Embattled Doctor Wins Against Texas Medical Board: Little Guy Wins – News
Dr. Robert Van Boven stands before the Texas Supreme Court (Photo by John Anderson)
“Justice delayed isn’t necessarily justice denied, and sometimes the little guy wins.”
Dr Robert Van Boven reflected a few days after his victory at the Texas Supreme Courtwho ruled that the Texas Medical Board had indeed acted ultra vires – beyond his authority – when he refused to quash (i.e. delete) a report to the National database of practitioners that Van Boven had been accused by two patients of vaguely sexual “boundary violations” during exams at his Lakeway neurology practice. TMB refused to withdraw the report even after accepting a decision from a state administrative judge (ALJ) that the allegations had not been proven, effectively exonerating the doctor.
The NPDB is a prime resource for medical employers vetting potential staff, so the SCOTX decision should mean that Van Boven – with an otherwise spotless record for three decades as a dentist and then a doctor – will have a chance to rebuild his reputation and practice. The ruling is expected to remove what a judge described as a “scarlet letter” from Van Boven’s public record.
Baylor Law Professor Ron Beal, who had testified in the district court and submitted several amicus briefs in support of the Van Boven case, called the SCOTX ruling “the perfect end to a very long saga.” Indeed, Van Boven had been battling TMB since 2016, when he first imposed restrictions on his practice for the alleged violations. In his opinion 8-1, written by Chief Justice Nathan Hechtthe court summarized this story and its background, including an ongoing dispute between Van Boven and the administrators of the Lakeway Regional Medical Center where he practiced.
Van Boven had filed several complaints against the LRMC alleging poor or inadequate care. In his opinion, Hecht writes that “Van Boven became a thorn in the side of the Lakeway administration and was seen as a troublemaker”. Van Boven believes TMB’s actions against him were “substitute retaliation” for his reports to the Department of State Health Services (which supported his complaints), as well as retaliation from TMB for his continued defiance.
When the allegations against Van Boven were finally examined in 2017, during a five-day procedure at the State Office of Administrative HearingsALJ Burkhalter Hunter concluded that TMB staff had failed to prove the allegations and issued a decision exonerating Van Boven. The TMB agreed with that decision – but only issued a review report to the NPDB, although federal regulations appear to require a rescinded report that would remove the original allegations.
In addition to violating state law, its own rules, and federal regulations, TMB’s General Counsel Scott Freshour ALJ, then head of SOAH under pressure Lesli Ginn take action against Burkhalter, who was forced to resign. His departure sparked an exodus of experienced ALJs from the agency; observers say SOAH has yet to recover, making the appeals process even more difficult for licensees charged before state boards. Tim Weitza former TMB general counsel who has since represented doctors before the board, told the the Chronicle“You don’t fix the experience overnight.”
The Texas Medical Board “didn’t like Van Boven, so they used the legal process to do something they shouldn’t have done.” – David Tuckfield, one of Van Boven’s former lawyers
So Van Boven sued, and last September he went to the Supreme Court again (which “virtually never happens,” Beal said) and argued that TMB had breached its ministerial duty by refusing to clear his name to the NPDB. . Deputy Solicitor General Bill Davis, representing the TMB, argued unsuccessfully that Van Boven’s only remedy was to appeal the SOAH exonerating decision; he failed to persuade SCOTX that the TMB complied with federal regulations that judges could read for themselves.
The the ChronicleCalls from Freshour (also one of TMB’s named respondents to Van Boven’s lawsuit) and Davis were not returned. Burkhalter commented, “I’m glad the Supreme Court got it right, and I’m glad Dr. Van Boven was treated fairly.”
Donald “Rocky” WilcoxVice President and General Counsel of Texas Medical Association (who had also submitted amicus briefs in support of Van Boven), said he was pleased with the court’s decision and hoped it could mean other doctors “could have a chance” to defend themselves against the TMB. “Doctors win maybe 1 in 100 appeals” against TMB disciplinary action, and Wilcox said he hopes this SCOTX decision could eventually be codified in state law. “Of course the agencies will be lining up to change the law so they win next time.”
One of Van Boven’s former lawyers was also delighted with the result, David Tuckfieldwho said that when Van Boven first came to see him, “I thought he was wrong, because the law isn’t supposed to work that way. But when I looked into it, I didn’t couldn’t believe my eyes, and that’s why I took the case.
“The TMB didn’t like Van Boven,” Tuckfield said, “so they used the legal process to do something they shouldn’t have done.” Of the SCOTX ruling, he said, “Justice was finally served, but it’s been a long road. The TMB had upended the administrative process and the Supreme Court fixed it on how the judicial process should work. … TMB made it personal, instead of just enforcing the law. When state agencies start behaving like that, we’re in trouble.
The SCOTX ruling remands the case to the district court, which will likely order the TMB to issue a rescinded report to the NPDB and assess the fees and court costs owed to Van Boven. The doctor hopes his case will encourage other providers to speak up when they see wrongdoing — in health care facilities, state agencies or the courts. “I hope my experience can be a way to help improve transparency and disclosures in healthcare,” Van Boven said, “for patients and their families.”
For the full history, see austinchronicle.com/robert-van-boven.