      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00612-CV



                                 Lydia H. Grotti, M.D., Appellant

                                                   v.

                       Texas State Board of Medical Examiners, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. GN400032, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant, Lydia Grotti, M.D., appeals the district court’s final judgment affirming

the final order of appellee, Texas State Board of Medical Examiners (the Board), revoking her

license to practice medicine in Texas. Dr. Grotti claims that the final order (1) is not supported by

substantial evidence, (2) fails to state adequate findings to support the Board’s ultimate decision, and

(3) is in excess of the Board’s authority. Dr. Grotti further contends that the Board (4) violated the

Open Meetings Act, (5) improperly adopted findings that were rejected by the administrative law

judges, and (6) adopted the final order in violation of her due process rights. In her seventh issue,

Dr. Grotti maintains that certain evidence was improperly excluded at her administrative hearing.

Because we find no error in either the final order or the Board’s actions, we affirm the district court’s

judgment.
                                         BACKGROUND

    Factual background

                On December 26, 2000, L.M. was brought by her family to the John Peter Smith

Hospital Emergency Department (the Hospital) in Fort Worth. L.M. was an obese sixty-four-year-

old woman. In addition, she had a large cancerous mass that had metastasized in her bones, liver,

and lungs and completely obstructed her right kidney. At approximately 7:45 p.m., L.M. went into

cardiac arrest while sitting with her family in the waiting room. Within minutes, L.M. was moved

into a trauma room where hospital staff began administering advanced cardiac life support. Doctor

Donald McGraw, the attending ER physician, took charge of the resuscitation effort. Between 7:48

p.m. and 8:15 p.m., L.M. received chest compressions, was placed on a ventilator, was shocked

approximately fourteen times, and was administered several drugs designed to stimulate a heart beat.

During this time, she had no measurable pulse or blood pressure. At 8:16 p.m., Dr. McGraw was

able to detect a pulse, but was still unable to obtain a blood pressure reading. Dr. McGraw then

called Dr. Grotti to request that L.M. be transferred to the Intensive Care Unit (ICU).1

                When Dr. Grotti arrived in the trauma room, L.M. had lost her pulse and resuscitation

efforts had resumed. She was told that L.M. had been unconscious for approximately forty-five

minutes and that there had been no measurable blood pressure the entire time. Dr. Grotti claims that

she asked the team to stop performing chest compressions so that she could check L.M.’s pulse and

quickly examine her eyes for signs of brain activity. She could not feel a pulse and her examination




       1
           Dr. Grotti was in charge of the ICU that evening.

                                                  2
of L.M.’s eyes indicated midbrain and brain stem damage. Dr. Grotti then instructed Dr. McGraw

to call to transfer L.M. to the ICU only if he was able to stabilize her.

                Dr. McGraw called Dr. Grotti at 8:35 p.m. and informed her that L.M. had a stable

heart rhythm and a palpable pulse. He further informed her that he was still unable to detect any

blood pressure using either the blood pressure cuff or the Doppler method.2 Dr. Grotti surmised that

the pulse was the result of the drugs that had been administered to L.M. and that, as they wore off,

the pulse would go away. Nevertheless, Dr. McGraw protested that he could not pronounce L.M.

dead when she still had a pulse. Dr. Grotti then returned to the trauma room and found that L.M. still

had no measurable blood pressure. Dr. Grotti checked L.M. and detected a palpable pulse in the 60s

at 8:50 p.m. She testified that L.M.’s pulse went away immediately after it was checked. At this

point, Dr. Grotti determined that the resuscitation efforts had failed, disconnected the ventilator, and

pronounced L.M. dead at 8:50 p.m. She then left the room to inform L.M.’s family.

                At Dr. Grotti’s administrative hearing, several witnesses testified regarding what

occurred during the hour immediately following the pronouncement of death. ER nurse Paula

Martin testified that, when Dr. Grotti announced that she was going to pronounce L.M. dead,

somebody in the room stated that the patient still had a pulse. Martin further testified that she told

Dr. Grotti that L.M. was still breathing but Dr. Grotti explained to Martin that what she was

observing were “agonal respirations,” or ineffectual breaths, signaled by the dying brain stem.

Martin asserted that L.M. continued to have regular respirations at a rate of approximately ten-per-




        2
         The Doppler method uses sound waves to detect blood pressure and is more sensitive than
a blood pressure cuff.

                                                   3
minute after the ventilator was turned off and stated that the regular respirations continued for about

fifteen minutes before becoming irregular. Jennifer Lovins, another ER nurse, testified that after

L.M. was pronounced dead, L.M. appeared to be breathing on her own and that the brain monitor

continued to detect electrical activity. Additionally, ER technicians Kimberly Short and Leigh

Mitchell testified that they observed L.M. breathing after she was pronounced dead. After Dr. Grotti

left the room, Short checked L.M. and was able to detect a faint radial pulse. Several witnesses also

stated that they observed condensation on L.M.’s endotracheal tube each time she exhaled.3

               Dr. Grotti conceded that the agonal respirations continued for an hour after she

disconnected the ventilator and declared L.M. dead. She suggested that the agonal respirations

continued for an abnormally long period of time because the endotracheal tube prevented L.M.’s

airway from naturally collapsing.4 Dr. Grotti also maintained that during this hour L.M. never

regained a pulse and the respirations slowly deteriorated. She admitted that L.M.’s situation was

upsetting to many of the nurses.5 Ultimately, Dr. Grotti decided that occluding6 the endotracheal

tube was equivalent to removing it because L.M.’s airway would have naturally occluded if the tube


       3
          An endotracheal tube is a flexible plastic tube inserted through the mouth down into the
trachea. The tube allows for air to pass freely to and from the lungs. In this case, it was connected
to the ventilator in order to ensure that L.M. had effective respiration throughout the resuscitation
efforts.
       4
         The local medical examiner’s requirements prevented Dr. Grotti from removing the
endotracheal tube.
       5
         Dr. Grotti testified that, about an hour after declaring L.M. dead, she walked into the room
and was forced to prevent Christi Berglund, the team leader for the ER nurses, from blocking the
endotracheal tube with a piece of paper. Nurse Berglund denied Dr. Grotti’s allegation.
       6
        The term “occlude” means to shut or stop up so as to prevent the passage of something.
Webster’s Third Int’l Dictionary 1560 (1986).

                                                  4
had been removed. Therefore, she occluded the tube with her thumb until the agonal respirations

and all detectable electric activity ceased at approximately 9:50 p.m.


    Procedural background

               The Board brought a disciplinary action against Dr. Grotti, alleging that she

suffocated L.M. and violated the Medical Practice Act (the Act). See Tex. Occ. Code Ann.

§§ 151.001-165.160 (West 2004). The matter was referred to the State Office of Administrative

Hearings and a hearing was held before a pair of Administrative Law Judges (ALJs). After the

hearing, the ALJs issued a proposal for decision, which included findings of fact, conclusions of law,

and a recommended penalty. The ALJs found that (1) L.M. did not have irreversible cessation of

spontaneous respirations and circulatory function when she was pronounced dead; (2) Dr. Grotti

violated the standard of care by pronouncing L.M. dead; (3) L.M. did not have irreversible cessation

of spontaneous respirations at 9:50 p.m. because she continued to have respirations at that time, and

there was no indication that the respirations were about to stop; (4) Dr. Grotti occluded L.M.’s

endotracheal tube to stop the respirations and bring the death process to conclusion; (5) occluding

the endotracheal tube had no medical purpose and was not medically ethical; and (6) Dr. Grotti

violated the standard of care when she occluded the endotracheal tube. Consequently, the ALJs

concluded that Dr. Grotti violated section 164.052(a)(5) of the Act by occluding L.M.’s endotracheal

tube and by failing to apply the statutory requirements for determining L.M.’s death. See id.

§ 164.052(a)(5). The ALJs further concluded that the Board was authorized to discipline Dr. Grotti

based on her failure to treat L.M. according to the generally accepted standard of care. Finally, the

ALJs recommended that (1) Dr. Grotti be ordered to obtain a concurrent documented second opinion


                                                  5
by a licensed physician for orders for withdrawal of life support and be required to undergo eight

hours per year of risk management training for a period of three years, and (2) another physician be

present when Dr. Grotti counsels patients or their families on end-of-life issues for one year.

               In October 2003, the Board adopted the ALJs’ findings of facts and conclusions of

law. However, the Board chose to delete finding of fact No. 59 which was not a true finding of fact

but rather the ALJs’ recommendation regarding the appropriate sanction for Dr. Grotti. In its final

order, the Board explained that sanctioning Dr. Grotti was subject to its discretion. The Board found

the ALJs’ recommended sanctions inadequate because they did not address the egregiousness of Dr.

Grotti’s acts and were too lenient to sufficiently and effectively protect the public’s interest.

Accordingly, the Board ordered that Dr. Grotti’s license be revoked. Dr. Grotti sought review of the

Board’s order in district court. In August 2004, the district court affirmed the Board’s order. This

appeal followed.


                                           DISCUSSION

               Dr. Grotti argues the Board employed unfair tactics and procedures throughout the

underlying proceedings. According to Dr. Grotti, these actions resulted in a final order that is

arbitrary and capricious. She claims that the final order (1) is not supported by substantial evidence,

(2) fails to state adequate findings to support the Board’s ultimate decision, and (3) is in excess of

the Board’s authority. She also contends that the Board (4) violated the Open Meetings Act, (5)

improperly adopted findings that were rejected by the administrative law judges, and (6) adopted the

final order in violation of her due process rights. Finally, she maintains that certain evidence was

improperly excluded at her administrative hearing.

                                                  6
    Substantial evidence

               In her first issue, Dr. Grotti argues that the Board’s final order was made in error

because its findings are not supported by substantial evidence. Specifically, Dr. Grotti contends that

the ALJs should not have allowed nurses Lovins and Martin to testify at the administrative hearing

because the Board failed to disclose their prior statements during discovery. Dr. Grotti claims that

the record does not support the Board’s findings without the nurses’ testimony because no other

nurse or physician testified that L.M. exhibited regular respirations after she was pronounced dead

and the ventilator was turned off. She maintains that the ALJs’ decision to allow the witnesses to

testify resulted in an unfair hearing and an indefensible record.

               We review the ALJs’ refusal to exclude the witnesses’ testimony for an abuse of

discretion. See Spohn Hosp. v. Mayer, 104 S.W.3d 878, 881 (Tex. 2003). The legitimate purposes

of discovery sanctions are: (1) to secure compliance with discovery rules; (2) to deter other litigants

from similar misconduct; and (3) to punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844,

849 (Tex. 1992). Discovery sanctions must be just. Spohn Hosp., 104 S.W.3d at 882; Chrysler

Corp., 841 S.W.2d at 849. The supreme court has set forth a two-part test for determining whether

a particular sanction is just. First, there must be a direct nexus among the offensive conduct, the

offender, and the sanction imposed. Spohn Hosp., 104 S.W.3d at 882. Second, the sanction must

neither be excessive nor more severe than necessary to satisfy the purposes of discovery sanctions.

Id. Case-determinative sanctions should only be imposed in exceptional cases where it is clearly

apparent that no lesser sanction would be adequate and it is necessary to address a party’s flagrant

bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules. Id. at



                                                  7
882-83. Before settling on severe sanctions, a court is required to consider less stringent measures.

Id.

               The statements at issue here were made to the police during a criminal investigation

of Dr. Grotti’s treatment of L.M. Grotti became aware of the existence of these statements during

the cross-examination of ER technician Kimberly Short. The Board argued that Short’s statement

to the police during their criminal investigation was (1) privileged and (2) did not qualify as a

witness statement under civil procedure rule 192.3(h) because Short had not signed, adopted, or

approved of the statement. See Tex. R. Civ. P. 192.3(h). The ALJs disagreed and ordered the Board

to disclose Short’s statement and any other similar statements that had not been disclosed. Dr. Grotti

insisted that the Board’s failure to turn over the statements earlier unfairly prejudiced her case, and

that receiving the statements after the hearing had commenced was insufficient to rectify the Board’s

discovery abuse. At the hearing, she urged the ALJs to sanction the Board by excluding the

testimony of any witness who had made a prior statement that had not been disclosed prior to trial.

               The exclusion of the Board’s witnesses, as requested by Dr. Grotti, would have

prevented the Board from presenting the merits of its case. The ALJs stated that their desire was to

uncover the truth in the case. Consequently, they determined that it would be unfair to prevent the

Board from calling its witnesses. However, the ALJs attempted to fashion an equitable remedy.

Initially, the ALJs offered Dr. Grotti a continuance so that she could depose any of the affected

witnesses. Dr. Grotti declined the offer, asserting that she did not desire any further delay. The ALJs

allowed Dr. Grotti to call any rebuttal witnesses that might be warranted, even if they were not on




                                                  8
her witness list. In addition, Dr. Grotti was permitted to recall Dr. McGraw—the only witness who

had testified and been released prior to the discovery of the undisclosed witness statements.

               Furthermore, the ALJs asked Dr. Grotti for suggestions on how they could rectify the

abuse without excluding the witnesses. Dr. Grotti asked for permission to depose the Board’s

investigator, Sharon Pease, to determine what information she possessed regarding the witness

statements. The ALJs denied Dr. Grotti’s request to depose Pease, but they ordered the Board to

consult with Pease and ascertain if there were any other witness statements that had yet to be

disclosed. See Tex. Occ. Code Ann. § 164.007(c) (West 2004) (investigative information gathered

by Board employees is privileged and not subject to discovery). Dr. Grotti also asked to admit

portions of Dr. McGraw’s witness statement rather than recalling him, but withdrew that request

after the ALJs concluded that the rule of optional completeness would allow the Board to offer the

entire statement. See Tex. R. Evid. 107.

               We cannot conclude on this record that excluding the Board’s witnesses was

necessary to secure compliance with discovery rules, deter similar misconduct, or punish the Board.

See Spohn Hosp., 104 S.W.3d at 882. Furthermore, the record does not indicate that the Board’s

failure to disclose the statements constituted the type of bad faith or callous disregard for the rules

of discovery that would merit the sanction sought by Dr. Grotti. We hold that the ALJs did not abuse

their discretion by allowing Lovins and Martin to testify at the administrative hearing because the

ALJs took additional procedural steps to effectuate an equitable remedy under the circumstances.

Therefore, their testimony, as well as any other witness whose prior statement was not initially

disclosed, was properly included in the record. Dr. Grotti’s substantial evidence challenge is



                                                  9
predicated on the absence of this testimony; she does not argue that the Board’s findings are not

supported by substantial evidence if the testimony is included in the record. We overrule her first

issue.


        Inadequate findings

                 In her second issue, Dr. Grotti avers that the Board’s final order does not state

adequate findings to support its decision. In particular, Dr. Grotti claims that conclusions of law No.

3 and No. 5 are not supported by the Board’s underlying fact findings. The Board’s conclusions state

that:


          3.   Respondent [Dr. Grotti] committed a prohibited act or practice within the
               meaning of Section 164.052(a)(5) of the Act based upon unprofessional or
               dishonorable conduct that is likely to deceive or defraud the public or injure the
               public. Respondent’s act of unprofessional conduct was her occlusion of L.M.’s
               endotracheal tube. . . .

          5.   Section 164.051(a)(6) of the Act authorizes the Board to take disciplinary action
               against Respondent based on Respondent’s failure to practice medicine in an
               acceptable professional manner consistent with public health and welfare within
               the meaning of the Act.


Dr. Grotti contends that the Board’s finding of fact No. 52, which states that her actions did not harm

L.M. who was in the process of dying, is inconsistent with its conclusion that her conduct was likely

to deceive, defraud or injure the public, or that she failed to practice medicine in an acceptable

professional manner consistent with the public health and welfare. She insists that the lack of any

finding that her actions were likely to harm L.M. or any member of the public demonstrates that her

conduct did not merit discipline under the Act.



                                                    10
                The legislature expressly provided the Board with the authority to take disciplinary

action against a physician that either commits an act prohibited under section 164.052 or fails to

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

Tex. Occ. Code Ann. §§ 164.051(a)(1), (a)(6) (West 2004). Section 164.052(a)(5) states that 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. Id. § 164.052(a)(5). Section 164.053(a)(1) states that unprofessional or dishonorable

conduct likely to deceive or defraud the public includes conduct in which the physician commits an

act that violates any state or federal law, if the act is connected with the physician’s practice of

medicine. Id. § 164.053(a)(1). A complaint, indictment, or conviction of a violation of law is not

necessary for the enforcement of section 164.053(a)(1); proof of the commission of the act while in

the practice of medicine is sufficient to justify Board action. Id. § 164.053(b). Under the Board’s

rules, the failure to treat a patient according to the generally accepted standard of care is considered

to be inconsistent with public health and welfare and is presumed to be a violation of the Act. 22

Tex. Admin. Code § 190.1(c)(1)(A) (2003).7

                The Board found that Dr. Grotti violated the standard of care when she occluded

L.M.’s endotracheal tube after determining that: (1) Dr. Grotti occluded L.M.’s endotracheal tube

to stop L.M.’s respirations and bring the death process to conclusion; (2) there was no medical

purpose for Dr. Grotti to occlude L.M.’s endotracheal tube; and (3) the occlusion of L.M.’s


        7
         The Board’s rule has been amended since the Board issued its final order. However, the
substance of the relevant portions has not changed, and it is currently located at 22 Texas
Administrative Code Section 190.8(1)(A) (2005).

                                                  11
endotracheal tube was not medically ethical. Therefore, it was appropriate for the Board to conclude

that Dr. Grotti’s conduct was inconsistent with public health and welfare and to presume that her

actions violated the Act. See id. (failure to treat patient according to generally accepted standard of

care is considered to be inconsistent with public health and welfare and is presumed to be violation

of Act). Consequently, because it is clear that the occlusion of L.M.’s endotracheal tube occurred

in connection with Dr. Grotti’s practice of medicine, her conduct constituted unprofessional or

dishonorable conduct likely to deceive or defraud the public under section 164.053(a)(1) of the Act.

Thus, the occlusion of L.M.’s endotracheal tube was a prohibited practice. See Tex. Occ. Code Ann.

§ 164.052(a)(5).

               Because the Board’s findings support its conclusions that Dr. Grotti committed a

prohibited act and that her treatment of L.M. violated the standard of care, it possessed the authority

to discipline Dr. Grotti under sections 164.051(a)(1) and 164.051(a)(6) of the Act. We hold that the

Board included adequate findings in its final order to support its decision. Accordingly, we overrule

Dr. Grotti’s second issue.


Board authority

               In her third issue, Dr. Grotti claims that the Board’s final order exceeds its statutory

authority. She avers that the legislature employed the phrases “is likely to deceive or defraud the

public . . . or injure the public” and “consistent with public health and welfare” in sections

164.051(a)(6) and 164.052(a)(5) to imply that the Board must find that a physician’s actions actually

or likely harmed the public in order to justify disciplinary action. Therefore, she argues that the

Board’s rule, stating that a physician’s failure to treat a patient according to the generally accepted


                                                  12
standard of care is inconsistent with public health and welfare, even when there is no finding of harm

to the patient or the public, is at odds with the legislature’s intent. 22 Tex. Admin. Code

§ 190.1(c)(1)(A).

               Statutory provisions and rules bearing on the same matters must be given a consistent

and harmonious meaning. Texas Alcoholic Beverage Comm’n v. Sanchez, 96 S.W.3d 483, 487 (Tex.

App.—Austin 2002, no pet.); Texas Citrus Exch. v. Sharp, 955 S.W.2d 164, 169 (Tex. App.—Austin

1997, no pet.). Rules adopted by an agency must be consistent with the statutory authority of the

agency, and they may not impose additional burdens, conditions, or restrictions in excess of the

statutory provisions. Sanchez, 96 S.W.3d at 487; Railroad Comm’n v. ARCO Oil & Gas Co., 876

S.W.2d 473, 481-82 (Tex. App.—Austin 1994, writ denied). Generally, we construe agency rules

in the same manner as statutes, striving to give effect to the agency’s intent and following the plain

language of the rule unless it is ambiguous. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248,

254 (Tex. 1999); City of Alvin v. Public Util. Comm’n of Tex., 143 S.W.3d 872, 881 (Tex.

App.—Austin 2004, no pet.).

               The Board may discipline a physician who commits a prohibited act. Tex. Occ. Code

Ann. § 164.051(a)(1). In section 164.052, the legislature provided a list of prohibited practices, one

of which is “unprofessional or dishonorable conduct that is likely to deceive or defraud the public,

as provided by section 164.053, or injure the public.” Id. § 164.052(a)(5) (emphasis added). The

use of the word “likely” indicates that a finding of actual harm is unnecessary. Moreover, the fact

that a physician could violate section 164.052(a)(5) by committing an unprofessional or dishonorable

act, whether or not the act actually injured the public, establishes that a finding of actual or likely



                                                  13
injury is unnecessary. In overruling Dr. Grotti’s second issue, we concluded that, despite the Board’s

finding that Dr. Grotti did not harm L.M., her failure to treat L.M. according to the generally

accepted standard of care violated section 164.052(a)(5). Dr. Grotti’s decision to hasten the death

process without direction from L.M. or her family constituted unprofessional or dishonorable

conduct that is likely to deceive or defraud the public under section 164.053.

               The Board may also discipline a physician who “fails to practice medicine in an

acceptable professional manner consistent with public health and welfare.” Id. § 164.051(a)(6). The

legislature did not define or explain what would constitute a violation of this statute. Accordingly,

the Board adopted a rule providing that the failure to practice medicine in an acceptable professional

manner consistent with public health and welfare includes, but is not limited to, such acts as: (1)

failure to treat a patient according to the generally accepted standard of care; (2) negligence in

performing medical services; (3) failure to use proper diligence in one’s professional practice; and

(4) failure to safeguard against potential complications. See 22 Tex. Admin. Code § 190.1(c)(1)(A)-

(D). This list indicates that a physician’s conduct could be inconsistent with public health and

welfare but not result in actual harm to the public. Therefore, construing section 164.051(a)(6) to

require a finding of actual or likely harm would unnecessarily limit the scope of the statute. See

Sanchez, 96 S.W.3d at 487 (we must construe statutory provisions and rules bearing on same matters

consistently and harmoniously).

               We hold that the Board’s order did not exceed its statutory authority because it was

not required to find that Dr. Grotti’s conduct actually or likely harmed the public in order to subject

her to discipline under sections 164.051(a)(1) or (a)(6). However, even if we were to hold that the



                                                  14
Board erred with regard to its conclusions pertaining to Dr. Grotti’s failure to treat L.M. according

to the generally accepted standard of care, she does not challenge the Board’s conclusion that she

committed a prohibited act by failing to apply the statutory requirements for determining L.M.’s

death. Therefore, Dr. Grotti would still be subject to discipline under section 164.051(a)(1). Dr.

Grotti’s third issue is overruled.


Open meetings act

                In her fourth issue, Dr. Grotti suggests that the Board violated the Open Meetings Act

when it adopted its final order on October 28, 2003. See Tex. Gov’t Code Ann. §§ 551.001-.146

(West 2004). Specifically, she claims that the Board violated government code sections 551.101 and

551.103 by improperly going into an executive session.8 A governmental body may not conduct a

statutorily allowed closed meeting unless it first convenes in an open meeting, for which notice has

been given and during which the presiding officer publicly: (1) announces that a closed meeting will

be held; and (2) identifies the statutory section that permits the closed meeting. Id. § 551.101. A

governmental body must either keep a certified agenda or make a tape recording of each closed

meeting. Id. § 551.103. Any action taken by a governmental body in violation of either of these

statutes is voidable. Id. § 551.141.

                The record contains no evidence indicating that the Board went into executive session

during its open meeting on October 28, 2003. Dr. Grotti points us to the minutes of the Board’s open




        8
           An executive session is a closed meeting in which the Board may conduct deliberations
relating to license applications and disciplinary action. Tex. Occ. Code Ann. § 152.009 (West 2004).

                                                 15
meeting on October 10, 2003, at which the Board presented the ALJs’ proposal for decision. The

minutes establish that the Board went into executive session three times during the meeting. Before

each session, a Board member moved to go into executive session, which was seconded by another

member. Additionally, the moving Board member announced the statutory authority permitting the

executive session. The minutes also state that no action was taken during any of the executive

sessions and that a certified agenda of each session was made. The third executive session occurred

immediately before the Board considered the proposal for decision. The announced purpose of the

session was:


       To obtain the advice of counsel concerning pending or contemplated litigation,
       deliberations concerning licensure applications, and/or possible disciplinary action
       under the authority of the Open Meetings Act, Government Code, § 551.071; and the
       Medical Practice Act, Texas Occupations Code Annotated, §§ 152.009, 160.006, and
       164.007.


Dr. Grotti claims that the Board’s stated grounds for going into executive session are inadequate and

inapplicable. She is correct that occupations code sections 160.006 and 164.007 do not authorize

the Board to go into executive session. However, government code section 551.071 and occupations

code section 152.009 permit the Board to go into executive session to discuss pending disciplinary

actions and to consult with its attorney regarding pending litigation. Id. § 551.071(1)(A); Tex. Occ.

Code Ann. § 152.009 (West 2004). Both of these issues are applicable to Dr. Grotti’s situation.

Therefore, we hold that the Board did not violate the Open Meetings Act. We overrule Dr. Grotti’s

fourth issue.




                                                 16
    Disciplinary recommendations

                 In her fifth issue, Dr. Grotti claims that the Board improperly modified the ALJs’

proposal for decision by eliminating finding of fact No. 59 from its final order. The ALJs’ proposed

finding of fact No. 59 read as follows:


       In view of the circumstances associated with violations pertaining to L.M., the
       following restrictions should be placed on the Respondent’s [Dr. Grotti] license:

            a.    For a period of three years, Respondent be ordered to obtain a concurrent
                  documented second opinion by a licensed physician for orders for
                  withdrawal of life support for a period of three years.

            b.    For a three-year period, Respondent shall be required to undergo eight
                  hours per year of risk management training specifically designed to focus
                  on physician practice and documentation issues.

            c.    For a period of one year, during periods of counseling patients or their
                  families regarding “end of life” issues, another licensed physician shall be
                  present to observe.


The Board explained in its final order that it chose not to accept finding of fact No. 59 because it

considered the finding to be a recommended sanction rather than a true finding of fact. The Board

explained further that the ALJs’ recommended sanctions (1) do not address the egregiousness of Dr.

Grotti’s conduct, (2) are too lenient to be effective, and (3) are insufficient to protect the public’s

interest. Finally, the Board asserted that if the recommendations were followed Dr. Grotti would

suffer no real negative consequences for her violations, and other licensees could assume that similar

violations would have similar consequences. Despite this explanation, Dr. Grotti contends that the

Board’s decision to eliminate finding of fact No. 59 from the final order violates government code

section 2001.058(e). See Tex. Gov’t Code Ann. § 2001.058(e) (West 2000).

                                                  17
                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

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

requiring correction. Id. 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.).

                We recently addressed a similar situation in Granek v. Texas State Board of Medical

Examiners, No. 03-03-00698-CV, 2005 Tex. App. LEXIS 6954 (Tex. App.—Austin Aug. 26, 2005,

no pet.). In Granek, the ALJ’s recommended sanctions were proposed as two separate conclusions

of law. Id. at *7. The Board rejected the conclusions explaining that they were actually

recommended sanctions and that it was up to the Board to determine what the appropriate sanction

should be. Id. at *8-10, *50. The Board rejected the ALJ’s lesser sanctions and concluded that the

revocation of Granek’s license was necessary to protect the public effectively. Id. at *50. The Board

included a lengthy paragraph outlining its justifications for revoking Granek’s license. Id. at *51.

We determined that none of the justifications expressed by the Board were supported by its own

findings and that several were contradictory. Id. Because the Board’s explanation contained factual

assertions that were not supported by the evidence and were even inconsistent with its own findings,

we held that the Board violated government code section 2001.058(e) and was arbitrary and

capricious. Id. at *53.




                                                   18
               As in Granek, the Board here maintains that government code section 2001.058(e)

does not apply to the facts of this case because the ALJs’ recommendation is not truly a finding of

fact. We agree that the mere labeling of a recommended sanction as a finding of fact is insufficient

to presumptively bind the Board and implicate government code section 2001.058(e). Id. at *49

(“Board is not required to give presumptively binding effect to an ALJ’s recommendations regarding

sanctions in the same manner as with other findings of fact and conclusions of law.”).

               Contrary to its actions in Granek, here the Board did comply with government code

section 2001.058(e) by stating the specific reason and legal basis for eliminating finding of fact No.

59. The Board initially stated that it is charged with the duty to make the final decision in

disciplinary matters, including the assessment of sanctions. See Tex. Occ. Code Ann. § 164.001.

It explained further that the ALJs’ recommended sanctions were too lenient to effectively punish Dr.

Grotti for “suffocating” a patient.9 Although the Board’s findings state that Dr. Grotti’s actions did

not harm L.M. because she was in the process of dying, they also support its contention that she

suffocated L.M. The Board’s explanation here is distinguishable from Granek because the only

factual assertion is supported by the underlying evidence. Dr. Grotti concedes that the Board has the

authority to determine the sanction for a violation of the Act. Moreover, the Board’s explanation

does not modify any of the ALJs’ factual findings; it merely restates them in a way that is displeasing

to Dr. Grotti. We overrule Dr. Grotti’s fifth issue.




       9
           In a separate case, Dr. Grotti was convicted of criminally negligent homicide based on her
actions in this case. Grotti’s criminal conviction was pending on appeal at the time the Board issued
its final order.

                                                  19
    Due process

               In her sixth issue, Dr. Grotti claims that the Board adopted the final order in violation

of her due process rights. On October 10, 2003, Board member Dr. Roberta Kalafut moved to accept

the ALJs’ proposal for decision, except for their recommended sanctions. The motion passed and

Dr. Grotti’s license was revoked. In 2002, Dr. Kalafut served on the disciplinary panel that

temporarily suspended Dr. Grotti’s license, pending the Board’s final determination. Dr. Grotti

argues that Dr. Kalafut’s participation in the 2003 Board meeting was improper and unfair because,

as a panelist on the temporary suspension panel, she was privy to evidence and testimony that was

not before the Board and not made part of the administrative record. Dr. Grotti suggests that Dr.

Kalafut improperly influenced the Board to revoke her license.

               Due process requires that parties be accorded a full and fair hearing on disputed fact

issues. See Hammack v. Public Util. Comm’n, 131 S.W.3d 713, 731 (Tex. App.—Austin 2004, pet.

denied). We presume that decision makers are unbiased. Id. In order to overcome this presumption,

Dr. Grotti must establish that Dr. Kalafut’s participation on the temporary suspension panel caused

her mind to be irrevocably closed to the matters at issue in the Board’s final order, thus rendering

her incapable of judging Dr. Grotti’s case based on the evidence and testimony presented during her

administrative hearing. Id.

               The record does not indicate what role Dr. Kalafut played on the temporary

suspension panel. Nor does it establish that she unduly influenced the Board’s final decision. The

record only shows that Dr. Kalafut made a motion at the 2003 open meeting that was seconded by

another Board member. Dr. Grotti’s bare assertion that Dr. Kalafut played a “leading role” in the



                                                  20
decision to revoke her license based on her “pre-determined outcome” is insufficient to overcome

the presumption that Dr. Kalafut conducted herself in a fair and unbiased manner. Id. Moreover,

Dr. Kalafut did not violate the Act or any of the Board’s rules by serving on the temporary

suspension panel and participating in the Board’s final determination of Dr. Grotti’s case. We

overrule Dr. Grotti’s sixth issue.


    Peer review materials

               In her final issue, Dr. Grotti argues that the ALJs improperly excluded evidence

relating to her peer review proceeding that occurred prior to her hearing. The ALJs concluded that

the peer review materials were privileged and could not be admitted unless Dr. Grotti obtained a

waiver of confidentiality. Dr. Grotti contends that the ALJs’ conclusion is erroneous, and that it is

based on an improper reading of the Act and the Board’s rules pertaining to the admission of peer

review materials at administrative hearings. Assuming without deciding that the ALJs improperly

excluded the peer review materials, we conclude that there was no harm. Tex. R. App. P. 44.1

(judgment may not be reversed on appeal unless it is shown that error probably caused rendition of

improper judgment or prevented appellant from properly presenting case on appeal).

               Dr. Grotti argued to the district court that her intended purpose in seeking to admit

the materials was to show “what the decision was in the peer review proceeding at the hospital.” The

peer review committee waived the privilege associated with some of the contested materials to allow

a copy of its decision to be admitted at Dr. Grotti’s administrative hearing. Moreover, a review of

the ALJs’ proposal for decision reveals that they did consider the peer review committee’s decision.

In fact, they noted that the wording of their recommended sanctions was actually derived from


                                                 21
restrictions placed on Dr. Grotti’s license by the peer review committee. Given that the portion of

the peer review materials establishing the committee’s decision was admitted, Dr. Grotti has not

shown that the exclusion of the rest of the materials resulted in the rendition of an improper

judgment or prevented her from fully presenting her case on appeal. Id. We overrule Dr. Grotti’s

final issue.


                                        CONCLUSION

               Because we have concluded that the final order is neither erroneous nor the product

of improper conduct by the Board or the ALJs, we affirm the district court’s judgment affirming the

Board’s revocation of Dr. Grotti’s license to practice medicine in Texas.




                                             __________________________________________

                                             Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: October 6, 2005




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