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Granek v. Texas State Board of Medical Examiners8/26/2005
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 and molest 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
We conclude that any findings of fact or conclusions of law referring to conduct with K.G. are improper because the Board was barred by due process from prosecuting its thirteen year-old allegations regarding K.G. However, its ultimate conclusion that disciplinary grounds exist for Granek's improper contact with patients is supported by its findings, conclusions and evidence regarding J.G. We also overrule Granek's issues concerning the two disciplinary grounds relating to L.H. However, we find arbitrary and capricious the Board's four-paragraph explanation grounding sanctions on unproven assertions of his "fondling and molesting patients . . . over many years" and uncontrollable "prurient desires." These portions of the Board's order violate section 2001.058(e). See Tex. Gov't Code Ann. § 2001.058(e).
We reverse and remand to the Board for further proceedings consistent with this opinion. See id. With the foregoing exceptions, we affirm the trial court's judgment.
Before Justices Kidd, B. A. Smith and Pemberton; Justice Kidd Not Participating
Affirmed in Part; Reversed and Remanded in Part
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