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Fifth Circuit Allows Suit Against Texas Medical Board to Move Forward

by Kroger Burrus on December 9th, 2010

Earlier this month, the United States Court of Appeals for the Fifth Circuit held a non-profit organization of physicians had standing to bring suit against the Texas Medical Board on behalf of all of its members. The Association of American Physicians and Surgeons, Inc. (“AAPS”) filed suit in 2007 in the Western District of Texas alleging the Board’s then-President Dr. Roberta Kalafut targeted physicians for disciplinary proceedings using anonymous complaints filed by her husband and an insurance company seeking to avoid paying for claims. The suit also alleged that then-Chairman of the Disciplinary Process Review Committee Dr. Keith Miller was working as an expert for plaintiffs in medical malpractice cases and using his position with the Board to generate business for himself.

Other claims included that the Board violated AAPS members’ constitutional rights of due process and free speech by retaliating against physicians who complained about the Board by subjecting them to disciplinary action or disparaging public comments without factual support. The lawsuit seeks a declaration that the use of anonymous complaints was unconstitutional.

The District Court dismissed the case, holding that because individual physicians would be required to participate in the lawsuit, the AAPS lacked standing to pursue the suit on behalf of all of its members. The AAPS appealed, claiming that the participation of physicians is not indispensible to proving its case. In order for an association such as the AAPS to bring suit on behalf of its members, it must meet three criteria: 1) the members would have standing to sue on their own; 2) the interests the group seeks to protect are germane to the purpose of the organization; and 3) the relief requested does not require the participation of individual members in the lawsuit. This final prong was the disputed issue before the Fifth Circuit.

Relying on a Third Circuit Court’s opinion authored by now Supreme Court Justice Samuel Alito, the Fifth Circuit reversed the District Court and held the AAPS had standing to sue the Board. Of particular importance to the Court was that the AAPS made allegations of a discrete pattern of misconduct by the Board using anonymous complaints to harass all physicians, as well as allegations of a conflict of interest among all of the Board’s decision makers. This alleged systemic practice of abuse would constitute a violation of the constitutional rights of all AAPS members. Because this pattern could be established through the testimony of only a few of its members, participation of all members was not required and the AAPS had standing to bring suit on behalf of the entire group.

It should be noted that the Fifth Circuit did not address the merits of the case and expressed “no opinion on whether AAPS will ultimately be able to prove its rather dramatic claims.” It will likely be a number of years before this issue is resolved, but it is certainly a case worth watching as it could prove to dramatically change the practices of the Board.

A complete copy of the opinion is available at:

A copy of the Original Complaint is available on the AAPS’s website:

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