Legislative Affairs Feature - December 2007
By Ken Ortolon
An October legislative hearing ostensibly intended to examine
how the Texas Medical Board (TMB) uses increased funding approved
by the legislature earlier this year turned into a forum for
physicians to question the fairness of the board's disciplinary
Dozens of physicians appeared before the House Appropriations
Committee's Subcommittee on Regulatory Agencies to complain about
what they perceive as a lack of due process in TMB disciplinary
actions. Many also complained about the length and cost of
defending themselves before the board, particularly when complaints
stem from minor violations of the Medical Practice Act rather than
poor quality of care.
In addition, some lawmakers accused the TMB of using "fear and
intimidation" against physicians. "I'm hearing a lot about fear
today," said state Rep. Corbin Van Arsdale (R-Tomball), who added
that the TMB has a "credibility problem" with the physicians it
licenses and disciplines.
The Texas Medical Association believes the TMB disciplinary
process may need some changes, but lawmakers should maintain a
"The physicians of Texas, our medical associations, and all
Texans need and desire a strong Texas Medical Board, one that does
its job effectively and fairly," said A. Tomas Garcia III, MD,
president-elect of the Harris County Medical Society and a member
of the TMA Board of Trustees. "The board is charged with licensing
physicians, protecting patient safety, and maintaining high
standards for the practice of medicine in the state. It is a charge
we support without question."
TMA Recommends Improvements
While acknowledging that many physicians have been critical of
how the board processes complaints, Dr. Garcia urged lawmakers to
take several actions to keep the TMB strong but also refocus its
enforcement activities toward patient care issues.
"We believe all Texans should have confidence 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," he told the subcommittee. "To this end, we
urge the Texas Medical Board to refocus its disciplinary efforts
and to give priority to allegations of sexual misconduct, quality
of care, and impaired physicians as mandated by Senate Bill 104,
which the Texas Legislature passed in 2003 with our strong
Dr. Garcia also said the TMB should consider giving physicians
more and complete information about the nature of complaints
against them. He cited a recent Harris County Medical Society
survey of physicians who had complaints filed against them that
found 63 percent feel they did not receive enough information about
the complaint to explain their side.
He further suggested the TMB report aggregate minor
administrative violations in its newsletter rather than naming each
individual physician, and called on the board to launch a more
substantial effort to educate physicians about the board's
investigative and settlement processes.
Finally, Dr. Garcia urged lawmakers to approve funding to enable
the TMB to develop an electronic, Web-based application to
streamline the licensure process.
"While the legislature voted a modest increase for the board to
hire additional staff to process applications, we would support
additional technology investments to more quickly achieve
efficiencies in this largely paper-driven process," he said.
Meanwhile, TMB officials said they already are working to
address some of the concerns brought up at the hearing. TMB
Enforcement Director Mari Robinson said the board is developing a
fast-track system for minor violations that would speed processing
times from roughly nine months to between 30 and 60 days. She said
those violations would be treated "more like traffic ticket
The board held a stakeholders meeting in late October to discuss
proposed rules for the fast-track system and was expected to
present the rules to the TMB for preliminary approval at its
TMB Executive Director Donald Patrick, MD, JD, says the
fast-track system would cover five types of administrative
- Not signing a death certification in a timely manner,
- Not releasing medical records in a timely fashion and at a
- Making false statements in advertising about board
- Not completing required continuing medical education,
- Not posting a sign telling patients how to file complaints
with the TMB.
A physician who commits one of these violations could simply
sign an agreed order without having to go through an informal
settlement conference, pay any fine levied by the board, and not
have his or her name reported in the TMB newsletter, Dr. Patrick
He hopes to get final board approval of the rules in time to
implement the changes by early March.
If the new fast-track complaint system is successful, it should
enable the board to focus more resources and staff time in
investigating standard-of-care complaints, Dr. Patrick adds.
Subcommittee Chair State Rep. Fred Brown (R-College Station)
applauded that proposal. "That would save tremendous resources for
the state and, particularly, for the docs," he said.
TMB staff also said an online licensure system could be
operating as early as next spring, and the board could soon approve
a rule to publish the numbers of disciplinary actions for minor
violations rather than list each physician by name.
Changes in Attitude
The tone of the hearing marked a major reversal from 2003 when
the board came under harsh criticism because of a series of
Dallas Morning News
articles alleging it had failed to deal effectively with physicians
who committed sex offenses or other serious acts of misconduct.
TMB President Roberta Kalafut, DO, told the subcommittee that
senators made it clear in her confirmation hearing that the
legislature "would not tolerate" a board that did not discipline
doctors for violating the Medical Practice Act.
Also in 2003, lawmakers enacted major tort reforms and passed
the TMA-backed SB 104 that significantly strengthened the TMB's
enforcement powers to protect patients.
TMA and other tort reform supporters believe maintaining a strong
TMB is essential to protect those reforms. TMB member Melinda
Fredricks told the subcommittee there could be a down side to the
reforms if TMB doesn't remain strong and motivated to do the right
"I believe that some of our detractors want nothing more than
for the board to be undermined and weakened so that tort reform
will be removed or weakened," Ms. Fredricks said.
However, TMA and some physicians and lawmakers believe the TMB used
those additional powers to crack down on minor record keeping or
advertising violations instead of focusing on the more serious
charges of sex offenses or standard-of-care issues.
Representative Brown said in an interview before the hearing
that he "absolutely" thinks the board spends too much time going
after minor violations rather than bad doctors.
"I've had doctors from all over the state calling me since May,
telling me their horror stories," Representative Brown said. "All
the stories I've heard had to do with minor violations having to do
with paperwork, advertising issues, kind of nonsensical issues like
that. And they tell the same horror story that for eight to nine
months they had to worry whether they were losing their license and
if they were going to have to go out and find a new career, and the
whole time spend $10,000, $15,000, $20,000 in legal fees to defend
themselves to finally get to the informal settlement
Lawmakers also questioned the board's acceptance of anonymous
complaints and, in cases where the accuser is known, its refusal to
tell the physician who filed the complaint.
Physicians also complained they do not receive the actual
complaint and often do not get enough information about the charges
against them to defend themselves adequately. Others charged that
several complaints came from insurance companies more concerned
with how much money a doctor was costing them than about quality of
Laredo general practitioner Francisco Pena, MD, said the board
subjected him to double jeopardy. He said the board initially
exonerated him in a complaint stemming from a cesarean section
following a failed vaginal delivery. However, the board reopened
his case four months later. He agreed to a public reprimand, but
then found the board also was ordering him to cease doing
obstetrics for 10 years.
"I accepted the sanction. Now I found out I was deceived and I
paid with a pound of flesh," Dr. Pena said.
According to the TMB Web site, Dr. Pena's discipline followed
two complaints involving cesarean sections after failed vaginal
deliveries. The board order states that Dr. Pena "was neither
trained nor privileged to perform C-sections." The order also says
Dr. Pena advertised he was board certified, but neither the
American Board of Medical Specialties nor the Bureau of Osteopathic
Specialties recognizes the boards that certified him.
The Letter of the Law
TMB members and staff defended the agency. Ms. Robinson told the
subcommittee that no physician has ever been disciplined based on a
complaint filed by an insurance company. Dr. Kalafut added that
less than 0.01 percent of disciplinary actions resulted from
Ms. Robinson noted that by law all health professional licensing
boards except the massage therapy board accept anonymous
complaints. She defended use of anonymous charges, saying patients,
physician colleagues, or others might not file legitimate
complaints for fear of retaliation.
In an interview with
in September, Dr. Patrick pointed out that state law requires the
board to enforce minor Medical Practice Act violations such as
failure to comply with continuing medical education requirements.
Dr. Patrick also said 70 to 80 percent of the board's disciplinary
actions involve standard-of-care issues.
Some board critics complain that the TMB is pursuing a large
number of minor violations to pad its enforcement numbers. If
that's true, Representative Brown says he doesn't understand the
motivation for such actions.
"We don't ask them for quotas," he said. "No one's ever said we
want to see some big numbers."
But, in fact, lawmakers have set performance standards for the
TMB and other health professional licensing agencies in the
appropriations act. Provisions of the budget bill for the 2008-09
biennium directs the TMB to "make every effort to attain" certain
performance levels, including taking disciplinary actions in 18
percent of complaints brought before the board.
Dr. Garcia gave the subcommittee a copy of a report prepared by
TMA's Patient-Physician Advocacy Committee, which reviewed all TMB
disciplinary actions from 2003 through 2005. That report found that
almost one-fourth of all physicians sanctioned were disciplined for
minor infractions of the Medical Practice Act or of TMB rules.
"The authority to sanction others is commensurate with
responsibility to act reasonably," the TMA report concluded. "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
Following the hearing, Dr. Kalafut said lawmakers only heard one
side of the stories told by physicians disciplined by the board
because law prohibits board members from openly discussing those
In the September interview, Dr. Patrick admitted that physicians
generally are "anxious" about the board's vigilance "and afraid
that they're going to be the next name in our newsletter." But,
while physicians think the board can be unfair, the public also
doesn't think the board is being fair, he said.
"The reason is that they send in 6,000 complaints a year to us
and at the end of the day 5 percent end up getting an order," Dr.
Patrick said. "They say that's not fair."
Dr. Patrick said he hopes to make the enforcement process more
"objective" and develop processes to quickly dismiss meritless
cases, and handle minor violations where there is no patient harm
without an informal settlement conference.
He also said he'd like to see board members sitting in on
informal settlement conference be more consistent in how they apply
the law and mete out punishment.
However, he thinks they do pretty well considering that 47
different board and district review committee members hear the
Dr. Patrick says the board has accomplished much in his six
years as executive director, including hiring good managers;
persuading the press, the public, and the legislature that it is
being vigilant to protect patients; and "sidelining dangerous
Still, the board needs to do a better job in persuading
physicians that accountability is good for the profession, he
"It's a huge plus for the medical profession that we've become
vigilant. If we hadn't done 200 informal settlement conferences by
the first of December of 2002, tort reform would not have
"Keeping a strong Texas Medical Board has been and remains one
of TMA's top priorities," said association President William W.
Hinchey, MD. "We will continue to make suggestions to the board and
the legislature for how the board can be more fair and effective
both for physicians and for our patients."
Ken Ortolon can be reached by telephone at (800) 880-1300,
ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by