Dr. Van Boven's Attempt To Clear His Name Loses at Third Court

Dr. Robert Van Boven’s latest attempt to clear his name did not end well. On Jan. 9, the Third Court of Appeals rejected his claim against Texas Medical Board staff for acting beyond their authority. Van Boven says he will appeal to the state Supreme Court.

Dr. Robert Van Boven (Photo by John Anderson)

The specific issue, raised by the TMB on appeal after a mixed lower court ruling, is whether certain TMB board or staff members acted ultra vires – beyond their legal authority – when they reported to the federal government the outcome of Van Boven’s case before the State Office of Administrative Hearings. In 2016, the TMB had charged that Van Boven had behaved unprofessionally with two patients in his Lakeway neurology practice. In 2017, Van Boven was exonerated by the SOAH judge – a ruling the TMB (grudgingly) accepted – but instead of issuing a “Void” report to the National Practitioner Data Bank (the federal register of disciplinary actions against physicians), the state agency filed only a “Revision-to-Action” report that left the original charges available to potential employers.

The TMB officials (represented by the state attorney general’s office) argued that they followed the NPDB guidelines as they understood them. During last year’s consideration of a bill addressing the question, legislators were puzzled by the officials’ refusal to remove allegations found to be false. "Do we really have to tell you to do that?" asked one. ”Don’t you have a moral and ethical responsibility to do that?” (HB 1504 enacted such a requirement, but it is not retroactive.)

Van Boven says the TMB’s continuing refusal to void the charges, despite his exoneration, has effectively rendered him unemployable. "The defendants ... want the court to ignore the elephant in the room,” he said earlier about his lengthy war of attrition with the state agency. “They are trying to legitimize a penalty without a crime."

In 2018, state District Judge Dustin Howell separated some of the defendants from the case, but allowed Van Boven to pursue his lawsuit against other TMB staff. Not only did the Third Court reject the ultra vires claims, it ruled that the TMB officials retained sovereign immunity – indeed, that even had they acted wrongly, as state actors they are not subject to legal recourse.

“Therefore, we conclude that the Board did not have a ministerial duty to submit a Void Report to the NPDB under its enabling authority," reads the opinion of the three-justice panel, "and to the extent Dr. Van Boven complains that the Board exceeded its legal authority by misinterpreting and misapplying collateral federal law (namely, the Health Care Quality Improvement Act, NPDB rules, and NPDB published guidance), he has failed to allege a valid ultra vires claim.”

Van Boven said he will appeal – and argued that if the decision is sustained, it would not only remove any immediate check on the TMB, but would render SOAH powerless and irrelevant. SOAH was established by the Legislature to enable professionals sanctioned by state agencies to have some quasi-judicial recourse for appeal. It’s rare for a medical professional to succeed in an administrative hearing contesting a TMB sanction – so rare that most practitioners settle without contesting. Yet after enduring temporary restrictions on his practice and waiting more than a year simply to get a hearing, Van Boven prevailed before a SOAH judge – only to have the original charges remain of record at the NPDB.

Van Boven told the Chronicle the decision effectively collapses the distinction between the prosecutorial powers of the TMB and SOAH’s judicial role: “Citizens’ rights hang in the balance.” An NPDB listing is intended to alert prospective employers to unsafe practitioners, and leaving his overturned accusations on the public record, Van Boven believes, effectively maintains the wrongful sanction. “It is akin to properly reporting a crime to deflect from one's commission of the crime,” Van Boven said. “I believe the nefarious origins of the report ([TMB] violations of state law) … will not escape notice of the Texas Supreme Court.”

Baylor Law Professor Ron Beal, widely considered the foremost state authority on Texas administrative law, has closely followed Van Boven’s case and submitted several amicus briefs in his defense. Beal called the court’s ruling inexplicable. “In my professional opinion, the 3rd Court of Appeals issued a void order for judgment in the Van Boven decision. They wholly and completely failed to discuss the applicable and relevant law that was necessary to lawfully decide this appeal. It is simply legally wrong. Why did they do so? I have no logical and/or reasonable explanation.”

For the full Robert Van Boven story, see www.austinchronicle.com/robert-van-boven.