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Allibone v. Robinson

Court of Appeals of Texas, Third District, Austin

November 21, 2017

George Allibone M.D., Appellant
v.
Mari Robinson J.D., in her Official Capacity as Executive Director of the Texas Medical Board; Juanita Garner, Investigator of the Texas Medical Board; Michael Arambula M.D., Pharm. D., in his Official Capacity as member of the Texas Medical Board; Julie K. Attebury, in her Official Capacity as member of the Texas Medical Board; David Baucom, in his Official Capacity as member of the Texas Medical Board; Frank Denton, in his Official Capacity as member of the Texas Medical Board; John Ellis Jr., J.D., in his Official Capacity as member of the Texas Medical Board; Carlos L. Gallardo, in his Official Capacity as member of the Texas Medical Board; Manuel Guajardo M.D., in his Official Capacity as member of the Texas Medical Board; John Guerra D.O., in his Official Capacity as member of the Texas Medical Board; Scott Holiday D.O., in his Official Capacity as member of the Texas Medical Board; Margaret McNeese M.D., in her Official Capacity as member of the Texas Medical Board; Allan Shulkin M.D., in his Official Capacity as member of the Texas Medical Board; Robert D. Simonson D.O., in his Official Capacity as member of the Texas Medical Board; Wayne M. Snoots M.D., in his Official Capacity as member of the Texas Medical Board; Karl Swann M.D., in his Official Capacity as member of the Texas Medical Board; Paulette Barker Southard, in her Official Capacity as member of the Texas Medical Board; Surendra K. Varma M.D., in his Official Capacity as member of the Texas Medical Board; Stanley Wang M.D., in his Official Capacity as member of the Texas Medical Board; Timothy Webb J.D., in his Official Capacity as member of the Texas Medical Board; and George Willeford III, in his Official Capacity as member of the Texas Medical Board, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-16-002970, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Pemberton and Goodwin.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         George Allibone, M.D. appeals from the trial court's order and judgment denying his sworn petition for temporary injunction, permanent injunction and for declaratory judgment regarding a subpoena duces tecum (the subpoena) issued by the Texas Medical Board.[1] The Board issued the subpoena in connection with its administrative investigation of a pending complaint against Allibone concerning one of his patients, and the subpoena directed Allibone to provide the patient's medical and billing records to the Board. 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]

         Background

         After receiving a written complaint against Allibone regarding his patient E.M., the Board advised Allibone in April 2016 that it had initiated a formal investigation "to determine if a violation of the Texas Medical Practice Act has occurred." In the Board's letter notifying Allibone of the complaint, its investigator listed the allegations against Allibone as follows:

         The general statutory allegation is:

164.051(a)(6) - QC Practice Inconsistent With Public Health and Welfare - Quality of Care
164.053(a)(8) Failure to Supervise Delegates
164.052(A)(5) Unprofessional Conduct and more specifically relates to:
In the treatment of E.M., it is alleged your nurse hung an intravenous infusion of Curcumin that contained visible particles. It is alleged the staff has not been properly trained in the administration of Curcumin and that patient's life was endangered by improperly mixing this substance.

         The investigator also requested that Allibone complete and return a medical practice questionnaire and encouraged him to provide a "detailed narrative explaining the circumstances surrounding this matter." Allibone responded to the letter by completing and returning the medical practice questionnaire and providing a narrative explanation that denied the allegations.

         As part of its investigation, the Board also issued the challenged subpoena. The subpoena directed Allibone to provide "complete and accurate copies of all medical and billing records" of his patient E.M. to the Board 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 objected to the subpoena and did not produce the requested documents pursuant to the subpoena. In June 2006, the investigator in additional correspondence advised Allibone that he was "well past his deadline" to produce records responsive to the subpoena and, because he had not complied with the subpoena, he "[could] be cited for an addition[al] violation related to failure to respond to the Board."

         Shortly thereafter, Allibone filed the petition for temporary injunction, permanent injunction, and declaratory judgment against the Board, the Board's Executive Director, its investigator, and members of the Board in their official capacities. He sought injunctive relief against appellees to enjoin them from bringing disciplinary proceedings against him "pursuant to Tex. Occ. Code Sec. 160.009(b) for his refusal to comply with the unconstitutional administrative investigative subpoena which sought documents which were irrelevant to the subject matter of the inquiry" and "from further violating [his] constitutional rights as alleged in this petition." He also sought declaratory judgment that section 160.009 of the Texas Occupations Code was "unconstitutional for failure to provide a means of judicial review of an administrative subpoena before the licensee is faced with Board action." And he challenged the constitutionality of related rules, see 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: "[W]hile read in conjunction with Tex. Occ. Code Sec. l64.052(a)(5) and164.053, the regulatory provisions are unconstitutional because they 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 ยงยง 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 ...


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