Saturday, August 20, 2005
Petition to regain unfairly revoked medical license by the TSBME
CAUSE NO. ______________
ROLAND F. CHALIFOUX JR., D.O. § IN THE DISTRICT COURT OF
§
vs. § TRAVIS COUNTY, TEXAS
§
THE TEXAS STATE BOARD OF §
MEDICAL EXAMINERS and §
DONALD W. PATRICK, M.D. § _______ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE COURT:
Roland F. Chalifoux, Jr., D.O., “Plaintiff” or “Dr. Chalifoux,” complains of the Texas State Board of Medical Examiners, hereinafter referred to as “Defendant” or the “Board” and Donald W. Patrick, M.D. in his official capacity as Executive Director of the Board. This petition complains of the actions and decisions of the Board pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. Sec. 2001.001 et. seq. (Vernon 2000) (“APA”); TEX. OCC. CODE ANN., Subtitle B (Vernon Pamphlet 2002) (the “Medical Practice Act” or “the Act”); The Texas Constitution, article 1, Sections 13 and 19; TEX. CIV. PRAC. and REM. CODE, Sections 37.004 and 37.008 (Uniform Declaratory Judgment Act (UDJA)); and other applicable law, and as grounds for review of a Board Order would respectfully show:
I.
PARTIES
A. Plaintiff. The Plaintiff is Roland F. Chalifoux, Jr., D.O. who is a resident of South Lake, Texas. Dr. Chalifoux is licensed by the Board.
B. Defendants. Defendant, Texas State Board of Medical Examiners, is an agency of the state with statewide jurisdiction and may be served by delivering a copy of this petition to its Executive Director, Donald W. Patrick, M.D., at 333 Guadalupe, Tower 3, Suite 610, Austin, Texas 78701.
Defendant, Donald W. Patrick, M.D., is Executive Director of the Board. He is being named in his official capacity as Executive Director. He may be served by delivering a copy of this petition to 333 Guadalupe, Tower 3, Suite 610, Austin, Texas 78701.
II.
JURISDICTION AND VENUE
A. This is an action under the APA and the Act relating to a decision of the Board. The Plaintiff seeks review of a decision of the Board pursuant to the APA, the Act, and other applicable constitutional and statutory law.
B. This is also an action under TEX. CIV. PRAC. and REM. CODE, Sections 37.004 and 37.008, UDJA, in order to resolve certain questions concerning the Order of the Board in question.
C. This is also an action seeking a Temporary Restraining Order and other injunctive relief as set forth in this petition.
III.
DEMAND FOR RECORD
In connection with a contested case before the Board, a record was made which included pleadings, evidence, exhibits, briefs, transcripts, oral argument, and the Order in question. The Board was required to make its decision, including findings of fact and conclusions of law, on the basis of such record. Demand is hereby made that the agency transmit the original or a certified copy of the entire record, including all transcribed meetings of the Board, oral argument, discussion of such proceedings and other evidence of such decision to the court within the time permitted by law for the filing of an answer in this cause.
IV.
FACTS AND PROCEDURAL HISTORY
1. A formal Complaint was docketed with the Board on the 19th day of July 2002.
2. The Staff subsequently referred this mater to the State Office of Administrative Hearings (SOAH). The matter was assigned to an Administrative Law Judge (ALJ) at SOAH.
3. A First Amended Complaint was served on Respondent on September 23, 2002.
4. The First Amended Complaint upon which this matter was tried contained 18 formal Counts.
5. An evidentiary hearing was held on this matter before Leslie Craven, ALJ, on October 22, 23, 24, 29, 30, 31 and November 1, 4, 5 and 8, 2002.
6. After the hearing, post-hearing closing arguments were submitted.
7. The original assigned ALJ did not draft the Proposal for Decision (PFD). The PFD was drafted by two ALJs who only read the record prior to the release of the PFD on March 30, 2004. These ALJs were Ann Landeros and Thomas H. Walston.
8. The PFD found that the original complaint contained 18 counts with approximately 83 allegations of wrongdoing. Rulings of the ALJ dismissed, at the conclusion of the Staff’s case, for lack of proof three counts of the complaint.
The PFD included a discussion and consideration of 15 counts of the Complaint. These counts contained approximately 78 allegations of wrongdoing. The PFD found that 12 counts were not proven. The counts which were not proven contained 73 allegations of wrongdoing that were not proven.
The remaining three counts considered by the PFD only took issue with five allegations of wrongdoing.
The PFD found no evidence of prior misconduct nor history of disciplinary action with the Board.
The PFD found that Plaintiff:
(1) is a caring physician who attempted to provide appropriate treatment;
(2) is intelligent and skillful;
(3) has a sincere concern for his patients; and
(4) is a competent physician.
The PFD, after considering all the evidence and circumstances, recommended five years of probation under certain terms and conditions.
9. The Plaintiff filed Exceptions to the PFD. A copy of such Exceptions and Reply to the Staff’s Exceptions are attached under Tab 1.
10. The Board considered the PFD at the June 4, 2004 meeting. At that meeting, a motion was made and adopted relating to the Order of the Board.
11. Dr. Chalifoux subsequently received a written Order. The Order was dated June 4, 2004. A copy of the Order dated June 4, 2004 is attached under Tab 2. The Board disregarded the three ALJs involved and on the same record and same proposed Findings of Fact, revoked Plaintiff’s license.
12. A timely Motion for Rehearing was filed. A copy of such motion is attached under Tab 3.
13. Respondent adopts by reference as if set forth herein or attached hereto, the administrative record in this matter, including Respondent’s pretrial and trial motions, Post Hearing Closing Argument, Exceptions to the PFD, replies and responses to such, Respondent’s Motion for Rehearing and all pleadings and request for relief made by or on behalf of Respondent.
14. This petition is being timely filed under the Act and APA.
V.
BASIS FOR CAUSE OF ACTION
The June 4, 2004 Order was entered in violation of the Administrative Procedure Act (APA), Sec. 2001.174 because substantial rights of Plaintiff have been prejudiced by the Board in that its findings, inferences, conclusions or decision were made:
1. in excess of constitutional or statutory authority;
2. in excess of statutory authority;
3. made upon unlawful procedure.
4. affected by other error of law;
5. not supported by substantial evidence; or
6. was arbitrary or capricious.
These matters are set forth in the Motion for Rehearing filed herein.
VI.
DECLARATORY JUDGMENT
A. In addition to the above allegations, Plaintiff would also petition the court, pursuant to the Uniform Declaratory Judgment Act of Texas, for a declaratory judgment in that the Board, as it relates to Plaintiff, has not properly applied such law to the Plaintiff relating to the Medical Practice Act and the Administrative Procedure Act as it relates to the statutes concerned.
B. In the above application, the Board has acted without authority and as such interfered with or impaired the legal rights or privileges of the Plaintiff.
VII.
ATTORNEYS’ FEES
To obtain the relief herein requested, Plaintiff was required to retain legal counsel and has retained the services of Brown McCarroll, L.L.P., to whom he has agreed to pay reasonable attorneys’ fees, the recovery of which the Plaintiff seeks pursuant to TEX. CIV. PRAC. and REM. CODE, Sec. 37.009.
VIII.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Roland F. Chalifoux, Jr., D.O., requests that the Defendants be cited to appear and answer, and that Plaintiff be granted the following relief:
(1) Reverse the applicable Order; and
(2) Declare the rights of Plaintiff relating to the Order in question; and
(3) Award the Plaintiff’s attorneys fees; and
(4) Award the Plaintiff cost incurred, together with all other relief to which the Plaintiff may be justly entitled.
Respectfully submitted,
BROWN McCARROLL, L.L.P.
Suite 1400, 111 Congress Avenue
Austin, Texas 78701
(512) 479-9709
(512) 479-1101 Telecopier
By:_____________________________________
Ace Pickens
State Bar Number 15972000
ATTORNEYS FOR PLAINTIFF,
ROLAND F. CHALIFOUX, JR., D.O.
ROLAND F. CHALIFOUX JR., D.O. § IN THE DISTRICT COURT OF
§
vs. § TRAVIS COUNTY, TEXAS
§
THE TEXAS STATE BOARD OF §
MEDICAL EXAMINERS and §
DONALD W. PATRICK, M.D. § _______ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE COURT:
Roland F. Chalifoux, Jr., D.O., “Plaintiff” or “Dr. Chalifoux,” complains of the Texas State Board of Medical Examiners, hereinafter referred to as “Defendant” or the “Board” and Donald W. Patrick, M.D. in his official capacity as Executive Director of the Board. This petition complains of the actions and decisions of the Board pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. Sec. 2001.001 et. seq. (Vernon 2000) (“APA”); TEX. OCC. CODE ANN., Subtitle B (Vernon Pamphlet 2002) (the “Medical Practice Act” or “the Act”); The Texas Constitution, article 1, Sections 13 and 19; TEX. CIV. PRAC. and REM. CODE, Sections 37.004 and 37.008 (Uniform Declaratory Judgment Act (UDJA)); and other applicable law, and as grounds for review of a Board Order would respectfully show:
I.
PARTIES
A. Plaintiff. The Plaintiff is Roland F. Chalifoux, Jr., D.O. who is a resident of South Lake, Texas. Dr. Chalifoux is licensed by the Board.
B. Defendants. Defendant, Texas State Board of Medical Examiners, is an agency of the state with statewide jurisdiction and may be served by delivering a copy of this petition to its Executive Director, Donald W. Patrick, M.D., at 333 Guadalupe, Tower 3, Suite 610, Austin, Texas 78701.
Defendant, Donald W. Patrick, M.D., is Executive Director of the Board. He is being named in his official capacity as Executive Director. He may be served by delivering a copy of this petition to 333 Guadalupe, Tower 3, Suite 610, Austin, Texas 78701.
II.
JURISDICTION AND VENUE
A. This is an action under the APA and the Act relating to a decision of the Board. The Plaintiff seeks review of a decision of the Board pursuant to the APA, the Act, and other applicable constitutional and statutory law.
B. This is also an action under TEX. CIV. PRAC. and REM. CODE, Sections 37.004 and 37.008, UDJA, in order to resolve certain questions concerning the Order of the Board in question.
C. This is also an action seeking a Temporary Restraining Order and other injunctive relief as set forth in this petition.
III.
DEMAND FOR RECORD
In connection with a contested case before the Board, a record was made which included pleadings, evidence, exhibits, briefs, transcripts, oral argument, and the Order in question. The Board was required to make its decision, including findings of fact and conclusions of law, on the basis of such record. Demand is hereby made that the agency transmit the original or a certified copy of the entire record, including all transcribed meetings of the Board, oral argument, discussion of such proceedings and other evidence of such decision to the court within the time permitted by law for the filing of an answer in this cause.
IV.
FACTS AND PROCEDURAL HISTORY
1. A formal Complaint was docketed with the Board on the 19th day of July 2002.
2. The Staff subsequently referred this mater to the State Office of Administrative Hearings (SOAH). The matter was assigned to an Administrative Law Judge (ALJ) at SOAH.
3. A First Amended Complaint was served on Respondent on September 23, 2002.
4. The First Amended Complaint upon which this matter was tried contained 18 formal Counts.
5. An evidentiary hearing was held on this matter before Leslie Craven, ALJ, on October 22, 23, 24, 29, 30, 31 and November 1, 4, 5 and 8, 2002.
6. After the hearing, post-hearing closing arguments were submitted.
7. The original assigned ALJ did not draft the Proposal for Decision (PFD). The PFD was drafted by two ALJs who only read the record prior to the release of the PFD on March 30, 2004. These ALJs were Ann Landeros and Thomas H. Walston.
8. The PFD found that the original complaint contained 18 counts with approximately 83 allegations of wrongdoing. Rulings of the ALJ dismissed, at the conclusion of the Staff’s case, for lack of proof three counts of the complaint.
The PFD included a discussion and consideration of 15 counts of the Complaint. These counts contained approximately 78 allegations of wrongdoing. The PFD found that 12 counts were not proven. The counts which were not proven contained 73 allegations of wrongdoing that were not proven.
The remaining three counts considered by the PFD only took issue with five allegations of wrongdoing.
The PFD found no evidence of prior misconduct nor history of disciplinary action with the Board.
The PFD found that Plaintiff:
(1) is a caring physician who attempted to provide appropriate treatment;
(2) is intelligent and skillful;
(3) has a sincere concern for his patients; and
(4) is a competent physician.
The PFD, after considering all the evidence and circumstances, recommended five years of probation under certain terms and conditions.
9. The Plaintiff filed Exceptions to the PFD. A copy of such Exceptions and Reply to the Staff’s Exceptions are attached under Tab 1.
10. The Board considered the PFD at the June 4, 2004 meeting. At that meeting, a motion was made and adopted relating to the Order of the Board.
11. Dr. Chalifoux subsequently received a written Order. The Order was dated June 4, 2004. A copy of the Order dated June 4, 2004 is attached under Tab 2. The Board disregarded the three ALJs involved and on the same record and same proposed Findings of Fact, revoked Plaintiff’s license.
12. A timely Motion for Rehearing was filed. A copy of such motion is attached under Tab 3.
13. Respondent adopts by reference as if set forth herein or attached hereto, the administrative record in this matter, including Respondent’s pretrial and trial motions, Post Hearing Closing Argument, Exceptions to the PFD, replies and responses to such, Respondent’s Motion for Rehearing and all pleadings and request for relief made by or on behalf of Respondent.
14. This petition is being timely filed under the Act and APA.
V.
BASIS FOR CAUSE OF ACTION
The June 4, 2004 Order was entered in violation of the Administrative Procedure Act (APA), Sec. 2001.174 because substantial rights of Plaintiff have been prejudiced by the Board in that its findings, inferences, conclusions or decision were made:
1. in excess of constitutional or statutory authority;
2. in excess of statutory authority;
3. made upon unlawful procedure.
4. affected by other error of law;
5. not supported by substantial evidence; or
6. was arbitrary or capricious.
These matters are set forth in the Motion for Rehearing filed herein.
VI.
DECLARATORY JUDGMENT
A. In addition to the above allegations, Plaintiff would also petition the court, pursuant to the Uniform Declaratory Judgment Act of Texas, for a declaratory judgment in that the Board, as it relates to Plaintiff, has not properly applied such law to the Plaintiff relating to the Medical Practice Act and the Administrative Procedure Act as it relates to the statutes concerned.
B. In the above application, the Board has acted without authority and as such interfered with or impaired the legal rights or privileges of the Plaintiff.
VII.
ATTORNEYS’ FEES
To obtain the relief herein requested, Plaintiff was required to retain legal counsel and has retained the services of Brown McCarroll, L.L.P., to whom he has agreed to pay reasonable attorneys’ fees, the recovery of which the Plaintiff seeks pursuant to TEX. CIV. PRAC. and REM. CODE, Sec. 37.009.
VIII.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Roland F. Chalifoux, Jr., D.O., requests that the Defendants be cited to appear and answer, and that Plaintiff be granted the following relief:
(1) Reverse the applicable Order; and
(2) Declare the rights of Plaintiff relating to the Order in question; and
(3) Award the Plaintiff’s attorneys fees; and
(4) Award the Plaintiff cost incurred, together with all other relief to which the Plaintiff may be justly entitled.
Respectfully submitted,
BROWN McCARROLL, L.L.P.
Suite 1400, 111 Congress Avenue
Austin, Texas 78701
(512) 479-9709
(512) 479-1101 Telecopier
By:_____________________________________
Ace Pickens
State Bar Number 15972000
ATTORNEYS FOR PLAINTIFF,
ROLAND F. CHALIFOUX, JR., D.O.
// posted by texas shammed @ 8:06 PM 
