Farrah Arsenia Agustin-Bunch v. Texas Medical Board

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-23-00520-CV Farrah Arsenia Agustin-Bunch, Appellant v. Texas Medical Board, Appellee FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-005519, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING MEMORANDUM OPINION The Texas Medical Board (the Board) issued a cease-and-desist order to Farrah Arsenia Agustin-Bunch after determining that she engaged in the unlicensed practice of medicine by referring to herself as a doctor on her social media site and on her website, making online statements speaking as a physician on medical issues, and asserting that, based on her medical knowledge, supplements she sells should be used to treat ailments such as cancer, diabetes, and heart disease. See Tex. Occ. Code §§ 155.001(“A person may not practice medicine in this state unless the person holds a license issued under this subtitle.”); 165.052(a) (authorizing Texas Medical Board to issue cease-and-desist order prohibiting unlicensed person from practicing medicine in state without license). Seeking review of the order in district court, Agustin-Bunch sued the Board. The district court affirmed the Board’s order. Agustin-Bunch appeals, asserting that (1) the Board lacked jurisdiction to take disciplinary action against her, (2) the order was invalid and not supported by substantial evidence; (3) the cease-and-desist proceedings did not comply with governing statutes and Board rules; and (4) the district court erred by sustaining the Board’s objection to her presenting certain evidence that the Board argued was not part of the administrative record. We will affirm. BACKGROUND Agustin-Bunch holds a Doctor of Medicine degree conferred by Saint Louis University in Baguio City, Philippines in 2003. Agustin-Bunch also obtained certification as a “Certified Naturopath Practitioner” issued by the Philippine Institute of Traditional and Alternative Health Care, which certification was valid until May 2022. In August 2021, Agustin-Bunch completed an eight-week online course in Nutrition Science offered by the Stanford Center for Health Education and a certificate program entitled Medicinal Plants offered by Cornell University. Agustin-Bunch is not licensed to practice medicine in the State of Texas. In August 2022, the Board filed an Application for Cease and Desist Order against Agustin-Bunch alleging that Agustin-Bunch had violated the Medical Practice Act (the MPA), the Healing Art Identification Act, and related Board rules. See id. §§ 155.001-171.024 (Medical Practice Act), 104.001-.007 (Healing Art Identification Act). Specifically, the Board alleged that Agustin-Bunch maintained a website that states that she “graduated from Saint Louis University in 2003 as an M.D.” but failed to state that her medical degree was obtained from Saint Louis University in Baguio City, Philippines. The website identified Agustin-Bunch as “Doctor Farrah,” “Dr. Farrah,” or “Dr. Farrah Agustin-Bunch, M.D.” The Board alleged that the website also had a “Shop” page through which Agustin-Bunch sold various supplements including “Boston C concentrate,” “Pixie Dust/Magnesium Citrate,” and “Mega-Dose Vitamin 2 C-Ascorbic Acid.” The Board alleged that the website included a “Research” page that contained “various articles either written or copy and pasted” by Agustin-Bunch in which she “offers medical advice and offers services to diagnose and treat ailments.” The Board further alleged that Agustin-Bunch maintained social media sites on Facebook and YouTube and that on both platforms she “advertises herself as a doctor,” and that in her Facebook posts she “[spoke] as a physician concerning medical issues and asserted that the supplements she sold would help alleviate medical issues.” The Board further alleged that Agustin-Bunch created several YouTube videos in which she described her “expert medical knowledge as a physician and offer[ed] treatments, primarily supplements she sells on her website, to ailments and diseases such as cancer, HIV, diabetes, and heart disease.” The Board alleged that, while residing in Texas, Agustin-Bunch “has been holding herself out to be a doctor to the public and promoting products that the FDA has determined require the supervision of a licensed practitioner.” Based on these allegations, the Board sought a cease-and-desist order to prohibit Augustin-Bunch from practicing medicine in the State of Texas without a license. See id. §§ 155.001 (person may not practice medicine in this state unless person holds license issued under Medical Practice Act); 165.052