      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00313-CV



                             Merrimon W. Baker, M.D., Appellant

                                                 v.

              The Texas Medical Board and Donald R. Patrick, M.D., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-08-000459, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The Texas Medical Board (“the Board”) revoked Dr. Merrimon W. Baker’s license

to practice medicine for violating an agreed order (“the Agreed Order”) prohibiting him from

performing “spine surgery.” Baker filed a suit for judicial review of the agency order. See Tex.

Gov’t Code Ann. § 2001.176 (West 2008). The district court affirmed the agency order. In three

issues, Baker contends that the agency order is not supported by substantial evidence, that the Board

failed to make required findings, and that the manner in which the administrative record was

prepared violated his right to due process. We will affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Baker held a license to practice medicine, which was issued by the Board in 1983.

Baker predominantly practiced general orthopedic surgery, was board certified in orthopedic surgery

by the American Board of Orthopedic Surgery, and was a member of the American Board of Medical
Specialists. In October 2006, Baker and the Board entered into an Agreed Order in settlement of a

complaint filed against Baker by the Board. The Agreed Order described several instances in which

Baker had violated the standard of care with respect to several surgical and non-surgical patients, as

well as his deviations from the standard of care for post-operative care management, including lack

of adequate medical-record documentation of the bases for medical decisions and the rationales for

performing surgical procedures. The Agreed Order also recited that Baker had previously been the

subject of disciplinary action by the Board. Baker’s license to practice medicine was suspended, but

the suspension was probated on the condition that, among other things, Baker “shall not perform or

be present at any spine surgery.”

               Four days after the Agreed Order’s effective date, Baker performed kyphoplasty, a

procedure used to treat fractured spinal vertebrae, on a patient at the Dickerson Memorial Hospital.

After learning this, the Board held a temporary suspension hearing at which the Board’s disciplinary

panel determined that Baker had performed a spine surgery, namely kyphoplasty, in violation of the

Agreed Order. The Board ordered his license temporarily suspended. Baker was then invited to

attend an “Informal Show Compliance Hearing and Settlement Conference” (ISC). Following the

ISC, the disciplinary panel offered Baker a new agreed order, which he signed. The Board, however,

rejected this proposed agreed order and instructed its staff to file a complaint against Baker with the

State Office of Administrative Hearings (SOAH) seeking to revoke Baker’s license.

               The SOAH hearing was held in May 2007 before an administrative law judge (ALJ).

Both the Board and Baker appeared and presented evidence to the ALJ. After the hearing, the ALJ

prepared a detailed proposal for decision (PFD) that included her conclusion that “revocation of



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[Baker’s] license is an appropriate sanction.” The PFD also included twenty-three findings of fact

and ten conclusions of law, one of which stated: “The Board should take disciplinary action against

[Baker’s] medical license, pursuant to § 164 of the [Medical Practice Act], and should revoke his

medical license.” In a Final Order signed on November 30, 2007, the Board adopted the ALJ’s

findings of fact and conclusions of law, with the exception of the above-recited conclusion, which

it noted was not a conclusion of law, but a sanction recommendation. The Board agreed, however,

that the proposed sanction of revocation was appropriate and adopted it as the sanction of the Board.

The Board ordered Baker’s license revoked. Baker then filed a suit for judicial review in Travis

County district court. The district court affirmed the Board’s order, and Baker perfected this appeal.


                                           DISCUSSION


Substantial Evidence

               In his second issue, Baker contends that there was not substantial evidence presented

at the hearing to support the Board’s finding that kyphoplasty constitutes “spine surgery” such that

by performing this procedure, Baker violated the Agreed Order. See Tex. Gov’t Code Ann.

§ 2001.174(E) (West 2008) (in suit for judicial review of agency order pursuant to Administrative

Procedure Act, reviewing court may reverse or remand case if substantial rights of appellant

have been prejudiced because administrative finding is not reasonably supported by substantial

evidence considering reliable and probative evidence in record as whole). The substantial evidence

test is “a reasonableness test or a rational basis test.” City of El Paso v. Public Util. Comm’n,

883 S.W.2d 179, 185 (Tex. 1993) (citing Railroad Comm’n v. Pend Oreille Oil & Gas Co.,



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817 S.W.2d 36, 41 (Tex. 1991)). Although substantial evidence is more than a mere scintilla, the

evidence in the record actually may preponderate against the decision of the agency and nonetheless

amount to substantial evidence. Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc.,

665 S.W.2d 446, 452 (Tex. 1984). We consider not whether the agency reached the correct

conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.

Id. We may not substitute our judgment as to the weight of the evidence for that of the agency. City

of El Paso, 883 S.W.2d at 185. The findings, inferences, conclusions, and decisions of an

administrative agency are presumed to be supported by substantial evidence, and the burden is on

the contestant to prove otherwise. Charter Medical, 665 S.W.2d at 453.

                Our review of the record reveals that the Board’s finding that kyphoplasty is spine

surgery is supported by substantial evidence. First, Kim Garges, M.D., described the kyphoplasty

procedure. During this procedure, the patient is placed prone on an operating table and the level of

fracture of the vertebra is identified using a fluoroscope. A “K-wire” (a large-diameter device with

a pointed end) is inserted through the skin into the pedicle (a conduit into the vertebral body). A drill

is used to penetrate the pedicle, and a portion of the sheath is pulled out and replaced with a cannula

(a tube used for delivery of material into the vertebra). A balloon is inserted into the drill hole to the

proper depth, and the balloon is tamped and filled with water. This decompresses the vertebra,

creating a space into which bone cement is injected and allowed to harden. The bone cement

remains in the space permanently.

                John Neal Rutledge, M.D., an interventional neurologist, testified that he was trained

in kyphoplasty in 1997 or 1998 when it was a new procedure. In Rutledge’s opinion, kyphoplasty



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is a surgical procedure of the spine and is one of the procedures that the Seton Hospital surgical

council includes in its review of surgeries performed in the hospital for morbidity and mortality and

to identify problems in an effort to improve surgical outcomes.

               Garges testified that, in his medical opinion, kyphoplasty should be considered spinal

surgery. Garges stated that his opinion was based on the nature of the procedure itself, the fact that

the procedure uses orthopedic and surgical instruments, and the fact that Baker’s own records related

to kyphoplasty he has performed reflect that he treated it as a surgical procedure. Garges observed

that Baker’s own office notes refer to kyphoplasty as a “surgical intervention” and a “surgical

procedure.” Moreover, Baker had obtained a surgical consent form from the patient on whom he

performed the kyphoplasty.

               Garges also testified that the website of the American Academy of Orthopedic

Surgeons describes kyphoplasty as “a minimally invasive spinal surgery procedure . . . used to treat

painful progressive vertebral body collapse or fractures.” Garges further testified that the website

of the North American Spine Society describes kyphoplasty as “a new minimally invasive surgical

technique for treating fractures of the spine due to osteoporosis.”

               Baker contends that Garges’s testimony should be disregarded in a substantial-

evidence review because he is not qualified to testify about the kyphoplasty procedure. Specifically,

Baker asserts that Garges “is not an expert in Kyphoplasty.” We disagree that Garges was not

qualified to provide testimony regarding whether kyphoplasty is spine surgery. Garges is an

associate professor of orthopedic surgery at the University of Texas Medical Branch in Galveston.

He serves as the chief of spine surgery for the Department of Orthopaedics and Rehabilitation at the



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university and directs the fellowship program. Garges testified that he is familiar with the procedure

and was trained to perform it by Kyphon, Inc., the entity that developed kyphoplasty. Moreover,

Garges’s testimony consisted of more than his own opinion regarding the nature of the procedure;

he also testified that two national professional organizations describe the procedure as “minimally

invasive spinal surgery.”

               Baker testified that his use of the term “surgery” in his own records of the patient on

whom he performed kyphoplasty was “boilerplate” language inserted into his records by a medical

transcriptionist. In Baker’s view, kyphoplasty is not spine surgery but rather an “injection” similar

to an epidural.    Baker further testified that a University of Washington website described

kyphoplasty as “nonsurgical” in nature and that he had learned through inquiry that at the Mayo and

Cleveland clinics, kyphoplasty is performed by radiologists. Baker also offered the testimony of

Michael Smesmy, a hospital administrator, who testified that radiologists are credentialed to perform

kyphoplasty at hospitals he is affiliated with. Jeffrey David Reuben, M.D., testified that he did not

agree that kyphoplasty should be classified as spine surgery because it can be done with minimal

invasiveness, does not require a large incision, and does not involve exposing the spine.

               Having reviewed the evidence presented at the hearing before the ALJ, and

considering the reliable and probative evidence as a whole, we conclude that the Board’s finding that

kyphoplasty is “spine surgery” is reasonably supported by substantial evidence. In other words, a

reasonable basis exists in the record for the Board’s action. We overrule Baker’s second issue.




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Mitigating Factor Findings

               In his first issue, Baker complains that the Board did not include in its final order

findings on mitigating factors that he contends were required by Board rule 190.15. See 22 Tex.

Admin. Code § 190.15(b) (2012) (Tex. Med. Bd., Aggravating and Mitigating Factors). Rule 190.15

provides, in pertinent part:


       (b) Mitigation: In any disciplinary action, the following may be considered as
       mitigating factors that warrant less severe or restrictive action by the board. The
       licensee shall have the burden to present evidence regarding any mitigating factors
       that may apply in the particular case. A final order shall include a finding of fact on
       each applicable mitigating factor:

       (1) self-reported and voluntary admissions of violations(s);

       (2) implementation of remedial measures to correct or mitigate harm from the
       violation(s);

       (3) acknowledgment of wrongdoing and willingness to cooperate with the board, as
       evidenced by acceptance of an Agreed Order;

       (4) rehabilitative potential;

       (5) prior community service and present value to the community;

       (6) other relevant circumstances reducing the seriousness of the misconduct; and

       (7) other relevant circumstances lessening responsibility for the misconduct.


Id. Baker asserts that this rule requires that the Board make findings regarding all mitigating factors

on which the licensee has presented evidence. Baker contends that he did present evidence of

mitigating factors, including (1) he had no improper motive, (2) he only performed one kyphoplasty,




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(3) he was board certified, and (4) no patient was harmed. Baker maintains that, based on that

evidence, the Board was obligated by rule 190.15(b) to make findings on those mitigating factors.

                 As an initial matter, we note that Baker did not preserve this issue for judicial review.

Baker was required to file a motion for rehearing of the Board’s final order before seeking judicial

review. See Tex. Gov’t Code Ann. § 2001.145 (West 2008). Although Baker timely filed a motion

for rehearing, it did not raise the complaint he makes here—that the Board violated rule 190.15 by

failing to make findings on mitigating factors. The motion for rehearing is a statutory prerequisite

to an appeal in a contested case and must be sufficiently definite to notify the agency of the error

claimed so that the agency can either correct or prepare to defend the alleged error. Suburban Util.

Corp. v. Public Util. Comm’n, 652 S.W.2d 358, 365 (Tex. 1983). For each contention of error, the

motion must set forth (1) the fact finding, legal conclusion, or ruling complained of and (2) the legal

basis of that complaint. See Hamamcy v. Texas State Bd. of Med. Exam’rs, 900 S.W.2d 423, 425

(Tex. App.—Austin 1995, writ denied). The standard is one of fair notice. Burke v. Central Educ.

Agency, 725 S.W.2d 393, 397 (Tex. App.—Austin 1987, writ ref’d n.r.e.). We have reviewed

Baker’s motion for rehearing and conclude that it did not serve to put the Board on notice of his

complaint that it had violated rule 190.15, or erred in any way, by failing to include in its final order

findings on mitigating factors. Rather, Baker’s motion for rehearing complains only that the Board

did not consider giving him a lesser sanction than revocation. This is different from complaining

that the Board violated its rules by not including in its order findings on mitigating factors and it did

not serve to put the Board on notice that Baker believed it had, in that regard, failed to comply with

its own rules.



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               In any event, even if preserved, this complaint would fail. This Court has previously

held that under rule 190.15 the Board has the discretion, but is not required, to consider mitigating

factors. See Rodriguez-Aguero v. Texas Med. Bd., No. 03-09-00262-CV, 2010 WL 1730023, at *4-5

(Tex. App.—Austin Apr. 30, 2010, no pet.) (mem. op.). Specifically, we held that


       To the extent appellant argues that the Board was required to consider additional
       mitigating factors or include additional findings of fact in its order, we reject that
       complaint. The plain language of rule 190.15 allows the Board to consider mitigating
       factors, but does not require the Board to do so.


Id. (emphasis added). The Board was not required to consider mitigating factors or make findings

as to mitigating factors. We overrule Baker’s first issue.


Due Process

               In his third issue, Baker contends that the manner in which the administrative record

was prepared and filed with the district court and this Court violated his due-process rights. Baker

identifies several alleged due-process violations, and we will consider each in turn. First, Baker

complains that the record was prepared by the Texas Medical Board rather than “an independent

clerk of a court.” The Administrative Procedure Act, however, provides that the administrative

agency is responsible for the administrative record. See Tex. Gov’t Code Ann. § 2001.175(b) (West

2008) (“After service of the petition on a state agency . . . the agency shall send to the reviewing

court the original or a certified copy of the entire record of the proceeding under review.”). The Act

includes protections in the event a party to an agency proceeding is dissatisfied with the record. See

id. (providing that court may require or permit later corrections or additions to record). Nevertheless,



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Baker complains that the Board’s preparation of the record violated his due-process rights because

fourteen pages of the transcript of the hearing were missing. However, the record shows that upon

the Board’s being made aware of the missing pages, it immediately filed a supplemental record

containing those pages. The initial omission followed by prompt supplementation in no way

prejudiced Baker’s rights.

                 Baker next complains that the record does not include a copy of the order denying his

motion for rehearing. Even assuming such omission would have been prejudicial, in the present case

the motion for rehearing was overruled by operation of law; consequently there is no order to include

in the record.

                 Baker also complains that Exhibit 13 was omitted from the record. That item was

an exhibit, offered by the Board, to which Baker lodged an objection. The ALJ sustained Baker’s

objection and did not admit the exhibit into evidence. The Board did not make an offer of proof

seeking to include the exhibit in the record, and it was properly not made part of the administrative

record. See Tex. Gov’t Code Ann. § 2001.060(2), (4) (West 2008) (record in contested case includes

evidence received or considered, questions and offers of proof, objections, and rulings on them).

                 Baker further asserts that the record should have included documents related to the

settlement and proposed agreed order that was originally recommended by the ALJ but rejected by

the Board. Setting aside whether such documents would even be admissible, Baker made no attempt

to make those documents part of the record by seeking to have them admitted as evidence at the

hearing. Having failed to do so, Baker cannot now complain that they should be part of the record.




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               Finally, Baker complains that the record does not include a transcription of the final

hearing before the Board. The final hearing was not transcribed, and Baker points to no rule that

would require such a transcription to be prepared. Moreover, the Board included the minutes of the

final hearing in the supplemental record. In sum, Baker has failed to demonstrate how his

complaints regarding the preparation of the record—even considering their cumulative

effect—prejudiced his substantial rights. We overrule Baker’s third issue.


                                         CONCLUSION

               Having considered and overruled Baker’s appellate issues and finding that the

Board’s order was supported by substantial evidence, we affirm the district court’s judgment

affirming the Board’s final order.



                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: February 6, 2013




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