A Case Study Before the Texas State Board of Medical Examiners – What we can learn from what happened

(Published in Doc Talk Magazine; Written By Bob Bennett & Sheryl Dacso)

The following case was recently presented at a Texas State Board of Medical Examiners (Board) Informal Settlement Conference (ISC) in Austin, Texas. The Panel dismissed the complaint and the names and certain facts have been altered due to confidentiality requirements. The way in which the doctor responded to the initial complaint and the defense of the allegations may prove helpful to any Texas doctor under similar circumstances.

The doctor, Billy Bob Brown, received a notice from the Board that an allegation was made by a patient which led the Board to initiate an inquiry into the alleged incident. The allegation concerned statute 164.052(5)(2) Unprofessional Conduct. The allegation as contained in the Board’s notice letter stated: “Engaging in Sexually Inappropriate Behavior-Boundary VIOLATIONS DURING EXAM OF PATIENT, BETTY LOU JONES in 2003.

The Board in the first notice requested that Dr. Brown make a written response to the complaint of Betty Lou Jones and include any records, documents, statements, or summaries that would be helpful in explaining what happened.  This procedure would allow the doctor to respond prior to a formal complaint being filed and an investigation commenced.  The Board demanded that the response be due in two weeks and prohibited any extension of this time period.  In this first contact with the doctor, no suggestion was made to seek legal counsel in preparing the response. It appears that the Board prefers that the doctor make the response on his own without any third party or legal assistance. At this point in the investigation, the Boards’ supervisory staff makes a determination if a doctor with a Texas license is involved and, if the allegations are taken as true, whether they would be a violation of the Medical Practice Act.

Dr. Brown responded (without seeing the complete complaint or knowing the full details of the allegation) in a two-page letter in which he explained the patient history, his office procedures, and how he never sees a female patient at his office unless a female staff member is also present.  No other documents were sent with the letter. Dr. Brown learned later that the complainant alleged that the doctor had “stood in-between her legs while she was in the stirrups, on the exam table, and leaned over and kissed her.”

Approximately one month after sending the first notice letter (also called the “initiation letter”) to the doctor, and after evaluating the initial response from the doctor, the Board sent a formal initiation of an investigation notice and requested that Dr. Brown respond to a “Medical Practice Questionnaire.”  This form was completed and sent to the Board.   It showed that the doctor was a solo practitioner who had one office, and averaged seeing 150 patients a week. Twenty percent of his practice was pediatric with geriatrics comprising ten percent.  He also stated that he performed minor surgery in his office.

The following questions were answered in the negative:

             a. Have you ever had your medical privileges monitored, revoked, suspended, limited or denied by any organization, health care facility, or excluded from participation in any Federal or State reimbursement program?  

             b. Have you ever had your Federal or State Controlled Substance Registration restricted or revoked?                                

             c. Have you ever been arrested, indicted, or convicted of a felony or misdemeanor other than minor traffic offense?                      

             d. Have you in the past five (5) abused drugs/alcohol or been treated for abuse?                    e. Are you currently under the care of a physician for any for any medical or psychiatric condition, which could impair your medical judgement or ability to practice as a physician?                               

Other requests for information in the questionnaire included the location of hospital privileges, hours of CME, Board certification, and (whether or not the doctor was) practicing in specialty. Note that the questionnaire had to be affirmed or sworn to by the doctor as being true and accurate. The Questionnaire had no direct relevance to the complaint but did provide information to the Board that could be damaging to the doctor.

In addition to the Questionnaire, Dr. Brown also received a vague TSBME mimeographed-appearing page entitled “EXPLANATION OF INVESTIGATION OF ALLEGATIONS.” This document provided an incomplete explanation of the receipt of the allegations, the basis for the initiation of investigation, what one could expect during the progress of the investigation, and the length of the investigation. On the page was a note concerning the exceptions to confidentiality, and what was involved in the “Legal Process.”  A final reference is made to the “Results of the Investigations.” This section mentions that 80% of the cases investigated are closed due to lack of evidence. Of those that go forward as ISC/Show Compliance Hearings – 40% are closed with a similar no evidence designation.

FIRST IMPORTANT POINT TO REMEMBER

The Board does not make a recommendation in the initial notice letter, in the Initiation of an Investigation letter, or in the Explanation of Investigation of Allegations Memo that an attorney should be consulted before any response is made.  Despite this, the physician is requested to self-report any abuse of drugs or alcohol as well as any medical or psychiatric condition that may be serious. This type of reporting may lead to a medical license being revoked or suspended. Moreover, the Board does not recommend seeking legal counsel before responding or before talking to the Board’s investigator in spite of the fact that the doctor may be asked to freely volunteer information that will later be used against him. Doctors often find themselves making incriminating statements, contradictory statements, and providing information that is detrimental but not requested because they do not seek legal counsel.

Dr. Brown followed the progress of the investigation by calling the Senior Investigator and offered to provide any additional information needed. The Senior Investigator sent a letter to the Doctor and provided some additional information regarding the allegations. The Board stated that the allegations involved “kissing the patient and making inappropriate comments.”  A request was also made for the Doctor to answer the following questions:

1.After being on call for hospital coverage, was the patient referred back to the primary physician?

2. What was the date your call coverage ended?

3. What was the reason for seeing the patient and performing a well woman exam?

4. Were records requested from the previous physician? If no, why not?

5. What was the date and extent of your last contact with Betty Lou Jones?

The Senior Investigator further commented in the third correspondence from the Board that the initial response to the allegation was received but a narrative perspective was needed and considered very important to the now on-going investigation of the allegation. Also a request was made for “office medical records (all documents in the medical chart) and billing records (including superbills, HCFA forms, and patient ledger) and a narrative perspective.” Once again, the Board did not mention any need to consult with an attorney before providing the “narrative perspective” or any of the requested documents.

Dr. Brown promptly responded to the questions asked by the Senior Investigator.  Seven months after the initial letter was sent by the Board, Dr. Brown received a “Notice of Informal Show Compliance and Settlement Conference Proceeding” letter. In this letter the Board informed Dr. Brown that the investigation was completed. The Board decided to go forward with an “Informal Show Compliance and Settlement Proceeding” (“ISC”) and the ISC was scheduled to be held in two months at the offices of the State Board of Medical Examiners, 333 Guadalupe, Tower 3, Suite 610, Austin, Texas.  The letter continued with information that offered further details concerning the allegations would be sent and a copy of the rules involved with a show compliance conference were enclosed. No recommendation was made to advise an attorney of the hearing or to have an attorney present.

SECOND IMPORTANT POINT TO REMEMBER

At this point in the proceeding, Dr. Brown is faced with attending a hearing where Betty Lou Jones and her attorney may be present. The possibility of the doctor losing his license is very high. In all of the notices, correspondence, or conversations with the Board, the doctor has not received a single admonition regarding the fact that what he says or does may have serious repercussions nor is he advised that he should consult with an attorney before making a response. This occurs despite the fact that trained investigators and the Board’s attorneys are preparing a case to be presented at an ISC.  In spite of this obvious disadvantage, the doctor has not been informed of his legal rights or why he should have legal representation

In the next issue we shall discuss what happens at an ISC and what a doctor should do to properly defend himself and limit any potential liability he may have.