Baker v. Texas Med. Bd. (Summary)

LICENSING ACTION

Baker v. Texas Med. Bd., No. 03-12-00313-CV (Tex. App. Feb. 6, 2013)

An appellate court affirmed the decision of a state medical board to revoke the license of an orthopedic surgeon. The physician had a history of violating the standard of care with respect to surgical and non-surgical patients and deviating from the standard of care in post-operative patients.  As a result of these complaints, the physician and the Board had entered into an Agreed Order with conditions, including that the physician “shall not perform or be present at any spinal surgery.”  Four days after the Agreed Order went into effect, the physician performed kyphoplasty.

The Board ordered the temporary suspension of the physician’s license. Initially, after a settlement conference, the disciplinary panel offered the physician a new agreement, which he signed.  However, the Board rejected this agreement and filed a complaint against the Physician.  At the administrative hearing, the administrative law judge proposed the revocation of the physician’s license, and the Board adopted this recommendation.

The physician then sought judicial review. The trial court affirmed the Board’s decision. On appeal, the physician argued that there was no substantial evidence that kyphoplasty was a spinal surgery. The appellate court disagreed, finding that kyphoplasty constituted spinal surgery, because it involved drilling into the pedicle, inserting a “K-wire,” and injecting bone cement into the space between the vertebrae.  In addition, expert testimony supported that this procedure constituted spinal surgery.  The appellate court upheld the decision to revoke the Physician’s license.