Review of Texas Medical Board Discipline

REPORT OF PATIENT-PHYSICIAN ADVOCACY COMMITTEE

Review of Texas Medical Board Discipline

The Review of Texas Medical Board Discipline is available in PDF .

Charge
To study and monitor the Texas Medical Board's disciplinary actions, documenting the application of overly harsh punishments - by fine and publicity - for minor infractions, and suggest alternatives that could be advanced to the board. [1]

Executive Summary
At the 2006 Annual Meeting of the TMA House of Delegates, Resolution 104 was adopted. The resolution called for a study of overly harsh punishments of minor infractions of the Texas Medical Practice Act (MPA) and Texas Medical Board (TMB) regulations. The Texas Medical Association also was charged to suggest alternative sanctions that could be advanced to the Texas Medical Board to ensure that the punishment was in proportion to the alleged violation.

The study reviewed historical documents, legislative reports, news reports, member surveys, law journal articles, case law, historical statutes and regulations, current statutes, proposed and enacted bills, current and proposed regulations, commentary upon proposed regulations, and TMB newsletter summaries and disciplinary orders. The overwhelming number of TMB disciplinary orders are agreed orders. This means the accused physician has entered into a negotiation with the TMB and has agreed to the statement of facts, conclusion of law, and imposed sanction. The benefit to the physician in making such an agreement is that an agreed order may not be entered as evidence by a plaintiff's attorney in a civil trial. The physician also may succeed in negotiating an order that imposes a TMB sanction that is not reported to the National Practitioner Databank. There also is a significant financial incentive to negotiate an agreed order as defending against a TMB allegation will likely cost much more than the offered administrative penalty.

The fact that most of the TMB orders are negotiated settlements introduced a level of subjectivity into the study results. As stated, the findings of fact are modified through negotiation and it can be very difficult to determine exactly what circumstances cause the imposed sanction. Further, many orders contain a finding that the physician continues to dispute the TMB allegations, but accepts the disciplinary action to resolve the complaint. Often it was only upon review of TMB State Office of Administrative Hearings (SOAH) filings that provided insight into a particular order. Not all complaints with the TMB result in SOAH filings.

In 2003 through 2005, the TMB received 21,980 calls (many of which did not regard physicians) to its complaint lines. During those same years the TMB dismissed 7,657 complaints against physicians. For the period of time covered by this study, the TMB disciplined 968 physicians. Physicians, the public, and the Texas Legislature expect the TMB to pursue meritorious complaints made against physicians. The legislature, through the Legislative Budget Board review process, has set goals for TMB discipline (as it does for all licensing agencies). The legislature expects that 18 percent of complaints made against physicians will result in disciplinary action for 2006 and 2007 and expresses its expectation in the appropriations bill. Furthermore, as a result of unfavorable news articles and perception of weak enforcement by the TMB, the MPA has been modified to allow for public scrutiny of TMB activity and physician discipline.

In the late 1980s, as a political compromise in a bill addressing professional liability protections, the legislature removed the authority that previously permitted the TMB to issue private reprimand letters. This means TMB lacks the statutory authority to keep disciplinary activities from the public. In later reforms, TMB was directed to make summaries of disciplinary actions available in its newsletter. TMB, however, is free to interpret what a "summary" is in regard to compliance with this provision. We believe TMB may refrain from listing names for minor administrative violations.

For the review period, over 300 physicians were sanctioned for minor infractions of the MPA or regulations. Results of a Harris County Medical Society survey indicate that physician members believe that publication of a physician's name along with the summary of violation is overly harsh in regard to a failure to provide timely medical records. The TMA Patient-Physician Advocacy Committee agrees with this sentiment. It is recommended that the names of physicians disciplined for administrative violations be omitted from TMB newsletter summaries. Minor violations not requiring publication of names should include, but not limited to, failure to timely release of records, failure to obtain necessary CME, failure to timely sign a death certificate, inappropriate advertising, and defaulting on a student loan. Additionally, failure to provide timely copies of information to the board (as opposed to failure to reply to a TMB subpoena) is a minor violation which can be dealt with proactively and TMB should ensure that its investigatory personnel provide physicians with an adequate time period to reply with such requests.

The authority to sanction others is commensurate with responsibility to act reasonably. The legislature recognizes this and has granted TMB discretion in pursuing certain complaints. TMA urges TMB to utilize its discretion in administrative violations and refrain from disciplinary action for good cause, such as mistake by staff or physician.  

Almost one quarter of the physicians sanctioned by TMB were disciplined for minor infractions only. TMA believes all Texans must be confident that their physicians are qualified, competent, and uphold the highest ethical and professional standards. TMA supports a strong and well-funded TMB to carry out this critical function. To this end, TMA urges TMB to refocus its efforts on investigations and prosecutions of allegations regarding sexual misconduct and violation of standards of care.

Because this review has classified board orders, 137 actions were for "inadequate medical records." That is 43 percent of all minor infractions sanctions reviewed in this study. The genuine absence of an adequate medical record is a serious issue that can impact patient well-being. Despite the number of disciplinary actions taken by TMB, it is doubtful there is a crisis in patient care and medical records. This information may indicate that the regulation is not used as intended or as it should be. TMA, in its comments when the regulation was proposed for adoption, stated fear that the regulation was overly technical. TMA suggests the TMB regulation on "adequate medical records" be revised and returned to the previous language. Modification of its own regulation is within the board's discretion.  A return to the viewpoint that the medical record is a tool of physicians for their use in the care of patients, as opposed to a regulatory checklist, would be helpful. In any event, in addition to modifying the regulation, TMB should educate its position on self-prescribing, prescribing for family or close friends, CME, confidentiality, and other issues of ethics relevant to MPA enforcement.

TMA House of Delegates: TexMed 2007