State to Appeal Decision in Van Boven Case

Yesterday, state lawyers for the Texas Medical Board said they will appeal a Dec. 4 decision by District Judge Dustin Howell allowing a lawsuit by Dr. Robert Van Boven to proceed against certain TMB officials. The suit charges the officials exceeded their legal authority in disciplinary actions against the doctor.

Robert Van Boven (Photo by John Anderson)

Judge Howell denied a temporary injunction in favor of Van Boven, but ruled that his lawsuit can move forward against TMB board members and former executive director Scott Freshour. Van Boven sought an injunction that would have required the agency to issue a “void” report to the National Practitioner Data Bank, the online federal record of disciplinary actions against medical professionals. In early 2016, following accusations of “boundary violations” by two patients, the TMB had “temporarily” restricted Van Boven’s Lakeway neurological practice to male patients only, and reported the restriction to the NPDB.

More than two years later, Van Boven was exonerated after a trial before the State Office of Administrative Hearings, in an administrative law ruling (“Proposal for Decision”) reluctantly confirmed by the TMB. But the agency then issued only a “Revision to Action” report to the NPDB – maintaining on the record the original allegations – a circumstance that Van Boven says has rendered him unemployable and uninsurable as a doctor. “I think it’s the kiss of death on a career,” Van Boven testified in the Nov. 20 hearing in Judge Howell’s court. (“Bucking the Blacklist,” Nov. 30)

Howell did not issue a temporary injunction requiring the TMB to act immediately, but in a brief statement ruled that Van Boven’s lawsuit can proceed against three board members (Sherif Zaafran, chair, Margaret McNeese, and Timothy Webb), and against former executive director and now General Counsel Freshour. Howell excluded from the suit Amy Swanholm (TMB assistant general counsel) and Chris Palazola (litigation manager). The TMB officials, represented by the Texas Attorney General’s office, had argued that the court had no jurisdiction over the agency, but Howell ruled that Van Boven can proceed with his claim that in refusing to “void” or withdraw the NPDB disciplinary filing against him, the officials were failing to perform their “ministerial” duties and acting “ultra vires” – beyond their legal authority and therefore unprotected by sovereign immunity.

Last week, Van Boven’s attorney David Tuckfield told the Chronicle he expected the two sides would now be moving to discovery and depositions, prior to a full trial. But on Monday, Attorney General Ken Paxton (represented by Assistant Attorneys General Ted Ross, Charles Eldred, et al.) filed a Notice of Appeal with the Third Court of Appeals, under rules governing an “accelerated” appeal, likely still meaning several months of additional briefs and a potential hearing.

Van Boven was partly pleased by the judge’s ruling, although he disagreed with excluding Swanholm and Palazola, and their alleged culpability in the agency’s initial action in placing restrictions on his practice, which he says was done without due process. As to the legal response of the attorney general’s office, he said, “It is outrageous that Paxton's subordinates are defending, rather than suing, Freshour, et al. for having violated, misapplied, and misrepresented state law and rules.”

Prof. Ron Beal of the Baylor Law School – who is widely considered the foremost authority on Texas administrative law – testified on Van Boven’s behalf, and has become one of the doctor’s stoutest defenders. In a letter to Ross and Eldred, he implored them to end their defense of the TMB officials and to enter into a settlement agreement that would result in a Void Report at the NPDB.

Beal wrote, “You are obligated morally, ethically and legally to end this matter now and not allow these rogue actions of State officials to further impose personal, financial and professional limitations upon Dr. Van Boven. To continue to defend these [TMB] officers on the merits, of which there are none, and to continue to allow the filings at the NPDB to destroy a licensee’s life on a daily basis, is a gross repudiation of the system of justice in the State of Texas.”

The Chronicle contacted Ross and Eldred for any comment on Howell’s ruling or Beal’s letter. The only response, indirectly, was the Notice of Appeal.