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Allibone v. Freshour

Court of Appeals of Texas, Third District, Austin

November 21, 2017

George Allibone, M.D., Appellant
Scott Freshour, in his Official Capacity as Interim Executive Director of the Texas Medical Board; Juanita Garner, Investigator of the Texas Medical Board; and the Texas Medical Board, Appellees


          Before Chief Justice Rose, Justices Pemberton and Goodwin


          Melissa Goodwin, Justice.

         George Allibone, M.D. appeals from the trial court's order and judgment denying his petition for a protective order regarding an administrative subpoena duces tecum (the subpoena) issued by the Texas Medical Board.[1] The Board issued the subpoena in connection with its investigation of pending complaints that had been filed against Allibone concerning two of his patients, and the subpoena required Allibone to produce the patients' medical and billing records. In the order and judgment, the trial court found the subpoena "reasonable in scope and valid" and ordered Allibone to comply with the subpoena. In two issues on appeal, Allibone contends that the trial court committed reversible error by failing to issue findings of fact and conclusions of law and that the trial court abused its discretion when it concluded that the subpoena was reasonable and relevant to the Board's pending investigation. Because we conclude that the trial court did not commit reversible error or abuse its discretion, we affirm the trial court's order and judgment.[2]


         After receiving written complaints against Allibone regarding his patients A.S. and A.L., the Board advised Allibone in June 2016 that it was expanding a pending investigation concerning other patients to "include the care and treatment of A.S. and A.L." In the Board's letter notifying Allibone of the complaints, the investigator listed the allegations against Allibone as follows:

Specifically, it was alleged that A.S. developed a blood clot due to failure of Dr. Allibone's staff to flush the line in between her intravenous (IV) medications. Further, regarding A.L., it was alleged that before an infusion was completed your staff wanted to go home, so they pulled the IV and sent him home to return in the morning for completion, but that he had to [be] admitted to the hospital that evening. These allegations fall under the general category violation of:
164.051(a)(6) Practice inconsistent with public health and welfare 164.053(a)(b) Failure to supervise delegates

See Tex. Occ. Code §§ 164.051(a)(6) (listing among grounds for disciplinary action, failure "to practice medicine in an acceptable professional manner consistent with public health and welfare"), .053(a)(8) (listing as "unprofessional or dishonorable conduct, " a physician's failure "to supervise adequately the activities of those acting under the supervision of the physician").[3] The investigator also requested that Allibone provide a narrative response describing the care and treatment provided to A.L. and A.S. by Allibone and his staff and advised him that a subpoena duces tecum would follow.

         A few weeks later, the Board issued the challenged subpoena. The subpoena directed Allibone to provide "complete and accurate copies of all medical and billing records" of his patients A.L. and A.S. within 14 days from the date of service of the subpoena. In the cover letter with the subpoena, the investigator advised Allibone that the failure to comply with the subpoena constituted grounds for disciplinary action pursuant to section 160.009(b) of the Texas Occupations Code. See Tex. Occ. Code § 160.009(b) (stating that failure to comply with subpoena issued under section 153.007 "constitutes grounds for disciplinary action against the person or entity by the appropriate licensing board"); see also id. § 153.007 (authorizing Board to issue subpoena and subpoena duces tecum).

         Allibone responded to the Board's notice letter. He asserted that the complaints "appear[ed] to be and to have been submitted with malice by Dr. Allibone's discharged and disenfranchised past employee and office manager" and denied the allegations, providing narrative explanations and copies of the purported "relevant" part of the patients' medical records. He, however, refused to produce the patients' remaining medical and billing records. He also objected to the subpoena and filed the petition for protective order against the Board and its Executive Director and investigator assigned to the case pursuant to Texas Rules of Civil Procedure 176.6(e) and 192.6(b), see Tex. R. Civ. P. 176.6(e), 192.6(b), and for declaratory judgment pursuant to the Uniform Declaratory Judgments Act, see Tex. Civ. Prac. & Rem. Code §§ 37.001-.011.

         Among his requests for relief in the petition, Allibone sought a declaration that the subpoena was "illegal and unconstitutional" because the documents sought by the subpoena were "irrelevant to the subject matter of the investigation as articulated in the initiating letter." He challenged the constitutionality of the subpoena on Fourth Amendment grounds. See U.S. Const. amend. IV. He also sought a declaration that section 160.009 of the Texas Occupations Code and related Board rules were unconstitutional. See Tex. Occ. Code § 160.009; 22 Tex. Admin. Code § 190.8(2)(B), (D) (Texas Medical Board, Violation Guidelines) (listing as "unprofessional and dishonorable conduct" "failing to comply with a board subpoena or request for information or action" and "failing to cooperate with board staff"). He contended that the statute and rules were unconstitutional because "the regulatory provisions, when read in conjunction with Tex. Occ. Code Secs. l64.052(a)(5) and164.053[, ] afford the Board unfettered powers to subject a licensee to penalties of discipline and disciplinary hearings without affording the licensee an opportunity for prompt judicial review of the constitutionality of the subpoena." See Tex. Occ. Code §§ 164.052(a)(5) ("A physician . . . commits a prohibited practice if that person: . . . commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public."), .053 (listing unprofessional or dishonorable conduct that is likely to deceive or defraud public).

         Appellees answered and filed a plea to the jurisdiction. The parties thereafter filed competing briefs on appellees' plea to the jurisdiction and the merits. The trial court considered the plea to the jurisdiction and the merits of Allibone's claims at a hearing in April 2017.[4] The primary dispute between the parties concerned the proper scope of the investigation. The Board's position was that the scope of the investigation was driven by the written complaints that it had received; Allibone countered that the investigation was limited to the specific allegations raised in the Board's letter notifying him of the complaints.

         The trial court received documentary evidence, including the confidential written complaints. The Board submitted the confidential written complaints and Allibone submitted the patients' records to the trial court for in camera review.[5] The trial court also received other documentary evidence, testimony by deposition from the Board's medical director, and testimony from the Board's interim executive director. The director testified generally about the Board's enforcement process after it receives a written complaint through judicial review. He explained the role that subpoenas play in this process and why the Board needs the patient's "full" medical and billing records. He also testified that the investigation of the complaints against Allibone was not complete and that the Board was unable to proceed with the investigation because Allibone had not complied with the subpoena.

         Following the hearing, the trial court found that the claims asserted by Allibone in his petition lacked merit and denied his petition for protective order and declaratory judgment. In its order and judgment, the trial court also found that the subpoena was "in all respects reasonable in scope and valid" and ordered Allibone to "fully comply" with the subpoena by May 30, 2017. Allibone requested findings of fact and conclusions of law, but the trial judge declined to make them, explaining by letter to ...

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