The Austin Chronicle

More Trouble for Medical Board and SOAH

Dr. Van Boven sues TMB staff and hearings agency hemorrhages

By Michael King, August 10, 2018, News

The fallout continues at the Texas Med­ic­al Board and State Office of Admini­strat­ive Hearings, in the aftermath of the legal actions surrounding the case of Lakeway neurologist Dr. Robert Van Boven. On Aug. 1, Van Boven filed another lawsuit against several TMB staff and board members, charging that they acted "ultra vires" (beyond their legal authority) when they originally placed him on a "temporary sanction" in 2016, limiting his medical practice for alleged "boundary violations," and again last year when – following his exoneration by SOAH Judge Hunter Burkhalter – the TMB refused to remove the filing of charges against him in the federal National Practi­tioner Data Bank.

Van Boven is asking the state's 353rd District Court for "declaratory relief and Temporary & Permanent Injunction" against former TMB Executive Director Scott Fres­hour, other TMB attorneys, and several board members, and that the original orders and NPDB filings against him be overturned and withdrawn. (The defendants have yet to respond to Van Boven's filing.)

Van Boven also has a lawsuit pending against his former employer, Lakeway Reg­ional Medical Center and its successor-in-interest, Baylor Scott & White Med­ic­al Center – Lakeway, concerning alleged retaliation by hospital management for his official reports of inadequate or dangerous care at the hospital. Most recently, the Association of American Physicians & Surgeons asked the court in that case to accept an amicus curiae brief in support of Van Boven, and more generally to ask the court "to hold that physicians are protected against retaliation by hospital administrators." AAPS attorney Laurie L. York said she was surprised to be notified by attorneys for BS&W that their client might object to the court accepting the brief – the purpose of such briefs, York said, is "to alert the court that the case may have a broader impact."

Asked if that opposition is likely, this week BS&W attorney Michael Klein said yes – the response hasn't been drafted yet but, "There's two defendants in the case – Lake­way Reg­ional and Baylor Scott & White, and our situations are just vastly different." A hearing on the matter is scheduled for Aug. 15.

Meanwhile, reverberations continue at SOAH over Chief Administrative Law Judge Lesli Ginn firing Judge Burkhalter, in response to TMB's complaint about his decision in the Van Boven case. Evidence of declining staff morale continues ("Morale Is Terrible," July 27): most recently, three members of Ginn's six-member (counting herself) agency leadership team – General Counsel Cynthia Rey­na, Deputy Chief Administrative Law Judge Gary Elkins, and Human Resources Director Pam Wood – announced they'll be leaving the agency this month.

"That's three of the six key executives in the agency, and two of the top three," commented one SOAH staffer. "I feel like I am on the Titanic. This agency is sinking under the mismanagement of this Chief Judge." Thus far, the governor's office has had no comment on the continued tenure of Ginn, whose two-year appointment nominally expired in May.

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