George Allibone, M.D. v. Scott Freshour, in His Official Capacity as the Interim Executive Director of the Texas Medical Board Juanita Garner, Investigator of the Texas Medical Board And the Texas Medical Board
03-17-00357-CV
| Tex. App. | Nov 21, 2017Background
- Texas Medical Board opened an investigation after complaints about care given to patients A.S. and A.L., alleging failures in IV management and supervision.
- The Board served an administrative subpoena duces tecum requiring production of complete medical and billing records for A.S. and A.L.; cover letter warned noncompliance could lead to discipline under Tex. Occ. Code §160.009.
- Dr. Allibone provided partial records and narrative responses, refused to produce full records, and petitioned for a protective order and declaratory relief asserting subpoena overbroad and facial/as-applied constitutional challenges (Fourth Amendment and §160.009/rules).
- Trial court conducted an in camera review of complaints, heard testimony from Board officials (medical director and interim executive director) explaining why full records and billing are needed to contextualize complaints, and denied Allibone’s petition, finding the subpoena reasonable and valid.
- Allibone requested findings/conclusions which the trial judge declined to issue; he appealed claiming (1) failure to issue findings of fact and conclusions of law and (2) subpoena was unreasonable and irrelevant (and constitutional challenges should have been addressed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court’s refusal to issue findings of fact and conclusions of law was reversible error | Allibone: denial waived his right to appellate review and requires reversal/remand for findings | Board: Allibone failed to serve required "past due" notice under Tex. R. Civ. P. 297; any error harmless | Court: No reversible error — Allibone waived by not filing Rule 297 notice; any error harmless; issue overruled |
| Whether subpoena was reasonable and relevant to Board’s investigation (Fourth Amendment/administrative subpoena standards) | Allibone: subpoena sought entire medical and billing records beyond the specific allegations in the notice letter and thus was not relevant/unreasonable | Board: investigation scope is defined by the confidential complaints; full records and billing are necessary to put complaints in context and determine standard of care; physician cannot be sole gatekeeper of relevance | Court: No abuse of discretion; subpoena limited to records for A.S. and A.L., relevant to investigation; enforcement affirmed |
| Whether §160.009(b) and related rules are unconstitutional as-applied or facially for depriving prompt judicial review and enabling discipline for subpoena noncompliance | Allibone: statute and rules expose him to discipline without prompt judicial review — unconstitutional | Board: statute allows disciplinary process with notice and procedures; no automatic sanction; remedies and administrative process apply | Court: As-applied challenge to §160.009 rejected; Allibone failed to meet heavy burden; trial court’s denial upheld |
Key Cases Cited
- McLane Co. v. Equal Emp’t Opportunity Comm’n, 137 S. Ct. 1159 (2017) (standard of appellate review for enforcement of administrative subpoenas is abuse of discretion)
- Schade v. Texas Workers’ Comp. Comm’n, 150 S.W.3d 542 (Tex. App.—Austin 2004) (administrative subpoenas must be relevant to authorized investigatory purpose)
- Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186 (1946) (purpose of administrative subpoenas is discovery to determine whether to bring charges)
- Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (abuse-of-discretion standard explained)
- Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015) (presumption of constitutionality for statutes and the high burden on challengers)