SCOTT K. FIELD, Justice.
Carl Cuthbert Davis, M.D., appeals from the trial court's final judgment affirming the Texas Medical Board's final order revoking his Texas medical license. Dr. Davis challenges the judgment in two appellate issues, arguing that he should not have been held strictly liable for delegated acts performed by mid-level practitioners and that the Texas Medical Board failed "to establish the standards for reviewing the charts of collaborative mid-level practitioner[s] by competent expert testimony." We will affirm the trial court's final judgment.
Dr. Davis was the medical director at two clinics in Houston. One was owned and operated by Pamela Metoyer, an advanced practice registered nurse (APN), and the other was owned and operated by Cheryl Jackson, APN. Pursuant to collaborative agreements, Dr. Davis was the supervising physician for mid-level practitioners Metoyer and Jackson and delegated medical acts to them, including prescribing controlled substances.
At the hearing before the State Office of Administrative Hearings (SOAH), the Texas Medical Board (TMB) presented seven patient charts from the two clinics. The TMB's expert witness testified that the treatment that these patients received fell below the standard of care for the treatment of pain. Generally speaking, the TMB alleged that the clinics were "pill mills" at which patients were prescribed non-therapeutic pain medication, including a dangerous combination of drugs known as the "Houston Cocktail."
Dr. Davis, representing himself at the hearing, did not deny that the clinics were "pill mills" or that Metoyer and Jackson were inappropriately prescribing controlled substances. Instead, he contended that he had no knowledge of their inappropriate activities while they were ongoing, that he did not encourage these activities, that he had no incentive to participate in a "pill mill," that he terminated his relationships with Metoyer and Jackson as soon as he discovered their inappropriate activities, and that he was suffering from serious medical conditions that the nurses took advantage of. He argued that he should not be held responsible for delegated medical acts of which he had no knowledge and that were contrary to his express instructions.
After the hearing, the SOAH administrative law judge (ALJ) issued a proposal for decision (PFD). This PFD included about 100 findings of fact and 20 conclusions of law. The findings explained how the treatment of each of the seven patients discussed at the hearing fell below the standard of care. The findings also described ways in which Dr. Davis failed to adequately supervise the APNs to whom he delegated authority. Among other things, the ALJ found the following:
Based on these and other findings, the ALJ made the following conclusions of law, among others:
The ALJ summarized her findings and conclusions as follows:
The TMB later adopted the ALJ's findings of fact and conclusions of law and issued a final order revoking Dr. Davis's Texas medical license. Dr. Davis sought judicial review of that order. See Tex. Gov't Code § 2001.171. The trial court affirmed the TMB's order, and this appeal followed.
In his first issue, Dr. Davis contends that the TMB improperly held him strictly liable for the APNs' actions. Relying on the Texas Medical Practice Act (TMPA), Dr. Davis argues that he may only be held liable for the APNs' actions if he had reason to believe that they were incompetent. We review questions of statutory construction de novo. See Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017).
The TMPA provides the following:
Tex. Occ. Code § 157.060. Dr. Davis argues that this language means that "`unless a physician has reason to believe the physician assistant or advance nurse practitioner lacked the competency' the physician is not liable for the midlevel practitioner's practice." He further argues that "[t]he only way Dr. Davis would know whether the [APNs] were competent was to review the [APNs'] patient's chart." According to Dr. Davis, because he reviewed all the charts required by the TMB's regulations and because the charts that the TMB relied on at the SOAH hearing were not among those that he was required to review, the TMB failed to show that he had reason to believe that the APNs were incompetent.
The TMPA, however, also provides, "The delegating physician remains responsible for the medical acts of the person performing the delegated medical acts." Id. § 157.001(b). Although we agree with Dr. Davis that section 157.060 is more specific than section 157.001(b), we also conclude that section 157.060 does not mean that a physician may never be responsible for delegated medical acts unless he has reason to believe that the APN lacked the competency to perform the act. Instead, the provision means that a physician will not be held responsible for delegated medical acts in the absence of such knowledge solely because of the supervisory relation he has with the APN, but he may still be held responsible for other reasons—including a failure to appropriately supervise the APN. See id. § 157.060. In other words, section 157.060's more specific provision does not eliminate the general rule of section 157.001(b), it only limits it in certain circumstances.
As discussed above, the ALJ and TMB found that Dr. Davis failed to adequately supervise the APNs and document his supervision. Specifically, the ALJ and TMB found that Dr. Davis: (1) had no current, written protocols in place for the APNs; (2) maintained no record of the dates and times when he was at the clinics or of the patient files he reviewed; (3) did not randomly review patient charts at the clinics; and (4) was grossly negligent in not retaining any records documenting his supervision of the clinics. In his appellate brief, Dr. Davis has not challenged any of these findings.
For these reasons, the TMB's decision to discipline Dr. Davis does not rest solely on the misdeeds of the nurses. It also rests on Dr. Davis's failure to adequately supervise the APNs and to document that supervision. Therefore, even if Dr. Davis is correct that he may not be held strictly liable for the APNs' actions, he may still be liable for his failure to supervise. Accordingly, we overrule Dr. Davis's first issue.
In his second appellate issue, Dr. Davis contends that the TMB failed "to establish the standards for reviewing the charts of collaborative midlevel practitioner[s] by competent expert testimony." Under this heading, Dr. Davis argues that the TMB's expert witness was "required to show familiarity with the protocols of advance nurse practitioners, not just familiarity with the standards of care for a physician," and that "[w]hether the [APN] violated the required standard of care was not established by the Board Expert." Dr. Davis further argues that "[t]he Board expert's opinions regarding the advance nurse practitioners care was not relievable [sic] based on unfounded assumptions and was conclusory. The Board Expert testimony was not reliable thus there was no evidence to support the Board's findings." We construe these statements as arguing that the TMB's order is not supported by substantial evidence.
To the extent Dr. Davis is arguing that the TMB failed to establish the standard of care applicable to APNs, we note that the TMB's expert testified that the same standard for the treatment of chronic pain applies to all medical practitioners and that the expert described the standard in detail both in his testimony and in his expert report, which was admitted into evidence at the SOAH hearing without objection. Moreover, Dr. Davis himself admitted at the hearing that the APNs were inappropriately prescribing controlled substances and that he himself was partly to blame, testifying, for example, as follows:
In addition, as discussed above, the TMB's order is supported not only by findings that the APNs violated statutory provisions and TMB rules but also by findings that Dr. Davis failed to adequately supervise them. Therefore, Dr. Davis's arguments that the TMB failed to establish the standard of care with respect to APNs are both incorrect and unavailing.
To the extent Dr. Davis is arguing that the TMB failed to establish the standard of care applicable to his supervision of the APNs, we disagree. As noted above, Dr. Davis essentially admitted to inadequate supervision. Further, the TMB's expert established the standard of care applicable to supervision in his testimony and expert report. For example, the TMB's expert witness testified that a supervising physician should randomly review patient charts "to get a fair sampling of the patient population and the treatments." The ALJ and TMB found that Dr. Davis "did not randomly review patient charts at the clinics." This finding supports the TMB's conclusion that Dr. Davis was subject to discipline because he failed to adequately supervise the APNs. See Tex. Occ. Code §§ 164.053(a)(8) (providing that failing to adequately supervise "the activities of those acting under the supervision of the physician" constitutes "unprofessional or dishonorable conduct likely to deceive or defraud the public"); 164.052(a)(5) (providing that "unprofessional or dishonorable conduct that is likely to deceive or defraud the public" is "a prohibited practice"); 164.051(a)(1) (providing that the TMB may "take disciplinary action against a person" if the person commits an act prohibited under section 164.052).
Given Dr. Davis's inculpatory testimony, the evidence concerning the applicable standard of care provided by the TMB's expert witness through his testimony and expert report, and the ALJ and TMB's unchallenged findings, we conclude that the TMB's order is supported by sufficient evidence "to allow reasonable minds to have reached the conclusion the agency must have reached to justify the disputed action." Swate v. Texas Med. Bd., No. 03-15-00815-CV, 2017 WL 3902621, at *7 (Tex. App.-Austin Aug. 31, 2017, pet. denied) (mem. op.). Accordingly, we conclude that Dr. Davis has failed to carry his burden of showing that the TMB's order is not supported by substantial evidence, and we overrule Dr. Davis's second appellate issue.
Having overruled Dr. Davis's appellate issues, we affirm the trial court's final judgment affirming the TMB's final order revoking Dr. Davis's Texas medical license.
