Representative Cases

Case Study before the TSBME

Factual Analysis: Allegation of Sexual Abuse
This case involved a doctor who engaged in a sexual relationship with a patient. The patient was a nurse who worked at the hospital with the doctor and to whom the doctor had prescribed medication. By prescribing medication to her, the doctor triggered a doctor/patient relationship that made their sexual relationship a violation of the Board’s rules.

In the summer of 200X the doctor received notice from the Texas Board of Medical Examiners that a complaint had been filed against him. The husband of the nurse was probably the one who complained about the doctor. He was accused of engaging in unprofessional conduct and prescribing a drug a drug that is nontherapeutic in the manner the drug is prescribed.

In the fall of 200X the doctor attended an Informal Settlement Conference before the Board of Medical Examiners. The conference gives the parties the opportunity to settle the matter without referring the case to a more formal hearing. The Board was represented by counsel but the doctor was not. The allegations against the doctor were presented to the Board by the Board’s counsel and the doctor stated his case and was questioned by the Board. An Agreed Order that imposed the following discipline of the doctor:

A public reprimand;
A $2,500 fine;
The doctor was required to undergo a psychiatric evaluation;
The doctor was required to receive treatment from a psychologist once a month; and provide quarterly progress reports to the Board;
120 hours of community service and quarterly reports to the Board; and
20 hours of ethic courses.
The Order stated that the conditions “shall continue in full force and effect for twelve months following the entry of this Order. If after the passage of the 12-month period, Respondent wishes to seek amendment or termination of these conditions the Respondent may petition the Board in writing.” In other words, the duration of the order was indefinite. See Exhibit 10.

The doctor complied with each requirement throughout the first year of the order. He had regular communication with a Board Compliance Officer who informed him that the order was to be effective for a year. Following the passage of a year, the doctor continued his community service but believed that the order was no longer in effect and did not send in quarterly reports. His psychologist informed him that he had received maximum benefit and treatment was no longer necessary. For eight months the doctor heard nothing from the Board or his compliance officer until he received a letter in August of 200X stating that he was not in compliance with the order. The order was not effective for one year, as the doctor believed, but was indefinite. The doctor’s failure to report community service hours, or to see psychologist, was a violation of the order and subjected the doctor to further discipline including suspension or revocation of his license.

Legal Course of Action
In December of 200X the doctor received a letter from the Board stating that he was not in compliance with the agreed order and that a hearing would be scheduled. A letter outlining the Board’s position in detail and scheduling an informal show compliance proceeding for January 14 was sent by the Board on December 16. See Exhibit 11. Once again, the Board would be both the prosecutor and the trier of fact in a proceeding that could result in a suspension of the doctor’s license.

The doctor was required to file a response no later than January 4th, giving him approximately two weeks over the Holidays to respond to the Board. Over these two weeks the doctor’s counsel spoke to witnesses, received affidavits and letters of recommendation in support of the doctor and retained an expert witness on ethical issues. The doctor’s defense to the Board’s allegations was that any non-compliance with the order was due to a mistake regarding the order’s duration. See Exhibit 12.

The doctor attended the hearing with his counsel and his witness. His counsel had contacted the Board attorney prior to the hearing and was able to stipulate to several issues in the doctor’s favor. At the hearing, the doctor attorney addressed the Board, as did the doctor and his expert witness. The Board's decision was issued the same day.

Outcome
The Board concluded that the doctor did not intentionally violate the agreed order and that the order was vague as to its duration. The Board found that no further disciplinary action was needed and did not submit the case for further review. See Exhibit 13. An agreement was reached to modify the order to a duration of five years with yearly opportunities for review. While the Board did not terminate the order as requested, they commended the doctor for his efforts and recommended that he return in a year to seek termination.

Lessons Learned
The doctor’s first Agreed Order resulted in significant hardship. He gave up his ob/gyn practice and was dropped by his insurance carrier. His public reprimand damaged his reputation in his community. His non-compliance with the order created additional hardship and risk.

The doctor should have hired counsel to represent him at the first sign of trouble. Facing the Board and its attorneys without counsel creates a one-sided proceeding. The doctor was unable to mount an effective defense that would have, at the very least, resulted in a clear order.

When the doctor was faced with a second hearing, he took steps to address the problem by contacting counsel. The problems faced could have been avoided by contacting an attorney the first time. Any allegation by the Board is serious and should be addressed forcefully at the earliest opportunity. All too often, individuals faced with administrative hearings will attempt to handle the matter on their own and only hire a lawyer when they realize they are in over their heads. By that time, damage has often been done and may be too late to avoid discipline.