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Granek v. Texas State Board of Medical Examiners8/26/2005
On August 3, 2005, we overruled appellant Harold Granek, M.D.'s motion for rehearing. To address additional issues raised in his unopposed motion to modify the judgment, we withdraw our opinion and judgment dated August 3, 2005, and substitute the following in its place.
Granek appeals the district court's judgment affirming an order of the Texas State Board of Medical Examiners (Board) imposing disciplinary sanctions against him. He 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.
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 unprofessional or dishonorable conduct that is likely to . . . injure the public." Id. §§ 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). 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). Citing Lunsford, the ALJ concluded that " 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 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 dis
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