In a major victory for medicine, a Texas Supreme Court decision has paved the way for physicians exonerated of wrongdoing to fully clear their names in the National Practitioner Data Bank (NPDB), the federal clearinghouse that records certain adverse or disciplinary actions taken against health care workers.
The decision against Texas Medical Board (TMB) officials came after the Texas Medical Association filed friend-of-the-court briefs in support of Robert Van Boven, MD. The Lakeway neurologist sued TMB officials claiming they had overstepped the board’s authority – and stained Dr. Van Boven’s reputation – when they refused to erase the data bank’s record of a temporary license restriction against him, even though TMB had ultimately adopted findings that cleared him of alleged wrongdoing.
TMA, in a friend-of-the-court brief, had told the Supreme Court that TMB’s handling of the case “severely taint[ed] this exonerating … result” and “cannot be what Texas law requires or allows.” The Supreme Court’s decision showed it agreed.
In 2016, TMB responded to two patient allegations against Dr. Van Boven by convening a disciplinary panel, temporarily restricting his license, and filing “an initial report of the adverse action” to the national data bank, according to court documents. The board filed a formal complaint against Dr. Van Boven, court documents say, but a State Office of Administrative Hearings (SOAH) proceeding in 2017 cleared him of all allegations. A SOAH administrative law judge wrote TMB hadn’t proved its case, with the judge also citing “implausibilities and issues of doubt raised by the evidence.”
TMB issued a final order adopting the administrative law judge’s recommendations and lifted the board’s temporary restriction of Dr. Van Boven’s license. Board officials decided they were required to make a final report to NPDB. But when doing so, TMB did not file a “void report,” which Dr. Van Boven requested and which would have withdrawn TMB’s previous report entirely.
Instead, TMB filed a “revision-to-action” report, which “is treated as a separate action that pertains to the previous action,” according to the NPDB Guidebook. “Both reports become part of the disclosable record.” That meant the previous TMB action against Dr. Van Boven over the unproven allegations remained on his NPDB record.
He filed suit seeking an order to force TMB to file a void report instead. He claimed board officials had acted outside their authority, and that the NPDB reports had “‘forever tarnished’ his reputation and prevented him from obtaining employment,” the Supreme Court noted.
Reversing the decision of an appeals court before it, the Supreme Court ruled on June 3 in Dr. Van Boven’s favor. TMB’s final order overturned the previous temporary order “by concluding that the basis for its issuance had not been proved,” Chief Justice Nathan L. Hecht wrote. He further noted, “The Temporary Order stated that it ‘shall remain in effect until it is superseded by a subsequent Order of the Board,’ and that is what happened.”
Thus, Justice Hecht wrote, TMB “was required to file a Void Report with the Data Bank” because the temporary restriction should not have been issued. The decision sends the case back to the trial court “for further proceedings.”
In trying to convince justices to find in Dr. Van Boven’s favor, TMA wrote in its February 2021 friend-of-the-court brief, “Without voiding the temporary action, the physician’s reputation and license to practice medicine is marked forever.”
“The result of the time, effort, and expense of a successful defense before a SOAH judge should not be circumvented by the agents of a prosecuting agency,” TMA added.
TMA General Counsel Donald “Rocky” Wilcox told Texas Medicine Today that the result of the case “provides encouragement to physicians who otherwise would feel forced to agree to something that they don’t [actually] agree with, just to avoid the horrendous expense and time that a SOAH hearing entails, and in the end, still have a tainted record even if they were to win their cases.”
The Supreme Court decision is important, he added, because “if physicians are successful in appealing the case to the State Office of Administrative Hearings … and the allegations aren’t proven, it should automatically void the report to the NPDB unless the board timely appeals it. The Supreme Court reached that conclusion: that when the board accepted [SOAH’s] exonerating opinion – which it did – a void report should be filed and the record of the temporary restriction removed from NPDB records.”
In an email to key state lawmakers following the Supreme Court decision, Dr. Van Boven called his story "a poster-child example case evidencing the need for active oversight to regulate" TMB.
"I hope to have the opportunity to help your efforts to improve accountability so that the mission of public safety and quality of care for Texans is fulfilled," he wrote.