Appeals Court Rules Against the Texas Medical Board http://flash.lymenet.org/ubb/ultimatebb.php/topic/3/26220
TX Lyme Mom
Frequent Contributor (1K+ posts)
Member # 3162
posted 12-10-2010 04:59 PM
There is good news for physicians and their patients in Texas.
I don't know if this news item has been posted here at Lymenet yet or not, and I'm also not sure which is the right forum to post it in anyway -- in case a moderator wants to move this topic elsewhere.
http://www.aapsonline.org/newsoftheday/001438
This lawsuit has been brewing for several years, and I was beginning to worry that this case was a lost cause, so this recent ruling by the appeals court is very good news indeed.
Furthermore, because the Federation of State Medical Boards is based in Dallas, TX and because the FSMB has been trying to use Texas as their model in order to bring other states in line with the way our Texas Medical Board operates, this ruling will spell good news for patients and physicians everywhere in the US.
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U.S. Court of Appeals Rules against the Texas Medical Board
Posted on December 3, 2010 by admin
The U.S. Court of Appeals for the Fifth Circuit ruled, on December 2, 2010, against the Texas Medical Board (TM
, allowing landmark litigation by the Association of American Physicians and Surgeon to proceed to prove wrongdoing by the Board.
Among the claims of “pervasive and continuing violations of … constitutional rights” by the TMB, the Court expressly noted allegations that “the Board manipulated anonymous complaints,” that the former Board president targeted physicians, and that “anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying … for claims.”
The unanimous Court described the allegations as “rather dramatic claims,” and sent the case to the federal trial court so that discovery can proceed.
The TMB will no longer be able to conceal its wrongdoing against good physicians.
Physicians brought before a licensure board can be financially ruined by unconstitutional proceedings, even if exonerated, or they can lose their livelihood altogether.
Instead of using their enormous power for the purpose of protecting the public, board members can deprive thousands of patients of access to good physicians simply because an anonymous complainant held a grudge against the physician, or dislikes freedom in medicine.
TMB argued that only individual physicians had standing to sue.
AAPS noted, however, that individuals could not typically prove a pattern of abuse involving other physicians. Moreover, physicians fear retaliation for complaining about the Board.
The Court ruled that:
“If practiced systemically, such abuses may have violated or chilled AAPS members’ constitutional rights. Proof of these misdeeds could establish a pattern with evidence from the Board’s witnesses and files and from a small but significant sample of physicians.”
One Texas physician writes:
“I can’t tell you how fearful doctors are of the TMB. Knowing that with each disgruntled employee, angry neighbor, or aggressive competitor, we could lose our license, the practice of medicine has become one of fear. Thank you for your fight, and I hope many physicians will be sleeping more easily…at least in Texas!”
AAPS is a national organization representing physicians in all specialties.
The entire decision is available below.
The complaint, other documents, and a link to an audiorecording of the oral argument are at
http://www.aapsonline.org/hallofshame/tx.php.
Opinion Issued by U.S. Fifth Circuit Court of Appeals
----------------------------------------------------
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT No. 09-50953
ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS INC,
Plaintiff – Appellantv.TEXAS MEDICAL BOARD, (TM; ROBERTA M. KALAFUT, Individually and in her Official Capacity;
LAWRENCE L. ANDERSON, Individually and in his Official Capacity;
MICHAEL ARAMBULA, Individually and in his Official Capacity;
JULIE K. ATTEBURY, Individually and in her Official Capacity;
JOSE BENAVIDES, Individually and in his Official Capacity;
PATRICIA S.BLACKWELL, Individually and in her Official Capacity;
MELINDA S.FREDRICKS, Individually and in her Official Capacity;
MANUAL G.GUARJARDO, Individually and in his Official Capacity;
AMANULLAH KAHN,Individually and in his Official Capacity;
MELINDA MCMICHAEL, Individuallyand in her Official Capacity;
MARGARET MCNEESE, Individually and in herOfficial Capacity;
CHARLES E. OSWALT, Individually and in his OfficialCapacity;
LARRY PRICE, Individually and in his Official Capacity;
ANNETTE P. RAGGETT, Individually and in her Official Capacity;
PAULETTE BARKERSOUTHARD, Individually and in her Official Capacity;
TIMOTHY J. TURNER,Individually and in his Official Capacity;
TIMOTHY WEBB, Individually and inhis Official Capacity;
IRVIN E. ZEITLER, Individually and in his Official Capacity;
DONALD PATRICK, Individually and in his Official Capacity;
JOHNDOES 1-10,
Who are working for the TMB, Individually and in their Official Capacities,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
United States Court of Appeals
Fifth Circuit
F I L E D December 2, 2010
Lyle W. Cayce Clerk
No. 09-50953
Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
EDITH H. JONES, Chief Judge:
The Association of American Physician and Surgeons (“AAPS”) sued theTexas State Board of Medical Examiners (“the Board”) under 42 U.S.C. § 1983for declaratory and injunctive relief against alleged constitutional violationsincluding the Board’s use of anonymous complaints and retaliatory actionsagainst physicians.
The district court dismissed the case based on AAPS’s lackof standing, noting an absence of “Fifth Circuit authority directly on point for thetypes of claims raised in this cause.
”Weighing in on this issue, we conclude that AAPS has standing to bringthis suit on behalf of its members. The judgment is therefore vacated and thecase remanded for further proceedings.I.
BACKGROUND
AAPS is a not-for-profit membership organization incorporated under thelaws of Indiana and headquartered in Tucson, Arizona.
Its membership includesthousands of physicians in nearly every state, including Texas.
AAPS assertsthat part of its mission is to protect its members from arbitrary and unlawfulgovernmental action.
The Board “is an agency of the executive branch of state government withthe power to regulate the practice of medicine.”
TEX. OCC. CODE§ 152.001.
TheBoard consists of nineteen members appointed by the governor – twelvephysicians and seven members of the public.Id.§ 152.002.
At the time this casewas filed, Dr. Roberta Kalafut was the Board’s president, and LawrenceAnderson was chair of the Disciplinary Process Review Committee.
The othernamed and unnamed defendants were Board members and employees. TheBoard has statutory authority to discipline physicians for misconduct.See, e.g.,id.§ 164.001.2
No. 09-50953AAPS sued the Board on behalf of its members for what it describes aspervasive and continuing violations of members’ constitutional rights.
AAPS alleged first that the Board manipulated anonymous complaints.
Illustratively,Kalafut targeted physicians using anonymous complaints filed by her husband,and anonymous complaints allegedly were filed by a New York insurancecompany seeking to avoid paying a physician for claims.
Second, AAPS allegedthat the Board knew that the former chairman of its Disciplinary ProcessReview Committee, Keith Miller, was operating with a significant conflict of interest, but it took no corrective action and failed to disclose the conflict to thepublic or the physicians subject to discipline.
Dr. Miller was allegedly an expertwitness for plaintiffs in up to fifty malpractice cases during his tenure as chairof the committee and generated business for himself as an expert by improperlydisciplining physicians.
Third, AAPS alleged that the Board arbitrarily rejected a decision in favorof a doctor by an administrative law judge from the State Office of Administrative Hearings, and then issued a sanction that damaged thephysician’s reputation.
Fourth, AAPS asserted that the Board violated AAPSmembers’ privacy by releasing unproven facts and records concerningdisciplinary cases.
Finally, AAPS alleged that the Board has retaliated againstphysicians who have complained about the Board by subjecting them todisciplinary proceedings and derogatory public comments.
AAPS allegedviolations of the confrontation clause and the due process, equal protection, andfree speech provisions of the Constitution, and violation of federal statutoryprivacy requirements.1
The Board’s answer included a number of affirmative defenses and soughtdismissal under Fed. Rule Civ. Pro. 12(b)(1), arguing that AAPS lacked standing AAPS’s complaint cites the Health Insurance Portability and Accountability Act1(HIPPA), codified at 29 U.S.C. § 1181et seq.3
No. 09-50953to sue on behalf of its members.
In the midst of ongoing discovery disputes, thedistrict court granted the motion to dismiss.
AAPS appeals under 28 U.S.C.§ 1291.II.
STANDARD OF REVIEW “We reviewde novomotions to dismiss and motions for judgment on thepleadings.”
Jebaco, Inc. v. Harrah’s Operating Co., Inc., 587 F.3d 314, 318 (5thCir. 2009) (citations omitted).
“[W]hen standing is challenged on the basis of thepleadings,” we must “accept as true all material allegations of the complaintand . . . construe the complaint in favor of the complaining party.”Pennell v.City of San Jose, 485 U.S. 1, 7, 108 S. Ct. 849, 855 (1988) (citations and internalquotation omitted).III.
DISCUSSION
“There is no question that an association may have standing in its ownright to seek judicial relief from injury to itself and to vindicate whatever rightsand immunities the association itself may enjoy”, but “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.
”Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211 (1975).AAPS’s standing here depends on its ability to sue for redress of its members’grievances.
Thus,[A]n association has standing to bring suit on behalf of its memberswhen:
(a) its members would otherwise have standing to sue in theirown right;
(b) the interests it seeks to protect are germane to theorganization’s purpose; and
(c) neither the claim asserted nor therelief requested requires the participation of individual members inthe lawsuit.See Hunt v. Wash. St. Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434,2441 (1977).
The first two components of Huntaddress constitutionalrequirements, while the third prong is solely prudential.See United Food &4
No. 09-50953Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555,116 S. Ct. 1529, 1535 (1996).
Beyond question, AAPS satisfies the first and secondHuntprongs.
As to2the third prong, the Board argued that because AAPS’s claims require theparticipation of individual members, it cannot meet that test.
The district courtagreed that AAPS’s allegations about anonymous complaints, conflicts of interest, arbitrary administrative rulings, breaches of privacy, and retaliationcannot be sustained without the extensive participation of individual membersand therefore render associational standing improper.
We hold otherwise.BecauseHunt’s third prong is prudential, “the general prohibition on alitigant’s raising another person’s legal rights is a judicially self-imposed limi[t]on the exercise of federal jurisdiction, not a constitutional mandate.
”BrownGrp., 517 U.S. at 557, 116 S. Ct. at 1536 (citations and quotations omitted).
The third prong focuses importantly on “matters of administrative convenience andefficiency.”
Id.Courts assess this prong by examining both the relief requestedand the claims asserted.Cornerstone Christian Schs. v. Univ. InterscholasticLeague, 563 F.3d 127, 134 n.5 (5th Cir. 2009).
In general, “an association’saction for damages running solely to its members would be barred for want of the association’s standing to sue.
”Brown Grp., 517 U.S. at 546, 116 S. Ct. at1531.
But in this case, AAPS seeks declaratory and injunctive relief.
The first prong never has been in question, but the second prong was disputed at the2dismissal stage, when the Board argued that the individual interests at issue are not germaneto AAPS’s purpose.
The district court did not address that argument because it found thethirdHuntprong dispositive.
The Board, however, neither briefed nor argued thegermaneness requirement before this court and therefore abandoned it.
Regardless, thegermaneness requirement is “undemanding” and requires “mere pertinence” between thelitigation at issue and the organization’s purpose.
See Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 148 (2nd Cir. 2006).
Through its affidavits andacts, AAPS has demonstrated its obvious interest in representing its members against allegedgovernmental abuse.
AAPS easily surpasses the low threshold of Hunt’s germaneness prong.5
No. 09-50953As the district court noted, this court has not had occasion to considerHunt’s third prong with respect to claims similar to those AAPS alleges.
Other3circuits have diverged in analogous cases.
AAPS relies on precedents from theThird and Seventh Circuits, which allow standing if an association plaintiff canprove its case with a sampling of evidence from its members.
See Pa. PsychiatricSoc’y v. Green Spring Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002);
Hosp.Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83 (3d Cir. 1991);
Retired Chi.Police Ass’n v. City of Chi., 7 F.3d 584, 601–02, 608 (7th Cir. 1993).
The Board,in contrast, emphasizes the Tenth Circuit’s rejection of an association’s standinginKansas Health Care Association, Inc. v. Kansas Department of Social &Rehabilitation Services, 958 F.2d 1018 (10th Cir. 1992).
The Third Circuit’s approach is instructive. InHospital Council, aconstitutional challenge was filed against certain cities’ alleged practice of coercing tax-exempt hospitals into making payments in order to obtain zoningapproval, protect their tax-exempt status, and secure other governmentalbenefits.Id.at 85.
Then-Judge Alito explained that although evidence wouldbe needed from certain individual hospitals and their employees in order toprove whether the challenged policy had been enforced,
the participation of allof the individual members was unnecessary and thus associational standingwas appropriate. Id. at 89–90;
see also Pa. Psychiatric Soc’y, 280 F.3d at 287(holding that plaintiff could attempt to establish associational standing withlimited individual member participation).
We rejected associational standing inFriends for American Free Enterprise3Association v. Wal-Mart Stores, Inc., because the plaintiff’s common law tortious interferenceclaims at issue were wholly fact-specific as to the individual members.
284 F.3d 575 (5th Cir.2002).
Likewise, inCornerstone Christian Schools v. University Scholastic League,associational standing was rejected for plaintiffs asserting a free exercise claim.
563 F.3d 127(2009) (citingHarris v. McRae, 448 U.S. 297, 100 S. Ct. 2671 (1980)).
Neither case isparticularly instructive here.6
No. 09-50953 The Seventh Circuit expressly adopted the Third Circuit’s reasoning inRetired Chicago Police Association,a suit seeking to prohibit the city fromchanging the terms of annuitant health care costs under the city’s pension plan.7 F.3d at 590.
To prove the case for a contract breach, some retirees would needto submit evidence, but the active participation of each annuitant would not be required.Id.at 601–03.
The court noted:
We can discern no indication in Warth, Hunt, or Brockthat theSupreme Court intended to limit representational standing to casesin which it would not be necessary to take any evidence fromindividual members of an association.
Such a stringent limitation onrepresentational standing cannot be squared with the Court’sassessment inBrockof the efficiencies for both the litigant and thejudicial system from the use of representational standing. Id. at 601-02.
Both of these circuits interpret Huntto mean, in light of the Court’sprevious decision inWarth, that as long as resolution of the claims benefits theassociation’s members and the claims can be proven by evidence fromrepresentative injured members,
without a fact-intensive-individual inquiry, theparticipation of those individual members will not thwart associational standing.
See also Pa. Psychiatric Soc’y, 280 F.3d at 286.
The Tenth Circuit, however, refused to grant associational standing to amedical services provider association that sought a preliminary injunctionagainst Kansas’s planned Medicaid reimbursement rate freeze.
See KansasHealth Care Ass’n, 958 F.2d at 1018.
Among other things, the associationargued that the state’s findings as to reimbursement rates did not comply withfederal law.Id.at 1020.
The Tenth Circuit held that determining the adequacyof the rates would “necessarily require individual participation of theassociations’ members.”Id.at 1023.
Further, to assess the state’s compliancewith federally prescribed procedures in arriving at its reimbursement rate, the7
No. 09-50953district court would be required to make a detailed economic examination of individual providers.
The court acknowledged that “minimal participation” fromindividual members might not defeat associational standing,Id.at 1022 (citingAMISUB (PSL), Inc. v. Colo. Dep’t of Soc. Servs., 879 F.2d 789 (10th Cir.1989)),
but it held that the amount of individual participation necessary to prove theassociation’s specific claims foreclosed associational standing.
The differences between these decisions’ approach to associationalstanding are more of degree than kind.
Hunt’s prudential inquiry concerns bothclaims alleged and the relief sought because only a case-specific analysis willreveal whether an association or its individual members are better positioned topresent a case.
See Int’l Union, UAW v. Brock, 477 U.S. 274, 289-90, 106 S. Ct.2523, 2532-33 (1986) (comparing associational standing with class actioncriteria).
InHospital CouncilandRetired Chicago Police Association, a discretepattern of conduct or contract breach was alleged to have applied equally againsta large number of association members.
Proving the illegality of the pattern orbreach of contract required some evidence from members, but once proved as tosome, the violations would be proved as to all.
InKansas Health Care Association, however, the court carefullydistinguished between claims of administrative illegality that would beapparent with minimal factual development and those that could only be provenby intensive analysis of individual hospitals.
Because of their fact-sensitivity,the ratemaking inquiries before the court did not lend themselves to proof thatwould readily apply to all of the members.
The present case, on balance, more closely resemblesHospital CouncilthanKansas Health Care Association.
AAPS’s complaint alleged, among otherthings, abuses perpetrated on physicians by means of anonymous complaints,harassment of doctors who complained about the Board, and conflicts of interestby decision-makers.
If practiced systemically, such abuses may have violated or8 No. 09-50953 chilled AAPS members’ constitutional rights.
Proof of these misdeeds couldestablish a pattern with evidence from the Board’s witnesses and files and froma small but significant sample of physicians.
Because AAPS also seeks onlyequitable relief from these alleged violations, both the claims and relief appearto support judicially efficient management if associational standing is granted.In so holding, we “accept as true all material allegations of the complaintand . . . construe the complaint in favor of the complaining party,”
Pennell,supra, but we express no opinion on whether AAPS will ultimately be able toprove its rather dramatic claims.
Under these circumstances, dismissal underRule 12(b)(1) was improper. III.
CONCLUSION
Because AAPS was entitled to claim associational standing on behalf of itsmembers, we vacate and remand for further proceedings not inconsistent withthis opinion.
VACATED AND REMANDED.9
Opinion Issued by U.S. Fifth Circuit Court of Appeals
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bettyg note: i pasted it here; many words did NOT havespaces; i left them as is as it would have added another 1-2 hrs. of my time to separate words!!
