Dr. Van Boven Goes to the State’s Highest Court

Robert Van Boven at an earlier judicial proceeding in 2020. (Photo by John Anderson)

On Wednesday morning, Sept. 29, Dr. Robert Van Boven represented himself before the Texas Supreme Court, presumably the final stand in his years-long effort to defend his reputation and career from the official intransigence of the Texas Medical Board.

Van Boven hopes the Court will require the TMB to fully and clearly acknowledge his 2017 exoneration from charges of wrongful behavior in his Lakeway neurology practice. The TMB has responded with seemingly endless litigation, featuring a phalanx of attorneys from the office of Texas Attorney General Ken Paxton.

“I don’t know what’s best for me personally,” a visibly emotional Van Boven told the Court, “but I know what’s best for us as a people.” He was asking that the Court require the TMB to abide by its own regulations and state law, and to clear his name in federal and state records. Despite Van Boven’s exoneration at the State Office of Administrative Hearings, TMB officials have adamantly refused to remove the original allegations from the public record – on highly technical grounds, but with the persistent implication that the doctor must be guilty of … something.

At the close of his argument, Van Boven was momentarily near tears, as he told the Court, “Prevailing [against the TMB] has ruined my life,” making it essentially impossible to practice his medical profession or support his family – because the agency has simply refused to acknowledge its defeat at SOAH. As the doctor’s briefs as well as the amicus letters of professional organizations have argued, the TMB’s defiance of state law and SOAH authority undermines due process for all doctors and other healthcare practitioners.

At Wednesday’s hearing, Deputy Solicitor General Bill Davis was the latest of a half-dozen state attorneys defending the agency, insisting that the TMB was only following standard procedure and the reporting process required by the National Practitioner Data Bank – the federal agency which lists disciplinary charges filed against doctors. Davis repeated the TMB’s initial, nonsensical claim that Van Boven could have appealed his exoneration to state court, but added the more recent claim that since the Data Bank is maintained by a federal agency, Van Boven’s only recourse to remove (or “void”) his damaging listing would be to appeal to federal court. Feigning sympathy for Van Boven’s predicament, Davis told the justices that the TMB’s hands are tied on the one hand by state law, on the other by NPDB procedure.

As a group, the justices seemed quite skeptical of Davis’s presentation. Justices Debra Lehrmann and Jeffrey Boyd did ask Van Boven if he thought the state rules governing TMB reporting requirements are sufficiently clear to mandate removing the negative listing at the NPDB – key to to Van Boven’s position that in refusing to do so, the officials are acting “ultra vires” (beyond their authority). But several justices more sharply questioned Davis’s claims that Van Boven’s exoneration by SOAH did not constitute an “overturning [of the initial charges] on appeal,” because SOAH is not “a court.”

Justice Rebeca Huddle responded that despite Davis’s insistence, the NPDB regulations in fact state that a “court” decision is only one example of a potential dismissal on appeal. Justice Jimmy Blacklock and Chief Justice Nathan Hecht noted that under Davis’s interpretation there would never be a circumstance in which the TMB would “void” an allegation originally made against a doctor — making a mockery of both due process and a TMB system supposedly created for the purpose of “protecting public health and safety.”

”The question is, how does the process serve the purpose?” asked Hecht. “So it doesn’t serve the purpose.”

Lehrmann noted that despite the TMB’s claim of helplessness to clear Van Boven’s public record, the negative posting at the NPDB remains a “scarlet letter” against a doctor whose exoneration has been officially confirmed by the TMB itself. Van Boven said that his medical blacklisting by the TMB has persisted for years – and he asked the Court to finally and officially clear his name.

He told the justices, “There is no punishment without a crime.”

Livestreams of Texas Supreme Court hearings are posted and archived on the Court’s YouTube channel.

For more detail, see “Van Boven vs. the Texas Medical Board: Now at the State’s Highest Court,” Sept. 28.

For the full history, see austinchronicle.com/robert-van-boven.