Robert N. Berezoski, M.D. v. Texas State Board of Medical Examiners and Donald W. Patrick, M.D.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00735-CV

Robert N. Berezoski, M.D., Appellant

v.

Texas State Board of Medical Examiners and Donald W. Patrick, M.D., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. GN204526, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant, Dr. Robert N. Berezoski, appeals a district court judgment affirming

disciplinary action taken against him by the Texas State Board of Medical Examiners (the Board).

The Board originally disciplined appellant in 1996 (the first order) following the death of a patient

in his care. Appellant appealed, and the district court reversed and remanded (the first judgment).

In 2002, the Board issued a second disciplinary order on remand. Appellant appealed again, and a

different district court affirmed (the second judgment). Appellant presents two issues on appeal.

First, appellant argues that the second order and second judgment were precluded by the first

judgment due to the doctrines of res judicata, collateral estoppel, and "the law of the case." Second,

appellant argues that the second district court erred because the Board's second order is not based

on substantial evidence. Because we reject both arguments, we will affirm the judgment of the

district court.

BACKGROUND

On September 5, 1995, appellant performed nasal surgery on patient J.P. in an

outpatient surgery center. The center had an operating room similar to one found in a hospital.

Barbara Smith, R.N., and Julie Kumper, appellant's scrub technician, prepared the operating room

prior to surgery and were present during the procedure. The parties dispute the amount of anesthesia

administered to J.P. during the surgery. The Board maintained that appellant and Smith administered

four 25 mg. doses of Ketalar and five 5 mg. doses of Valium. Appellant contended that they

administered three doses of Ketalar and four doses of Valium. There is evidence that Smith altered

some of the records to coincide with appellant's version. Appellant had intended to place J.P. under

conscious sedation, but an expert witness and Kumper testified that J.P. was actually under general

anesthesia.

About thirty minutes into the surgery, J.P. began to experience complications

culminating in respiratory arrest. The witnesses dispute whether J.P. was conscious and moving.

Appellant and Smith maintained that J.P. was struggling, but Kumper testified that J.P. did not move

or struggle at all during the surgery. Appellant performed certain procedures to restore J.P.'s

breathing and directed his staff to call 911. Two paramedics arrived and observed appellant pumping

an Ambu bag attached to an endotracheal tube. (1) Paramedic Horace Lyde immediately checked J.P.'s

pulse and began chest compressions. J.P. had no pulse. The paramedics observed that the ET tube

was pumping air into J.P.'s stomach instead of her lungs. While Paramedic Timothy Laseter

prepared to insert a new ET tube, appellant continued to bag J.P. even though the air was going into

her stomach.

When the paramedics took J.P. to the hospital, she had a pulse but no neurological

responses. Her eyes were fixed and dilated, and she did not move any of her extremities. J.P. had

suffered severe anoxic brain injury and was comatose. (2) She died three days later.

On September 13, 1995, a disciplinary panel of the Board conducted a hearing to

consider an application for temporary suspension of appellant's Texas medical license based on

J.P.'s death. Appellant personally appeared with his attorney. Following the hearing, the Board

temporarily suspended appellant's medical license.

On September 15, 1995, the Board filed a formal complaint against appellant seeking

to revoke his medical license or institute other disciplinary action. The complaint was referred to

the State Office of Administrative Hearings (SOAH) and assigned to an administrative law judge

(ALJ). The ALJ held a hearing that focused on whether J.P. was over-medicated, whether she was

properly monitored while anesthetized, and whether her care was properly managed when she went

into respiratory arrest. After the hearing, the ALJ issued a proposal for decision, which included

findings of fact, conclusions of law, and a recommended penalty.

On November 15, 1996, the Board held a hearing and adopted the ALJ's proposal for

decision in its entirety and entered its first disciplinary order. The order contained forty-five findings

of fact and six conclusions of law, as well as various penalties. The Board concluded that appellant's

conduct constituted "professional failure to practice medicine in an acceptable manner consistent

with public health and welfare in violation of section 3.08(18) of [the Texas Medical Practice Act]."

See Act of May 25, 1999, 76th Leg., R.S., ch. 1271, § 3, sec. 3.08(18), 1999 Tex. Gen. Laws 4383 ,

4386 (amended 2003) (current version at Tex. Occ. Code Ann. § 164.051 (a)(6) (West 2004)). (3) The

Board imposed, among other conditions, a two-year suspension of appellant's medical license,

followed by eight years of probation, and a $5,000 administrative fine.

After the Board's first order, appellant appealed, asserting nine points of error. In the

first judgment, the district court found that "substantial rights of plaintiff have been prejudiced

because the administrative findings, inferences, conclusions, or decisions were in violation of Tex.

Gov't Code Ann., Section 2001.174(2)(A), (B), (C), (D), (E), or (F) [(West 2000), and Tex. Occ.

Code Ann., Section 164.051(a)(6) (West 2004)]." (4) Consequently, the district court reversed and

remanded the first order to the Board for "further disposition, if any, consistent with this judgment,

limited to the previous administrative record received into evidence."

The Board's Action on Remand

Because the first judgment stated neither which of appellant's nine points of error it

sustained nor which of the six subsections of section 2001.174(2) of the APA the Board had violated,

the Board remanded the case to SOAH to reconsider the proposal for decision in light of the first

judgment. On June 7, 2002, the ALJ who originally heard the case issued an order of dismissal from

the SOAH docket and returned the remand order to the Board. (5) On October 4, 2002, the Board

reconsidered its first order in light of the first judgment. The Board's second order describes in

detail the procedure used by the Board on remand:

8. The Board, with advise [sic] of its General Counsel, considered Respondent's

nine points of error raised on appeal. The Board determined that all of

Respondent's points of error are either moot, or could be corrected by a re-analysis of the evidence in the record and/or rewriting of the Proposal For

Decision. The Board further determined that only Respondent's first two

points of error concerning the admission into evidence of Exhibit 9, the

deposition of Dr. George Toledo, and the admission into evidence of the

transcript of the temporary suspension hearing had validity.

9. The Board considered Respondent's point of error that Exhibit No. 9, the

deposition of Dr. George Toledo, was erroneously admitted into evidence.

According to the Proposal for Decision, Dr. Toledo only testified on the issues

of whether Dr. Berezoski performed surgery on patient J.P. without adequate

surgical support, and whether Dr. Berezoski was sufficiently experienced in

administering general anesthesia to be administering Ketalar and Valium in the

amounts that he did without an anesthesiologist or Certified Registered Nurse

Anesthesiologist present, not on the primary issue of whether Dr. Berezoski

over administered anesthesiology to J.P., and failed to adequately monitor and

manage J.P. once she was under the effects of anesthesia, and failed to properly

manage J.P.'s anoxia and hypoxia. The Board voted to give the benefit of the

doubt on the issue of the admission into evidence of Dr. Toledo's deposition

testimony by deleting the ALJ's proposed findings of fact related to

Respondent practicing medicine below the standard of care by not having a

anesthesiologist or CRNA present during the operation of J.P., and deleted

proposed findings of fact 43, 44, and 45.[ (6) ]

10. The Board considered Respondent's second point of error regarding Exhibit

No. 11 that the transcript of the temporary suspension hearing of Respondent

was impermissibly admitted into evidence. A reading of the Proposal for

Decision shows that the ALJ did not rely on the transcript in making her

decision in any way. Even if admitting the transcript into evidence was an

error, the admission was clearly a harmless error. The only indirect reference

whatsoever to the temporary suspension hearing made by the ALJ in the

Proposal for Decision is a discussion of Exhibit 2 to the temporary suspension

hearing, which were Respondent's own medical records. The ALJ compares

Exhibit 2 introduced at the temporary suspension hearing to Respondent's

Exhibit 57 offered at the SOAH hearing to show that Barbara Lynn Smith,

R.N., Respondent's employee, altered the operating report and charge form.

Ms. Smith authenticated both copies of the operating report and charge form

at the SOAH hearing acknowledging that she had altered the documents. In

view of the fact that the ALJ did not rely on the transcript of the temporary

suspension hearing in making any of her findings, the Board determined that

any error in admitting it into evidence was clearly harmless.

On October 30, 2002, the Board entered its second order, which contained forty-two

findings of fact and six conclusions of law. Except for the deletion of findings 43-45 contained in

the first order, the findings of fact in the two orders are identical. The Board concluded in its second

order that appellant's conduct constituted "professional failure to practice medicine in an acceptable

manner consistent with public health and welfare in violation of [the Medical Practice Act]." The

Board suspended appellant's medical license until "he can show that he is safe and competent to

practice medicine," set forth the minimum terms and conditions with which appellant must comply

to make that showing, and imposed a $5,000 administrative penalty.

Appellant appealed the Board's second order, and the district court affirmed. This

appeal followed.

DISCUSSION

Res Judicata, Collateral Estoppel, and "The Law of the Case"

Appellant argues that the Board's second order and the second judgment were

precluded by the first judgment due to the doctrines of res judicata, collateral estoppel, and "the law

of the case." The Board contends that these doctrines do not apply and that the second order and the

second judgment were properly entered.

In general, res judicata is the generic term for a group of related concepts concerning

the conclusive effect given final judgments. Barr v. Resolution Trust Co. , 837 S.W.2d 627, 628

(Tex. 1992). This general doctrine of res judicata encompasses two distinct categories: (1) res

judicata, or claim preclusion, and (2) collateral estoppel, or issue preclusion. Id.

Res judicata, or claim preclusion, requires proof of: (1) a prior final judgment on the

merits by a court of competent jurisdiction; (2) identity of the parties or those in privity with them;

and (3) a second action based on the same claims as were raised or could have been raised in the first

action. Amstadt v. U.S. Brass Corp. , 919 S.W.2d 644, 652 (Tex. 1996).

Collateral estoppel, or issue preclusion, is more narrow than res judicata because it

only prevents relitigation of identical issues of fact or law that were actually litigated and essential

to the judgment in a prior suit. Barr , 837 S.W.2d at 628 . Once an actually litigated and essential

issue is determined, that issue is conclusive in a subsequent action between the same parties. Van

Dyke v. Boswell, O'Toole, Davis & Pickering , 697 S.W.2d 381, 384 (Tex. 1985). Actual litigation

occurs when an issue is properly raised by the pleadings or otherwise, is submitted for determination,

and is determined. Id. (citing Restatement (Second) of Judgments § 27(h) (1982)). While the

judgment requirement for collateral estoppel does not always require a final, appealable judgment,

the test for finality is "whether the conclusion in question is procedurally definite." Id. at 385 (citing

Restatement (Second) of Judgments § 13 cmt. g (1982)). The factors to be considered in

determining whether a judgment is final for purposes of collateral estoppel include whether the

parties were fully heard, whether the court supported its decision with a reasoned opinion, and

whether the decision was subject to appeal or was in fact reviewed on appeal. Id.

"The law of the case" doctrine mandates that the ruling of an appellate court on a

question of law raised on appeal will be regarded as the law of the case in all subsequent proceedings

of the same case unless clearly erroneous. Briscoe v. Goodmark Corp. , 102 S.W.3d 714, 716 (Tex.

2003). It is used to narrow the issues at successive stages of the litigation and provide uniformity

of decisions as well as judicial economy intended to put an end to litigation. Id. (citing Hudson v.

Wakefield , 711 S.W.2d 628, 630 (Tex. 1986)). A reviewing court does not again pass upon any

matter either presented to or directly passed upon or that was, in effect, disposed of on a former

appeal to that court. J.O. Lockridge Gen. Contractors, Inc. v. Morgan , 848 S.W.2d 248, 250 (Tex.

App.--Dallas 1993, writ denied).

Application

Appellant contends that the Board's entry of the second order violates the principle

of res judicata. The first element of res judicata, however, is proof of a prior final judgment.

Amstadt , 919 S.W.2d at 652 . Here, the first judgment did not render judgment; rather, it reversed

and remanded the first order to the Board for further disposition, if any, consistent with the first

judgment. Because the first judgment did not dispose of the Board's claim, it was not final for

purposes of res judicata. See Restatement (Second) of Judgments § 13 (1982); see also Lehmann

v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001) (discussing history of judgment finality for

purposes of appeal). Because the first judgment remanded the case, the Board was not precluded by

res judicata principles from entering the second order.

In his issue-preclusion argument, appellant contends that the Board could not ignore

the court's findings that appellant's substantial rights were prejudiced based on the nine points of

error he presented on appeal. The district court, however, made no specific "findings." (7) Appellant

reads the first judgment inclusively and assumes that, because the district court listed subsections

(A) through (F) of section 2001.174 of the APA in the judgment, it determined that each subsection

applied. To accept appellant's argument would require us to ignore the first district court's use of

the disjunctive article "or" in the first judgment. We cannot interpret the first judgment as sustaining

all of appellant's nine points of error, and we cannot determine that the first district court found that

each subsection was violated. Because the first judgment remanded for further disposition, if any,

we conclude that no specific issue was "determined" for purposes of collateral estoppel. See Van

Dyke , 697 S.W.2d at 385 .

Appellant also argues that "the law of the case" doctrine applies and that, on remand,

the law of the case became:

(1) Any further determinations on remand were limited to the prior record. The

Board could not relitigate or decide anything except as contained in that record. The

Board was precluded from using the same findings and conclusions to find any

violation of the [Medical Practice Act]; (2) The previous errors were also inherent

in any subsequent deliberations; and (3) Any subsequent Board action must be

consistent with the [first district] court's conclusions and determinations.

Although the first judgment did limit the Board to the record developed during the

administrative hearing, appellant's other law-of-the-case arguments are inconsistent with Texas law.

First, the district court's only explicit directive to the Board on remand was to limit its proceedings

to the administrative record. The district court did not specify which of appellant's nine points of

error it sustained, nor did it indicate how the Board's first order violated section 2001.174 of the

APA. Because the first judgment does not indicate otherwise, it appears that the court did not intend

to preclude the Board from making some of the same findings or conclusions.

Second, the APA clearly allows the appellate court to reverse or remand the agency

decision. Tex. Gov't Code Ann. § 2001.174 (2). By remanding the case instead of rendering

judgment for appellant, and by limiting remand to the previously developed record, the district court

implicitly allowed the Board to conduct subsequent deliberations. Had the district court believed

that the previous errors could not be corrected by further deliberations, it would have reversed and

rendered judgment for appellant. Therefore, subsequent deliberations on remand were not inherently

erroneous.

Third, because the first judgment stated neither which of appellant's nine points of

error it sustained nor which of the six subsections of section 2001.174(2) the Board had violated, the

first district court did not set guidelines for subsequent action by the Board. (8) On remand, the Board

tried to deduce the errors found by the district court by reviewing the nine points of error that

appellant had raised on appeal. It concluded that the ALJ had erroneously admitted two pieces of

evidence: the deposition testimony of Dr. Toledo and the transcript of the temporary-suspension

hearing. Accordingly, it deleted findings of fact 43-45, which were based on this allegedly

inadmissible evidence. Therefore, the Board correctly excluded those findings from the second

order. Because the first judgment did not set out guidelines for remand, the Board's subsequent

actions are not inconsistent with the first judgment. We conclude that "the law of the case" did not

preclude the Board from issuing a second order following remand.

Because the first judgment gave no specific directions besides limiting the Board to

the existing record on remand, we conclude that the second order and the second judgment were not

precluded by the first judgment by the doctrines of res judicata, collateral estoppel, or "the law of

the case." Accordingly, we overrule appellant's first issue.

Substantial Evidence Review

In his second issue, appellant argues that the second district court erred because the

Board's second order is not based on substantial evidence. Appellant now argues that, because the

first judgment refers to subsection (E) of section 2001.174 of the APA, which contains substantial

evidence language, the first district court found the evidence in the record insufficient to support the

Board's first order. Because remand was limited to the previously developed record used to support

the first order, appellant argues that the evidence is insufficient to support the second order as well.

Standard of Review

In reviewing an administrative decision of the Board, an appellate court uses the

substantial-evidence standard defined by the APA. See Tex. Gov't Code Ann. § 2001.174 (2)(E);

see also Texas State Bd. of Med. Exam'rs v. Birenbaum , 891 S.W.2d 333, 337 (Tex. App.--Austin

1995, writ denied). Although substantial evidence requires more than a scintilla of evidence, "the

evidence in the record actually may preponderate against the decision of the agency and nonetheless

amount to substantial evidence." Texas Health Facilities Comm'n v. Charter Med.--Dallas, Inc. ,

665 S.W.2d 446, 452 (Tex. 1984). The court may not substitute its judgment for that of the agency

as to the weight of the evidence. Public Util. Comm'n v. Gulf States Utils. Co. , 809 S.W.2d 201, 211

(Tex. 1991). Decisions of an administrative agency are presumed to be supported by substantial

evidence, and the burden is on the contestant to prove otherwise. Charter Med. , 665 S.W.2d at 453 ;

Imperial Am. Res. Fund, Inc. v. Railroad Comm'n , 557 S.W.2d 280, 286 (Tex. 1977). The court

must uphold the agency's actions if the evidence is such that reasonable minds could have reached

the conclusion that the Board must have reached in order to justify its action. Charter Med. , 665

S.W.2d at 453 .

Based on the record developed at the administrative hearing, the Board initially had

two bases for disciplining appellant: (1) appellant's personal actions during surgery on September

5 and (2) appellant's inadequate support staff during the surgery. Appellant's personal actions

included over-anesthetizing J.P., failing to properly monitor and attend her while she was

anesthetized, and failing to properly manage her once she went into respiratory arrest. Appellant's

inadequate support staff included the absence of an anesthesiologist or Certified Registered Nurse

Anesthesiologist, his and his staff's insufficient CPR training, and inadequate background in

administering anesthesia. Both grounds--individually or combined--would have supported the

Board's conclusion that appellant violated the Medical Practice Act.

After discounting Dr. Toledo's testimony and findings of fact 43-45, the Board still

had grounds to discipline appellant based on his personal actions during the surgery. Appellant,

however, cites the Final Report of the Texas Medical Professional Liability Study Commission to

the 65th Texas Legislature (December 1976), and argues for the proposition that the Texas

Legislature intended to require more than mere proof of a negligent act for discipline to attach under

the Medical Practice Act. The plain language chosen by the legislature does not delineate a tort

standard but rather allows the Board to discipline a physician who "fails to practice medicine in an

acceptable professional manner consistent with public health and welfare." Tex. Occ. Code Ann.

§ 164.051 (a)(6). Appellant does not cite, and we are unable to find, any Texas case imposing a

different standard of conduct for discipline under the Medical Practice Act. (9) The question now

presented is whether the Board's second order was reasonably supported by substantial evidence

considering the reliable and probative evidence in the record as a whole.

At the administrative hearing, appellant argued that a naturally occurring pulmonary

embolism--not over-medication--caused J.P.'s respiratory arrest. Dr. William Yarbrough, Jr.,

refuted this argument after considering J.P.'s medical records, the incident report compiled by

appellant, and the extremely low probability of a fatal pulmonary embolism occurring in a low-risk

patient like J.P. (10) Furthermore, Kumper's testimony that J.P. never moved and was not in distress

during the surgery--indicating central respiratory depression, as alleged by the Board--conflicted

with appellant's and Smith's testimony that J.P. struggled to breathe, which would indicate a

pulmonary embolism.

Dr. James McMichael, a board-certified anesthesiologist, testified about the effects

of the medication appellant administered to J.P., how appellant failed to monitor her while she was

sedated, and appellant's response when J.P. went into respiratory arrest. Although there was

significant dispute regarding the alteration of medical records indicating the amount of medication

received by the patient, McMichael stated that J.P. received enough medication to cause the hypoxic

event, regardless of whether appellant administered four doses of Ketalar and five doses of Valium,

as the Board alleged, or three doses of Ketalar and four doses of Valium, as appellant maintained.

McMichael testified that appellant's office notes indicated that J.P. had a drug overdose, which

caused respiratory depression resulting in hypoxia. This led to respiratory and cardiac arrest,

ultimately causing J.P.'s death. McMichael further testified that, with the amount of drugs

administered to J.P., someone would have to constantly monitor her electrocardiograph, pulse

oximeter, blood pressure, and breathing. In his opinion, appellant and his staff could not possibly

have adequately monitored J.P. while performing their other duties. Furthermore, McMichael

testified that upon discovering that the ET tube was incorrectly inserted, appellant should have

removed the tube instead of continuing to bag J.P.

Dr. Richard Perschau testified on appellant's behalf. Perschau stated that, while he

could not condone the amount of medication given to J.P., there was a significant possibility that J.P.

suffered a pulmonary gastric aspiration during surgery. A pulmonary gastric aspiration brings gastric

contents into the pulmonary tree and is a known complication of general anesthesia. Perschau

testified that a pulmonary embolism was possible, but less likely.

Dr. Paul Radelat, a board-certified pathologist, reviewed J.P.'s medical record and

autopsy report and concluded that the most likely cause of J.P.'s respiratory arrest was over-sedation.

A pulmonary embolism was less likely, and gastric aspiration was the least likely cause.

Our review of the record reveals ample evidence that appellant over-administered

anesthesia to J.P., failed to properly monitor her while she was sedated, and failed to properly

respond when J.P. went into respiratory arrest. Because the evidence is such that reasonable minds

could reach the conclusion that the Board reached--that appellant failed to practice medicine in an

acceptable manner consistent with public health and welfare--we affirm the district court's judgment

upholding the Board's second order. See Charter Med. , 665 S.W.2d at 453 .

CONCLUSION

Having overruled appellant's issues on appeal, we affirm the judgment of the district

court.

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: July 15, 2004

1. Medical staff attach an Ambu bag to endotracheal (ET) tubes and squeeze the bag to pump

air through the tube and into the lungs. The act of squeezing the bag is known as "bagging."

2. The record indicates that J.P. suffered from anoxia and hypoxia, which result from oxygen

deficiency.

3. Because the legislature's recent amendments have not substantively changed the law, for

convenience we will cite to the current version of the Medical Practice Act.

4. Section 2001.174 of the Administrative Procedure Act (APA) defines judicial review of

administrative decisions. It provides:

If the law authorizes review of a decision in a contested case under the

substantial evidence rule or if the law does not define the scope of judicial

review, a court may not substitute its judgment for the judgment of the state

agency on the weight of the evidence on questions committed to agency

discretion but:

(1) may affirm the agency decision in whole or in part; and

(2) shall reverse or remand the case for further proceedings if substantial rights

of the appellant have been prejudiced because the administrative findings,

inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency's statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the

reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.

Tex. Gov't Code Ann. § 2001.174 (West 2000) (emphasis added).

5. The ALJ determined that section 2003.042 of the APA "does not authorize a SOAH ALJ

to advise an agency on how to apply a judgment and to reissue a proposal for decision where the

reviewing court's judgment precludes reopening the record." See id. § 2003.042 (West 2000).

6. Findings of fact 43, 44, and 45 read:

43. On September 5, 1995, Respondent did not have adequate surgical support

to perform the laryngoscopy and septoplasty on J.P.

44. On September 5, 1995, Respondent was not experienced in administering

general anesthetics and should not have administered Ketalar and Valium to

J.P. without the presence of an anesthesiologist or certified registered nurse

anesthesiologist.

45. On September 5, 1995, Respondent did not have sufficient knowledge of

and skill with anesthesiology to anticipate the life-threatening complications,

which developed during J.P.'s surgery.

7. Appellant appealed the first order to the first district court, arguing nine points of error.

The judge reviewed the order under the substantial-evidence rule and generically concluded that

"substantial rights of plaintiff have been prejudiced because the administrative findings, inferences,

conclusions, or decisions were in violation of Tex. Gov't Code Ann., Section 2001.174(2)(A), (B),

(C), (D), (E), or (F) [(West 2000), and Tex. Occ. Code Ann. Section 164.051(a)(6) (West 2004)]."

(Emphasis added.)

8. Appellant relies heavily on Allen-Burch, Inc. v. Texas Alcoholic Beverage Commission ,

104 S.W.3d 345 (Tex. App.--Dallas 2003, no pet.), to support his argument that the Board, by not

appealing the first judgment, was precluded by "the law of the case" from issuing a second order.

Allen-Burch , however, is easily distinguishable because there the first district court specifically

vacated the appellant's penalty and remanded the case " for the penalty determination only ." Id. at

351 (emphasis added). In our case, the first judgment made no specific findings and did not limit

remand to determination of specific issues.

9. Cf. Texas State Bd. of Med. Exam'rs v. Scheffey , 949 S.W.2d 431, 437 (Tex. App.--Austin

1997, writ denied) (finding sufficient evidence that doctor performed medically unnecessary

operations without describing his acts as negligent or grossly negligent); Guerro-Ramirez v. Texas

State Bd. of Med. Exam'rs , 867 S.W.2d 911, 920 (Tex. App.--Austin 1993, no writ) (finding

sufficient evidence that doctor's "practice of medicine was inconsistent with the public welfare"

without describing his acts as negligent or grossly negligent).

10. Yarbrough testified that the chance of a blood clot forming in a low-risk patient is 0.4

percent. The chance of a pulmonary embolism occurring in a low-risk patient is 0.2 percent, and the

chance of a fatal pulmonary embolism occurring in a low-risk patient is 0.002 percent.