TMA Testifies on HB 1013: Don’t Weaken TMB

Testimony: House Bill 1013 by Representative Fred Brown (R-College Station)

By: David Teuscher, MD
March 16, 2011

House Committee on Public Health  

Good afternoon, Madame Chair, and members of the committee. My name is David Teuscher, MD, and I am a board certified orthopaedic surgeon in private practice in Beaumont. Today I am here representing the more than 45,000 physicians and medical students of the Texas Medical Association (TMA). I am a member of the TMA Board of Trustees.   

As someone who has been active in Texas politics for two decades, I am really frustrated that I had to come to Austin to defend a strong Texas Medical Board (TMB). A strong and fair TMB is a lynchpin of the success of the liability reforms we passed in 2003. As part of the reforms we enacted to rid this state of the epidemic of lawsuit abuse, as a key part of the process of passing House Bill 4, the physicians of Texas strongly supported Senate Bill 104.   

 SB 104, which passed through this committee, imposed a $70 surcharge on physicians’ licensing fees. That money was appropriated directly to TMB to improve its disciplinary processes. And SB 104 directed the board to focus on violations related to quality of care, boundary issues, and impairment.   

I know that some of my colleagues are frustrated with how the board has handled complaints since the passage of SB 104. I know that there are some ways to improve that process. And I know that some of those improvements are contained in HB 1013 as well as in a number of other bills.   

But I also know that HB 1013 would weaken the Texas Medical Board. And anything that weakens the board weakens the liability reforms we passed in 2003.    

That is because if doctors are unable to police themselves through a strong and fair medical board, then today’s complaint is tomorrow’s lawsuit. Then we’re back to using the civil courts to enforce the standards of care and the standards of medical practice. And I won’t stand for that — and if you have seen the recent state budget analysis, you know our system cannot afford that.  

The good provisions:   

Members, there are provisions in this bill we support. Provisions like:   

  • Extending the time allowed for a physician to respond to a notice that a complaint has been filed, 
  • Eliminating the truly anonymous complaint, 
  • Allowing physicians to tape the proceedings of an informal settlement conference, and 
  • Binding the board to the ruling of an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings. And unlike any other licensing board, the Texas Medical Board supports this fairness provision.   

These provisions and others are contained in other bills that we hope will soon be before the House Public Health Committee.   

The bad provisions:    

There are, however, several very harmful proposals in HB 1013 that we believe will weaken the board.   

  1. It would take away the board’s ability to discipline a physician for nontherapeutic prescribing unless the board could demonstrate that the drug or treatment prescribed has the likelihood of harm to a patient.   

Pill mills …? That’s nontherapeutic. Is this “shark cartilage” for brain tumors? Doesn’t help treat the tumor but sure doesn’t hurt. “No harm no foul” is NOT the right standard of care for physicians and the public. I’m trying to define in my mind what a “nontherapeutic” prescription is.  

  1. The bill would allow physicians to divine their own standard of care based on the continuing medical education (CME) they took. Frankly, if everybody sets his or her own personal standard, there are no standards. CME is an important tool for physicians to maintain proficiency and learn the new techniques and treatments for the benefit of patient care. I am an orthopaedic surgeon. But just because I take a course in eye surgery does not qualify me to perform ophthalmic surgery! I may take it out of a personal interest, curiosity, or any other reason … but let’s be serious. I cannot be an eye surgeon — one or two CME courses is never going to make me an eye surgeon — and for me to attempt eye surgery would be potentially dangerous. But under this provision I legitimately could do it. And by virtue of a couple of CME courses, I could establish my own personal standard of care. Not exactly the same standard demanded of ophthalmologists and their many years of training.  

Caveat emptor is NOT the right standard for physicians or the public.   

  1. The bill would entitle a physician whose license had been revoked to a civil district jury trial. I am not sure what this means. If the board revokes a license for cause, does this mean the court must confirm the board’s ruling? Frankly, it is the board’s duty to revoke a license when it has cause to protect the public. Just the other day, the board revoked the license of a physician for sexually molesting several patients. Is the bill sponsor suggesting that when a physician presents a clear danger to the public, we wait for a jury trial? This is both unworkable and unsafe for our patients.   

I’m sure that you might be thinking to yourselves, why does TMA advocate against our physicians’ self-interest? Why do we advocate against allowing physicians to practice any way they want?   

Because we’re talking about a standard that’s greater than ourselves ... it’s about our patients.   

Why do we support confidential reporting? Because patient safety is a standard more important than the physician.   

When it seems some other practitioners may favor having their licensing agency serve as a cheerleader for those it supposedly regulates, why do we want  — why do we demand — a strong and fair medical board?   

Because a weak TMB might be good for the trial lawyers and providers who want to practice “nontherapeutically,” but it’s bad for Texas, bad for doctors, and most specifically, bad for patients.   

Medicine needs to be held to a different standard from law or other professions because what we do is different — it’s about human lives.   

Thank you very much. I’ll be happy to answer your questions.

82nd Texas Legislature Testimonies

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May 12, 2016