                               Fourth Court of Appeals
                                      San Antonio, Texas
                                   CONCURRING OPINION
                                          No. 04-18-00465-CV

                                         Jaydeep SHAH, M.D.,
                                               Appellant

                                                    v.

                                     STAR ANESTHESIA, P.A.,
                                            Appellee

                      From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018-CI-04393
                             Honorable Michael E. Mery, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice
Concurring Opinion by: Liza A. Rodriguez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: May 22, 2019

           I concur in the judgment; I write separately, however, to clarify the first issue brought by

Jaydeep Shah, M.D. In his first issue, Shah does not bring solely an evidentiary argument. He also

argues the arbitrator granted relief to Star Anesthesia, P.A. “in the absence of pleadings to support

that relief.” Specifically, Shah claims Star Anesthesia never pled conduct outside of the December

7, 2016 peer review meeting as a basis for a claim Shah committed moral turpitude. According to

Shah, by relying on conduct never pled, the arbitrator did not provide Shah with “a fundamentally

fair hearing.”
Concurring Opinion                                                                                    04-18-00465-CV


         However, based on the limited record in this appeal, I disagree with Shah that the arbitrator

based her decision on an issue not properly before her. Shah argues that only the statements he

made at a December 7, 2016 peer review meeting 1 were “pled and raised” before the arbitrator,

and therefore the arbitrator erred by considering evidence of his other statements and conduct

before the December 7, 2016 meeting. However, the arbitration arose out of Shah’s lawsuit against

Star Anesthesia for breach of the professional services agreement, along with other claims. As

described in the arbitrator’s written decision, Shah pled “that he did not engage in moral turpitude

and that his termination was therefore improper.” Thus, the issue before the arbitrator on Shah’s

breach of contract claim was “whether he engaged in an act of moral turpitude” that justified his

termination.

         The arbitrator’s decision recites that Star Anesthesia terminated Shah for “moral turpitude”

under section 16(c)(1) of the professional services agreement, which allows termination for cause.

The arbitrator’s decision recites that “cause” is denied in section 16(c)(1) to include “acts of moral

turpitude, which the Association believes, would bring Association or its members into public

disrepute.” After a five-day hearing, 2 the arbitrator found that the evidence of Shah’s comments

and activities prior to the December 7th meeting was sufficient to prove Shah had engaged in “acts

of moral turpitude that brought Star and its physicians into public disrepute.” The arbitrator

therefore concluded that Star had sufficient justification to terminate Shah for cause based on moral

turpitude. Because whether Shah engaged in an act of moral turpitude was the issue before the




1
  The arbitrator excluded the minutes of the December 7, 2016 peer review meeting from the hearing and did not
consider them in reaching her decision. Shah does not challenge the exclusion of the minutes on appeal.
2
  The record in this appeal does not include the transcript or evidence from the arbitration hearing. Therefore, I agree
with the majority opinion that we are precluded from reviewing the sufficiency of the evidence to support the
arbitrator’s fact findings underlying her legal conclusions.


                                                         -2-
Concurring Opinion                                                                 04-18-00465-CV


arbitrator on the breach of contract claim, I conclude the arbitrator did not engage in misconduct

by rendering a judgment that is unsupported by the pleadings.

                                                 Liza A. Rodriguez, Justice




                                               -3-
