TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00227-CV
Tommy E. Swate, M.D., Appellant
v.
Texas Tech University and Texas Tech University Health Sciences Center, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 97-12764, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
Dr. Tommy E. Swate challenges his dismissal from the anesthesiology residency program at the Texas Tech University Health Sciences Center in El Paso. By this appeal, he challenges the trial court's denial of his request for a temporary injunction. We will affirm the trial court's order.
THE UNDERLYING CONTROVERSY
Swate, a licensed physician, wanted to go through a medical school residency program to become an obstetric anesthesiologist. He sent an application to Tech's Lubbock center, but was rejected. He then sent his curriculum vitae and some letters of recommendation to Tech in El Paso; Swate and El Paso officials disagree whether he sent a completed formal application to El Paso and whether the documents he sent were altered. He interviewed in El Paso in April 1997 and signed a contract in May 1997 for a three-year residency. (All dates are in 1997 unless otherwise noted.) On June 20, for reasons unexplained, Lubbock faxed El Paso his Lubbock application; attached to the application was his disclosure statement regarding the actions by the Texas State Board of Medical Examiners ("Texas Board"). He started the residency July 1. There were no complaints regarding his performance.
On July 31, the coordinator of graduate medical education at the Lubbock campus notified in writing her counterpart at El Paso that Swate's medical license had been suspended, with the suspension probated. The Lubbock coordinator stated the suspension was due to professional failure to practice medicine in an acceptable manner consistent with public health and welfare, repeated or recurring meritorious health-care liability claims, unprofessional or dishonorable conduct, and disciplinary action taken by another state. The El Paso coordinator informed Dr. Manuel Schydlower, assistant dean for medical education and chair of the graduate medical education committee. Schydlower notified Dr. David Raphael, director of the anesthesiology residency program, and suspended Swate with pay pending an investigation.
On August 5, Swate met informally with Schydlower, Raphael, a Tech attorney, and El Paso's regional dean, Dr. Manuel de la Rosa. Swate told them that his file under review lacked his El Paso application, letters of recommendation, and letters he had written El Paso.
Thereafter, at Schydlower's request, the Texas Board provided a copy of its agreed order regarding the probation of the suspension of Swate's medical license. Though the order does not prohibit Swate from being an anesthesiologist or dispensing narcotics, it concerned the El Paso staff. The order mentions alleged violations of various state and federal regulations while Swate operated methadone clinics, allegations mooted when Swate relinquished control of the clinics before evidence was presented. The Texas Board found that, though Swate told the Louisiana Board of Medical Examiners that he did not engage in the practice of medicine from 1990-1993, he practiced medicine as medical director of the methadone clinics during that time. The Texas Board also found he withheld from the Louisiana Board information regarding the revocation of the methadone clinic licenses. The Texas Board ordered that Swate complete a residency program and permitted him to work in an institutional setting or emergency room. The order specifies strict compliance with paperwork requirements. It mandates that he "give a copy of this order to all hospitals and health care entities where he admits or accepts patients." In a 1992 order, the Texas Board detailed many specific patient complaints related to Swate's performance of abortions and one complaint regarding the impact of his abrupt closure of his medical practice. It restrained him from performing abortions.
After reviewing the agreed order, de la Rosa decided that Swate's failure to disclose his past difficulties violated section 3(b) of Tech's Graduate Medical Education Program Agreement which provides:
This appointment is conditional upon successful completion of all requirements of the Texas State Board of Medical Examiners and of any requirements specified by the department offering the resident appointment, prior to assuming duties at TTUHSC. Each resident has an affirmative duty to timely disclose any information to the Program Director which could reasonably affect eligibility, inability to obtain a license, inability to pursue training or provide patient care, or any incident involving moral turpitude of the resident. In the event a resident is unable to meet the requirements for practicing at any of the affiliated hospitals or participating institutions, this agreement is invalid.
By letter dated August 15, De la Rosa informed Swate that his violation of section 3(b) voided the residency contract.
Swate appealed his termination. Tech's House Staff Administrative Guidelines required Schydlower, as chair of the graduate medical education ("GME") committee, to appoint an appeal review subcommittee consisting of three faculty from the GME committee and a representative from the house staff (residents). Swate could introduce evidence and appear with legal counsel in an advisory capacity. The subcommittee would report its findings to the GME committee and make a recommendation to the regional dean, who would make a recommendation to the dean of Tech's entire school of medicine, Joel Kupersmith.
The subcommittee met with Swate and considered testimony, evidence, and argument; apart from (and possibly after) that hearing, the chair of the subcommittee called the Texas Board for an opinion regarding the requirement that Swate give a copy of the agreed order to all health care entities where he "admits or accepts" patients. Swate argued at the hearing that he neither admitted nor accepted patients as an anesthesiology resident. The subcommittee reported, however, that a Texas Board representative opined that an anesthesiology resident "accepts" patients. The subcommittee accordingly found that Swate should have given a copy of the agreed order to the Tech center in El Paso.
The subcommittee recommended dismissal because Swate failed to provide "full accurate, complete and truthful disclosure of his medical licensure restrictions" as required by section 3(b) of the GME program agreement. The subcommittee also noted discrepancies between his alleged El Paso application, his Lubbock application, and the agreed order. They accordingly supported Dean de la Rosa's conclusion that the violation of the GME program agreement rendered the residency contract void. This decision was affirmed up the chain of review, culminating with Dean Kupersmith terminating Swate's residency by letter dated October 2.
Swate filed this suit complaining that irregularities in the suspension review deprived him of due process. He requested a temporary and permanent injunction requiring his reinstatement to the residency program. At the hearing on the temporary injunction, Swate orally requested the injunction require his reinstatement pending a hearing providing him due process. This interlocutory appeal followed the trial court's denial of his request for temporary injunction.
THE STANDARD OF REVIEW
We review the denial of a temporary injunction for an abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). A trial court may grant a temporary injunction if the applicant is entitled to the preservation of the status quo of the suit's subject matter pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). The applicant need not prove that he will prevail on trial of the merits, but only that he probably will prevail and that he probably will be injured if the status quo is not preserved. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968) (cited by Walling, 863 S.W.2d at 58). An abuse of discretion does not exist where the court bases its decision on conflicting evidence. Davis, 571 S.W.2d at 862.
The supreme court has declined to specify what process must be afforded during disciplinary dismissals from state-supported universities. University of Texas Med. Sch. v. Than, 901 S.W.2d 926, 931 (Tex. 1995). The minimum guarantees are oral or written notice of the charges against the student and, if the student denies the charges, an explanation of the evidence the authorities have and an opportunity to present his side of the story. Id. The court expressly refused to impose inflexible procedural requirements on the academic proceeding. Id.
ANALYSIS
Swate complains that the trial court abused its discretion by failing to grant the temporary injunction. He contends on appeal that the record shows Tech violated his right to due process by failing to provide an impartial panel to review his dismissal, by failing to provide notice of all charges and witnesses before the hearing, and by considering evidence outside the record of the hearing.
The trial court did not abuse its discretion by concluding Swate failed to show he probably will prove that bias by the subcommittee members deprived him of due process. Swate contends the members were biased against him because they were subordinate to de la Rosa and Schydlower, the deans whose suspension of Swate the subcommittee was reviewing. Other than this inference, Swate provided no proof of the alleged bias. Swate cites no authority that a subcommittee drawn from persons subordinate to the dean is biased per se. We conclude that the trial court did not abuse its discretion by finding that Swate did not show he likely would prove at trial that bias deprived him of due process.
Nor did the trial court abuse its discretion by concluding that Swate did not show he probably will prove deprivation of due process from deficiencies in the notice of charges, witnesses, and evidence. Swate alleges that the only notice of the complaint lodged against him was in a letter dated September 4, 1997, from Schydlower to Swate. Schydlower wrote the following:
A full disclosure of background medical and licensure information are essential for fair and appropriate assessment of the applicant prior to appointment and employment. At the time of your interview and acceptance, the TTUHSC-EP Department of Anesthesiology had no data about your prior and current licensure restrictions, probation and terms of probation to make a fully informed decision and choice about your application. TTUHSC-EP and its Department of Anesthesiology became aware of non-disclosed information regarding your licensure for the first time on July 31, 1997. TTUHSC-EP and the Department of Anesthesiology did not have a TTUHSC-El Paso application from you, and there was no disclosure of current and previous restrictions of your Texas and Louisiana medical licenses either personally at the interviews or in the curriculum vitae and personal statement that you provided. Your TTUHSC-Lubbock application and different curriculum vitae with a disclosure were sent inadvertently to the Office of GME in El Paso. On June 20, 1997 and Administrative Assistant filed them without first directing them to the attention of the Chair of Anesthesiology, or the Assistant Dean for Medical Education. This occurred after your acceptance to the residency and 12 days before the beginning of the academic year.
This resembles the basis the subcommittee stated in its report recommending Swate's dismissal. The subcommittee wrote that
we do not believe that Dr. Swate provided full, accurate, complete and truthful disclosure of his medical licensure restrictions in Texas and other states. We have noted his conflicting, false or incomplete answers to TTUHSC application questions concerning medical liability claims and actions concerning DEA/controlled substances registration.
We find no abuse of discretion in the trial court's conclusion that Swate failed to show he probably will prove a due-process violation.
Swate focuses on the ex parte telephone call between the subcommittee chair and someone from the Texas Board regarding whether the Texas Board believed anesthesiology residents "accept" patients within the terms of the agreed order. Swate contends the call deprived him of notice that a Texas Board witness would be called as well as the opportunity to cross-examine this witness and to argue against the witness's opinion. He contends that this call resembles the ex parte evidence-gathering by the hearings examiner found to deny due process in Than.
Than was accused of cheating on a medical school test and dismissed from school after appearing before a hearings examiner. 901 S.W.2d at 928. The supreme court held that he was denied due process when the hearing officer did not let him accompany her and an associate dean when they visited the room in which he took the test and did not let him respond to their findings. Id. at 931-32. The supreme court held that Than's substantial interest in continuing his medical education and preserving his good name outweighed the relatively small burden in allowing him to join the site visit and to respond to the findings; the court found this balance significant because the hearing officer relied on the visit in her decision. Id. at 932.
We conclude that the trial court below did not abuse its discretion by concluding that Swate did not show he likely would prove a due-process violation. As in Than, the subcommittee included in its findings information gathered outside the hearing. See id. A difference in the information gathered distinguishes this case from Than, however. Than's hearings examiner sat in the seats occupied by Than and the person he was accused of copying before concluding that Than could have seen the other student's paper clearly. Id. Had Than been allowed to participate in the viewing of the room, he could have debated details like body positions of those involved that might affect whether he could have seen the other student's test paper. In this case, the Texas Board told the subcommittee's chair that the Texas Board believed Swate "accepted" patients within the meaning of the agreed order; this was not the chair's conjecture about how the Texas Board might enforce the order, but a statement from the Texas Board regarding how it interprets its own order. Swate gave his contrary interpretation of the order at the hearing, stating that "he neither 'admits or accepts' patients as an anesthesiology resident and that his lawyer said that he 'did not have to' provide a copy of the Order." He did not explain here or at trial what his participation in or after the call to the Texas Board would have changed. The trial court did not abuse its discretion by concluding that Swate did not show he likely would prove a denial of due process from the chair's participation in and use of the call to the Texas Board.
Swate finally asserts on appeal that "[s]everal of the items listed as justifications for Swate's dismissal in the committee's report were not discussed during the hearing, nor were they contained in the Agreed Order." Swate also asserts that "[m]any of the facts contained in the findings were false and could have been refuted by Dr. Swate, however, he was not given notice that such matters were being considered or an opportunity to respond to such evidence." The citations to the record that he gives after the first quoted sentence refer to the subcommittee report and agreed order, but to no particular findings. The record references after the second quoted sentence refer to testimony about the telephone call from the subcommittee chair to the Texas Board. Neither cite tells us what items were not discussed during the hearing or what facts or justifications he disputes other than the Texas Board's opinion regarding the interpretation of "accepts patients" in its agreed order. Our review of the subcommittee report and the agreed order reveal no other ex parte influence or clearly incorrect findings. Swate's failure to challenge specific justifications or fact-findings renders review of his allegations impossible.
CONCLUSION
Having resolved the issues in this appeal against Swate, we hold that the trial court did not abuse its discretion by denying Swate's request for temporary injunction because he did not show that he probably will be able to prove that Tech denied him due process.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Kidd and Powers*
Affirmed
Filed: March 4, 1999
Do Not Publish
* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
e visit in her decision. Id. at 932.
We conclude that the trial court below did not abuse its discretion by concluding that Swate did not show he likely would prove a due-process violation. As in Than, the subcommittee included in its findings information gathered outside the hearing. See id. A difference in the information gathered distinguishes this case from Than, however. Than's hearings examiner sat in the seats occupied by Than and the person he was accused of copying before concluding that Than could have seen the other student's paper clearly. Id. Had Than been allowed to participate in the viewing of the room, he could have debated details like body positions of those involved that might affect whether he could have seen the other student's test paper. In this case, the Texas Board told the subcommittee's chair that the Texas Board believed Swate "accepted" patients within the meaning of the agreed order; this was not the chair's conjecture about how the Texas Board might enforce the order, but a statement from the Texas Board regarding how it interprets its own order. Swate gave his contrary interpretation of the order at the hearing, stating that "he neither 'admits or accepts' patients as an anesthesiology resident and that his lawyer said that he 'did not have to' provide a copy of the Order." He did not explain here or at trial what his participation in or after the call to the Texas Board would have changed. The trial court did not abuse its discretion by concluding that Swate did not show he likely would prove a denial of due process from the chair's participation in and use of the call to the Texas Board.
Swate finally asserts on appeal that "[s]everal of the items listed as justifications for Swate's dismissal in the committee's report were not discussed during the hearing, nor were they contained in the Agreed Order." Swate also asserts that "[m]any of the facts contained in the findings were false and could have been refuted by Dr. Swate, however, he was not given notice that such matters were being considered or an opportunity to respond to such evidence." The citations to the record that he gives after the