      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00698-CV



                                Harold Granek, M.D., Appellant

                                                 v.

     Texas State Board of Medical Examiners and Donald W. Patrick, M.D., Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. GN201905, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                                          OPINION


                Appellant Harold Granek, M.D., appeals the district court’s order affirming an order

of the Texas State Board of Medical Examiners (Board) imposing disciplinary sanctions against

him.1 Granek complains chiefly that the Board violated due process in prosecuting its disciplinary

complaint against him when some of its allegations were more than a decade old; that there is not

substantial evidence to support the Board’s disciplinary grounds; and that the Board committed

errors of law by including certain commentary in its order. We will affirm in part and reverse and

remand in part.




       1
           Appellee Donald W. Patrick, M.D. is the Executive Director of the Board.
                                         BACKGROUND

               Granek holds a license to practice medicine issued by the Board. He is an

ophthalmologist who specializes in the treatment of the vitreo-retinal part of the eye and has

practiced in Fort Worth since approximately 1991.


Disciplinary proceedings

               In June 2000, the Board docketed a formal disciplinary complaint against Granek,

which it subsequently amended in December 2000 and again in January 2001. The complaint was

referred to the State Office of Administrative Hearings, and a hearing was held before an

Administrative Law Judge (ALJ) in January 2001. The ALJ heard evidence and issued a proposal

for decision (PFD) concluding that the Board had established three grounds for discipline.

               First, the ALJ found that, on January 8, 1994, Granek had failed to attend a patient,

L.H., after she had presented herself at the emergency room of the HCA Medical Plaza hospital in

Fort Worth (HCA) with severe pain caused by building pressure within her eye. The ALJ found that

Granek, who was not at the hospital at the time nor “on call,” had refused to return to the hospital

to perform paracentesis or “tapping” of L.H.’s eye with a needle to relieve pressure. Instead, Granek

had maintained that tapping was at best a short-term measure aimed merely at symptoms and had

previously advised L.H. to see a glaucoma specialist to treat her underlying problem. The ALJ

concluded that by this conduct, Granek had “failed to practice medicine in an acceptable professional

manner consistent with public health and welfare,” Tex. Occ. Code Ann. § 164.051(a)(6), and

“commit[ted] unprofessional or dishonorable conduct that is likely to . . . injure the public.” Id.




                                                 2
§§ 164.051(a)(1), 164.052(a)(5) (West 2004). Both violations are grounds for physician discipline.

Id.

                As additional support for these ultimate conclusions of law, the ALJ relied on two

sets of legal conclusions regarding Granek’s duties to L.H. in these circumstances. First, the ALJ

concluded that Granek breached the tort duty not to abandon L.H. See King v. Fisher, 918 S.W.2d

108, 112 (Tex. App.—Fort Worth 1996, writ denied); Lee v. Dewbre, 362 S.W.2d 900, 902 (Tex.

Civ. App.—Amarillo 1962, no writ).2 Second, the ALJ derived a set of physician-patient duties from

Lunsford v. Board of Nurse Examiners, 648 S.W.2d 391 (Tex. Civ. App.—Austin 1983, no writ).3

Citing Lunsford, the ALJ concluded that “[a] license to provide medical services is a covenant to

serve the people of the State of Texas with professional skill and power and a contract to always act



       2
          Patient abandonment is a form of breach of duty in a medical malpractice action. Elements
of an abandonment claim are (1) the unilateral severance of the doctor-patient relationship by the
doctor; (2) without reasonable notice or without providing adequate alternative medical care; (3) at
a time when there is a necessity of continuing medical attention. King v. Fisher, 918 S.W.2d 108,
112 (Tex. App.—Fort Worth 1996, writ denied).
       3
          In Lunsford, this Court affirmed an order of the Board of Nursing Examiners imposing
discipline for “unprofessional or dishonorable conduct” in refusing to treat a patient who had
presented himself at an emergency room with chest pains. The patient subsequently died while en
route to another hospital. In response to the nurse’s claim that she owed no duty to care for the
patient, we found such a duty based in part on the following assertions:

           When appellant received the privilege of being licensed as a nurse in this State,
           she entered into a covenant to serve the people of this State with all her
           professional skills and powers. This suit is not brought in contract or in tort by
           one individual who feels he or she has been wronged by appellant’s actions or
           inaction, but this suit is brought by the people of this State for appellant’s
           violation of her contractual duties to them to always act in a professional and
           honorable manner.

Lunsford v. Board of Nurse Exam’rs, 648 S.W.2d 391, 395 (Tex. Civ. App.—Austin 1983, no writ).

                                                   3
in a professional and honorable manner,” and that Granek broke his “covenant to serve the people

of the State of Texas with all his professional skills and powers” and his “contract with the people

of the State of Texas to act in a professional and honorable manner.” See id. at 395.

               The second ground for discipline found by the ALJ was based on occupations code

section 164.051(a)(7). See Tex. Occ. Code Ann. § 164.051(a)(7) (West 2004). That provision

applies when a licensee “is disciplined by a licensed hospital or medical staff of a hospital, including

removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board finds

that the action: (A) was based on unprofessional conduct or professional incompetence that was

likely to harm the public; and (B) was appropriate and reasonably supported by evidence submitted

to the board.” Id. The ALJ based this conclusion on findings that Granek failed to comply with the

requests of both the emergency room doctor and the HCA chief of staff to attend L.H. on January

8, 1994; that the chief of staff had summarily suspended Granek’s hospital privileges for his refusal;

that an ad hoc peer review committee at HCA had rescinded the summary suspension but

recommended placing Granek on a twelve-month probated suspension with monitoring; and that this

recommendation had been affirmed in a final decision of the HCA Board of Trustees.

               The third ground for discipline found by the ALJ related to allegations that Granek

had improperly touched the breasts of female patients during the 1980s. The ALJ found that Granek

had touched the breasts of two patients, J.G. and K.G., although she found that Granek had acted

intentionally only with regard to J.G.4 Based on her fact-findings that Granek had intentionally


       4
          The ALJ found that the Board had failed to prove similar allegations regarding two other
patients. In addition, the Board raised three other allegations that were either dismissed voluntarily
or found to be unproved. None of these allegations are at issue in this appeal.

                                                   4
touched J.G.’s breasts and touched K.G.’s breasts, the ALJ concluded that Granek had “failed to

practice medicine in an acceptable professional manner consistent with public health and welfare,”

Tex. Occ. Code Ann. § 164.051(a)(6), and “commit[ted] unprofessional or dishonorable conduct that

is likely to . . . injure the public.” Id. at §§ 164.051(a)(1), .052(a)(5). The ALJ also based these

ultimate conclusions on her conclusions of law, derived from Lunsford, that Granek’s medical

license was a “covenant to serve the people of the State of Texas with all his professional skills and

powers” and a “contract with the people of the State of Texas to act in a professional and honorable

manner.” See 648 S.W.2d at 395.

               Having concluded that the Board had established three bases for imposing physician

discipline, see Tex. Occ. Code Ann. § 164.001(b), the ALJ proceeded to make findings of fact and

conclusions of law regarding a recommended penalty.


       20. . . . Respondent is qualified for a probated sanction.

       21. Based on the foregoing, the Board may suspend Respondent’s license[] to
           practice medicine for three years but probate that suspension for a three-year
           period conditioned on his successfully completing educational courses designed
           to enhance his knowledge of professional ethics and to improve his ability to
           communicate with patients.

       22. Based on Findings of Fact Nos. 70-71, there is insufficient evidence to
           determine an appropriate administrative penalty against Respondent.


In her PFD, the ALJ had expressed concern regarding the staleness of the Board’s improper contact

allegations, which were based on events that had occurred as much as fifteen years before the

hearing. She also included a finding that “Staff’s allegations in this case were stale, the latest




                                                  5
complaint dating from approximately 1994,” and further elaborated in her PFD that she viewed

staleness as a mitigating factor.


       The staleness of [the Board] Staff’s complaints must be considered a mitigating
       factor. It is simply unfair to all persons involved in the disciplinary process for
       complaints to languish for years as they did in this case. Over time memories fade
       or become distorted, records and witnesses are lost, rules and statutes alter, all
       adversely affecting the disciplinary process. If a complaint is important enough to
       prosecute, it should be done in a timely fashion.

       Some of the incidents that became complaints in this matter occurred in the late
       1980s. The most recent complaint was from 1994. Staff did not file its complaint
       against Respondent until 2000. Staff’s dilatoriness in prosecuting the complaints
       ultimately makes the Board’s decision that much harder. When the public welfare
       and a person’s professional livelihood and reputation are at stake, justice delayed is
       justice diminished. The staleness of the complaints in this matter was an injustice
       both to complainants and Respondent.


The Board’s original order of April 24, 2002

               In an order dated April 24, 2002, the Board adopted each of the ALJ’s proposed

findings of fact except for three that are not material to this appeal. It also adopted all of the ALJ’s

conclusions of law material to this appeal except that it rejected conclusions of law 20 (that Granek

“is qualified for a probated sanction”) and 21 (that the Board could suspend Granek’s license for

three years conditioned on his completion of required education). In lieu of conclusions 20 and 21,

the Board ordered that Granek’s medical license be immediately revoked. It provided the following

four-paragraph explanation (italics in original):


       The Board omitted the ALJ’s proposed conclusions of law Nos. 20 and 21 in this
       Final Order, and renumbered the ALJ’s proposed conclusion 22 as 19 in this Final
       Order.



                                                    6
       The ALJ’s proposed conclusion of law No. 20 stated: “Based on Findings of Fact
       Nos. 57-58, Respondent is qualified for a probated sanction.”

       The ALJ’s proposed conclusion of law No. 21 stated: “Based on the foregoing, the
       Board may suspend Respondent’s license[] to practice medicine for three (3) years
       but probate that suspension for a three-year period conditioned on his successfully
       completing educational courses designed to enhance his knowledge of professional
       ethics and to improve his ability to communicate with patients.”

       The ALJ’s proposed conclusions of law Nos. 20 and 21 are not really conclusions of
       law at all, but recommended sanctions. While it may be appropriate for the ALJ to
       recommend a sanction, it is ultimately up to the Board to determine what the
       appropriate sanction should be. The ALJ believes the relative minor sanction of a
       three year suspension of Respondent’s license is sufficient, the Board disagreed, and
       concluded that the revocation of Respondent’s license is the only sanction that will
       adequately protect the public. Respondent’s conduct of fondling and molesting
       patients while performing ophthalmologic examinations on them is not a problem
       that will be corrected by additional continuing medical education as suggested by
       the ALJ. Respondent has engaged in this conduct over a period of many years.
       There was no evidence that Respondent has sought any treatment for his inability to
       control his prurient desires, nor in fact was any evidence admitted that the
       Respondent’s defects in character can be treated. The Board feels that the sanction
       of revocation of Respondent’s license is the only sanction that will adequately protect
       the public. The Board will not condone the Respondent’s assaulting, fondling or
       molesting one other patient by under [sic] the guise of practicing medicine by
       allowing him to retain his medical license.


Granek’s appeal and subsequent Board orders

               On May 13, 2002, Granek filed a motion for rehearing of the Board’s April 24 order.

On June 10, a few days after his motion for rehearing expired by operation of law, Granek filed a

petition for judicial review of the Board’s order in the Travis County district court. He also sought

injunctive relief to prevent the Board from enforcing its order during the pendency of his

administrative appeal. On June 11, the district court granted a temporary restraining order enjoining

the Board from enforcing its order “[p]rovided, however, that Plaintiff must not treat female patients



                                                  7
without an assistant present.” At the TRO hearing, the court evidently expressed concern that the

Board’s allegations against Granek were stale and that revocation was a disproportionate penalty.

                The temporary injunction hearing regarding the April 24 order was subsequently held

on June 27, 2002. At the hearing, counsel for the Board recounted the events at the TRO hearing

and represented that Board staff “took [the district court’s] words to heart” and had requested that

the Board reconsider the revocation sanction it had assessed against Granek. However, Board

counsel explained that, in his view, the Board was without jurisdiction to modify its order while

Granek’s suit for judicial review was pending. Board counsel thus requested that the court formally

“remand this case back . . . for the limited purpose of them reassessing the penalty, not to remand

the whole thing back.” While not appearing to oppose this measure, Granek’s counsel insisted that

injunctive relief was necessary in the interim to prevent the Board from enforcing its still-live order.

                The trial court issued a written order dated August 12, 2002, enjoining the Board from

enforcing its April 24 order, staying that order, and setting trial on the merits.5 The court further

remanded the April 24 order for “further proceedings . . . limited to a reconsideration and possible

further action relating to the penalty imposed against . . . Granek” and ordered that, “If

reconsideration and further action is taken,” the Board was to “file any such changes or decisions

with the Court.”

                On remand, the Board reconsidered its April 24 order during a meeting on August 16,

2002. On the same day, it issued a new “Final Order” that was substantively identical to the Board’s




        5
         The court explained that it enjoined the April 24 order because “Section 164.001 [of the
occupations code] tells me that the order is live and operative unless it is stayed.”

                                                   8
April 24 order except that it changed the sanction from immediate license revocation to a three-year

probated license suspension, subject to sixteen terms and conditions. The Board’s first condition

was “Respondent shall not examine or treat patients.” Another condition required Granek to provide

a copy of the order to all health care facilities where he had or sought privileges. The Board

additionally assessed an administrative penalty of $25,000, notwithstanding its undisturbed

conclusion of law 19 that “there is insufficient evidence to determine an appropriate administrative

penalty against Respondent.” Finally, although the Board replaced its original revocation sanction

with a three-year probated suspension, it retained in full its explanation for the revocation sanction

from the April 24 order.

                On September 23, 2002, the Board issued an “Amended Final Order” purporting to

correct a “typographical error” in the conditions stated in the August 16 order and ordering that

Granek could not treat female patients during his probation period; he was permitted to treat male

patients. Granek was served with a copy of the Amended Final Order under a cover letter advising

him of his right to seek rehearing within twenty days of receipt. He did not file a motion for

rehearing specifically addressed to this order.

                On October 25, 2002, shortly before the temporary injunction was to expire,6 Granek

obtained, in his pending suit for judicial review, a new temporary injunction enjoining the Board

from enforcing its April 24 order pending trial on the merits.7



       6
           See Tex. Occ. Code Ann. § 164.011(c) (West 2004).
       7
          By this juncture, under the limited scope of the remand, the Board had already replaced its
original April 24 order with the September 23 Amended Final Order. Granek apparently sought this
relief out of an abundance of caution that the original April 24 order might still be effective.

                                                  9
               On July 18, 2003, the district court heard Granek’s administrative appeal on the

merits. On September 4, the court rendered judgment reversing and remanding “the action of the

Texas State Board of Medical Examiners,” with apparent reference to the Board’s September 23,

2002 Amended Final Order. The district court held that the $25,000 administrative penalty could

not be supported by the findings and conclusions adopted by the Board. Specifically, the penalty

contradicted conclusion of law 19, that “there is insufficient evidence to determine an appropriate

administrative penalty against Respondent.” The court affirmed the Board’s order in all other

respects. On remand, the Board accepted the district court’s judgment and opted to “take no further

action regarding the imposition of any administrative penalty” against Granek.

               Granek now appeals the Board’s order concluding that grounds exist for discipline

and imposing sanctions against him.


                                          DISCUSSION

               Granek brings five issues, complaining that: (1) the Board violated due process by

waiting until its allegations were stale and he had suffered actual prejudice before prosecuting its

disciplinary action against him; (2) the Board’s findings of grounds for discipline are not supported

by substantial evidence; (3) the Board committed an error of law in modifying the ALJ’s PFD to add

its four-paragraph explanation regarding sanctions because it contains unproven assertions regarding

Granek’s conduct; (4) the Board committed an error of law and exceeded its statutory authority by

predicating its disciplinary findings upon legal duties derived from Lunsford v. Board of Nurse

Examiners; and (5) the Board committed an error of law by applying a preponderance of the




                                                 10
evidence standard, rather than clear and convincing standard, to the administrative hearing seeking

to revoke or suspend his license. See Tex. Gov’t Code Ann. § 2001.174(2) (West 2000).

               Where a Board disciplinary sanction is based upon multiple, independently sufficient

grounds, we affirm the order if any one of the grounds can support the sanction awarded. Texas

State Bd. of Med. Exam’rs v. Scheffey, 949 S.W.2d 431, 436 (Tex. App.—Austin 1997, writ denied);

Guerrero-Ramirez v. Texas State Bd. of Med. Exam’rs, 867 S.W.2d 911, 918 (Tex. App.—Austin

1993, no writ). The Board concluded that it had three independent grounds for discipline that would

support the sanction it imposed. See Tex. Occ. Code Ann. § 164.001(b). Specifically, the Board

concluded that (1) Granek’s failure to attend L.H. violated sections 164.051(a)(1) and (6) and

164.052(a)(5) of the occupations code; (2) Granek was disciplined by HCA so as to constitute a

ground for discipline under section 164.051(a)(7); and (3) Granek’s improper contact with K.G. and

J.G. violated sections 164.051(a)(1) & (6) and 164.052(a)(5).

               As explained below, we conclude that either of the first two grounds support

discipline and need not reach Granek’s challenges to the third.


Due process

               In his first issue, Granek urges that the Board violated his due process rights by

waiting six years to prosecute its allegations regarding L.H. and the HCA disciplinary action. Citing

several cases from other jurisdictions involving delays by medical or other professional disciplinary

boards, Granek argues that due process barred the Board from prosecuting its disciplinary action

because the delay has caused him actual prejudice. See Appeal of Plantier, 494 A.2d 270 (N.H.

1985). As proof of actual prejudice, he cites examples from the record purporting to illustrate that

                                                 11
“[e]very fact witness at the administrative hearing testified to problems remembering the events at

issue” and that “[t]he delay also caused the loss of physical evidence.” The Board characterizes

Granek’s examples of alleged prejudice as out-of-context references regarding immaterial details that

stem from “Dr. Granek’s counsel’s confusing cross examination.” The Board further contends that

even if its delay did cause Granek prejudice, its order should not be reversed because the appropriate

legal standard governing Granek’s due-process complaint is that employed by the Texas Court of

Criminal Appeals with regard to pre-indictment delay. See Ibarra v. State, 11 S.W.3d 189, 193 (Tex.

Crim. App. 1999). This test requires a showing of both actual prejudice and that the State

intentionally delayed in order to gain a tactical advantage over the defendant. Id. at 193.

               Claims regarding deprivation of constitutional rights present questions of law and we

accordingly review them de novo. State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002). The due

process protections of our federal and Texas constitution apply to agency proceedings. See Langford

v. Employees Ret. Sys., 73 S.W.3d 560, 568 (Tex. App.—Austin 2002, pet. denied); see also Texas

Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 454 (Tex. 1984) (“when

a denial of due process has resulted in the prejudice of substantial rights of a litigant,” agency’s

action is arbitrary and capricious even if supported by substantial evidence); Tex. Gov’t Code Ann.

§ 2001.174(2)(A) (West 2000). Although statutes of limitations provide the primary assurance

against prosecution of unduly stale claims or charges, due process can provide independent and

additional protections. See Ibarra, 11 S.W.3d at 193 (due process provides some protection against

undue pre-indictment delay in murder prosecution, which has no statute of limitations in Texas);

State v. McCoy, 94 S.W.3d 296, 301-02 (Tex. App.—Corpus Christi 2002, no pet.) (addressing due



                                                 12
process claim based on alleged pre-indictment delay in prosecuting crime within applicable

limitations period). The fact that the legislature has not prescribed a limitations period for the

Board’s disciplinary proceedings does not foreclose Granek’s due-process complaint. See generally

Tex. Occ. Code Ann. §§ 164.051-.204 (West 2004). At the same time, the fact that the Board may

have delayed beyond the limitations periods for crimes and torts comparable to Granek’s alleged

acts8 does not in itself compel us to find a due-process violation.

                We need not address whether Granek is required to prove both actual prejudice and

tactical delay because we conclude that he has failed to establish actual prejudice. Neither party cites

any Texas case addressing the degree or nature of delay in an agency disciplinary action that would

give rise to constitutionally significant prejudice. In criminal cases, the Texas Court of Criminal

Appeals has implied that “proof that exculpatory evidence or witness became unavailable to [the

defendant] during the delay” might establish constitutionally significant prejudice. Ibarra, 11

S.W.3d at 193. In analogous cases from other states involving pre-prosecution delays in agency

disciplinary proceedings, those courts have applied similar due-process standards, considering the

extent to which agency delay has caused witnesses to become unavailable or the defendant or other

witnesses to forget the relevant events. Compare Sibley v. North Carolina Bd. of Therapy Exam’rs,

566 S.E.2d 486, 488 (N.C. App. 2002) (despite over five-year delay, “the record before us does not

reveal that any of the witnesses had problems recollecting the events which transpired, nor has

petitioner shown that any witness is now unavailable, nor has petitioner shown difficulty in


        8
         See Tex. Civ. Prac. & Rem. Code §§ 16.003(a) (West 2002) (two-year statute of limitation
on civil actions), 74.251(a) (West Supp. 2004-05) (two-year statute of limitations for medical
malpractice claims).

                                                  13
remembering the events.”); Giffone v. DeBuono, 263 A.2d 713, 714-15 (N.Y. App. Div. 1999) (in

1997 agency disciplinary proceeding relating to events in 1970s and 80s, held that defendant failed

to show actual prejudice where he could not demonstrate particular lost documents, witnesses, or

items of evidence which, if available, would cast doubt upon opposing evidence), and Reddy v. State

Bd. of Prof’l Med. Conduct, 259 A.2d 847, 848-49 (N.Y. App. Div. 1999) (no due process violation

where “proof of the alleged misconduct was primarily based upon the testimony of the complaining

witnesses and petitioner, who recalled details of the events with clarity”), with Appeal of Plantier,

494 A.2d 270, 272-75 (N.H. 1985) (due process violated by prosecution of decade-old allegation

where sole evidence was the patient’s eyewitness testimony, and doctor and staff had no independent

recollection of patient’s fifteen-minute appointments). These courts have also looked to whether the

relevant events were contemporaneously recorded and whether the defendant had early notice of the

allegations against him. See Sibley, 566 S.E.2d at 488 (noting that in lawsuit filed two years after

alleged incident, accuser had answered interrogatories under oath; “consequently, [the defendant]

was aware of the specifics of the allegations in the Board’s notice of hearing” two years thereafter);

Giffone, 263 A.2d at 714-15 (defendant had retained office notes from appointments where disputed

events allegedly occurred); Appeal of Plantier, 494 A.2d at 274 (while stale allegations based solely

on credibility of eyewitness accounts “significantly increase the problems of proof and . . . increase

the danger of false, fraudulent, frivolous, speculative or uncertain claims,” “disciplinary actions

turning on evidence that is documentary in nature are less likely to be prejudiced by the passage of

time.”).




                                                 14
               Applying these standards, we conclude that the Board’s prosecution of its two

allegations relating to J.H. did not violate due process. The ALJ—the sole judicial actor in a position

to hear the witness’s testimony firsthand and assess memory and other factors bearing on

credibility—did not appear to regard the Board’s six-year delay as creating the type of staleness

problems present with the improper contact allegations. Granek cites the following as proof of actual

prejudice: (1) two eyewitnesses, Drs. Green and Rosenthal, testified based on their notes or medical

records rather than independent recollection; (2) Dr. Green testified that he “almost remember[ed]”

a letter being written to Granek upholding his initial suspension and that Green did not remember

the HCA board’s final decision but only “the spirit of the final decision”; (3) no written record of

the HCA board’s final decision survived; (4) Dr. Green could not recall certain details regarding his

conversations with Granek or Dr. Bruhl, the emergency room physician; (5) Dr. Bruhl testified that

he could not recall the exact words of his conversation with Granek, but “just the gist of the

conversation,” explaining “remember, this is six years ago, and I’m doing my best to—give a fair

representation of what my—I mean an accurate representation of what my recall is.” We have

reviewed the record and conclude that, when viewed in their proper context, none of these examples

establish actual prejudice that could give rise to a due-process violation.

               Regarding Drs. Green and Rosenthal’s reliance on notes, at least one court has

pointed to the existence of contemporaneously recorded notes as a factor actually mitigating the

potential prejudice from a stale agency disciplinary claim. See Giffone, 263 A.2d at 714. As for Dr.

Green’s testimony regarding HCA’s disciplinary actions against Granek, Granek himself

acknowledged receiving a private letter of reprimand from the hospital regarding his actions toward



                                                  15
L.H. Furthermore, the reference to Dr. Green’s reliance on the “spirit of the final decision” is taken

somewhat out of context. Green testified that he was present when the HCA board orally announced

its final decision, and that the decision was to uphold Green’s disciplinary action against Granek.

Granek’s other attacks against the testimony of Drs. Green and Bruhl are chiefly out-of-context

references regarding peripheral facts; both testified regarding the material elements of the

allegations. Due process was satisfied. We accordingly overrule Granek’s first issue.


Standard of proof

               In his fifth issue, Granek urges that the Board committed an error of law by utilizing

a preponderance of the evidence standard in making its factual determinations regarding each of its

claims. Granek argues that due process required the Board to apply a “clear and convincing”

standard of proof. He relies on what he characterizes as a “trend” in other states toward holding that

due process requires clear and convincing evidence in medical disciplinary actions. See, e.g.,

Nguyen v. Washington, 29 P.3d 689 (Wash. 2001); Painter v. Abel, 998 P.2d 931 (Wyo. 2000);

Johnson v. Bd. of Governors, 913 P.2d 1339 (Okla. 1996).

               There is no Texas authority supporting such a proposition and we have recently

rejected a similar contention with regard to professional licenses issued by the Motor Vehicle Board.

See Pretzer v. Motor Vehicle Bd., 125 S.W.3d 23, 38-39 (Tex. App.—Austin 2003), aff’d in part and

rev’d in part, 138 S.W.3d 908 (Tex. 2004). We emphasized that agency license-revocation

proceedings are civil in nature, that in civil cases “[n]o doctrine is more firmly established than that

issues of fact are resolved by a preponderance of the evidence, and that Texas applies the clear and

convincing standard in civil cases only in ‘extraordinary circumstances,’” such as civil commitment

                                                  16
hearings and involuntary termination of parental rights. Id. at 38-39 (internal quotations omitted).

Following Pretzer, we continue to hold that the proper standard of proof in agency factual

determinations is preponderance of the evidence. We overrule Granek’s fifth issue.


Substantial evidence

               In his second issue, Granek contends that the Board’s findings and conclusions

establishing grounds for discipline are not supported by substantial evidence. Relatedly, in his fourth

issue, Granek complains that the Board committed an error of law in relying on concepts of

physician duties derived from Lunsford v. Board of Nurse Examiners as support for its conclusions

that disciplinary grounds existed. 648 S.W.2d at 395.

               Granek asserts that Lunsford is inapplicable and distinguishable because it addressed

the duties of a nurse, not physicians, and involved a patient appearing at a hospital and requesting

assistance from an on-duty nurse, whereas Granek had indisputably left the hospital and was not on

call. In response, the Board does not dispute that Lunsford is inapposite,9 but asserts that its

references to the case did not prejudice Granek’s substantial rights because there was other support

for the Board’s conclusions of law authorizing discipline. We agree with the Board that substantial

evidence supports its findings and conclusions authorizing discipline and that its references to

Lunsford did not prejudice Granek’s substantial rights.




       9
          We also note that there is apparently no Texas decision applying the Lunsford duties to
physicians and none that specifically apply to any other health services profession Lunsford’s view
that a health care professional license is a covenant to serve the people of the State of Texas with
“professional skill and power” or a contract “to always act in a professional and honorable manner.”
Lunsford, 648 S.W.2d at 395.

                                                  17
               When reviewing an agency decision under the “substantial evidence” test, we

consider the reliable and probative evidence in the record as a whole. Tex. Gov’t Code Ann.

§ 2001.174(2)(E) (West 2004). We may not substitute our judgment for that of the agency and may

only consider the record on which the agency based its decision. Stratton v. Austin Indep. Sch. Dist.,

8 S.W.3d 26, 30 (Tex. App.—Austin 1999, no pet.). The issue before us is not whether the agency

reached the correct conclusion, but whether there is some basis in the record for its action. See City

of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex. 1994); see also Texas Health

Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). The crux of a

substantial evidence analysis is whether the agency’s factual findings are reasonable “in light of the

evidence from which they were purportedly inferred.” John E. Powers, Agency Adjudications 163

(1990). “[Substantial evidence] does not mean a large or considerable amount of evidence, but

rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion’ of fact.” Lauderdale, 923 S.W.2d at 836 (quoting Pierce v. Underwood, 487 U.S. 552,

564-65 (1988); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We presume that the

agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence, and

the burden to prove otherwise is on the appellant. Charter Med., 665 S.W.2d at 453; Stratton, 8

S.W.3d at 30. Finally, the agency’s decision should be reversed only if the party challenging the

decision demonstrates that the absence of substantial evidence has prejudiced that party’s substantial

rights. See Locklear v. Texas Dep’t of Ins., 30 S.W.3d 595, 597 (Tex. App.—Austin 2000, no pet.).


    Failure to attend L.H.

               As previously discussed, the Board concluded that Granek’s failure to attend L.H. in

the emergency room was a failure “to practice medicine in an acceptable professional manner

                                                 18
consistent with public health and welfare,” Tex. Occ. Code Ann. § 164.051(a)(6), and

“unprofessional or dishonorable conduct that is likely to . . . injure the public.” Id. §§ 164.051(a)(1),

164.052(a)(5). The Board based these conclusions upon its fact-findings regarding the episode, as

well as other legal conclusions setting forth the Lunsford duties, which the Board now agrees are

inapplicable, and the tort of patient abandonment. Granek asserts there is not substantial evidence

supporting a finding of patient abandonment because, at all relevant times, L.H. was under the care

of the emergency room physician and staff. See King, 918 S.W.2d at 112. We need not address

whether Granek’s conduct constituted the tort of abandonment because there is other substantial

evidence to support the Board’s ultimate conclusion that Granek’s failure to attend L.H. violated

sections 164.051(a)(1) & (6) and 164.052(a)(5) of the occupations code.

                Our ultimate inquiry is whether substantial evidence supports the Board’s conclusions

that Granek violated the statutory disciplinary grounds of “fail[ing] to practice medicine in an

acceptable professional manner consistent with public health and welfare” and “committ[ing]

unprofessional . . . conduct that is likely to . . . injure the public.” See Tex. Occ. Code Ann.

§§ 164.051(a)(6), .052(a)(5). When enacting these statutory provisions, the legislature did not

explicitly reference tort duties or other common law concepts. Berezowski v. Texas State Bd. of Med.

Exam’rs, No. 03-03-00735-CV, 2004 Tex. App. LEXIS 6255, at *22-23 (Tex. App.—Austin July

15, 2004, no pet.) (memorandum opinion). While such open-ended statutory language invites its

own set of problems, under these circumstances we are required, as with all statutes, to apply its

plain meaning to effectuate the legislature’s intent. See Office of the Attorney General of Texas v.

Lee, 92 S.W.3d 526, 528 (Tex. 2002).



                                                   19
               There is substantial evidence that Granek committed these statutory violations. First,

the Board’s expert, Dr. Christen Held, testified that, based on her review of relevant medical records,

Granek’s care and treatment of L.H. did not meet the standard of care and was a professional failure

to practice medicine consistent with the public health and welfare. See Tex. Occ. Code Ann.

§ 164.051(a)(6). This testimony, which is not challenged on appeal, is sufficient evidence that

Granek failed “to practice medicine in an acceptable professional manner consistent with public

health and welfare.” Id. Furthermore, because patients are considered members of the public, as

noted in conclusion of law 10, see Koepsel, 322 S.W.2d at 611, Held’s testimony also supports the

Board’s conclusion that Granek committed “unprofessional . . . conduct that is likely to . . . injure

the public.” Tex. Occ. Code Ann. §§ 164.051(a)(1), .052(a)(5).


    HCA disciplinary action

               The Board’s controlling conclusion of law that Granek violated occupations code

section 164.051(a)(7) is based on fact-findings that state, in relevant part, that Granek was summarily

suspended by HCA chief of staff Dr. Larry Green, Granek then appealed the suspension to an ad hoc

peer review committee at HCA, the committee rescinded the summary suspension but recommended

a probated twelve-month suspension with monitoring, and the HCA Board of Trustees rendered a

final decision affirming the peer review committee’s recommendation. Granek first contends that

there is not substantial evidence of the action taken by the HCA board because the final decision is

missing from the hospital’s records. We reject this argument because Dr. Green testified that he was

present when the HCA board orally announced its decision to affirm the recommendation of a

probated twelve-month suspension with monitoring.

                                                  20
               Granek next argues that there is not substantial evidence of the other elements of

section 164.051(a)(7), namely, that the Board found that the HCA disciplinary action “was based on

unprofessional conduct . . . that was likely to harm the public.”            Tex. Occ. Code Ann.

§ 164.051(a)(7)(A). We have already concluded that there is substantial evidence to support the

Board’s conclusion that Granek’s failure to attend L.H. constituted “unprofessional . . . conduct that

is likely to . . . injure the public. Id. §§ 164.051(a)(1), .052(a)(5). Because the HCA disciplinary

action was directed to the same conduct, we likewise conclude there is substantial evidence to

support discipline under section 164.051(a)(7).

               We overrule Granek’s second and fourth issues.


The Board’s explanation regarding sanctions

               Having concluded that the Board’s determination that it had grounds to discipline

Granek presents no grounds for reversal, we now turn to whether its actions in determining sanctions

require reversal.

               In his third issue, Granek contends that the Board improperly modified the ALJ’s

order by replacing conclusions of law 20 and 21 with its “ridiculous four paragraph insert,” which

Granek contends does not identify any of the permissible bases under government code section

2001.058(e) and contains factual assertions unsupported by the evidence and inconsistent with the

Board’s own adopted findings.

               An agency may modify an ALJ’s order or change an ALJ’s finding of fact or

conclusion of law only if the agency determines that (1) the ALJ improperly applied or interpreted

the law, agency rules or policies, or prior administrative decisions; (2) the ALJ based her decision

                                                  21
on a prior administrative decision that is incorrect; or (3) a finding of fact contains a technical error

requiring correction. Tex. Gov’t Code Ann. § 2001.058(e) (West 2000). The agency is required to

explain with particularity its specific reason and legal basis for each change made. Id.; Levy v. Texas

State Bd. of Med. Exam’rs, 966 S.W.2d 813, 815-16 (Tex. App.—Austin 1998, no pet.).

                The Board responds that section 2001.158(e) is not implicated for two reasons. First,

the Board argues that an ALJ’s recommendation regarding penalties is not the type of finding of fact

or conclusion of law that is presumptively binding on the Board. See Firemen’s & Policemen’s Civil

Serv. Comm’n v. Brinkemyer, 662 S.W.2d 953, 956 (Tex. 1984); Fay-Ray Corp. v. Texas Alcoholic

Beverage Comm’n, 959 S.W.2d 362, 368 (Tex. App.—Austin 1998, no writ). Second, the Board

urges that Granek waived his right to complain of the Board’s compliance with section 2001.058(e)

by failing to file a motion for rehearing after the Board issued its September 23 Amended Final

Order. Finally, the Board contends that Granek was not prejudiced by the removal of the two

conclusions of law because it subsequently modified its sanctions to a three-year probated

suspension, which it characterizes as essentially the same sanctions that the ALJ had recommended.

                We conclude that section 2001.158(e) is implicated by the Board’s actions. Granek

preserved his right to complain of the Board’s explanation by filing a motion for rehearing to the

Board’s original April 24 order.10 We agree with the Board that it is not required to give

presumptively binding effect to an ALJ’s recommendations regarding sanctions in the same manner


        10
          Granek did not oppose the remand preceding the September 23 Amended Final Order, and
the remand was limited solely to “a reconsideration and possible further action relating to the penalty
imposed.” Because Granek complains not of the penalty imposed in the Amended Final Order, but
of the Board’s inclusion of its explanation for its original revocation sanction, he preserved error by
raising the complaint in his motion for rehearing of the April 24 order.

                                                   22
as with other findings of fact and conclusions of law. However, the Board nonetheless provided a

“specific reason and legal basis” for its rejection of proposed conclusions of law 20 and 21 and the

sanctions the ALJ had recommended. The Board explained that “[t]he ALJ’s proposed conclusions

of law are not really conclusions of law at all, but recommended sanctions. While it may be

appropriate for the ALJ to recommend a sanction, it is ultimately up to the Board to determine what

the appropriate sanction should be.” The Board went on to “conclud[e] that the revocation of

Respondent’s license is the only sanction that will adequately protect the public” and, as previously

noted, to elaborate at some length regarding its reasons for imposing that penalty.

                In its explanation, the Board represented that Granek had engaged in the “conduct of

fondling and molesting patients while performing ophthalmologic examinations on them,” had

“engaged in this conduct over a period of many years,” had “an inability to control his prurient

desires,” and “defects in character,” and would continue “assaulting, fondling or molesting . . .

patient[s] . . . under the guise of practicing medicine” if allowed to retain his medical license. None

of these representations are supported by the Board’s findings, and several are flatly contradictory.

The Board established that Granek intentionally touched the breast of only one patient, J.G., proved

only that he had inadvertently touched the breast of K.G., and failed to prove any other allegations

of this nature regarding other patients. Furthermore, there is no evidence that Granek “engaged in

this conduct over a period of many years”; J.G. testified to, at most, a three to four year period during

the 1980s in which the touching episodes occurred, the last of which was in 1987. The Board’s own

findings state that Granek had changed his behavior since 1994 and “was not shown to constitute a

continuing threat to the public.”



                                                   23
                The gravamen of the Board’s explanation is that it imposed its original revocation

sanction based on its own opinions regarding improper contact allegations that it had failed to prove.

Whatever its original implications, the Board suggests that the continued inclusion of this

explanation in its orders does not prejudice Granek’s substantial rights because it refers to a sanction

that the Board no longer seeks. We disagree.

                The Board’s order now requires Granek to provide a copy of the order to all health

care facilities where he had or sought privileges. In other words, Granek must provide to these

institutions a document containing unproven assertions that he had “fondl[ed] and molest[ed]

patients while performing ophthalmologic examinations on them,” had “engaged in this conduct over

a period of many years,” and was a continuing threat due to his “inability to control his prurient

desires.” These statements were included in a Board order, giving them the imprimatur of a

legitimate adjudicative determination. We can fathom no legitimate basis for the Board to include

these assertions in its order, especially where it now no longer seeks to impose the revocation

sanction to which the explanation was addressed. We hold that the Board’s explanation violates

section 2001.058(e) and is arbitrary and capricious. See Tex. Gov’t Code Ann. § 2001.174(2) (West

2000). We sustain Granek’s third issue.


                                          CONCLUSION

                Having overruled Granek’s first, second, fourth, and fifth issues, we affirm the order

of the district court affirming the Board’s order in part. However, because we have found that the

Board acted arbitrarily and capriciously in modifying the ALJ’s PFD to add its four-paragraph




                                                  24
explanation because it contains unsupported assertions regarding Granek’s conduct, we reverse and

remand, in part, for further proceedings consistent with this opinion. See id.




                                              Bob Pemberton, Justice

Before Justices Kidd, B.A. Smith and Pemberton;
    Justice Kidd Not Participating

Affirmed in Part; Reversed and Remanded in Part

Filed: May 5, 2005




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