Sizemore v. Texas State Board of Dental Examiners

389 plea guilty any agreement con- the record reflects that cerning punishment. plea guilty plea entered a without a bargain punish- or a recommendation as to error, In point appel her first State, Therefore, under Helms v. ment. open guilty plea lant contends that her 925, (Tex.Crim.App.1972), 484 S.W.2d 927 constitutionally invalid giv because it was ruling appellant’s the trial court’s mo- pursuant en to ineffective assistance of suppress tion to is not this before Court for counsel, allegedly represented who conflict State, review. See Cleveland v. 588 S.W. Appellant objection interests. made 942, 2d (Tex.Crim.App.1979). Point any prior appeal concerning at time to this Accordingly, two is overruled. the trial inadequate conflicting representation. judgment court’s fact, appellant In executed a waiver of conflict, reciting that she object did not AFFIRMED. representation

her counsel’s of her and her

co-defendant, and that she believed there impair

would be no conflict that would her independent judgment.

counsel’s Because object,

she failed to she “must demonstrate actual

that an interest adverse conflict ly lawyer’s performance” affected [her]

order to establish a violation of her sixth right

amendment SIZEMORE, D.D.S., to effective assistance of Appellant, Charles Sullivan, Cuyler v. 335, counsel. 446 U.S. v. 1708, 1718, 100 S.Ct. 64 L.Ed.2d 333 TEXAS STATE BOARD OF DENTAL added) (emphasis (quoted in Foster EXAMINERS, Appellee. State, (Tex.Crim. 693 S.W.2d App.1985)). The mere assertion of a con No. 05-86-00189-CV. flict of interest does not amount to ineffec Foster, tive assistance of counsel. Texas, Appeals Court of gist S.W.2d at 423. The appellant’s com Dallas. plaint is that her joint representa counsel’s Dec. 1987. tion “may precluded well have counsel exploring possible plea negotiations Rehearing Denied March possibility appellant’s agreement to testify prosecution_” (Em- for the added).

phasis However, this assertion of potential consequences of counsel’s

joint representation does not amount to a of actual

showing conflict, which would

require reversal showing even without a Cuyler, 446 U.S. at

prejudice. 349-50, Appellant

S.Ct. at 1719. has failed to dem-

onstrate such an actual conflict. More-

over, a careful review of the record before

us does not reveal actual conflict that

would result in ineffective assistance of guilty

counsel and plea render her involun- Thus,

tary unintelligent. we hold that

appellant’s open plea of guilty was consti-

tutionally valid. Point one is overruled. error, point appel her second

lant claims that the trial court erred in

overruling suppress her motion to evidence. Gauss, Austin, appellant.

Robert W. for Izen, Houston, appellee. Joe Alfred for HOWELL, Justice. drugs, primarily

For narcotic Percodan, necessary “not where or re- quired,” “grossly over-prescribing” for drugs, failing those and for to make com- plete prescriptions notations on records, patients’ dental Texas suspend- State Board of Dental Examiners Sizemore, ed the license of Charles W. D.D.S., years, days for five all but probated, which was and revoked his certif- prescribe icate to narcotics. The trial court upheld appeals the Board’s decision to this court. We find that the revocation supported by is not substantial evidence and reverse. requires

The Controlled Substances Act duplicate copies pre- scheduled all scriptions be forwarded to the Texas De- partment Safety by pharma- of Public prescription. cist This case who fills brought by to the Board’s attention duplicate after a routine review of DPS emanating appellant’s prescriptions from investigator A office. staff for the Board appellant’s then and exam- went to office length. ined his case files at The Board hearing appel- thereafter held a and faulted patients: lant for of three his treatment (1) by appel- Danny McKay was treated months, jaw pain. lant for from For eleven 10, 1981, 23, 1982, August September appellant gave McKay prescriptions twelve Percodan, a for of 280 a total tablets Appel- Schedule II controlled substance.1 product ranging packages 1. Percodan is a trademarked in size from of DuPont manufacturer in Pharmaceuticals, Physician’s twenty-five Inc. Desk to 1000 tablets. Each tablet con- Refer- (40th 1986) (PDR). hydro- milligrams (mg) oxycodone ence 860-61 ed. tains 4.50 chloride, bright yellow by oxycodone terephthalate, mg tablets are and are sold 0.38 lant prescriptions noted two for a total We hold that the first conclusions in the paragraphs supported of 50 on second are not McKay’s tablets dental record. substantia] evidence. (2) sought Roxanne Sabato Schultz treat- It is to be noted that conclusion number problems ment for dental conjunctive, one is in the but the statute complicated by pres- concluded were disjunctive, in the to-wit: months, ence of infection. For over five pre- It shall be for a dentist to unlawful January 4 through June or deliver person scribe to or for ... appellant gave prescrip- Schultz thirteen any controlled substances tions, Ty- eleven Percodan and two for or required, posses- the use or where lox, substance, II also a Schedule for a sion of same further tablets, omitting total of 220 four note thereto,.... addiction totalling prescriptions those tablets TEX.REV.CIV.STAT.ANN. art. 4551h records. Schultz’s (Vernon Supp.1986). We would be re- 21 prescrip- Kenneth Cook received quired uphold one conclusion if we found tions of of for a total 382 tablets prescriptions substantial evidence that the from appellant period over a five-month required, or were either from December to June 1983. (2) promoted or or furthered addiction. time, During appellant prescribed 121 this However, there is no substantial evidence period tablets of less than two over support part to either of the first Board’s keeping months. the record with conclusion. patient unchallenged. to is Cook only was Dr. Arthur The Board’s witness made, order, By the in sub- its Board testimony H. His related to the Jeske. stance, foregoing findings of fact and the drug propriety appellant’s prescriptions. of following then “conclusions of entered his testimony upon He his review of based law”: appellant’s treatment records. He neither guilty 1. Dr. is of Sizemore patients nor examined interviewed necessary or controlled substances not The patients were not called. themselves. required practice dentistry in the of investigator testi- did the Board’s Neither use of such prescription where the Cook fy. Patients Schultz and suffered addiction in promote would and further infections, appellant treat- from oral of Article 4551h. violation McKay suf- ed antibiotics. Patient with an ailment associated with the fered from guilty 2. Dr. is of dishonor- Sizemore jaw, in his temporal joint mandibular lower grossly over-pre- able in he conduct TMJ. known as drugs of Ar- scribed narcotic violation 2(c), by as defined ticle Section examination, Dr. ex- On direct Jeske 382.19.21.001(8). No. Board Rule pressed expert opinion appellant’s his failing “generally of to ac- guilty prescriptions 3. exceeded Dr. Sizemore treatment, drugs cepted dosages” dental but of narcotic for prescription make the cross-examination, sig- he made several part patient’s his dental records testimony. qualifications to this required No. 382.19.15.- nificant by Board Rule that, opinion, in his anoth- He testified also 004. of its way that it at least one-half aspirin. By codeine in retains mg. and comparison, Id. at orally. aspirin activity Id. analgesic tablet contains when administered the standard grains mg. medication. Taber's or 324 at 860-61. Co., (F.A. Cyclopedic Dictionary states, Davis Medical For relief “Indications: PDR Ed.) p. Philadelphia, A-101. PA moderately pain.” Id. at to severe moderate minor, oxycodone quantitatively ambulatory patients While should 860. It states components represent major val- medicinal ability to drive a car be that their cautioned semi-synthetic Oxycodone is a ue the tablet. machinery impaired operate un- while qualitatively analgesic with actions medi- It states that der the medication. therapeutic principal morphine. similar to given el- caution to the should be cation relief) analgesia (pain and sedation values are derly the debilitated. Id. inducement). (sleep Oxycodone to is similar involving sign er course of treatment not anal- dependency is a who gesics prescribed would have been more suitable for consumes the medication at patient McKay. He maximum further testified allowable rate or faster and who way immediately pre- of conclusion an course of medi- demands additional scription. As from given cation “could demonstrated or further ad- exhibits, diction;” patients the State’s all of the testimony there was no vol- it untarily usage would do refrained at or near give so. Neither did indicating, prescribed the maximum levels specifics; dosages, to failed state what according appellant’s testimony, to abili- any, if would have been the maximum safe ty engage healthy to self-control and proper amounts under the conditions drugs. attitude toward narcotic shown. province weigh It is not the evi- our

Appellant’s testimony was that all question dence. The before us reasonably needed for the whether before the Board proper patients. care and treatment of the constituted substantial evidence in view He testified that Mr. McKay had been a proceedings purpose nature and regular patient for years prior several words, being had. other there a problems. the onset of TMJ McKay Mr. sufficient in the basis repeatedly to appellant’s came unan- office appellant’s conclude that license prior complain- nounced and without notice practice dentistry suspended should be pain. Appellant intense would inter- or revoked or that he should be otherwise schedule, rupt briefly would examine disciplined? We conclude that the evidence him, prescribe Percodan to relieve contained no such basis. symptoms, provide the and would Mr. McKay appointment with an for treatment. analyzing Before the evidence fur Thereafter, usually McKay Mr. broke the ther, we first consider the standard to be appointment only repeat to emergency employed. appearance pain again when manifested it- practice dentistry a of lawful [T]he Appellant self. testified that he would right privilege profession,.... or [T]he have refused to patient McKay long treat it, engage lawfully in to once it is ac- before he did pa- sever relations with this quired, right privilege protected is a except tient for the established relation- process the the due clauses of state ship. and federal constitutions....

Concerning patients Schultz and Cook, ^[******] they testified that both had teeth right practice profession to The badly painful were infected and when property right, but it is been called a they first consulted with him. The teeth prestige more.... There moreover a successfully not be treated and good pride and and name should be prostheses applied until the infections were practice of attached to the an honorable up. prescribed cleared Antibiotics were profession superior pos- material and, pending the clearance of the infec- li- professional To sessions. cancel a tions, Percodan was for the con- capital cense is to take the entire stock pain. Following trol disappear- in possessor him most its leave respective infections, ance of the dental equivalent bankrupt. instances the pa- restorations completed and the this; it much more it takes But does than tients were released. professional standing him his from has, good in a manner whatever name Appellant testified that none of the poor which him leaves indeed. danger tients inwas of addiction. testi- He Examiners, fied instructed them each not to Francisco v. Board Dental 619, take more than four in tablets (Tex.Civ.App. S.W.2d — Austin State, any twenty-four v. average ref’d) Waller hour period. 1941, The (quoting writ usage 601, by each (Tex.Civ.App. much lower. 68 S.W.2d — Amarillo Appellant early 1934, ref’d)). testified warning writ

Arrayed against “proper” the interest of the indi ment was did not constitute a public. ground imposition is the interest of the vidual for the of sanction^. public protected negligence, must be Turning legal grounds upon to the incompetence and wilful misconduct in the against appellant, the Board found profession. Texas State practice of the proscribes we hold that article 4551h Fenlaw, Dental Examiners v. improper with administration of narcotics 185,189-90 (Tex.Civ.App.—Dal 357 S.W.2d is, quantity; out article writ). process las no due question of 4551h does not address the upon power regu places limitations grossly quantity. On the other excessive late, being legitimate limitation hand, 382.19.21.001(8) pro Board Rule public controlling interest of the in grossly the administration of exces scribes practitioner. conduct of the individual drugs. quantities sive of those Texas State State, 68 S.W.2d 603-04 Waller Examiners, 22 TEX.AD Board of Dental refd). (Tex.Civ.App.—Amarillo writ 109.211(8) (Hart 1986).2 The MIN.CODE § suspended His license be revoked or implicitly necessarily made Board itself but upon proof restricted otherwise adoption in foregoing determination welfare; injurious public conduct to the Obviously, the Board has no of its rule. negligence, proof made of incom must be power to add to or detract from a statute. petence, or wilful misconduct. Even adopting pertaining to the sub By a rule though applicable statutes and rules do ject, it must be considered to have made effect, expressly provide to this we determination that the administrative implying such a must construe them problem of speak statute did not requirement, they else offend the constitu grossly quantities. in excessive tion. point also out that an action We in foregoing standards With the necessarily punitive this nature is effect. mind, of the we review v. Nee State Board Dental Examiners witness, readily He Board’s Jeske. ley, 574 S.W.2d (Tex.Civ.App.— nothing pa that he knew admitted 1978, writ) (dental practice disci Austin by appellant’s except as reflected tients plinary penal statutes “are nature respect patient McKay, records. With to construed”). Indeed, strictly should be “generally ob that he had ... he testified proceedings have professional misconduct pain “responds better” to served” that TMJ re quasi-criminal. as been described consist a non-narcotic course treatment 544, 550-51, 88 S.Ct. Buffalo, 390 U.S. “anti-inflammatory [drugs] and ing of 1222, 1225-26, (1968) (attor 20 L.Ed.2d 117 therapy.” He conceded that TMJ splint disbarment). ney It follows that evidence pain,” experience “very can severe patients injurious public to the welfare of conduct experience patient if a TMJ does and that must be substantial. necessary” to pain, “may then it be such that Although Jeske stated use Percodan. in mind that the ameliora- We must bear exception, I be “an illness, disability such an instance would disease and tion of human specific to say,” he was unable be is would inexact science. It com- is at most an hav respect patient McKay, to never sci- healing not as the monly referred to him. He fur or examined healing art. Legitimate dif- interviewed ence but the relief pain amount of agreed that the proper course ther opinion ferences of as to the entitled is a patient a TMJ long as to which commonplace. As of treatment are judg subjective of the dentist’s legitimate, the fact that matter the difference agreed “there is a lot Jeske, He also that Board ment. expert, Dr. or the the Board’s controversy treatment.” in TMJ treat- that the course of itself did not feel over-pre- following: grossly ... provides "Un- include scribing as follows: 2. The above-cited rule conduct, drugs, danger- conduct, dispensing narcotic professional dishonorable synonymous terms drugs, and immoral conduct are substances....” or controlled ous and applied conduct of a licensee when patients With to and provisions, Schultz violation of these there had to Cook, evidence, whose conditions apart were similar be as to fre- other, duration, each Jeske conceded that quency infections and that the medication procedures was, must be before controlled such was needed or not that it for some agreed reason, contra-indicated, root canals are specific commenced and and that might necessary that narcotics be con- any practitioner, similarly reasonable situ- pain trol being ated, while are antibiotics admin- have been aware such ef- agreed istered. He that “in required” some instanc- fect. first “not es,” might acceptable portion Percodan be an medi- of conclusion one number must be cation patients for these that conceded set aside. patients, seeing he could not ap- Conclusion number one held further certainly state with reasonable that Perco- pellant “guilty controlled dan, all, in any amount at was neither substances ... that manner [in would] necessary nor desirable. promote and further addiction.” It is com-

Rather, knowledge, Dr. Jeske centered his criticism mon before the discussions on the indicate, duration of the courses of treatment Board any so administration plus consisted of antibiotics Percodan. narcotics whatever conceivably Tissue cultures problems. should have been obtained lead to addictive Such virulent; analyzed they are or the referred to an are contra-indicated surgeon, testified, promise oral less toxic unless a re- whenever medications sponse However, they itself be manifested at an date. effective.3 remain as earlier Appellant’s accepted pharmacology position was because their ex- that he was of the opinion treme effectiveness the alleviation of responses manifesting, suffering. that, although human Dr. slowly. significant Jeske conceded It having patients, not seen the he could not wholly Jeske to testify failed rea- that no state with assurance that abso- sonably competent practitioner similarly lutely not have should situated would have continued the same Elsewhere, in any quantify whatever. course of equivalent peri- treatment gave testimony by way conclusion od of time. testimony Without to such appellant prescribed effect, the substance testimony Dr. Jeske’s amounts manner “that could and further more legitimate than a opin- difference of But, addiction.” identical statement ion as to proper course of treatment. made in every any case where In the context of license revocation quantify aof narcotic is administered. proceeding, we hold that “promote Certainly, provi- and further” foregoing quali- nature was insufficient to sion of 4551h does warrant li- article fy as substantial evidence of violation cense in every revocation instance involv- of the first the above-quoted prohi- two of ing the administration of narcotics. is, bitions of article 4551h. That the Board failed present evidence that was clearcut line dividing What the between reasonably free from ef- permissible doubt to the the impermissible the ad appellant fect that “guilty prescrib- was ministration of hold narcotics? We that ing (1) controlled “nec- punishable “pro substances” neither there is no violation essary” “required” nor to the extent mote and further” restriction article public that welfare would be threat- 4551h negligence, unless evidence of incom ened if petence such conduct were to un- presented continue or wilful misconduct prove Board; checked. punishable drug order a to the must have been ..., Physician’s plain upon repeated develop Desk a contains administration Reference warning may habit-forming that Percodan be prescribed and it should be and administered and states: degree appropriate with the same of caution Oxycodone produce drug dependence of can narcotic-containing to the use of other oral and, therefore, morphine type the potential has medications. depend- being Psychic abused. PDR at 860. ence, physical may dependence and tolerance 396 in a placed appellant

administered manner that would not evidence. Nor af reasonably by any have been undertaken opportunity forded an to cross-examine practitioner similarly competent situated. any expert opinion may Board as to that it substantial; proof must the con- Such be Nothing is thor have entertained. more injurious public duct must be to the wel- oughly proposition established than fare. Dr. Jeske’s unembellished judge may a as juror that neither nor a act that, opinion, seeing pa- in his States, 315 a witness. Glasser v. United tient, appellant in a 60, 82, 457, 470, 62 S.Ct. 86 L.Ed. 680 U.S. and further manner could (1942)(judge); Gregory Louis South v. St. considered addiction because the witness Co., Railway 377 853 western S.W.2d therapy lasted that the courses of narcotic 1964), (Tex.Civ.App. rev’d — Texarkana have,” “longer they not than should did (Tex.1965) grounds, other S.W.2d suspicion rise above a or scintilla. See For us to the Board (juror). hold that Irvine, 574, 582-83, 44 Tex. Joske depriva do otherwise would amount to the (1898). so hold be- S.W. We tion of cross-examination and the condona fre- he failed to state a maximum cause Board mem tion of secret evidence. If a period no reason- quency beyond give personal opinion, desired to ber situated, practitioner, similarly able upon professional expertise, his own based Probative have continued the treatment. over-prescribed, appellant grossly had indispensable in evidence of such nature is dis incumbent on member to it was proceeding “penal a nature” such the case and qualify himself as trier of in hand. 574 S.W.2d at Neeley, the case as a take the oath witness. “promote and 245. With to its findings of conclusions of In its fact and finding number further” under conclusion law, emphasized the the trial court below one, of a did receive evidence Board not separating prescribed, one of tablets amount- nature that would total number warrant separate dosages, The and counsel of its licensees his livelihood. to 882 from set remainder of one must be tack. argued conclusion for the State a similar aside. im- Admittedly, the raw number would be layperson. pressive because Conclusion must fall two three number must divided between testify wholly the Board’s failed to witness period of time. and over a substantial tients appellant over-prescribed nar “grossly During period, patient Cook a two-month foregoing drugs,” using cotic either tablets, being at the rate received 382.19.21.001(8) byor words of Board Rule dosages All were at per day. other two unmistakably employing language of an us that frequency. It not strike does lower required ex import. subject similar per person suffer- pain pills day for a two validly conclude pertise; layman no could de- pain inevitably be ing intense must dosages merely being of the advised exorbitant. clared only had appellant administered over-pre over-prescribed grossly but had contrary, paid witness Jeske To the scribed. dosage. of the frequency attention duration of upon centered His criticism upon rely Neither the Board Did administer the treatment. confi expertise. Although are its own we period grossly for a excessive these dent that certain members testimony to this Lacking expert time? persons in the dental highly qualified effect, only conjecture.4 engage can we were profession, qualifications their pharmacists medical and to the infor- to Physician's "The distribution Desk states: 4. Reference approved pre- concerning profession, and the circular has been product has been mation each Drug by de- Administra- pared, approved the medical the edited and to content Food and " director, tion, partment, medical regulations, medical the 'indica- and/or under FDA then methods, routes, at each PDR usage, dosages, counsel of manufacturer." and and tions administration, de- frequency and duration of It is the manufacturer stated wherever supply and pharmacology scription, clinical and for prepared package circular official Lacking expert testimony, the Board omissions in pertaining the records to not so hold. Conclusion two is set aside. tient Schultz and no omissions in the Cook, records of neither of whom is a accepted principle It well appellant came to until a later date. In practice appellate civil that the court must disposition alleged view our both reverse and render when there is no violations, recordkeeping we refrain from support judgment to below. upon further comment the evidence relat- National & Accident Ins. Co. Life ing thereto. Blagg, (Tex.1969). 438 S.W.2d We hold that the Board failed The “no evidence” rule does not mean ut apply proper test. To warrant terly not a shred—it means no evidence of punitive sanctions to proceed which these quantum the minimal that the law holds ings directed, were it was insufficient for necessary support judgment. short, In merely failure, the State to any show a the evidence must suspicion rise above and failure, to comply with recordkeeping surmise and reach reasonably the level of a rule and to rest. The evidence must rise to trustworthy sought. basis for the action professional the level of misconduct. Joske, 582-83, 91 Tex. at 44 S.W. at 1063. words, evidence, other there must be free Because we have held that there was no doubt, negligence, reasonable in support allega substantial evidence to competence or wilful misconduct of a na appellant gave tions that prescrip narcotic public ture that threatens the if welfare patients, tions to three prescriptions allowed to continue unchecked. We do not required; were not or expert hold that testimony will be neces prescriptions issued promoted and fur sary recordkeeping when a violation is al addiction; thered appellant grossly leged. complaint We do hold that the and over-prescribed narcotics, such we both re findings the Board should be upon verse and render allegations. all such couched in foregoing language in order respect two, With to conclusions one and to make the record clear process that due appellant discharged. has indeed been respon afforded to the Turning three, to conclusion no ex dent. Such was not done in this case. pert testimony subjective and no evaluation However, such is primary not the of the evidence required to demon grounds of reversal. As we review the strate appellant had indeed failed to record, against appellant the Board found note all of prescriptions upon his narcotic upon allegations pertain five of misconduct the dental relating records patients patients upon allega to two four McKay and Schultz. He admitted as much. pertaining patient, tions to a third a total of However, the inquiry does not end there. separate allegations. fourteen We have It is the rare human who never commits a them, struck down all but two of those recordkeeping error. McKay’s pen Patient remaining being alleged recordkeeping appear chant to appointment when pertaining patients violations McKay engaged was otherwise and when adequate and Schultz. Failure to maintain patient’s away records would be stored obviously records is a lesser violation than might explain, well serve to but not neces improper drugs. administration of sarily justify, appellant’s erratic record- punishment upon assessed one keeping patient. to this We against appel the fourteen counts found also in passing note that there fewer lant. We cannot assume that it would have hazards, warnings, specific relevant contraindica- there is durational limita- tions, reactions, potential adverse tion whatever and no discussion as to the maxi- dependence, overdosage precau- period abuse and mum of time after which the medication " repeated appearances, tions’ must be verbatim in PDR. PDR must discontinued. From all manufacturer, quite possibly at 501. the well, the FDA as footnotes, previous specific warnings As discussed in the PDR has not seen fit to issue generalized length beyond discussion of Percodan contains as to the of time which the ad- precaution concerning statements of this and all ministration of Percodan must be terminated. drugs. judgment It also indicates the maximum The matter has been left within the

frequency dosage hours). (generally, practitioner issuing prescription. six C.J., punishment ENOCH, WHITHAM, it known imposed the same had DEVANY, four- McCLUNG, ROWE, the more serious twelve of the BAKER THOMAS, JJ., teen would be held void. For us to affirm join opinion in the punishment entire on the basis of the of the Court. ap- recordkeeping deprive omissions would McCRAW, J., opinion, dissents with process of those due pellant fundamentals STEPHENS, in which STEWART and li- professional must be observed in which LAGARDE, JJ., join. suspension proceed- cense and revocation authority ings. On of the Administrative HECHT, J., not in participate did Act, Register we re- Procedure Texas the decision of case. findings of to record cer- verse the failure McCRAW, Justice, dissenting. drugs prescriptions of tain McKay and Schultz on the dental tients respectfully majority I dissent. The See misapplied pertaining patients. records to such proper review to standard of 6252-13a, TEX.REV.CIV.STAT.ANN. art. hearing appeal used the court 19(e)(5), (6) (Vernon Supp.1985). section li- professional from the revocation of a professional allegations of misconduct Such cense. After a review of the statement remanded to the State Board are Texas application appellate facts and re- proceedings Dental Examiners for further standard, I view must conclude herewith.5 consistent rulings of the Texas State Board of Dental in part; and RENDERED Examiners and the District Court REVERSED 95th part. in REVERSED and REMANDED should be affirmed. gone length Particularly

5. The dissent has to some to labor in view of the fact that none course, interviewed, appeal governed Of patients the obvious. this was examined or agency Jeske, by the substantial evidence rule and the testimony expert in witness actionable, must stand minds could decision if reasonable order to be to declare that no had have reached a Dotson similar conclusion. practitioner similarly reasonably competent sit- Examiners, 612 S.W.2d Texas Board Medical patients in the uated would have treated these (Tex.1981). question remains: The Lacking by appellant's manner shown records. Substantial evidence of what? testimony, there evi- such was no substantial Obviously, most, substantial evidence that there dence of intolerable At conduct. a narcotic be insuffi- contains substance would of a was no more than substantial evidence was, drug cient without evidence that high Such evi- failure to observe standards. fact, prescribed Neither or administered. misconduct. dence failed to show actionable substantial, evidence, would mere however expert acknowledged, di further both on The drug prescribed amount was in some giving that he wets rect and cross-examination widely some suffice. The medication is only opinion opinion must be his and that his acknowledged The record must as efficacious. qualified by saw the the fact that he never form, evidence, that the contain substantial pa dichotomy patients. A whether the as to mal-admin- administered but optimal quality does tients received treatment of Without evidence of mal- istered. substantial The evidence rule not meet the test. substantial administration, prosecution founders. professional proof is not satisfied without qualifications expert witness Jeske are The negli clearly rising level of misconduct acknowledged impressive. his tes- gence, incompetence misconduct. wilful subjective; repeatedly timony at- was all subjective before us nature of the limiting phrase my opinion” to tached the "in distinguishes case Balla v. Texas this testimony; manner in he testified as to the Examiners, S.W.2d Board Medical personally have treated the n.r.e.) (Tex.App. Dallas, (physi writ refd — patients. patients The fact did not that these weight-reduction drugs cian expert a renowned receive the treatment expert seeing patients). The Balia testified ever given proves nothing; the substan- would have procedure employed not be ac "would thereby. rule satisfied tial evidence was not practice." cepted made The dissent has medical Discipline imposed not be for failure any from this no effort to distill such evidence highest profession; follow the standards of the such Without evidence to record. effect, substantial for reason that such a test is test at all against charges appellant Sizemore whereby developed can be licen- instances Dotson, (suspen at 923 must fail. S.W.2d Disci- guilty be held misconduct. see could legitimate prescription where sion reversed pline imposed to achieve is not failure for the standards; allegedly non-thera in an high imposed the failure to it is manner). peutic minimum observe standards.

399 Examining 715, The Examiners, Board reached three con- Medical 693 S.W.2d 716 1985, support (Tex.App. n.r.e.); in their revoking clusions of order writ ref’d — Dallas Kelley Commission, (1) v. Texas Real Estate Sizemore’s license: Sizemore 936, 671 (Tex.App. S.W.2d 939 controlled substances that were not neces- — Houston 1984, n.r.e.); writ ref’d v.Wood [14th sary required practice Dist.] in dentistry of Examiners, Texas State Board Medical prescription and use would of 942, 615 (Tex.Civ.App S.W.2d 943 and further in addiction violation of Texas — Fort 1981, writ); Thompson Worth v. Texas 4551h;1 (2) Revised Civil Statute article Examiners, Board 570 Medical S.W.2d Sizemore by exhibited dishonorable conduct 123, 1978, (Tex.Civ.App. Tyler 130 writ — grossly over-prescribing narcotic in n.r.e.); ref’d v. Texas State Korndorffer 4549; violation of article and Sizemore Examiners, Board Medical 448 S.W.2d failed prescription to make the of narcotic (Tex.Civ.App. 823 [14th — Houston drugs part patient’s of his dental records. Dist.]), part, part, in reversed in 460 aff'd Hearings appeal and the hearings (Tex.1970). S.W.2d 879 examining The disciplinary against actions dentists is prima board’s order is deemed facie valid. governed 6252-13a, by article the Adminis- 283; Imperial, 557 Kelley, S.W.2d 671 Register trative Procedure and Texas Act. 939; S.W.2d Korndorffer, at 448 S.W.2d at 4(b) art. TEX.CIV.STAT.ANN. § 823. proof upon The burden of the com (Vernon Supp.1987). scope The judicial plaining parties to show an absence of sub 6252-13a, review is defined in article sec. stantial evidence and that the orders are 19(e): unjust. Imperial, unreasonable and 557 scope judicial The agency review of 283; 939; S.W.2d 671 Kelley, see S.W.2d at provided by decisions is as the law under Komdorffer, 448 at 823. S.W.2d When sought.... supports review is Where the substantial evidence the board’s decision, 6253-13a, 19(e)pro law article section authorizes under the review substan- rule, reviewing hibits the court from tial evidence where substitut the law does judgment agency, its for that of the review, not scope judicial define the though may even the court have “struck a may court judg- not substitute its different Kelley, balance.” 671 S.W.2d at ment for agency that of as 939; Wood, see at 943. S.W.2d weight of questions the evidence on com- mitted to This agency discretion but court must review the entire record af- firm if determine the Board’s order is reason- agency decision of the in whole ably supported by substantial part or in evidence. and reverse shall or remand Jeske, professor Dr. Arthur an associate proceedings the case for further if sub- pharmacology dentistry and restorative at rights stantial of the have been the University of Texas dental branch in prejudiced.... Houston testified for the Board. Jeske has applicable substantial test is evidence pharmacology, degree, a Ph.D. in a D.M.D. present in the case. The test is out in set published papers. has several He re- Dotson v. Texas Medical Exam- cently textbook co-authored a entitled iners, (Tex.1981): S.W.2d Therapeutics in Pharmacological Dentist- The correct substantial evidence rule test expertise challenged. His Dr. ry. was is whether the a whole is Percodan, testified that a chemical Jeske such that minds could have reasonable strong morphine, relative of is a agency reached the conclusion analgesic pain centrally. Per- relieves must justify have reached in order to its quality codan addictive creates action. psychological dependence physical (Emphasis added). test This has been used euphoria in producing a state of the user. consistently Imperial in Texas courts. See given Jeske “if stated that sufficient time, American Fund Resources v. Railroad quantity for sufficient [Percodan use] Texas, 557 dependence patient Commission S.W.2d can result (Tex.1977); a state psychologically Balla v. Texas State Board maintain of well- utes, All unless noted. references are to Texas Revised Civil Stat- otherwise again placed on Percodan and the use of being.” Dr. Jeske evaluated peri- temporal additional month mandi- antibiotic for an two by patient origin.” (TMJ). problem endodontic Dr. Jeske stated od for a “of joint pain bular opinion in Dr. in his Percodan is not normal Jeske stated that the use of unnecessary or were usually prescriptions of TMJ. It is treated became the treatment twenty-four days. required after physical measures with a combination mea- pharmacological use of and occasional for patient prescriptions A received third sures, of muscle relaxants such as the use 27, 9, 13, May May May April Percodan on analgesics. anti-inflammatory Percodan or 16. No antibiotic was June 2 and June analgesic. anti-inflammatory is not an prescription. conjunction used in per- amalgam restorations patient’s prescriptions for Per- On June The TMJ opin- 10, 1981, in his September formed. Dr. Jeske stated that commenced on codan 9, 13, ion, May on through August 1982. In Dr. Jeske necessary required. degree of and 18 were not testified “with a reasonable pre- patient re- certainty” five and one-half months this medical that Sizemore pills. that were not scribed controlled substances ceived especially He required. was proper- admits that he failed Sizemore start- impressed by the fact that Sizemore patients. on his keep complete records ly patient Septem- Percodan in ed the TMJ to contro- presented is no There elapse dur- and allowed two months ber did not record the fact that Sizemore vert prescriptions were time further to his prescriptions he issued all the therapy “no definitive dental issued and tients. problem.” performed to alleviate the was evidence, of all the Upon proper review was a himself admitted there Sizemore has not met I hold that Sizemore of the TMJ problem with the treatment prove of substantial the absence burden given additional patient. patient was presumption prima facie evidence. The February prescriptions for Percodan from has not been Board’s order valid that the treat- through but received no June have minds could rebutted. Reasonable have allegedly he did not ment because the Board the conclusions reached procedures. admit- time for the Sizemore judgment I would affirm reached. have demanded that ted that of the Board. and the orders the trial court suspend in to the office and patient come “probably prescriptions issuance have.” He further admitted

should was not so my judgment

“it’s obvious patient failing demand that the

good [in Sizemore realized

have treatment].” person.” “may have used this been Betty Ann pills. Bill CHENAULT patient This received 382 Esquivel, Appellants, up- patients had Another of Sizemore’s pain in per-anterior his teeth. Sizemore Perco- prescription gave the County COUNTY, Bexar BEXAR regiment This was dan and antibiotics. al., Court, et Commissioners teeth months before the continued for two Appellees. patient received were extracted. The No. 4-87-00300-CV. period. Dr. Jeske

tablets this two month Texas, Appeals of Court prescriptions testified that the initial Antonio. San justified, two months have been but that maintain a “fairly long time” to 20, 1988. Jan. pain and antibiotic. patient on control 23, 1988. March Rehearing Denied proba- the Percodan was Jeske stated that required after the bly unnecessary or not days therapy. Five

first two weeks of removed, the painful

after the teeth were

Case Details

Case Name: Sizemore v. Texas State Board of Dental Examiners

Court Name: Court of Appeals of Texas

Date Published: Dec 28, 1987

Citation: 747 S.W.2d 389

Docket Number: 05-86-00189-CV

Court Abbreviation: Tex. App.