Texas Medical Association Testimony: Senate Health and Human Services Committee
Senate Bill 2336 by Sen. Dan Patrick
Presented by: Michael E. Speer, MD
May 5, 2009
Good morning. My name is Dr. Michael Speer. I am a neonatologist from Houston and chairman of the Board of Trustees of the Texas Medical Association. I would like to thank Chair Nelson and the committee members for the opportunity to testify on behalf of the Texas Medical Association representing nearly 44,000 physicians and medical student members.
Today, I am testifying against Senate Bill 2336 relating to the powers and duties of the Texas Medical Board.
Let me be crystal clear: TMA supports a strong and fair Texas Medical Board.
We need a strong and fair board to protect the patients of Texas and to uphold high ethical and professional standards for physicians.
We these goals are in the best interests of our profession and our patients.
TMA and I are familiar with the complaints brought forth by physicians about the board. I want you to know that we take very seriously our peers' complaints of unfair prosecution for minor violations and of a lack of due process.
TMA and the Harris County Medical Society conducted comprehensive reviews of TMB disciplinary activities. We have shared our joint findings and recommendations with the Texas Legislature and with TMB leaders.
TMA has worked with the board and with many of you to address these concerns. The board has made some progress, but still has a long way to go.
We continue to encourage the board to give more detailed information, in plain language, to physicians accused of violations. The board already has the statutory authority to provide this information to physicians. We strongly encourage them to use this authority in the spirit of basic fairness and due process.
Also, we support Senate Bill 2397 by Senator Nelson, which would increase the time for the complaint process from 30 to 45 days. This would allow adequate time for both the board and for the physician to respond.
Likewise, we support other legislation that would prohibit the TMB from overturning the findings of fact and conclusions of law made by the State Office of Administrative Hearings.
We are opposed to SB 2336 because, frankly, it would diminish the agency's ability to protect public safety. For example:
- First, SB 2336 would virtually prohibit the Texas Medical Board from setting standards of care. It would allow a physician to justify almost any action based on what he or she may have learned at any continuing medical education seminar. While CME is a vital component of a physician's lifelong commitment to training, the contents of individual CME courses are unregulated. The American Medical Association, TMA, and many other bodies are licensed to accredit CME - but the accreditation covers the process by which the course is put together … not the content.
What does all this mean? Our patients' safety is in jeopardy. The board's recent rules setting standards for in-office anesthesia … the board's guidelines for disciplining physicians who have violated the Medical Practice Act … the board's rules regarding the sexual boundaries between a physician and a patient … all of these would be at risk under SB 2336.
- The bill, even as revised, would make many complaints filed with the board - from the most frivolous to the most serious - available to the public as an open record. This could seriously damage the reputation and credibility of unjustly accused physicians. Even if the complaint is dismissed, the record remains and can subsequently be phished for any nefarious purpose.
We agree that physicians should be notified of the accuser's name when the complaint is lodged by an insurance company - but even those complaints should not be open records. In general, we prefer a system that would allow the board to handle CONFIDENTIAL, rather than anonymous , complaints. Such confidentiality is necessary to ensure that those who witness violations of the medical practice act feel free to bring their concerns to the Medical Board. However, the name of the complainant should be given to the physician when the complaint proceeds past a given point. We support a form of "whistleblower protection" for the accuser at that point.
- Finally, SB 2336 severely weakens the board's ability to sanction physicians for non-therapeutic treatment or prescribing. Medicine must rely on rigorous, scientific investigation to determine which therapies work, which don't, and what risks they may pose to the patient. In fact, the originally Texas Medical Practice Act was written nearly 100 years ago to rid the profession of the snake oil salesmen. Today's patients are indeed harmed, some fatally, when their physicians omit proven and appropriate treatments in favor of their own, unproven regimens. This bill would allow a physician to prescribe Laetrile or human urine for cancer treatment … or injections of jet fuel as a cure for allergies. I would add that removing this ability to discipline for non-therapeutic prescribing would curtail the board's ability to sanction a physician for illegally diverting controlled substances.
TMA believes that all Texans must be confident that they are receiving the highest quality of care and that their physicians are qualified, competent, and adhere to the highest ethical and professional standards.
However, we do not believe House Bill 2336 is a step in that direction, and so we ask that you do not support this measure. Thank you for your time today. I would be more than happy to address any of your questions.