr. Powell's testimony was not reliable, and because their testimony was not impeached or contradicted, the ALJs should not have "rejected" their testimony by admitting Dr. Powell's testimony. The Board points out, however, that the experts' testimony was, in fact, contradicted.

         Dr. Swate is correct that "an agency must provide a basis for its rejection of uncontradicted, unimpeached testimony that is neither inherently improbable or conclusory." CenterPoint Energy Entex v. Railroad Comm'n, 213 S.W.3d 364, 373 (Tex. App.-Austin 2006, no pet.) (citing Cities of Port Arthur, Port Neches, Nederland & Groves v. Railroad Comm'n, 886 S.W.2d 266, 270-72 (Tex. App.-Austin 1994, no writ)). In this case, however, the testimony at issue was directly contradicted and impeached. For instance, Dr. Chabon testified that Dr. Powell improperly based his determination of the standard of care on his subjective opinion. However, on cross-examination, Dr. Chabon agreed that Dr. Powell was qualified by his training and experience to render an opinion as to treatment of chronic pain patients, and that "some opinions hold much more validity[, ] even though they may be largely subjective[, ] than other opinions." Likewise, Dr. Cotropia testified that Dr. Powell's testimony was unreliable and subjective, but as explained above, he also agreed with Dr. Powell on many material matters.

         Although couched in terms of admissibility and reliability, in substance, Dr. Swate attacks the weight that the ALJs afforded each expert's testimony. Dr. Swate's experts' disagreement with Dr. Powell's conclusions does not render Dr. Powell's methods, analyses, principles, and resulting opinions unreliable or inadmissible. See Scally, 351 S.W.3d at 451-52. It is foundational that the agency is the sole judge of the weight to be accorded the testimony of each witness. Central Power & Light Co. v. Public Util. Comm'n, 36 S.W.3d 547, 561 (Tex. App.-Austin 2000, pet. denied). When weighing the evidence, the agency may accept or reject the testimony of witnesses or may accept part of a witness's testimony and disregard the remainder. Id. There is no requirement that the ALJs explain themselves. We conclude the ALJs did not abuse their discretion in admitting all expert testimony offered and overrule Dr. Swate's second issue.

         Subjective opinion regarding standard of care

         In his third issue, Dr. Swate alleges that the ALJs abused their discretion by allowing Dr. Powell to testify about subjective standards of care. He claims that Dr. Powell's testimony was entirely subjective, based on his personal opinions, rather than any identifiable objective standard of care. Dr. Swate argues that because the Board did not disclose to him the standard of care on which he was being assessed, he was deprived of procedural due process. Specifically, he contends that because Dr. Powell was allowed to testify as to his subjective opinions based solely on his experience and qualifications, the Board failed to establish ...

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