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Granek v. Texas State Board of Medical Examiners8/26/2005
act Allegations
We conclude that the Board violated due process by prosecuting its allegations that Granek improperly touched K.G. after a thirteen-year delay. We find it significant that the ALJ observed firsthand that the "staleness of K.G.'s complaint was more of a disadvantage to Respondent than Staff." Moreover, the ALJ found that, at most, Granek had made inadvertent contact with K.G.--a finding that the Board adopted--and credited Granek's assertions that he could not recall the incidents K.G. alleged. There was no evidence of any contemporaneous or proximate event that would have put Granek on notice of any complaint regarding contact with K.G. It was undisputed that K.G. never mentioned her concerns to Granek, and there was no documentary evidence memorializing the incidents she alleged.
Furthermore, Granek estimated that during his career he had handled 250,000 patient visits involving 25,000 patients. We agree with the ALJ that Granek "could not be expected to remember every arm position or contact he maintained during some six office visits [with K.G.], the last of which occurred about fifteen years ago." For the same reasons, Granek was incapable of defending against a thirteen-year old allegation that, during a handful of these thousands of patient visits, he unknowingly made accidental contact with a patient's breasts, especially where the sole evidence was the patient's word against his. See Appeal of Plantier, 494 A.2d at 272-75. We conclude that the Board violated due process in prosecuting such an allegation.
However, we conclude, as did the ALJ, that " ecause Respondent had contemporaneous notice J.G.'s complaint, staleness was not as much of a concern as with some other complainants." It is undisputed that J.G. confronted Granek following her final patient visit in 1987, complained that he had touched her inappropriately during nearly every one of her patient visits, and told him that it made her uncomfortable. J.G. either told Granek, or Granek discerned, that the source of J.G.'s concerns was his touching of her breasts. Both J.G. and Granek recounted that Granek denied that any contact was intentional. This is the same position that Granek asserted before the ALJ, and continues to assert today. See Sibley, 566 S.E.2d at 488 (emphasizing importance of early notice of allegations in alleviating due process concerns).
Furthermore, it is also undisputed that, following the confrontation, J.G. wrote Granek a letter regarding the incident, and that Granek responded by calling J.G., reiterating that he did not deliberately touch her, and assuring her that he did not want her to feel uncomfortable. J.G. and Granek likewise agree that, within a few months, J.G. filed a written complaint with the Tarrant County Medical Society. Although J.G.'s letters and complaint are not in the administrative record, we can discern from testimony that the documents continued to exist and were not lost or destroyed during the intervening years. See Giffone, 263 A.2d at 714-15 (importance of defendant's retention of office notes from disputed appointments); Appeal of Plantier, 494 A.2d at 274 (acknowledging that disciplinary actions based on documentary evidence "are less likely to be prejudiced by the passage of time").
Granek counters that, while he had notice in 1987 that J.G. believed he had touched her inappropriately, she had been vague regarding the nature of his contact. Granek contrasts the nature of her contemporaneous complaint with J.G.'s testimony before the ALJ in 2001. At the hearing, J.G. testified that she had shielded herself with magazines to prevent Granek from touching her breasts, yet Granek persisted in doing so. Granek claims that he
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