IN THE UNITED STATES DISTRICT COURT FOR…

              IN THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF TEXAS
                      TEXARKANA DIVISION


THE ASSOCIATION OF AMERICAN              )
PHYSICIANS & SURGEONS, INC.,             )
                                         )
     Plaintiff,                          )
                                         )
vs.                                      ) Civil Action No. ____
                                         )
THE TEXAS MEDICAL BOARD (TMB),           )
ROBERTA M. KALAFUT, LAWRENCE             )
L. ANDERSON, MICHAEL ARAMBULA,           )
JULIE K. ATTEBURY, JOSE BENAVIDES,       )
PATRICIA S. BLACKWELL, MELINDA           )
S. FREDRICKS, MANUEL G. GUARJARDO, )
AMANULLAH KHAN, MELINDA                  )
McMICHAEL, MARGARET McNEESE,             )
CHARLES E. OSWALT, LARRY PRICE,          )
ANNETTE P. RAGGETTE, PAULETTE            )
BARKER SOUTHARD, TIMOTHY J.              )
TURNER, TIMOTHY WEBB,                    )
IRVIN E. ZEITLER, DONALD PATRICK,        )
AND JOHN DOES 1-10 WHO ARE WORKING )
FOR THE TMB, INDIVIDUALLY AND            )
IN THEIR OFFICIAL CAPACITIES,            )
                                         )
     Defendants.                         )
_________________________________________)


      The Association of American Physicians & Surgeons, Inc. ("AAPS")

seeks declaratory and injunctive relief as follows:

                       NATURE OF THE ACTION

      1.     AAPS brings this action to end the pervasive and continuing
violations of constitutional rights of its members by the Defendants,

including the Defendant Texas Medical Board ("TMB"). On behalf of its

members, AAPS complains about Defendants':

      · manipulation of anonymous complaints;

      · conflicts of interest;

      · violation of due process;

      · breach of privacy; and

      · retaliation against those who speak out.

      2.     Through their protected liberty interests in reputation and

property interests in their medical licensing and economic affairs, AAPS

members have been harmed by virtue of one or more of the foregoing

violations of their constitutional or federal rights.

      3.     AAPS seeks declaratory and injunctive relief under 42 U.S.C. §

1983 to enjoin these continuing violations of its members' rights.

                                 THE PARTIES

      4.     Plaintiff AAPS is a not-for-profit membership organization

incorporated under the laws of Indiana and headquartered in Tucson,

Arizona. AAPS's members consist of thousands of physicians nationwide,

including many in Texas. AAPS members have constitutionally protected

liberty interests in their reputation and privacy and property interests in their


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medical licensing and economic well-being. Many of the members of AAPS

have been harmed by disciplinary proceedings at the TMB that have violated

their rights under the U.S. Constitution or federal law. The protection of

AAPS members from arbitrary and unlawful government action is central to

AAPS's mission on behalf of its members.

       5.    Defendant Texas Medical Board (TMB) is a state regulatory

body that licenses and disciplines physicians.

       6.    Defendant Roberta M. Kalafut ("Kalafut") is President of the

TMB.

       7.    Defendant Lawrence L. Anderson ("Anderson") is a member of

the TMB and serves as its Chairman of the Disciplinary Process Review

Committee.

       8.    Defendant Michael Arambula ("Arambula") is a member of the

TMB.

       9.    Defendant Julie K. Attebury ("Attebury") is a member of the

TMB.

       10.   Defendant Jose Benavides ("Benavides") is a member of the

TMB.

       11.   Defendant Patricia S. Blackwell ("Blackwell") is a member of

the TMB.



                                      3
       12.    Defendant Melinda S. Fredricks ("Fredricks") is a member of

the TMB.

       13.    Defendant Manuel G. Guarjardo ("Guarjardo") is a member of

the TMB.

       14.    Defendant Amanullah Khan ("Khan") is a member of the TMB.

       15.    Defendant Melinda McMichael ("McMichael") is a member of

the TMB.

       16.    Defendant Margaret McNeese ("McNeese") is a member of the

TMB.

       17.    Defendant Charles E. Oswalt ("Oswalt") is a member of the

TMB.

       18.    Defendant Larry Price ("Price") is a member of the TMB.

       19.    Defendant Annette P. Raggette ("Raggette") is a member of the

TMB.

       20.    Defendant Paulette Barker Southard ("Southard") is a member

of the TMB.

       21.    Defendant Timothy J. Turner ("Turner") is a member of the

TMB.

       22.    Defendant Timothy Webb ("Webb") is a member of the TMB.

       23.    Defendant Irvin E. Zeitler ("Zeitler") is a member of the TMB.



                                      4
      24.     Defendant Donald Patrick ("Patrick") is the Executive Director

of the TMB.

      25.     Defendant John Does 1-10 are members, employees, and/or

agents of the TMB who have violated constitutional rights of members of

AAPS.

                       JURISDICTION AND VENUE

      26.     This Court has subject matter jurisdiction over this case under

28 U.S.C. § 1331, as this action arises under the First, Sixth and Fourteenth

Amendments to the United States Constitution and federal law; under 28

U.S.C. § 1343(a)(3), in that it is brought to redress deprivations, under color

of state law, of rights, privileges and immunities secured by the United

States Constitution.

      27.     Venue is proper in the United States District Court for the

Eastern District of Texas under 28 U.S.C. § 1391(b) in that plaintiff AAPS

has members located within this District who are suffering continuing injury

from Defendants' conduct, and Defendants are subject to venue here. All

acts alleged herein of Defendants, its officers, agents, servants, employees,

or persons acting at its behest or direction, were done and continue to be

done under the color of state law.




                                       5
                                    Standing

      28.    AAPS members have suffered actual and threatened injury in

the form of disciplinary procedures, breaches of confidentiality and privacy,

denial of due process, and retaliation by the TMB and the other Defendants

which violate the U.S. Constitution. The declaratory and injunctive relief

will prevent ongoing and imminent future injury and enable AAPS members

to redress past injury by re-opening tainted TMB proceedings. The requested

declaratory and injunctive relief does not require the participation of

individual AAPS members. The protection of its members from arbitrary

and improper government actions is central to AAPS's purpose.

      29.    AAPS members justifiably fear retaliation if they individually

sue the TMB.      At the legislative hearing on October 23, 2007, several

physicians testified about retaliation, and fear of retaliation, by the TMB

against them.

      30.    Representative Corbin Van Arsdale, who served on the

legislative panel that heard testimony from physicians on October 23, 2007,

commented that "I've heard about the fear of the doctors being sort of

retaliated against by the board."




                                       6
                       FACTUAL BACKGROUND

      31.    As set forth in detail below, Defendants have abused process in

allowing anonymous complaints; operated with improper conflicts of

interest; arbitrarily rejected administrative decisions; breached the privacy of

targeted physicians; and retaliated against those who speak out.

                          Anonymous Complaints

      32.    Defendant TMB accepts, and acts upon, many anonymous

complaints against physicians.

      33.    Defendant Kalafut has arranged for her husband to file

anonymous complaints against other physicians, including her competitors

in Abilene, Texas.

      34.    Defendant Kalafut then worked inside the TMB, with other

Defendants, to discipline physicians based on anonymous complaints filed

by her physician husband.

      35.    A member of AAPS has been subjected to an ostensibly

anonymous complaint concerning his treatment of five patients from New

York City, all of whom were very pleased with his treatment.

      36.    Upon information and belief, the foregoing anonymous

complaint was orchestrated by a New York insurance company that did not

want to reimburse patients for their expenses to see this physician.



                                       7
       37.    Defendants have used the process of anonymous complaints to

discipline physicians for improper reasons.

                             Conflict of Interest

       38.    Keith Miller ("Miller") is a former member of the TMB, and

former Chairman of its Disciplinary Process Review Committee.

       39.    Miller served as a witness for plaintiffs in up to 50 malpractice

cases while he served on the TMB, without disclosure to the public or to the

physicians subjected to his discipline.

       40.    Miller had this conflict of interest as he served as Chairman of

its Disciplinary Process Review Committee.

       41.    Officials of the TMB, including Defendants Kalafut and

Patrick, admitted at a legislative hearing on October 23, 2007, that this was a

conflict of interest.

       42.    Defendants Kalafut and Patrick falsely understated their

knowledge of the extent to which Miller was serving as a witness for

plaintiffs in malpractice cases. Upon information and belief, Defendants

Kalafut and Patrick knew that Miller was serving as a witness for plaintiffs

in malpractice cases while Miller served on TMB's Disciplinary Process

Review Committee.

       43.    Miller generated malpractice cases by improperly disciplining



                                          8
physicians.

      44.     Upon information and belief, Defendant John Does at the TMB

had knowledge and complicity in Miller's actions.

      45.     In the case of one member of AAPS, Miller falsely stated that

the disciplined physician had killed a patient.

      46.     That false statement led to a malpractice case against the

physician.

      47.     The judge in that malpractice case ultimately held, after much

harm to the physician, that the malpractice case was frivolous.

      48.     While on the TMB, Miller also served on behalf of an insurance

company, Blue Cross-Blue Shield, which has financial interests often in

conflict with the interests of patients seeking additional care and physicians

caring for those patients.

      49.     Another member of AAPS was subjected to discipline by an

Informal Show Compliance and Settlement Conference (ISC) panel led by

Miller, despite his conflicts of interest.

      50.     Yet another member of AAPS was subjected to an unjust ISC

proceeding led by Miller, after which the targeted physician agreed to the

terms as approved by the two-person ISC panel.

      51.     However, Miller later imposed an additional requirement on the



                                         9
settlement after the ISC panel had adjourned, forcing the physician to cease

all use of physician assistants and advanced nurse practitioners in his

practice.

      52.    Miller sat on a disproportionately high percentage of ISC

panels, thereby exercising an inordinate amount of influence over the

process.

      53.    Defendant TMB and its officials refuse to reopen the

disciplinary decisions against AAPS members that were made by Miller

while he was tainted by a conflict of interest.

      54.    Some of these disciplinary decisions have caused other state

medical boards, under the doctrine of reciprocity, to automatically take

action against the licenses of physicians, including at least one member of

AAPS, in the other states without examining the underlying facts.

                Arbitrarily Rejects Administrative Rulings

      55.    A member of AAPS used the hospital rate in requesting $81

from a patient as a copying charge to comply with her request for a copy of

her medical records.

      56.    The patient filed a complaint against the physician with

Defendant TMB.

      57.    Miller presided over consideration of the complaint at the



                                       10
physician's ISC.

      58.   Miller did not allow the member's attorneys to present a

defense, and instead Miller made abusive remarks like, "Son, don't you

know who gives you your license?"

      59.   Defendant TMB insisted, without proper legal authority, that

the physician could not charge more than $39 for copying these records, a

difference of only $42.

      60.   The TMB's ISC, lasting a mere five (5) minutes, resulted in a

demand by Miller, on behalf of the ISC, that the physician pay a $1000 fine.

      61.   Such fine would be a publicly reportable event that would

likely lead to insurance companies dropping coverage for the physician

based on his being disciplined by the TMB.

      62.   The physician could also be removed from hospital staffs based

on his being disciplined by the TMB.

      63.   The physician appealed this decision to the State Office of

Administrative Hearings (SOAH), where Administrative Law Judge Wendy

Harvel presided over his case.

      64.   Judge Harvel held that there was no authority or basis for the

TMB to discipline a physician for this reason.

      65.   On August 24, 2007, Judge Harvel took the extraordinary step



                                       11
of appearing at the scheduled meeting of the TMB to explain that it lacked

authority and basis for disciplining this physician.

       66.    In retaliation for the physician's having successfully appealed

its initial decision, Defendant TMB then rejected the administrative decision

and imposed an even harsher penalty of $2000 on the physician, and ordered

him to attend a course on jurisprudence at his expense.

       67.    The physician spent tens of thousands of dollars in legal fees

and never even collected the copying charge for the records that he provided

to the patient.

       68.    This discipline and sanction were reported to the National

Practitioners Data Bank (NPDB) and became known to insurance companies

and hospitals, to the detriment of the physician.

                              Breach of Privacy

       69.    A member of AAPS was involved in a private dispute with a

private hospital.

       70.    Defendant Anderson traveled to the physician's town and

delivered confidential records about this physician to the hospital in an

attempt to interfere with its relationship with the physician.

       71.    Defendant Anderson repeated unproven allegations about this

physician to the hospital.



                                       12
      72.    The physician was not given any opportunity by the TMB to

rebut the allegations and disprove the false statements.

      73.    The hospital then acted to the financial detriment of the

physician by relying on these confidential, unproven allegations.

      74.    Another member of AAPS was victimized by a leak by a

Defendant John Doe No. 1 of the TMB of its complaint against him to the

Houston Press on or about August 24th, four days before his own attorney

received the Complaint.

      75.    The Houston Press then smeared the good physician based on

the one-sided and unproven allegations leaked to it by a Defendant John Doe

No. 1 on behalf of the Defendant TMB.



                                Free Speech

      76.    AAPS members have expressed criticism of the TMB in the

media and on the internet.

      77.    Defendants, and/or their agents, closely monitor the media to

ascertain which physicians are talking about the TMB, and what they are

saying.

      78.    A listener to one radio program that included criticism of the

TMB called the TMB during or after the show and spoke to TMB



                                      13
representative John Doe No. 2.

      79.    Defendant John Doe No. 2, representing the TMB, responded to

the call with baseless attacks on the physician, who is a member of AAPS.

      80.    Defendant John Doe No. 2 referred the caller to a defamatory

website named "www.quackwatch.com".

      81.    Defendants have also retaliated with disciplinary procedures

against physicians who have criticized it.

      82.    With respect to a member of AAPS who had moved to another

state, who had been critical of the TMB, Defendant Kalafut, acting on behalf

of the TMB, declared to a newspaper that it was unsafe for him to practice

medicine.

      83.    When another AAPS member testified at the legislative hearing

on October 23, 2007, a TMB official responded by falsely smearing him in

public with respect to a sexual allegation asserted by the TMB. Her smear

of that physician continues to be available by video over the internet.

                   FIRST CLAIM FOR RELIEF
                     (UNDER SECTION 1983
            FOR ABUSE OF ANONYMOUS COMPLAINTS)

      84.    Plaintiff incorporates herein all statements and allegations

contained in paragraphs 1 through 83 above.

      85.    By impairing the liberty interests in reputation, the property



                                      14
interests in medical licensing, and the economic well-being of Plaintiff's

members, Defendants' abuse of anonymous complaints violated the

constitutional rights of Plaintiff AAPS.

      86.    Members of Plaintiff AAPS also justifiably fear the misuse of

anonymous complaints against them if they speak out, engage in

competition, or stand up for the rights of their patients.

      87.    Plaintiff AAPS is entitled to an injunction preventing the TMB

from accepting or soliciting anonymous complaints.

      88.    Plaintiff AAPS is entitled to an injunction preventing TMB

officials from using anonymous complaints to harass and intimidate their

competitors and adversaries.

      89.    Plaintiff AAPS is entitled to a declaratory judgment that

anonymous complaints, as used at the TMB, violate the Confrontation

Clause of the Sixth Amendment of the U.S. Constitution.

      90.    Plaintiff AAPS is entitled to a declaratory judgment that

anonymous complaints, as used at the TMB, violate the Due Process Clause

of the Fourteenth Amendment to the U.S. Constitution.

      91.    Plaintiff AAPS is entitled to a declaratory judgment that

anonymous complaints, as used at the TMB, violate the Equal Protection

Clause of the Fourteenth Amendment to the U.S. Constitution.



                                       15
      92.    Plaintiff is entitled to attorneys' fees under 42 U.S.C. §

1988(b).

                    SECOND CLAIM FOR RELIEF
                       (UNDER SECTION 1983
                   FOR CONFLICTS OF INTEREST)

      93.    Plaintiff incorporates herein all statements and allegations

contained in paragraphs 1 through 92 above.

      94.    By impairing the liberty interests in reputation, the property

interests in medical licensing, and the economic well-being of Plaintiff's

members, Defendants' allowance of Miller's conflict of interest violated the

constitutional rights of Plaintiff AAPS.

      95.    Plaintiff AAPS is entitled to a declaratory judgment that the

TMB must reopen and reconsider the cases handled by Miller at the TMB.

      96.    Plaintiff AAPS is entitled to a declaratory judgment that the

conflict of interest allowed by the TMB violated the Due Process Clause of

the Fourteenth Amendment of the U.S. Constitution.

      97.    Such declaration is still necessary as physicians injured by the

conflict of interest must defend their licenses in other states, which are

disciplining these physicians based on automatic application of the doctrine

of reciprocity to the discipline imposed by the TMB.

      98.    Plaintiff is entitled to attorneys' fees under 42 U.S.C. §



                                      16
1988(b).

                     THIRD CLAIM FOR RELIEF
                       (UNDER SECTION 1983
                   FOR ARBITRARILY REJECTING
                    ADMINISTRATIVE RULINGS)

      99.    Plaintiff incorporates herein all statements and allegations

contained in paragraphs 1 through 98 above.

      100. By impairing the liberty interests in reputation, the property

interests in medical licensing, and the economic well-being of Plaintiff's

members, Defendants' arbitrary discipline in rejecting administrative rulings

has violated the constitutional rights of Plaintiff AAPS.

      101. Defendants' arbitrary rejection of administrative rulings and

retaliation for appealing TMB's actions deter physicians from spending the

time and money to appeal ISC decisions in an administrative hearing.

      102. Plaintiff AAPS is entitled to an injunction preventing the TMB

from arbitrarily rejecting administrative rulings.

      103. Plaintiff AAPS is entitled to a declaratory judgment that the

arbitrary procedures used by the TMB to reject administrative rulings violate

the Due Process Clause of the Fourteenth Amendment of the U.S.

Constitution.

      104. Plaintiff AAPS is entitled to a declaratory judgment that the

arbitrary procedures used by the TMB to reject administrative rulings violate

                                       17
the Equal Protection Clause of the Fourteenth Amendment of the U.S.

Constitution.

      105. Plaintiff is entitled to attorneys' fees under 42 U.S.C. §

1988(b).

                     FOURTH CLAIM FOR RELIEF
                        (UNDER SECTION 1983
                      FOR BREACH OF PRIVACY)


      106. Plaintiff incorporates herein all statements and allegations

contained in paragraphs 1 through 105 above.

      107. By impairing the liberty interests in reputation, the property

interests in medical licensing, and the economic well-being of Plaintiff's

members, Defendants' breach of the privacy of investigated physicians has

violated the constitutional rights of Plaintiff AAPS.

      108. Plaintiff AAPS is entitled to an injunction preventing the TMB

from breaching the privacy of its members.

      109. Plaintiff AAPS is entitled to a declaratory judgment that the

procedures used by the TMB to ensure privacy are inadequate and in

violation of federal law, including the Health Insurance Portability and

Accountability Act (HIPAA).

      110. Plaintiff AAPS is entitled to a declaratory judgment that the

foregoing violation of privacy violates the Equal Protection Clause of the

                                      18
Fourteenth Amendment of the U.S. Constitution.

      111. Plaintiff is entitled to attorneys' fees under 42 U.S.C. §

1988(b).



                       FIFTH CLAIM FOR RELIEF
                         (UNDER SECTION 1983
                      FOR FREEDOM OF SPEECH)

      112. Plaintiff incorporates herein all statements and allegations

contained in paragraphs 1 through 111 above.

      113. Defendants' retaliation has chilled the free speech rights of

members of AAPS, in violation of their rights under the First and Fourteenth

Amendments of the U.S. Constitution.

      114. Plaintiff AAPS is entitled to an injunction preventing the TMB

from retaliating against physicians for exercising their rights of free speech.

      115. Plaintiff AAPS is entitled to a declaratory judgment that

retaliation by the TMB, based on speech by physicians, is unconstitutional.

      116. Plaintiff is entitled to attorneys' fees under 42 U.S.C. §

1988(b).

                                Jury Demand

      117. Plaintiff requests a trial by jury for all issues triable by jury.




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                             Prayer For Relief

     Wherefore, Plaintiff respectfully requests the following relief:

     (i)     Declaratory and injunctive relief for violation of 42 U.S.C. §

             1983;

     (ii)    reasonable attorneys' fees and costs under 42 U.S.C. § 1988(b);

             and

     (iii)   such other relief as the Court may deem appropriate.



                                      Respectfully submitted,

                                      /s/andrew l. schlafly
                                      Andrew L. Schlafly
                                      General Counsel
                                      Association of American Physicians
                                      and Surgeons, Inc.
                                      New Jersey Bar No. 04066-2003
                                      939 Old Chester Rd.
                                      Far Hills, NJ 07931
                                      Phone: (908) 719-8608
                                      Fax: (908) 934-9207

                                      Karen Tripp
                                      Attorney at Law
                                      Texas State Bar No. 03420850
                                      P.O. Box 1301
                                      Houston, TX 77251
                                      (713) 658-9323
                                      (713) 658-9410

                                      ATTORNEYS FOR PLAINTIFF

Dated:       December 20, 2007

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