351 S.W.3d 434
Tex. App.2011Background
- The Board sought to revoke Scally's Texas medical license in August 2002 based on allegations he prescribed anabolic steroids for bodybuilding and failed to maintain adequate medical records.
- Scally admitted prescribing anabolic steroids but claimed there was a valid medical purpose to treat conditions like steroid-induced hypogonadism.
- An 11-day administrative hearing before an ALJ included testimony from two Board endocrinology experts and Scally's experts; the ALJ issued a 271-finding proposal for decision.
- The ALJ concluded multiple Rule/Code violations and recommended license revocation, a $190,000 administrative penalty, and transcription costs; the Board adopted the ALJ’s decision in full.
- The district court affirmed the Board’s final order, and Scally appealed arguing due process, expert admissibility, lack of substantial evidence, ad hoc rulemaking, and preservation of error.
- The court reviews the Board’s final order under the substantial-evidence standard, deferring to agency credibility determinations and not substituting its own judgment on weight of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process and equal protection in APA review | Scally claims APA review denies jury trial and favors unequal treatment. | Board argues classification is rational; due process satisfied via notice, hearing, neutral ALJ. | No due process or equal-protection violation; substantial-evidence review and nonjury proceedings rationally fit public interests. |
| Admission of expert testimony | Board's experts lack qualification under Rule 702; testimony unreliable. | Experts are board-certified endocrinologists with relevant experience; ALJ properly admitted testimony. | No abuse of discretion; experts qualified and testimony admissible. |
| Substantial evidence supporting revocation | Findings lack support; many patient records show valid medical purpose or adequate care. | Record shows eight patients prescribed steroids without valid medical purpose, for bodybuilding, with inadequate records. | Substantial evidence supports revocation; Board’s findings reasonably supported by record. |
| Adequacy of medical records; ad hoc rulemaking | Board interpreted 'diagnosis' to exclude rule-out diagnoses; establishes ex post facto impression. | Board’s interpretation consistent with rule and deference owed to agency; HIPAA-compliant. | Board's interpretation not plainly erroneous; issues as to records preserved and resolved in favor of Board. |
| Preservation of error in motion for rehearing | Motion for rehearing was sufficiently definite to preserve error. | Motion was too vague to preserve most errors. | Motion preserved substantial-evidence challenges; sufficiently definite under the circumstances. |
Key Cases Cited
- Granek v. Texas State Bd. of Med. Exam'rs, 172 S.W.3d 761 (Tex.App.-Austin 2005) (credibility and weight assigned to agency witnesses)
- Pretzer v. Motor Vehicle Bd., 125 S.W.3d 23 (Tex.App.-Austin 2003) (statutory review and substantial evidence standard)
- Adams v. Texas State Bd. of Chiropractic Exam'rs, 744 S.W.2d 648 (Tex.App.-Austin 1988) (license-regulation powers and jury trial absence for professionals)
- Lakeshore Util. Co. v. Texas Water Comm'n, 877 S.W.2d 814 (Tex.App.-Austin 1994) (substantial-evidence standard governs agency findings)
- Charter Med. v. Texas State Bd. of Med. Exam'rs, 665 S.W.2d 446 (Tex. 1984) (substantial-evidence review and agency discretion)