Le Pere v. Texas State Board of Medical Examiners

654 S.W.2d 796, 1983 Tex. App. LEXIS 4689
CourtCourt of Appeals of Texas
DecidedMay 26, 1983
DocketNo. C14-82-405CV
StatusPublished

This text of 654 S.W.2d 796 (Le Pere v. Texas State Board of Medical Examiners) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Le Pere v. Texas State Board of Medical Examiners, 654 S.W.2d 796, 1983 Tex. App. LEXIS 4689 (Tex. Ct. App. 1983).

Opinion

OPINION

SEARS, Justice.

This is an appeal from a state district court judgment affirming the October 23, 1981 order of Appellee revoking Appellant’s license to practice medicine. We affirm.

The record reflects that agents of Appel-lee audited Appellant’s medical records for [797]*797the period of March 8, 1979, to March 10, 1981, and found that Appellant had purchased 148,700 dosage units of the drug methaqualone (trade name “Quaalude”), at 300 milligrams each. Of these dosage units 14,242 were unaccounted for. A Department of Public Safety (D.P.S.) audit for the period May 11, 1979, to May 5, 1981, showed Appellant purchased 144,900 dosage units of methaqualone, at 300 milligrams each. Of these dosage units, 7,432 were unaccounted for. The differences in the drugs unaccounted for between the two audits was caused by the credit given by an agent of D.P.S. for the “Home Care and Research Studies” that Appellant was conducting with his two sons, utilizing the drug. In October, 1981, Appellee charged Appellant with a violation of Tex.Rev.Civ.Stat.Ann. art. 4505(4)(B) (Vernon 1976), alleging that his failure to keep complete and accurate records of controlled substances violated the statute. On October 23, 1981, after conducting a hearing on the charge, Appellee issued an order revoking and cancelling Appellant’s license to practice medicine. Appellant perfected his appeal to the 269th District Court of Harris County, Texas. On March 8, 1982, the court remanded the cause to Appellee for further findings of fact and conclusions of law. In April, 1982, pursuant to a conference call public meeting, Appellee Board unanimously concluded that Appellant’s conduct was of a type that was likely to deceive or defraud the public. The Board filed supplemental findings of fact, which are not a part of the record. However, the district court made a docket entry on April 28, 1982, reflecting such findings. The order of Appellee was affirmed by the court on May 17, 1982, with the provision that, pending final judgment, Appellant would neither order, possess, dispense, administer, nor prescribe any controlled substance, as set forth in Tex.Rev. Civ.Stat.Ann. art. 4476-15 (Vernon Supp. 1982-1983) and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236 (1970). Appellant’s motion for new trial was overruled on May 21, 1982.

In his sole point of error, Appellant alleges that the trial court erred in upholding the revocation of Appellant’s medical license, since there was not even a scintilla of evidence, much less substantial evidence, in the record that his failure to keep complete and accurate drug records was likely to deceive or defraud the public. We disagree.

The statute under which Appellant was charged states, in part:

Art. 4505. May refuse to admit certain persons:

The State Board of Medical Examiners may refuse to admit persons to its examinations, and to issue license to practice medicine to any person, for any of the following reasons:
(4) Unprofessional or dishonorable conduct which is likely to deceive or defraud the public. Unprofessional or dishonorable conduct shall include, but shall not be limited, to the following acts:
(B) Failure to keep complete and accurate records of purchases and disposals of drugs listed in Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon’s Texas Penal Code), or of narcotic drugs. A physician shall keep records of his purchases and disposals of the aforesaid drugs to include, but not limited to, date of purchase, sale or disposal of such drugs by the doctor, the name and address of the person receiving the drugs and the reason for disposing of or dispensing the drug to such person. A failure to keep such records shall be grounds for revoking, cancelling, suspending or probating the license of any practitioner of medicine. (Emphasis added).

Tex.Rev.Civ.Stat.Ann. art. 4506 (Vernon 1976) grants power to Appellee to cancel, revoke or suspend the license of a physician for causes enumerated in Tex.Rev.Civ.Stat. Ann. art. 4505 (Vernon 1976). An appeal from such revocation operates under the “substantial evidence” rule, as required by [798]*798Tex.Rev.Civ.Stat.Ann. arts. 4506 (Vernon 1976) and 6252-13a § 19 (Vernon Supp. 1982-1983).

Art. 4505(4)(B) contains three elements which must be established:

(1) Unprofessional or dishonorable conduct;
(2) likely to deceive or defraud;
(3) the public.

Reviewing the facts presented in Appel-lee’s hearing, it is uncontroverted that the drug methaqualone is a drug listed in Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon’s Texas Penal Code). It is further undisputed that Appellant failed to keep complete and accurate records of purchases and disposals of methaqualone. Appellant’s conduct was clearly unprofessional and dishonorable, pursuant to article 4505(4)(B).

Patients of a doctor are unquestionably members of “the public” within the meaning of the Act. Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609 (1959). Further, if a doctor treats members of his own family, they are considered “patients”.

The only remaining question under article 4505(4)(B) is whether the conduct of Appellant was likely to deceive or defraud the public. Appellant directs this Court to Tex. Rev.Civ.Stat.Ann. art. 4495b § 3.08(4)(B), known as the Medical Practice Act. This act is not applicable because it became effective August 5, 1981, repealing article 4505, and the acts complained of were committed prior to August, 1981. It is important to note, however, that the new act states:

Sec. 3.08(4) unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public. Unprofessional or dishonorable conduct likely to deceive or defraud the public includes but is not limited to the following acts:
(B) failing to keep complete and accurate records ... (Emphasis added);

whereas article 4505(4)(B) stated:

(4) Unprofessional or dishonorable conduct which is likely to deceive or defraud the public. Unprofessional or dishonorable conduct shall include, but shall not be limited to, the following acts:
(B) Failure to keep complete and accurate records ...

It appears clear to this court that Vernon’s Texas Penal Code.) It is further the Legislature intended to declare the failure to keep complete and accurate records of controlled substances conduct which was unprofessional or dishonorable and which was likely to deceive or defraud the public. This legislative intent was not expressed in article 4505(4)(B), the statute which applies in this case. Therefore, an affirmance by this court of the judgment of the court below requires that the record contain substantial evidence that Appellant’s failure to keep complete and accurate records was likely to deceive or defraud the public. The evidence on this point includes the following:

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Related

Texas State Board of Medical Examiners v. Koepsel
322 S.W.2d 609 (Texas Supreme Court, 1959)
Berry v. State
135 S.W. 631 (Court of Appeals of Texas, 1911)

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Bluebook (online)
654 S.W.2d 796, 1983 Tex. App. LEXIS 4689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/le-pere-v-texas-state-board-of-medical-examiners-texapp-1983.