Summary
The Texas Court of Appeals, Third District, reviewed disciplinary action taken by the Texas Medical Board against Robert C. Lowry, M.D., concerning his work with a physician whose Texas medical license had been suspended. The court held that substantial evidence supported findings that the suspended physician practiced medicine and that Lowry associated with him in the practice of medicine. The court affirmed in part, reversed in part, and remanded the proceeding to the Board.
Topics
Practice areas
Questions Presented
- Whether substantial evidence supported the Board's conclusion that Dr. Barson was practicing medicine after his Texas license was suspended.
- Whether substantial evidence supported the Board's conclusion that Dr. Lowry associated in the practice of medicine with Barson under Occupations Code section 164.052(a)(15).
- Whether substantial evidence supported the Board's conclusion that Lowry directly or indirectly employed Barson under Occupations Code section 164.052(a)(14).
- Whether substantial evidence supported findings that Lowry failed to practice medicine in an acceptable professional manner by deviating from the applicable standard of care and failing to exercise proper diligence regarding Patient 5 and Patient 4.
- Whether substantial evidence supported medical-recordkeeping violations based on the absence of a plan of care and medication lists in Patient 5's records, and whether expert testimony was required.
Holdings
- Substantial evidence supported the Board's conclusion that Barson practiced medicine because he helped diagnose patients by interpreting EEGs, signed EEG reports, and received compensation for those services. Patient contact was not required under the statutory definition of practicing medicine.
- The phrase 'associates in the practice of medicine with' in section 164.052(a)(15) is not limited to forming a business entity. It includes joining together with another as partners, colleagues, friends, allies, or otherwise for a particular purpose. Substantial evidence supported the Board's finding that Lowry associated with Barson through their EEG consultations and interpretations.
- Substantial evidence supported the Board's finding that Lowry directly or indirectly employed Barson in the practice of medicine under section 164.052(a)(14).
- Substantial evidence supported the Board's findings that Lowry failed to practice medicine in an acceptable professional manner by failing to evaluate Patient 5's pain-management regimen after a positive oxycodone test and by failing to ensure that Patient 4's EEG report was signed by an interpreting physician.
- Substantial evidence supported the recordkeeping violation based on the absence of a plan of care, but not the violations based on missing medication lists. The plan-of-care rule imposed a documentation requirement that did not require expert medical judgment; the medication-list provisions required expert evidence concerning what history was relevant and what rationale was medically required.
Key quotations
“The substantial-evidence standard governs Dr. Lowry’s suit for judicial review of the Board’s final order.” (4)
“We thus reject Dr. Lowry’s argument that by no longer interacting with patients Dr. Barson was outside of the statutory definition of “practicing medicine.”” (14)
“We will instead apply a more commonly used meaning: to join together as partners, colleagues, friends, allies, etc. for a particular purpose.” (17)
“Without Dr. Wright giving an expert opinion about Dr. Lowry’s recordkeeping, the MPA violation based on a lack of a medication list in two instances was unsupported by substantial evidence and prejudiced Dr. Lowry’s substantial rights and therefore cannot stand.” (34)
Factual background
Dr. Lowry operated a clinic treating chronic pain and concussion-related symptoms and used Dr. Dennis Barson, a neurologist, to consult on and interpret patient EEGs. After the Texas Medical Board suspended Barson's Texas medical license, Barson continued consulting by telephone, received $100 per consultation, and signed some EEG reports appearing in Lowry's patient records. The Board disciplined Lowry for associating with and employing a suspended physician, failing to practice in an acceptable professional manner, and violating medical-recordkeeping rules. The disciplinary findings also concerned Lowry's treatment and records for Patients 4 and 5.
Procedural history
The Board initiated a disciplinary proceeding against Dr. Lowry, followed by a contested-case hearing before a SOAH administrative-law judge. The Board adopted the ALJ's Proposal for Decision nearly verbatim and entered a final disciplinary order. On judicial review, the district court reversed certain findings and conclusions and affirmed the remainder. The court of appeals affirmed in part, reversed in part, and remanded to the Board for further proceedings concerning the disciplinary order and sanctions.
Remand instructions
The matter was remanded to the Texas Medical Board for further proceedings concerning the partially reversed disciplinary order and sanctions. The Board's findings and conclusions were reinstated in part, while the medication-list violation and other unchallenged or unsupported portions remained reversed or unaddressed.