Texas State Board of Medical Examiners Promises to Get Tough

By Robert S. Bennett & David M. Medearis

The Texas State Board of Medical Examiners (“Board”) has been lenient in disciplining Texas physicians accused of sexual misconduct and serious medical errors. At least that was the position taken last year by a series of news articles in the Dallas Morning News. Last December, the Houston Chronicle jumped into the media frenzy with a story of a doctor who was still working after hiring a hit man to kill one of his patients. The result of the attention by the media was not surprising. For those who oppose legislation to ease the growing malpractice crisis in Texas it was an opportunity to argue that bad doctors – and not frivolous lawsuits – are responsible for this growing crisis. But for the Board it was an opportunity to seek more funding and enhanced disciplinary authority. Their goal is simple – to discipline or remove colleagues who practice bad medicine.

“Those stories,” said Dr. Donald Patrick, the Board’s new executive director, “gave me a lot of power to make changes.” Dr. Patrick has not been shy about touting to both the media and the medical community about the Board’s newfound toughness. It’s not all talk. The Board increased the number of disciplinary actions in FY 2002 to 187, up from 105 in FY 2001. By the end of 2002, the Board had increased its disciplinary caseload by thirty percent. Last December alone, the Board disciplined 55 doctors. 

Governor Rick Perry responded to the media attention last year with a $200,000 grant to enable the Board to re-open a back-load of cases that had lain dormant over the last several years. Governor Perry also expects the Board to launch at least 150 new investigations by August 31, 2003. In addition, Dr. Patrick plans to ask the legislature to give the Board more money and enhanced enforcement power this year. He has even proposed a controversial competency testing program. 

The Board’s newfound toughness is not limited to an increased number of disciplinary investigations. According to Dr. Patrick, the Board is also administering a tougher brand of discipline. “Sitting in that little room, trying to make decisions about somebody's fate, we all get a little weak in the knees,” Dr. Patrick told reporters last October. “We're less weak-kneed than we used to be.”

The Board initiates Disciplinary proceedings based on either complaints or reports of malpractice claims. Since 1996 the number of formal complaints against Texas physicians has nearly doubled. Complaints against physicians are typically made by patients, pharmacists, nurses, or other physicians. The most common complaints allege non-therapeutic prescribing of a drug or treatment and unprofessional conduct resulting from professional incompetence or a mental or physical impairment. 

The Texas Occupational Code also grants the Board authority to investigate physicians who have had three or more malpractice claims filed against them within a five-year period. As the rate of malpractice claims continues to rise at an alarming rate, it is difficult to know just how selective the Board will be in the cases it chooses to investigate. In some parts of Texas, half the doctors have malpractice claims pending, and this appears to be a growing trend. Some believe, however, that the Board’s increased vigilance may help to alleviate the malpractice crisis and skyrocketing insurance rates by at least removing the few bad doctors who account for the small percent of lawsuits that prove meritorious at trial. 

There is no question that organized medicine has always pursued the goal of removing physicians who practice bad medicine. Last year’s media blitz on the Board provides just the impetus needed to achieve that goal. This is a good thing. On the flip side, however, the Board’s increased disciplinary caseload means that more and more physicians will find themselves face-to-face with a politically charged Board when they are guilty of nothing more than the misfortune of having a disgruntled, overzealous patient file a groundless complaint, or, even more likely, a frivolous lawsuit. This is not a good thing.

So how seriously should the physician take a disciplinary proceeding? That depends on how seriously the physician takes losing his license to practice medicine. This may seem obvious, but it is amazing how many physicians come to the Bennett Law Firm after loosing their license or being dangerously close to this point. Invariably they believe that they did nothing wrong and thought they had nothing to worry about. Often, by the time they come to the Bennett Law Firm they are already at odds with the Board, which makes it all the more difficult to help them. When the reality of the situation sinks in, the physicians are stunned. 

In twenty years of representing professionals before licensing agencies, the Bennett Law Firm recognizes that there is now an increased aggressiveness on the Board that did not previously exist. More and more physicians who have delayed seeking legal counsel have no idea how serious a disciplinary action by the Board can be. What is often heard is, “I thought my colleagues would understand I hadn’t done anything wrong.” 

Often the physician’s first contact with the Board will be a request for records or information. A physician has the right to know the nature of the complaint. Initially, the physician goes through an informal hearing in which a Board member, acting as prosecutor, will present to the Board the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses. The physician has the right to be present and the right to present a defense that they reasonably believe could be proved by competent evidence or qualified witnesses. Although the hearing is called informal it should not be taken lightly, and the physician does have the right to have counsel present. 

After the Board member and physician have completed their presentations, the Board representatives will either propose a disciplinary recommendation or recommend closing the case. Sadly, some physicians actually choose to ignore their notice of the informal hearing and choice simply to wait, thinking that the Board will see that they have not done anything wrong. This is very unfortunate, since often a strong presentation by the physician or the physician’s counsel can quickly resolve the complaint. Even if the Board does not close the case, there is an opportunity to reach an informal agreed settlement stipulating certain conditions related to the complaint. For example, if the physician has been abusing drugs, the agreed settlement might require the physician to attend weekly narcotics anonymous meetings and undergo mandatory urine tests. A word to the wise about Agreed Settlements, they should be taken seriously and their terms must be complied with completely. Regardless of the terms of the Settlement Agreement, it is a much more favorable outcome than having your license suspended. 

If an Agreed Settlement is not reached, the Board will serve the physician with a formal complaint and they will have to appear before an administrative law judge with the State Office of Administrative Hearings (SOAH). This is a real lawsuit and should be treated as such. Therefore, if counsel was not obtained for the informal hearing, it would be a mistake not to obtain counsel for this hearing. The formal complaint will allege specific violations of a specific statute’s or rules and will also require the intense preparation of evidence, witnesses, and expert reports. Although there is the potential to appeal the SOHA decision in district court within thirty days of the final decision, reversals on appeal are rare. 

The bottom line is that the new Texas State Board of Medical Examiners means business. Regardless of what you may have heard in the past, a disciplinary proceeding by the Board is serious business. This is not to say that a disciplinary action is the end of your medical career. Even where physicians have made mistakes, the Board is often willing to workout a solution if the physician takes the matter seriously and shows a willingness to work with the Board. On the other hand, even a minor act of malfeasance can result in the termination of a physician’s license if the physician is disrespectful or does not take the matter seriously. Whether last years media hype over the Board’s ‘leniency’ in disciplining Texas physicians was justified or not, the fact remains that it had a significant impact. In the coming year, physicians can expect one thing from the Texas State Board of Medical Examiners – increased scrutiny into their practice. 

Reprinted from MD-News Houston Edition February, 2003