Bucking the Blacklist

Dr. Robert Van Boven (Photo by John Anderson)

"What happened here is an abuse of state power," said attorney David Tuckfield, representing Dr. Robert Van Boven at a Nov. 20 hearing before Judge Dustin Howell in Travis County's 459th District Court. Van Boven has sued certain Texas Medical Board trustees and legal staff – among them Board President Sherif Zaafran and former Executive Director Scott Freshour – for refusing to withdraw (or "void") a negative report on Van Boven's license, issued originally in February of 2016, from the federal National Practitioner Data Bank (maintained by the U.S. Department of Health and Human Services). Hospitals, insurance companies, and other institutions use the NPDB for background checks on health care professionals, and Van Boven maintains that the current "revised" report on his status has effectively blacklisted him from professional employment.

In 2015, Van Boven had been accused by two patients of sexual "boundary violations" during office exams, during a period when the doctor was embroiled in a whistleblower dispute with what was then Lakeway Regional Medical Center. He was eventually exonerated on all charges, but instead of "voiding" the accusations with the NPDB, agency staff filed only a "Revision-to-Action" report that still lists the original charges. The TMB itself is arguably protected by sovereign immunity, but Van Boven has sued TMB officials for acting ultra vires – beyond their legal authority – and seeks a temporary injunction to force issuance of that "void" report.

Judge Howell asked for additional briefs by Tuesday, Nov. 27, and said he hopes to rule soon thereafter. Attorneys for both sides (the defense is represented by the state Attorney General's Office) spent much of the hearing bringing Howell up to speed – the short-timer (appointed by Gov. Greg Abbott to the seat that will soon belong to Maya Guerra Gamble) had caught the case on Travis County's rotation docket and needed the background. Assistant Attorney General Ted Ross argued that Howell has no jurisdiction. But as the three-hour hearing proceeded, Tuckfield and his witnesses made some headway in convincing the judge that the main issues are two: 1) whether TMB staff had acted without legal authority in their report to the NPDB; and 2) whether Van Boven has suffered imminent and ongoing harm from those actions.

The AG attorneys, led by Ross and Asst. AG Charles Eldred, strained to keep the arguments confined to procedural and jurisdictional questions, but were unable to convince Howell to exclude testimony from Baylor law professor Ron Beal and Texas Medical Association General Counsel Donald "Rocky" Wilcox. Beal (whom Eldred conceded "wrote the book on Texas administrative law") noted that when TMB accepted the decision from the State Office of Administrative Hearings that effectively exonerated Van Boven, "They should have issued a void report." By instead only "revising" their report, the TMB effectively rendered Van Boven unemployable, "therefore impacting his career for the rest of his life." Wilcox, who has represented the TMA for 39 years, provided additional testimony that a negative NPDB report can be "very damaging" to a doctor's employment, and had certainly caused harm to Van Boven.

Beal has since submitted an amicus brief amplifying his testimony, arguing that the court should "force these [TMB] officers to comply with the law." Finally, Van Boven testified that although he has a distinguished, lifesaving record as a neurologist, he has made at least 50 applications to hospitals, insurance companies, and consulting agencies and had no offers, with some employers specifically citing the NPDB filing as eliminating him from consideration. He has been unable to rebuild his neurology practice, has applied to the TMA for emergency assistance, and is threatened with foreclosure on his home. Of the continuing negative NPDB listing, he said, "I think it's the kiss of death on a career."

On cross-examination, Eldred tried to undermine Van Boven's testimony, suggesting that he could readily restart his practice and that his earlier, substantial settlements of whistleblower lawsuits against the Lakeway hospital should now be enough to sustain his family. "Shame on you," replied Van Boven, to the implication that he's misrepresenting his financial circumstances.

At one point, a puzzled Howell asked the defendants, "Why couldn't you just change the [NPDB] report?" to which Eldred responded, "That would be illegal." He insisted TMB staff had followed federal protocols – although NPDB officials repeatedly told Van Boven that they could not override TMB judgments. At its most absurd, the TMB attorneys tried arguing that Van Boven's only recourse was to appeal his own exoneration – somehow that would lead to a clean record in the NPDB. Van Boven has refused to surrender to the TMB's circular logic, and later noted the sizable team of assistant attorneys general defending the agency's actions. "I was astonished at the zeal and resources the state has applied to defend these ultra vires acts of these officials."

Following the hearing, Van Boven's attorney Tuckfield offered a less procedural explanation for the TMB's intransigence. "This is a case where a man was exonerated," he said, "and the state officials don't like him, and didn't like that he was exonerated. So they thought of a way to continue to punish him."

Dr. Robert Van Boven: A Selected Chronology

2015 (April-May): Neurologist Van Boven, amid whistleblower disputes over patient care at Lakeway Regional Medical Center, is accused by two patients of "boundary violations" during examinations

2016 (February): Texas Medical Board issues "temporary restriction" on Van Boven's practice (male patients only) and files a report of the charges with National Practitioner Data Bank

2017 (May): After protracted delay, State Office of Administrative Hearings holds hearing on TMB complaints against Van Boven

2017 (September): Administrative Law Judge Hunter Burkhalter issues "Proposal for Decision" exonerating Van Boven of all charges

2017 (December): TMB issues Final Order accepting Burkhalter's proposal

2018 (February): After a complaint by TMB to SOAH, Burkhalter resigns "in lieu of termination"

2018: TMB refuses to "void" or withdraw NPDB report; Van Boven sues TMB officials and board members for "ultra vires" actions