Setting the Record Straight: Supreme Court Curtails TMB for Over-Sanctioning Physician
By Joey Berlin Texas Medicine August 2019

Aug_19_TM_Law

Eight years ago, when he experienced a rare patient death, McAllen family physician Ruben Aleman, MD, signed the death certificate the way Texas physicians had been doing it for years, and the only way he knew how: using pen and paper.

That resulted in the Texas Medical Board (TMB) not only coming after him, but accusing him of “unprofessional or dishonorable conduct that is likely to deceive or defraud the public” – words found in the state Medical Practice Act.

The Texas Supreme Court recently decided that was an overreach for a physician who simply hadn’t signed up on the state’s electronic death registration system, which at the time was relatively new.

The high court’s decision came because Dr. Aleman fought back in a situation where others had not. And it came after the Texas Medical Association weighed in to support his battle against the sanctions, arguing to the Supreme Court that the board’s punishment was excessive.

In May, the Supreme Court ruled TMB had overstepped its authority. The court said TMB had pursued discipline of Dr. Aleman based on an “overly broad interpretation” of the law, and it voided the board’s sanctions against him. As a result, TMB dismissed its case against Dr. Aleman – as well as 10 other electronic death certificate cases.

“How could signing a death certificate with a pen, versus electronically, be a threat to the public?” asked Ron G. Hole, Dr. Aleman’s attorney. He recalled when the Supreme Court heard the case, “One of the justices said that other people that have been sanctioned for this just roll over and pay the fine and don’t fight it.”

But Dr. Aleman didn’t do that – and now, following TMB’s dismissal of his case, he’s helped others like him. And he’s hopeful his case may help prevent overreaching discipline in the future.

“I’m not going to roll over. It was too absurd,” Dr. Aleman told Texas Medicine. “I’m sure there are some cases out there that are just as flagrant as mine, or more. As in all professions, there probably are some people that need to be looked into, and attention brought to their behavior. But I think that there aren’t very many of those, and let’s do it more appropriately, and not just do it with one broad sweeping action, and have everybody possibly feel the repercussions of something like that.”

 TMB, however, contends the decision is limited to death-certificate cases, and going forward, the agency says it will handle them differently from a disciplinary standpoint.

Aug_19_TM_Law_Sidebar Dishonorable conduct?

Because his patients don’t die very often, Dr. Aleman doesn’t sign death certificates often. When one of his patients died in July 2011, it had been only a month since physicians had been required to be registered for the Texas Electronic Death Registration (TEDR) system. (The state now uses TxEVER, the Texas Electronic Vital Events Registrar.) TEDR had taken effect in 2007, with TMB giving physicians a grace period to register that ended June 1, 2011.

According to court documents, a funeral director generated and signed the death certificate electronically, but because Dr. Aleman wasn’t registered with TEDR, he was sent a paper certificate. He hand-signed the document, which was then certified by the local registrar and became official in August 2011.

Dr. Aleman then registered with TEDR and attempted to certify the patient’s death certificate electronically. But because the paper certificate already had been made official, the TEDR system wouldn’t let him do so.

The board sent Dr. Aleman a notice of its complaint, with allegations that he’d violated board rules and the Medical Practice Act as a result of how he handled the death certificate. He says before he attended an informal settlement conference at TMB, the board had proposed to fine him $500 and release a newspaper notice with “some language that they used that I was deceiving the public and that sort of thing,” Dr. Aleman told Texas Medicine.

“The whole idea just sounded ridiculous: Because I cannot sign something in a particular manner – having signed it already in another manner – why is it that now all of a sudden, I am subjected to this?” he said.

The informal settlement conference didn’t result in an agreement, and in 2013, TMB sought disciplinary action against Dr. Aleman with the State Office of Administrative Hearings (SOAH). The board alleged that Dr. Aleman “required the mortuary to provide him with a paper death certificate” instead of “certifying the patient’s death certificate through TEDR as required,” and violated the state Health and Safety Code by doing so.

Then there was the alleged violation of the Medical Practice Act, which allows TMB to discipline physicians for committing “unprofessional or dishonorable conduct that is likely to deceive or defraud the public,” including a violation of law if that violation “is connected with the physician’s practice of medicine.”

Dr. Aleman fought the board’s complaint at SOAH. The administrative law judge who heard the case cleared him on one of the alleged Health and Safety Code violations, but agreed with TMB that he failed to complete the required electronic medical certification. The SOAH judge found that “by definition” Dr. Aleman violated the Medical Practice Act because the violation was related to the practice of medicine.

TMB then issued a final order that fined Dr. Aleman $3,000 and required him to pass the medical jurisprudence exam and take 16 hours of CME. Both a trial court and an appeals court upheld the final order.

Dr. Aleman kept fighting, and the Texas Supreme Court took up the case.

TMA: Reverse the sanctions

In its Supreme Court brief, TMA argued that TMB had abused its power by sanctioning Dr. Aleman beyond the standard penalty for a first-time violator. According to the board’s own rules, sanctions that included a $500 administration fee and four hours of CME in ethics/risk management were “applicable to first time violators,” TMA noted.

TMB argued in a Supreme Court filing that “any violation of state or federal law constitutes unprofessional or dishonorable conduct if the act is connected with the practice of medicine.”

But under TMB’s incorrect interpretation of its own rules, TMA said, the board could excessively fine a physician or revoke a license for simple, minor administrative violations. That would put physicians under investigation for first-time, minor infractions in a difficult situation: Either admit to the violation and take a smaller penalty, or fight the allegation and risk getting their license revoked.

The board’s sanctions against Dr. Aleman must be reversed, TMA argued, because its final order against him “permits the board to use the sanctioning guidelines as an unfair bargaining chip to force settlements and deter physicians from seeking due process for alleged violations.”

Case dismissed

Ultimately, the Supreme Court did not reach the question of whether the sanctions were excessive because justices decided that the Medical Practice Act “did not authorize the Board to take disciplinary action against Dr. Aleman” in the first place.

“The board is correct that, in light of the Health and Safety Code’s electronic certification requirement, Dr. Aleman necessarily violated state law by certifying [the patient’s] death certificate manually, regardless of his knowledge of the law’s existence. But such conduct was subject to disciplinary action under the act only if ‘connected with’ the practice of medicine,” wrote Justice Debra H. Lehrmann.

In analyzing what the medical practice law considers sanctionable conduct, the court ruled that what Dr. Aleman did – “medically certifying a death certificate using pen and paper rather than the approved electronic system – clearly does not qualify,” Justice Lehrmann wrote.

“Further,” she added, “potential fact patterns readily come to mind that only heighten the concerns associated with the board’s overly broad interpretation. For example, suppose a physician were cited for speeding while on the way to the hospital to deliver a baby. The physician has likely violated a state law … and under the board’s interpretation the physician’s ‘act’ is at least arguably ‘connected with’ his practice of medicine. Again, however, disciplining such conduct is not consistent with either the act’s language – properly construed as a whole – or its purpose.”

TMB Executive Director Brint Carlton told Texas Medicine that the board interprets the high court’s decision to be “narrowly tailored just to these TEDR (death registration) cases that we’re looking at. So it will have some change in, obviously, how we look at complaints involving TEDR cases,” he said. Asked about the board’s broad approach in invoking the Medical Practice Act and unprofessional or dishonorable conduct for such a case, he pointed out that the act refers to “any kind of a violation” of state or federal law.

Tex Med. 2019;115(8):38-40
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Last Updated On

August 02, 2019

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Joey Berlin

Associate Editor

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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