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The Texas Medical Board By Sofia Adrogué
I. The Texas Medical Board—An Arsenal and Venue of Choice Over the last decade, armed with increased statutory authority and a commensurate budget, the Texas Medical Board has become a venue of choice for the unsatisfied consumer or colleague. Dr. Donald W. Patrick, executive director of the Texas Medical Board, has articulated the Texas Medical Board’s position with clarity. “For many years, the Texas Medical Board had a reputation as a ‘good ol’ boy’ network of physicians protecting their own. The era of accountability hit this board right between the eyes in the form of a series by the Dallas Morning News in 2002, which got my attention, the attention of the board members, and the attention of the Legislature. We basically got an ultimatum that made us accountable, or else.”1 As a result, “[t]he [B]oard rose to the challenge, and the agency followed suit. . . . We took more disciplinary actions while making that process more efficient, and also eliminating a backlog of moribund cases.”2 Established in 1907, the Board is empowered to regulate the practice of medicine in Texas.3 Appointed by the Governor, the 19 member Board handles the licensure and discipline of physicians and other allied health care providers.4 Its mandates are clear and broad: (i) to receive complaints and investigate possible violations of the Texas Occupations Code (formerly the Texas Medical Practice Act)5 and/or the Board’s Rules and Regulations6, and (ii) to discipline violators through appropriate legal action (authority to cancel, revoke, restrict, suspend, or otherwise limit the license of any physician upon proof of violation of the Texas Occupations Code or the Board’s Rules and Regulations.).7 The process commences in a seemingly benign manner—with a complaint. Its conclusion may have significant career-altering consequences to the affected practitioner. Albeit ostensibly a confidential procedure, its conclusion is very public as a violation of the Act is conspicuously placed in the Texas Medical Board Bulletin as well as in the individual’s physician profile published on the Board’s website. With investigations and proceedings against physicians nearly doubling in the last ten years, perhaps due in part to Texas medical malpractice tort reform, the Board is an arsenal with broad statutory powers over the lives of affected physicians.8
II. Recent Texas Tort Reform & The Texas Medical Board—A Correlation Over the past 30 years, Texas has recognized the effect of medical liability claims on the medical profession. The Texas Legislature responded to this trend by promulgating various acts resulting in noticeable medical malpractice tort reform. As a byproduct of the most recent 2003 scrutiny, the Texas Medical Board (formerly known as the Texas State Board of Medical Examiners) received cognizable support in order to “fix the medical lawsuit abuse crisis that [was] hurting doctors and hampering Texans’ access to quality, affordable health care.”9 Recognizing that “the availability and affordability of health care” in Texas had been affected negatively by health care liability claims, the first movement to revamp Texas health care occurred in 1977 when the Texas Legislature enacted the Medical Liability and Insurance Improvement Act (“MLIIA”) to “‘govern the adjudication of health care liability claims.’”10 This effort again gained attention in 2003 when the Texas Legislature repealed the MLIIA and recodified it in Chapter 74 of the Texas Civil Practice and Remedies Code.11 Beginning in the spring of 2002, the legislature was spurred on by Governor Rick Perry who stated he was “‘firmly committed to doing whatever it takes to end this crisis - including reining in abusive lawsuits, improving patient protections and reforming insurance regulations.’”12 During this time, Governor Perry encouraged numerous corrective measures to solve this medical lawsuit abuse crisis.13 Among the suggested measures, Governor Perry sought to improve the Texas Medical Board’s ability to police the medical profession and safeguard patient care through enforcement of licensing laws and consistent disciplinary enforcement actions.14 Improving the Board became more attainable when Governor Perry approved a $200,000 grant to the Texas Medical Board so it could hire additional investigators to resolve medical malpractice claims and to improve the quality of health care Texans receive.15 The result of Governor Perry’s medical malpractice efforts ended in what Lt. Gov. David Dewhurst recently proclaimed as “the nation’s model tort reform legislation.”16 The Tort Reform Act governs many aspects of medical liability and, most noticeably, caps non economic damages at $250,000.17 As a result, the word is truly “out.” The “U.S. Tort Liability Index: 2006 Report,” a new study by the Pacific Research Institute (PRI) and the American Justice Partnership (AJP), ranked each of the 50 states in order from best to worst in terms of their tort systems; Texas ranked first among the 50 states.18
III. The Board’s Expansive Reach With the caveat that this is not an “exhaustive or exclusive listing,” the following activities, “[w]hen substantiated by credible evidence,” are considered to be violations under §190.8 of the Texas Medical Board Rules.19 (i) Practice Inconsistent with Public Health and Welfare20(Sample conduct includes:failing to treat a patient according to the generally accepted standard of care; failing to safeguard against potential complications; and failing to timely respond in person when on-call or when requested by emergency room or hospital staff.); (ii) Unprofessional and Dishonorable Conduct21 (Sample conduct includes: failing to comply with a Board subpoena, etc.; referring a patient to a facility without disclosing the existence of the licensee’s ownership interest; failing to timely respond to communications from a patient; and failing to maintain the confidentiality of a patient.); (iii) Repeated or Recurring Meritorious Health Care Liability Claims22 (The Board is charged to receive reports against physicians based on allegations of professional liability. Under §176.8(b), the Board reviews the medical competency of a licensee if three or more lawsuits and/or settlements are reported to the Board within a five-year period.); (iv) Disciplinary Actions by Another State Board23 (This includes a doctor’s voluntary surrender of his license in lieu of discipline or while an investigation or discipline is pending); (v) Disciplinary Actions by Peer Groups24(This includes a doctor’s voluntary relinquishment of privileges with a hospital, medical staff or medical association); or (vi) Discipline Based on Criminal Conviction25(This includes felonies, some misdemeanors and suspension of the license while a doctor is serving time in a penitentiary).
IV. The Genesis: The Complaint and Investigation Process—A Facile Procedure with Potentially Formidable Ramifications Anyone may register a complaint against a practitioner licensed by the Board.26 The conduits are easy: (i) a call to theComplaint Hotline; (ii) an e-mail; or (iii) a letter.27 The requisites are similarly facile: (i) full name and practice address of practitioner; and (ii) dates and details of any incident.28 Frequent complaints by patients, pharmacists, nurses or other doctors involve non-therapeutic prescription of a drug or treatment and unprofessional conduct resulting from professional incompetence (professional negligence, billing irregularities) or mental or physical impairment (substance abuse).29 All complaints are reviewed by the Board’s investigators.30 If sufficient information is obtained through the investigation to suggest that there has been or may have been a violation, the case is referred to legal for analysis.31 If legal concurs, the matter is scheduled for an informal settlement conference and perhaps a contested hearing, depending upon the severity.32 In either event, it is an adversary process. If, as a result of an agreement or hearing, the licensee is found to have been in violation, the Board’s options range from a written reprimand to a license revocation.33 Significantly, unlike in civil actions, there is no statute of limitations for Board complaints. In essence, until filed, no time limit exists within which the Board must investigate a complaint under §179.6(d).34 Additionally, under §179.7, investigations conducted and past complaints made to the Board concerning the physician may be examined during the course of a new investigation to determine if there is a “pattern or practice of behavior.” 35
V. Informal Show Compliance Proceedings — Informal in Name Only Described as an “informal, confidential settlement meeting” and “not a court,” the Informal Show Compliance (“ISC”) process is anything but an “informal” process before the Board under Rule §187.16 and General Guidelines.36 It is an arduous process with severe potential ramifications, including a report to the National Practitioner Data Bank under Rule §187.5.37 As the ISC General Guidelines clearly articulate, “[g]iven the possible impact on [the] medical practice, [physician] should seriously consider having an attorney to represent [his] interests.”38 The ISC’s format is similar to a court proceeding—opening statement by the licensee (if present) and Board Staff Attorney; presentation of oral and/or written evidence; questioning of the witnesses and licensee; and closing statement by the licensee and Board Staff Attorney.39 However, unlike a court proceeding where a party has the opportunity to cross examine the other, in an ISC, the complainant is often not present. A Board attorney, not involved with the preparation of the case, is designated as the Hearings Counsel and is present during the ISC and the Panel’s deliberations to advise on legal issues that arise.40 The Hearings Counsel is permitted to ask questions of the ISC participants to clarify any statements.41 The Hearings Counsel provides a historical perspective on comparable cases that have appeared before the Board, keeps the proceedings focused, and ensures that the ISC participants have an opportunity to present relevant information.42 The ISC Panel (composed of two or more Board representatives) announces the recommendation after deliberation. Possible recommendations include: (i) dismissal of the complaint or allegations without prejudice to additional investigation and/or reconsideration at any time; (ii) determination of a violation and recommendation of settlement via an agreed order; (iii) determination of a violation and direction that a complaint be filed with the State Office of Administrative Hearings (“SOAH”) if the Panel determines no agreed settlement is likely to be successful; (iv) deferment of the ISC, pending further investigation; or (v) convening of Disciplinary Panel to consider the temporary suspension or restriction of the licensee’s license, if the Panel determines licensee poses a continuing threat to the public welfare.43
VI. A Viable Respite from the “ISCs”—Administrative Orders for Non-Standard of Care Violations According to Dr. Patrick, “[o]ne of the most far-reaching provisions” passed by the Texas Legislature in 2005 was assigning to the Texas Medical Board the authority to use administrative orders in its disciplinary process.44 Administrative orders are presently utilized in a limited fashion in cases involving Continuing Medical Education (“CME”) and medical records violations to allow physicians to pay a fine in lieu of participating in a settlement conference with a disciplinary panel of the Board.45 “The recent statute revision allows Board staff to widen its administrative order capability to all non-standard of care violations.”46 Examples of viable non-standard of care violations that may result in administrative sanctions in lieu of the more expensive, more time-consuming and more public ISC include as follows: substance abuse, public and private; medical record retention and release violations; CME violations; delinquent death certificate signings; and similar non-standard violations.47 At this juncture, “administrative actions such as CME and medical records violations are presently reported in the same format as serious standard of care cases, giving the impression that both types are the same severity.”48 Of great import to an affected practitioner, “[a]n agreed administrative order will be displayed less conspicuously in the agency newsletter.”49 Nonetheless, relevant statutes still require that the orders be included in the individual’s physician profile published on the agency web site.50
VII. The Board’s Ruling— A Scarlet “B” Reversing a decision by the Board once a hearing has been held before an ALJ is difficult at best. As noted in Railroad Comm’n of Tex. v. Torch Operating Co., courts utilize a substantial evidence review that gives significant deference to the Board, not allowing a court to substitute its judgment for that of the Board.51 With a physician bearing the burden of overcoming this presumption, courts affirm administrative findings if there is more than a scintilla of evidence to support them.52 Courts need not determine that the Board reached the correct conclusion; a reasonable basis suffices.53 Thus, even at the ISC “informal” level, the ramifications to a physician’s practice are formidable. As the Board has indeed become an arsenal and venue of choice, affected practitioners must be armed and ready with counsel to navigate this precarious, adversarial engagement.
Sofia Adrogué, P.C., a member of the firm of Looper, Reed & McGraw, P.C., www.lrmlaw.com, handles complex commercial litigation as well as peer review and Texas Medical Board proceedings in the health care arena. Adrogué has been profiled by the Texas Lawyer as one of Texas’ Top “40 Under 40,” and by H Texas as one of “Houston’s Top Lawyers.”
Endnotes 1.See Message from the Executive Director, Donald W. Patrick, M.D., J.D., Texas Medical Board, Texas Medical Board Home Page, www.tmb.state.tx.us/message.php, last visited September 13, 2006. 2.Id. 3.See www.tmb.state.tx.us/boards/mbhis.php for the Texas Medical Board history. 4.See www.tmb.state.tx.us/rules/rules/161.php (Rule §161 (General Provisions) (The Texas Medical Board)). 5.See generally Tex. Occ. Code Ann. §§ 151.001-165.160 (Vernon 2004 & Supp. 2005). 6.See www.tmb.state.tx.us/rules/rules.php for the Texas Medical Board’s Rules, Regulations, and Guidelines. 7.See www.tmb.state.tx.us/boards/mbman.php for the Texas Medical Board Mandates. 8.See www.tmb.state.tx.us/agency/statistics/enforce/inv.php for an enforcement summary of statistics from 1994-2005. 9.See www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2002-05-08.1746 (Gov. Perry Authorizes $200,000 To Assist Texas State Board of Medical Examiners, May 8, 2002), last visited September 13, 2006. 10.Casey L. Moore, Note, “In The Wake of the Rose” and Life after Romero”: The Viability of a Cause of Action for Negligent Credentialing in Texas in Light of Recent Texas Supreme Court Decisions, 58 baylor l. rev. 549, 557 (2006) (citation omitted). 11.Id. at 558 n.37 (citing Medical Liability and Insurance Improvement Act, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, repealed by Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884; Tex. Civ. Prac. & Rem. Code Ann. § § 74.001-.507 (Vernon 2005)). 12.See www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2002-04-04.5823 (Gov. Rick Perry Says Texas Must Address Medical Lawsuit Abuse Crisis, April 4, 2002), last visited September 13, 2006. 13.Id. 14.Id. 15.See www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2002-05-08.1746, (Gov. Perry Authorizes $200,000 To Assist Texas State Board of Medical Examiners, May 8, 2002), last visited September 13, 2006. 16.Dewhurst Release, Office of the Lieutenant Governor - Tort Reform Working in Texas (May 12, 2006) (Recent Study Ranks Texas First in Overall Tort Climate). 17.See Tex. Civ. Prac. Rem. Code § 74.301. 18.Dewhurst Release, Office of the Lieutenant Governor - Tort Reform Working in Texas (May 12, 2006) (Recent Study Ranks Texas First in Overall Tort Climate). 19.See www.tmb.state.tx.us/rules/rules/bdrules.php for a complete text of applicable rules. See also www.tmb.state.tx.us/rules/rules/190.php (Rule §190.8 (Violation Guidelines)). 20.See www.tmb.state.tx.us/rules/rules/190.php (Rule §190.8 (Violation Guidelines)). 21.Id. 22.Id. 23.Id. 24.Id. 25.See www.tmb.state.tx.us/rules/rules/190.php (Rule §190.8 (Violation Guidelines)). 26.See www.tmb.state.tx.us/consumers/complain/comppro.php for the requisite steps to file a complaint with the Texas Medical Board. 27.See www.tmb.state.tx.us/consumers/complain/placecomp.php (Place a Complaint). 28.Id. 29.See www.tmb.state.tx.us/consumers/complain/comppro.php. 30.See www.tmb.state.tx.us/consumers/complain/comppro.php. 31.Id. 32.Id. 33.Id. 34.See www.tmb.state.tx.us/rules/rules/179.php (Rule §179.6(d) (Time Limits)). 35.See www.tmb.state.tx.us/rules/rules/179.php (Rule §179.7 (Past Complaints)). 36.See www.tmb.state.tx.us/rules/rules/187.php (Rule §187.16 (Informal Show Compliance Proceedings (ISCs)) and seegenerally Texas Medical Board, ISC General Guidelines. 37.See www.tmb.state.tx.us/rules/rules/187.php (Rule §187.5 (National Practitioner Data Bank (NPDB))). 38.Seegenerally Texas Medical Board, ISC General Guidelines. 39.See www.tmb.state.tx.us/rules/rules/187.php (Rule §187.18 (Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance)). 40.See www.tmb.state.tx.us/rules/rules/187.php (Rule §187.18(i)). 41.Id. 42.Id. 43.See www.tmb.state.tx.us/rules/rules/187.php (Rule §187.18(o)). 44.Texas Medical Board Bulletin, The Newsletter of the Texas Medical Board, Fall 2005, Volume 3, No. 1 p.2. 45.Id. 46.Id. 47.Id. 48.Id. 49.Id. 50.Id. 51.Railroad Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). 52.Id. 53.Railroad Comm’n of Tex., 912 S.W.2d at 792.
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