### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00313- CV

Mer rim on W. Bak er, M .D., Appellant

v. The Texas Medical Board and Donald R. Patr ick, M.D., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-0 8-0 0045 9, H ONO RAB LE SCO TT H . JENK INS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

The Texas Medica l Boa

rd (“the Boa

rd”) revoke d Dr. Merr imon W. B aker ’s license
to prac tice medicine for violat ing an ag ree d order (“the Ag ree d Orde r”) prohibiting him from perf orming “spine surg ery .” Ba ker filed a suit for judicial revie w of the ag ency order

. S ee T ex. Gov’t C ode Ann. § 2001.176 (West 2008). The district court affirmed the ag ency order

. I n three issues, Ba ker contends that the ag ency order is not supported by substantial evidenc e, that the Boa rd failed to make require d finding s, and that the manner i n wh i ch the administrative rec ord was prepa red violate d his right to due pr ocess. We will aff irm.

F ACTUAL AND P ROCEDURAL BACK GR OUND Ba ker held a li cense to prac tice medici n e, wh i ch was issued by the Board in 1983. Ba ker predominantly prac ticed g ener al orthopedic surg ery , was board cer tified in orthopedic surg ery by the Americ an Boa

rd of Orthopedic Surg ery , and was a member of the Americ an Boa rd of Medica lSpecialists. I n October 2006, Ba ker and the Boa

rd enter ed into an Ag ree d Orde r in settlement of a complaint filed ag ainst Ba ker by the Boa

rd. The Ag ree d Orde r descr ibed sever al instances in which Ba ker had violated the standard of car e with respe ct to sever al surg ical and non-surg ical patients, as well as his deviations from the standard of car e for post-opera tive car e manag ement, including lack of adequate medical- rec ord documentation of the bases for medical decisions and the rationale s for perf orming surg ical proce dures. The Ag ree d Orde r also rec ited that Ba ker had previously been the subject of disciplinary action by the Boa rd. Ba ker’ s license to prac tice medicine was suspended, but the suspension was probate d on the condition that, among other things, Ba ker “shall not perf

orm or be pre sent at any

spine surg ery .” Four d ay s afte r t he Agr eed Order ’s effec tive date, Bake r performed ky phoplasty , a proce dure used to trea t fra cture d spinal verte brae , on a patient at the Dicker son Memorial Hospital. After lear ning this, the Boa

rd held a temporar

y suspension hear ing at which the Boa rd’s disciplinary panel deter

mined that Ba

ker had perf

ormed a spine surg ery , namely ky phoplasty , in violation of the Agr ee d Or d er. The Boa

rd order ed his license temporar ily suspended. Ba ker was then invited to attend an “I nformal Show Compliance Hea ring and Settlement Confe renc e” (I SC). Following the I SC, the disciplinary panel offe red Ba ker a new ag ree d order , which he signe d. The Boa rd, howeve r, reje cted this proposed ag ree d order and instructed its staff to file a complaint ag ainst Ba ker with the State Offic e of A dminist rative H ear ings ( SOAH) see king to r evoke B aker ’s license

.

The SOAH hear ing was held in May 2007 befor e an administrative law judge (AL J ). Both the Boa

rd and Ba ker appea red and prese nted evidenc e to the AL J

. After the hear ing, the AL J prepa red a detailed p ro p o s al for decision (PFD) that included her conclusion that “re vocation of

2[Baker ’s] lice nse is an appropr iate sanction.” The PFD also included twenty -three finding s of fac t

and ten conclusions of law, one of which stated: “The Boa rd should take disciplinary action ag ainst [Baker ’s] medical license, pursuant to § 164 of t he [ Medica l Practice Act] , and should revoke his medical license.” I n a Final Orde r s i gned on November 30, 2007, the Boa rd adopted the AL J ’s finding s of fac t a

nd conclusions of law, with the exception of the above- rec ited conclusion, which it noted was not a conclusion of law, but a sanction rec ommendation. The Boa rd ag ree d, howeve r, that the proposed sanction of revoc ation was appropr iate and adopted it as the sanction of the Boa rd. The Boa rd order ed Ba

ker’ s license revoke d. Ba ker then filed a suit for judicial revie w in Travis County district court. The district court aff irmed the Boa

rd’s order , and Ba

ker perf ecte d this appea l.

DISCUSSIO N

Subs tanti al Evidence

I n his second issue, Ba

ker contends that there was not substantial evidenc e prese nted
at the hear ing to support the Boa rd’s finding that ky

phoplasty constitutes “spine surg ery ” such that b y perf orming this proce dure, Ba ker violated the Ag ree d Orde r. See Tex. Gov’t Co d e An n . § 2001.174(E) (West 2008) (in suit for judicial revie w of a g ency order pursuant to A dminist rative Procedur e Act, revie wing court may reve rse or rema nd case if subs t an tial rig hts of appellant have been prejudice d beca use administrative finding is not rea sonably supported by substantial evidenc e considering reliable and probative evidenc e in rec ord as whole). The substantial evidenc e test is “a rea sonablene ss test or a rational b asi s test.” City of El Paso v. Public Util. Comm’n , 883 S.W .2d 179, 185 (Tex. 1993) (citing Railroad Comm’n v. Pend Oreille Oil & Gas Co. ,

3817 S.W .2d 36, 41 (Tex. 1991)). Although substantial evidenc e is more than a mer e scintilla, the

evidenc e in the rec ord actua lly may preponde rate ag ainst the decision of the ag ency and nonetheless
amount to substantial evidenc e. Texas Health Facilities C omm’n v. Charter Med.- Dallas, Inc. , 665 S.W .2d 446, 452 (Tex. 1984). We consi d er not whether the ag ency rea ched the corr ect conclusion, but whether some rea sonable basis exis ts in the rec ord for the action taken by the ag ency . Id. We may not substitut e our judgme nt as to the weig ht of the evidenc e for that of the ag ency . City of El Paso , 883 S.W .2d at 185. The finding s, infere nces, conclusions, an d decisions of an administrative ag ency

are presumed to be supported by substantial evidenc e, and the burden is on the contesta

nt to prove otherw ise. Charter Medical , 665 S.W .2d at 453. Ou r re v i ew of the record revea ls that the Board’ s finding that ky phoplasty is spine surg ery is supported by

substantial evidence . First, Kim Gar g es, M.D., desc ribed the ky phoplasty proce dure. During this proce dure, the patient is place d prone on an opera ting table and the level of fra cture of the verte bra is identified using a fluoroscope

. A “K- wire” (a larg e-dia meter device with

a pointed end) is inserted throug h the skin into the pedicle (a conduit into the verte bral body ). A drill is used to penetr ate the pedicle, and a portion of the sheath is pulled out and repla ced with a cannula (a tube used for delivery of materia l into the verte bra)

. A balloon is inserted into the drill hole to the proper depth, and the balloon is tamped and filled with water

. This decompr esses the verteb ra,

cre ating a space into which bone ceme nt is injected and allowed to harde n. The bone ceme n t

rema ins in the space pe rmane ntly

.

J ohn Nea l Rutledge , M.D., an interventional neurolog ist, testified that he was trained in ky phoplasty in 1997 or 1998 when it wa s a new proce dure. I n Rutledge ’s opinion, ky phoplasty

4is a surg ical proce dure of the spine and is one of the proce dures that th e S et o n Ho s p i t al surg ical

council includes in its revie w of surg erie s perf ormed in the hospital for morbidity and mortality and to identify

problems in an ef

fort to improve surg ical outcomes. Gar g es testified that, in his medical opinion, ky phoplasty should be considere d spinal surg ery . Gar g es stated that his opinion was based on the nature of the proce dure itself, the fac t that the proce dure uses orthopedic and surg ical instruments, and the fac t that Ba ker’ s own rec ords rela ted
to ky phoplasty he has perf

ormed ref lect that he trea ted it as a surg ical proce dure. Gar g es observe d that Ba ker’ s own office notes ref er to ky phoplasty as a “surg ical intervention” and a “surg ical proce dure.” Moreove r, Baker had obtained a surgica l consent form from the pati en t o n whom he perf ormed the ky

phoplasty

. Gar g es al s o t est ified that the website of the Americ an Aca demy of Orthopedic Surg eons descr ibes ky

phoplasty as “a minimally invasive spinal surg ery proce dure

. . . used to trea t painful progr essive vertebra l body collapse or

fra cture s.” Ga

rg es fur ther testified tha t the website of the North Americ an Spine Society descr ibes ky phoplasty as “a new minimally invasive surg ical technique f

or trea ting f rac tures of the spine due to osteoporosis.” Ba ker contends that Gar g es’s testimony should be disreg arde d in a subst an t i alevidenc e revie w beca

use he is not qualified to testify about the ky phoplasty proce dure. Specifica lly , Ba ker asser ts that Gar g es “is not an expert in Ky phoplasty .” W e disag ree that Gar g es was not qualified to provide testimony reg arding whether ky phoplasty is spine surg ery . Gar g es is an associate profe ssor of orthopedic surg ery at the University of Texas Me dical Br anch in G alveston. He serve s as the chief of spine surg ery for the Depa rtment of Orthopae dics and Rehabilitation at the

5university and direc ts the fellowship prog ram. Gar g es testified that he is familiar with the proce dure

and was trained to perf

orm it by Ky

phon, I nc., the entity that develope d ky phoplasty

. Moreove r, Gar g es’s testimony consisted of more than his own opinion reg arding the nature of the proce dure; he also testified that two national profe ssional or g anizations de scribe the proce dure as “minimally invasive spinal surg ery .”

Ba ker testified that his use of the term “surg ery ” in his own rec ords of the patient on whom he perf

ormed ky phoplasty was “boilerpla te” lang uag e inserted into his rec ords by a medical
transcr iptionis t. I n Ba

ker’ s view, ky

phoplasty is not spine surg ery but rathe r an “injection” simil ar to an epidura l. Ba

ker further testified that a University of Washington website descr ibed ky phoplasty as “nonsurg ical” in nature and that he had lear ned throug h inquiry that at the May o and Cleveland clinics, ky

p h o p l as t y is perf

ormed by radiolog ists. Ba ker also offe red the testimony of M ic h a e l Sm e smy , a hospital administrator, who testified that radiolog ists are cre dentialed to perf orm ky phoplasty at hospitals he is aff iliated with. J eff

rey David Reuben, M.D., testified that he did not agr ee t h at k y

phoplasty should be classified as spine surg ery beca use it can be done with minimal invasiveness, doe s not require a lar g e incision, and doe s not involve ex posing the spine.

Having revie wed the ev i d ence prese nted at the hear ing befor e the AL J , and considering the reliable and probative evidenc e as a whole, we conclude that the Boa rd’s finding that ky phoplasty is “spine surge ry ” is rea sonably supported by substantial evidenc e. I n other words, a

rea sonable ba sis ex ists in t he re cord f or the B oard’ s action. We overr ule B aker ’s sec ond issue.

6Mitigat

ing F actor Findi ngs I n his first issue, Ba

ker complains that the Boa rd did not incl ude in its final order finding s on mitigating fac tors that he contends wer e require d by Boa rd rule 190.15. See 2 2 T ex . Admin. Code § 190.15(b) (2012) (Tex. Med. Bd., Ag g rava ting and Mitigating Fa ctors). Rule 190.15 provides, in per

tinent part: (b) Mitigation: I n an y disciplinary action, the following may be considere d as mitigating fac tors that war rant less sever e or res t ri cti ve action by the board. The licensee shall have the burden to pre sent evidenc e reg arding any mitigating fac tors that may apply in the particula r case . A final order shall include a finding of fac t on eac h applicable mitigating fac tor: (1) se lf-re ported a

nd voluntary

admissions of violations(s); (2) implementation of reme dial measu re s to corr ect or mitigate harm from the violation(s); (3) acknow ledg ment of wrong doing and willingness to cooper ate with the board, as evidenc ed by

acc eptanc e of a

n Ag ree d Orde r; (4) r ehabilitative potential; (5) pr ior community

service and pre sent value to the c ommunity ; (6) other rele vant circ umstances r educing the seriousne ss of the misconduct; and (7) other rele vant circ umstances lesse ning r esponsibility for the misconduc t.

Id. Ba ker asser ts that this rule require s that the Boa rd make finding s reg arding all mitigating fac tors

on which the lic en s ee has prese nted evidenc e. Ba ker contends that he did prese nt evidenc e of mitigating fac tors, including (1) he had no improper motive, (2) he only perf ormed one ky

phoplasty ,

7(3) he was board certified, and (4) no patient was harme d. Ba ker maintains that, based on that evidenc e, the B oard w as oblig ated by rule 190.15(b) to make finding s on those mitigating fac tors. As an initial matter, we note that Ba ker did not prese rve this issue for judicial revie w. Ba ker was require d to f

ile a motion for rehe aring of the Boa rd’s final order befor e seeking judicial revie w. See Tex. Gov’t Code Ann. § 2001.145 (West 2008). Although Ba ker timely filed a motion for rehe aring , it did not raise the complaint he makes here —that the Boa rd violated rule 190.15 by failing to ma

ke finding s on mitigating fac tors. The motion for rehe aring is a statutory prer equisite
t o an appeal in a contested case and must be sufficie ntly definite to notify the ag ency of the err o r claimed so that the ag ency can either corr ect or prepa re to defe nd the alleg ed err or. Suburban Util. Corp. v. Public Util. Comm’n , 652 S.W .2d 358, 365 (Tex. 1983). For eac h contention of err or, the motion must set forth (1) the fac t finding , leg al conclusion, or ruling complained of and (2) the leg al basis of t hat complaint. See Hamamcy v. T exas State Bd. of Med. Exam’rs , 900 S.W .2d 423, 425 (Tex. App.—Austin 1995, writ denied)

. The standard is one of fair notice. Burke v. Central Educ. Agenc y , 725 S.W .2d 393, 397 (Tex. App.—Austin 1987, writ ref ’d n . r. e. ). We have revie wed Ba ker’ s motion for rehe aring and conclude that it did not serve to put the Boa rd on notice of h is complaint that it had violated rule 190.15, or err ed in any way , by failing to include in its final order finding s on mitigating fac tors. Rather, Ba ker’ s motion for rehe aring complains only that the Boa rd did not consider giving him a lesser sanction t han revoca tion. Thi s is differ ent from complaining that the Boa

rd violated its rules by not including in its order finding s on mitigating fac tors and it did
not serve to put the Boa

rd on notice that Ba

ker believed it had, in that reg ard, failed to comply with its own rules.

8I n any event, even if prese rved, this complaint would fail. This Court has previously

held that under rule 190.15 the Boa rd has the discretion, but is not r equire d, to c onsider mitigating fac tors. See Rodriguez-Ague ro v. Texas Med. Bd. , No. 03-09-00262- CV, 2010 WL 1730023, at *4-5 (Tex. App.—Austin Apr. 30, 2010, no pet.) ( mem. op.). Specific ally , we he ld that

T o the extent appellant arg ues that the Boa

rd was require d to consider additi o n al m i tiga ting fac tors or include additional findings of fact in its order , we reje ct that complaint. The plain lang uag e of rule 190.15 allows the Boa rd to consider mitigating fac tors, but does not require the B oard to do so.

Id. (empha sis a dded). The Boa rd was not require d to c onsider mitigating fac tors or make finding s as to mitigating fac tors. We overrule Ba ker’ s first issue.

Due Proce

ss I n his third issue, Ba

ker contends that the manner in which the administrative rec ord

was prepa red and filed with the district court and this Court violated his due-pr ocess rig hts. Ba ker identifies sever al alleg ed due-pr ocess violations, and we wi l l co nsider eac h in turn. First, Ba ker

com p l ai n s t hat the rec ord was prepa red by the Texas Medica l Boa rd rathe r than “an independe nt cler k of a court.” The Administrative Procedur e Act, howeve r, provides that the administrative ag ency is responsible for the administrative rec ord. See Tex. Gov’t Code Ann. § 2001.175(b) (West 2008) (“A fter service of the petition on a state ag enc y . . . the ag ency shall send to the revie wing
court the orig inal or a cer

tified copy of the entire rec ord of the proce eding under revie w.”)

. The Act includes protec tions in the event a party to an ag ency proce eding is dissatisfied with the rec ord. See id

. (providing that court may require or permit later corr ections or additions to rec ord). Neve rtheless,

9Ba

ker complains that the Boa rd’s prepa ration of the rec ord violated his due-pr ocess rig hts beca use fourtee n pag es of the transcr ipt of the hear ing wer e missing. Howeve r, the rec ord shows that upon the Boa rd’s being made awa

re of the missing pag es, it imm ed i at ely filed a supplemental rec ord containing those pag es. The initial omission followed by prompt supplementation in n o way prejudice d Ba

ker’ s rig hts. Ba ker next complains that the rec ord does not include a copy of the order deny ing his motion for rehe aring

. Even assuming such omission would have been prejudicia l, in the prese nt case the motion for rehe aring was overr uled by opera tion of law; conseque ntly there is no order to include in the rec ord. Ba

ker also complains that Ex hibit 13 was omi tted fr o m t h e rec ord. That i tem was an exhibit, offere d by

the B oard, to whic h Ba

ker lodg ed an obje ction. The AL J sustained B aker ’s objection an d did not admit the exhibi t into evidenc e. The Boa rd did not make an offe r of proof seeking to include the exhibi t in the rec ord, and it was proper ly not made part of the administrative

rec ord. See Tex. Gov’t Code Ann. § 2001.060(2), (4) (West 2008) (re cord in contested case includes evidenc e re ceive d or consider ed, questions and of fer s of proof, obje ctions, and ruling s on them). Ba ker f urther a sserts that the rec ord should ha ve included doc uments relate d to the settlement and proposed ag ree d order that was orig inally rec ommended by the AL J but reje cted by the Boa rd. Setting aside whether such documents would even be admissible, Ba ker made no attempt to make those documents part of the rec ord by seeking t o h ave them admitted as evidenc e at the hear ing. Having failed to do so, Ba ker cannot now complain that they should be part of the rec ord.

10Finally , Ba ker complains that the rec ord does not include a transcr iption of the final hear ing befor e t h e Boa

rd. The final hear ing was not transcr ibed, and Ba ker points to no rule that would require such a transcr iption to be prepa red. Moreove r, the Boa

rd included the minutes of the final hear ing in the supplemental rec ord. I n sum, Ba ker has failed to demonstrate h o w h i s complaints reg arding the prepa ration of the rec ord—eve n considering their cumulative eff ect—pr ejudiced his substantial rig hts. W e over rule B aker ’s third issue.

CONCLUSION Having considere d and overr uled Ba ker’ s appellate issues an d fi n ding that the Boa rd’s order was supported by substantial evide n ce , we affirm the district court’s judgme nt aff irming the Boa

rd’s fina l order.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: F ebrua

ry 6, 2013

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