Cover Story - July 2008
Tex Med. 2008;104(7):16-23.
By Ken Ortolon
Nearly 2,500 Texas physicians got the dreaded letter last year from the Texas Medical Board (TMB) with words that no physician wants to read: "A complaint has been initiated against you with the Texas Medical Board."
If you get that letter, do you know how to defend yourself against a complaint?
Austin lawyer Tim Weitz, JD, says many physicians do not.
"The thing I see with physicians is they do one of two things," said Mr. Weitz, a former TMB attorney who frequently represents physicians before the board. "They react immediately in anger and send some horrendously written letter that makes them look like they're under too much stress and doesn't do anything for their cause; it just makes them seem unreasonable. Or they put it at the bottom of the stack and they go into denial."
Both are bad ideas, he says.
Houston cardiologist A. Tomas Garcia III, MD, president of the Harris County Medical Society and a member of the Texas Medical Association Board of Trustees, says there is nothing pleasant about being called on the carpet by TMB. But, he says, physicians must know what to expect and how to defend themselves.
"If you think a malpractice lawsuit is bad, you have no idea how this process goes," said Dr. Garcia, who testified about TMA concerns with TMB enforcement activities before a legislative committee last fall.
At that hearing, numerous physicians complained of what they felt was a heavy-handed approach by the board to enforce the Medical Practice Act. Many felt they were not afforded appropriate due process and were not always given enough information about the complaint to adequately defend themselves, and that cases, even those involving minor violations with no standard-of-care issues, frequently took months to resolve at a cost of tens of thousands of dollars to the physician.
Dr. Garcia says physicians and TMA want a strong TMB, but they want the disciplinary process to be fair and efficient.
Examining the Process
TMB received about 6,800 complaints in fiscal year 2007. The staff initiated 2,486 investigations based on those complaints, but only a fraction actually resulted in any type of disciplinary action against physicians, says Mari Robinson, JD, TMB director of enforcement.
Investigators immediately dismissed about 1,400 of those complaints as "nonjurisdictional," meaning they involved issues or health care professionals over which TMB has no jurisdiction. Ms. Robinson says many such complaints involve allied health professionals regulated by other agencies.
If the board determines the complaint is against someone licensed by TMB and there is enough information to indicate a potential violation of the Medical Practice Act, the case goes to a nurse investigator. The investigator notifies the physician of the complaint in a letter that lays out the general allegation. The physician then has an opportunity to respond within 14 days.
"Once we get that response, it is reviewed again by the nurses, and a determination is made at that time whether to file the complaint and go forward with a full investigation," Ms. Robinson said.
If the investigators determine there is no violation, they consider the complaint "jurisdictional-not filed."
"We call it that on purpose so that when the physician is asked if he ever had a complaint filed against him, he will be able to say no because we did not file the complaint," Ms. Robinson said.
TMB dismissed 2,763 such complaints last year, according to statistics posted on the agency's Web site. That's nearly 40 percent of all the complaints the board received.
By statute, all of that must occur within 30 days after TMB receives the complaint. This reinforces the need to respond promptly to the initial TMB letter. If a case is not dismissed by then, it is considered a filed investigation and assigned to a nurse investigator for follow-up.
"They will send the doctor a more detailed letter discussing the case, asking specific questions, and asking for a response," Ms Robinson said. "They will also make contact with the complainant, probably by letter, to give them an opportunity to add any information they may wish to add."
If the case involves standard-of-care issues, which account for 65 to 70 percent of complaints to the board, it goes to two board-certified physicians in the same or a similar specialty for review. If the doctors agree that a violation did not occur, the case is dismissed. If they agree a violation did occur, the case proceeds.
Regardless of whether the expert reviewers determine that a standard-of-care violation occurred, they draft a final report. If the experts recommend dismissal of the case, they submit it to the board's Disciplinary Process Review Committee (DPRC), composed of TMB members. The committee can accept their recommendation, send the case back for more investigation, or set it for a hearing at an informal settlement conference.
If the expert panel determines that a violation has occurred, it sends the final report to a committee composed of the board's executive director, director of enforcement, and litigation manager.
"They review every case that's referred to the litigation department for a hearing, and they make a recommendation whether to forward the case for hearing or not," Ms. Robinson said. "They can refer it to the DPRC - and often do - for consideration of dismissal."
If the committee does not recommend dismissal, the case is set for a hearing.
While some physicians who have been through the process claim the "informal settlement conferences" are anything but informal and more like hearings than "conferences," that is the next step in the process.
Informal settlement conference hearings are held before two or three board representatives, usually at least one physician member of the board, and possibly a physician member of one of TMB's District Review Committees.
The physician typically receives notice 60 days before the conference. The board is required to give the physician all evidence in the case 30 days before the settlement conference. The physician is also permitted to send in a written response to the allegations, which becomes part of the package made available to the hearing panel.
At the settlement conference, TMB staff members present the evidence and why they believe there was a violation. The physician, who can bring a lawyer or other representative, as well as anyone else he or she wishes to make a statement, can then present his or her rebuttal.
At the conclusion of the presentations, the board representatives go into executive session to discuss what action to take against the physician. Ms. Robinson says settlement conference panels recommend dismissal of cases against physicians roughly 30 percent of the time. If they recommend some form of penalty against the doctor, he or she has 20 days after receiving the written version of a proposed order to decide whether to accept it, make a counterproposal, or reject it.
If the physician agrees to the proposed board order, it is set for approval at the next board meeting. If the doctor does not sign the proposed board order, the case is referred to the State Office of Administrative Hearings (SOAH) for another hearing.
Cases before SOAH administrative law judges essentially are civil trials. All rules of evidence apply, and each side can present witnesses. At the conclusion of such trials, the administrative law judge issues findings of fact and conclusions of law that go back to TMB. Doctors definitely need an attorney to represent them at the SOAH hearing.
At that point, there is another hearing before the full board, and the physician has one last opportunity to respond to the judge's findings. The board then determines whether to levy a fine or other penalty or to dismiss the case.
If the physician is unhappy with that outcome, his or her next course of action is to appeal to state district court.
"A Big Sieve"
TMB completed 2,441 investigations of physicians in fiscal year 2007. Ms. Robinson says between 60 and 70 percent of those cases were dismissed.
In the end, some 500 cases went to informal settlement conferences, and the board levied penalties in 300 to 350 of those cases, she says.
"So you can see it's like a big sieve," she said. "We start out with 6,800 cases, and over the course of time it gets whittled down to the cases that actually do have a disciplinary component to them."
While the board follows this process for the vast majority of complaints, it also has authority to take emergency action against any physician it feels presents an imminent danger to the public.
In such cases, the board staff conducts a rapid investigation - usually lasting between 5 and 30 days. If there is sufficient evidence that the doctor is a danger to the public, TMB convenes a panel of three board members for a temporary suspension hearing. The panel can issue a temporary suspension, refer the case to an informal settlement conference with no suspension, or temporarily restrict the physician's license.
In extreme cases, the board can conduct such hearings without notifying the physician. If the board suspends a doctor's license under those circumstances, there must be a formal hearing giving the physician a chance to respond within 10 days.
Fair and Efficient?
Dr. Garcia has experienced the TMB disciplinary process. In 2006, a complaint against him resulted in an agreed order requiring him to take continuing medical education on adequate documentation in medical records. He says the case involved a communication problem between two family members who had divergent opinions about their father's care.
Dr. Garcia says the initial letter he received from TMB was somewhat vague about the actual nature of the complaint. "It's almost like you're guilty before anything else," he said.
He says his informal settlement conference was brief, the case was resolved fairly quickly, and he felt he was afforded due process.
"I didn't think much of it because the patient did fine and it was just a communication glitch between these two people," Dr. Garcia said.
Traffic, Not Murder
In March, the board also implemented new rules to speed resolution of minor, administrative violations of the Medical Practice Act, such as failure to complete required continuing medical education, failure to release medical records in a timely fashion, failure to sign a death certificate in a timely fashion, and others.
These rules stemmed largely from the criticism of the board at last October's legislative hearing that cases involving minor violations could drag on for months and cost the doctor thousands of dollars in legal fees. The rules also incorporate several recommendations from TMA.
Under the new fast-track procedure, if the board receives a complaint involving one of the listed administrative violations, the physician receives a letter outlining three choices. He or she can essentially plead "no contest" and agree to a fine stipulated in the board rules, submit a written response to the DPRC for review and action at the board's next meeting, or request a hearing.
"If you say you want a hearing, you're basically opting out of the fast-track procedure," Ms. Robinson said. From there, the case follows the normal investigative process.
Ms. Robinson says TMB sees the new fast-track procedure as a way to allocate more resources to the more serious standard-of-care cases.
" We wanted the process for these administrative type violations to be more like a traffic ticket and less like a murder investigation, to use a police analogy," she said.
TMA Associate General Counsel Lee Spangler, JD, says the new procedure is a move in the right direction. TMB resolves the cases rapidly and, according to TMB officials, does not report them to the National Practitioner Data Bank, and the TMB newsletter and news releases about disciplinary actions do not list the names of physicians fined for administrative violations. And, the physician potentially can avoid having to list a dismissed case as an investigation on credentialing forms, he says.
However, physicians have a very short window to respond once they are notified of an administrative violation. "They need an attorney to help them draft a response," he said.
Unfortunately, they may not have adequate time to consult an attorney because the response must come within 14 days after the letter is printed - not when the physician receives it - if the physician wants the case dismissed without a formal complaint being filed.
"We've received information from physicians that they would get a letter that, say, was dated May 1 and mailed on May 6, received on the 10th, and they have until the 14th to respond," Mr. Spangler said.
TMA asked the board to place specific time lines on itself in these new rules to make sure that physicians have an adequate opportunity to respond, or at least be clear that TMB has the discretion to waive the deadlines for good cause. While the board did not adopt those recommendations, it did amend the draft rules to allow physicians to request a hearing rather than go through the fast-track process.
Mr. Spangler says TMA felt it was important for physicians to have an opportunity to meet face-to-face with another physician from the board and make their case.
Dr. Garcia has been following implementation of the new rules and says it is too early to tell what impact they will have on faster or more equitable resolution of administrative complaints. As of May, only two physicians who went through the fast-track option had been fined, Ms. Robinson says. Several additional cases were to be considered at the board's meeting in June.
"The devil is in the details" of how the new rules are enforced, Dr. Garcia says. "It looks good. It looks like they're going to do what we asked them to do. If so, I don't think most of our physicians will have a major complaint."
TMA will watch implementation of the new rules closely to make sure it is done fairly and that physicians' due process rights are maintained. Still, he says, physicians who commit a minor administrative violation should like not having their name listed alongside doctors who committed serious standard-of-care violations, have substance abuse problems, or have been convicted of felonies, Dr. Garcia says.
"The perception is that you're in that league when you're name is listed next to theirs," he said. "If you separate the minor violations from the more serious ones, it will help."
Cease and Desist
Mr. Weitz, however, is skeptical that the new process will really make a difference. He believes many of his clients will opt for a hearing, anyway.
"My sense of it is that oftentimes the fine and the publication of the doctor's name in the newsletter are not really the primary issues," he said. Instead, doctors object to the fact that they are subject to disciplinary action at all.
"The problem that some of my clients have with some of the regulatory approaches now is that they're so unforgiving," Mr. Weitz said. "It's hard to imagine a profession other than maybe air traffic controllers where the margin of error is so thin and a perfection standard is being applied ."
For example, the board might fine a physician for an inadvertent advertising violation, such as unintentionally claiming to have "the leading clinic" rather than "a leading clinic" in the city, which constitutes advertising professional superiority that can't readily be proven.
Such mistakes don't harm patients and are not intentional and might be dealt with more effectively through warning or cease-and-desist letters, he says. Mr. Weitz also notes that the legislature may have to change state law to make sure TMB has the authority to exercise such an option.
Regardless of whether a physician is facing an administrative fine or loss of his or her license, experts say there are two vital steps every physician must take. First, contact your medical liability carrier.
Mr. Spangler says the Texas Medical Liability Trust (TMLT) provides a rider on its liability policies that pays up to $25,000 of the cost of defending against a TMB complaint. Other carriers offer similar coverage.
The second step -- get an attorney. "You need an attorney to help craft any response to a medical board letter because you want to present the facts that best represent your case," Mr. Spangler said.
In many cases, your medical liability carrier can recommend an attorney to represent you before TMB.
Finally, Mr. Weitz says don't delay. Because physicians must respond quickly, particularly under the new administrative violation rules, physicians "can't just sit there," Mr. Weitz said. "No action is not on the list."
For more advice on what to do if a complaint is filed against you with TMB, see a TMLT article entitled " Surviving a TMB Investigation ," [PDF] which is on the TMLT Web site.
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 email at Ken Ortolon.
For more information, read " If a Complaint Is Filed Against You " on the Texas Medical Board Web site.
Administrative Penalty Guidelines
Listed below are the administrative violations eligible for the Texas Medical Board's new fast-track disciplinary process, along with the fines for each violation. A licensee may be eligible for an administrative penalty under these rules for three times only. Additionally, a licensee may not receive an administrative penalty under the rules for the same category of violation more than once.
Administrative Penalty Amount
Failure to timely provide copies of medical or billing records or overcharging for medical records
$1,000 per violation
Failure to timely comply with a board subpoena or request for information
$2,000 per violation
Failure to timely sign a death certificate
Discipline by peers that does not involve patient care
$1,000 per violation
Discipline by another state or military that does not involve patient care
$1,000 per violation
Failure to obtain/document continuing medical education
Lacking 5 hours or less
Lacking 6-10 hours
Lacking more than 10 hours
Failure to report liability claims to the board
$500 for each violation
Failure to change address with the board
Failure to keep drug logs
Failure to display sign required by Board Rule 178.3
Failure to report accurate information on an application or renewal
Minor violation of a board order
TMB Steps Up Processing of Licensure Applications
Despite seeing applications for medical licenses remain at a record-setting pace, the Texas Medical Board (TMB) says the time to process those applications and grant new medical licenses is decreasing.
Average processing times for new medical licenses dropped from about 100 days in the first quarter of fiscal year 2007, which began Sept. 1, to only 54 days in the third quarter, says Jaime Garanflo, TMB director of licensure.
Ms. Garanflo says the number of licensure applications received during the past two fiscal years exceed 4,000 each year, up substantially from the previous high of 2,900 in fiscal year 2005. Applications for fiscal year 2008 are running at about the same pace as in 2007, Ms. Garanflo says.
Unfortunately, TMB did not have the staff to handle the increased volume in 2006 and 2007. However, the Texas Legislature appropriated funds to allow the board to hire six additional full-time staff members.
Harris County Medical Society President A. Tomas Garcia, III, MD, says it is still too early to tell how much impact the added staff is having on license-processing times, but it appears to be making a difference.
Dr. Garcia says he had been hearing numerous complaints from Houston physicians about delays in getting licenses approved. "I can't say those complaints have evaporated completely, but the volume isn't quite as loud anymore," he said.
Still, some physicians say it can still take several months to get a license approved, even though the situation appears to be improving.
Officials with Kelsey-Seybold Clinic in Houston say it took newly recruited physicians in their practice between six and nine months to get their licenses in 2007, compared with nine to 11 months in 2006.
Vickie Taylor, physician recruiter for Austin Regional Clinic, says four recently recruited physicians waited between three and 10 months to get a Texas license.
In addition to the heavy application volume, the process itself is very complex, and physicians do not always get all of the required documentation submitted in a timely fashion. Ms. Garanflo says TMB licensure staff will not process an application until it receives all of the necessary documentation.
Physicians can apply online, but they also must submit supplemental documentation such as medical school transcripts and documentation of postgraduate medical training. Texas applicants also must submit fingerprints and pass the Texas Medical Jurisprudence Examination before TMB considers an application complete.
TMB screens new applications to see that all supporting material is present. Supplemental documentation can vary, depending on the physician's personal history, For example, if the doctor has ever been arrested, he or she must submit the court records. If they have had medical liability suits or claims, their insurer must submit a medical liability claims report.
If the screener deems an application complete, it goes to a license analyst for review.
"When they get assigned to an analyst, the analyst does what's called initial processing of the application and takes a look at it to see if everything is complete and okay," Ms. Garanflo said. If so, TMB might complete the review that day and notify the physician that he or she is eligible for a temporary license pending final board approval of the application.
The analysts, however, frequently find information missing from the application or supplemental documents. For example, if there is a gap in the physician's work history that is not fully explained, the analyst may request more information. The same is true if the physician did not fully disclose the circumstances around his or her medical liability claims history, arrest record, mental health or substance abuse history, or issues surrounding probation during medical school or postgraduate training.
While these types of problems don't automatically exclude a physician from licensure in Texas, TMB may ask the physician to appear before its Licensure Committee to explain circumstances surrounding an arrest or substance abuse problem and to explain why he or she should be eligible for a Texas license, Ms. Garanflo says.
Graduates of some Caribbean or Eastern European medical schools that have English language programs also have an added requirement to show that their medical education is equivalent to that of a U.S. graduate or that the clerkships in the last two years of medical school were conducted under conditions prescribed by Texas law.
Ms. Garanflo says that can take time for some graduates, but certification by a medical specialty board sometimes can "cure" such problems.
While a license analyst can approve an applicant with a clean application for a temporary license, any physician with a "ding" on his or her record will have his or her application reviewed by a committee that includes the TMB executive director, the director of licensure, the assistant general counsel, and other staff members. That committee can recommend approval of an application, defer it for more information, determine the individual ineligible for a Texas license, or refer the application to the Licensure Committee.
If the TMB staff determines an applicant to be ineligible, he or she can appeal to the Licensure Committee. If the committee makes the same determination, that decision can be appealed to the State Office of Administrative Hearings. If the board ultimately denies the physician's application, the matter can be appealed to state district court.
When the legislature authorized TMB to hire additional licensure staff, it also required the agency to reduce the average license-processing time to 51 days by the end of August. Ms. Garanflo believes TMB will achieve that goal.
TMA officials say physicians can expedite the process by making sure their application is complete, that all questions are filled out accurately, and that the medical board has all of the original documentation it requires. That sometimes can be difficult because the physician must rely on other institutions to forward some of that documentation to the board.
TMB maintains a considerable amount of information on the licensure process on its Web site , including an overview of the process, the online application and additional licensure forms, the supplemental documentation checklist, and information on the jurisprudence exam and fingerprint requirements.
The Web site also gives physicians access to TMB's new License Inquiry System of Texas (LIST) online communication system for physician licensure applicants. LIST explains any item required to process a license application and has a message center where applicants and TMB staff can exchange messages.
TMA's New-to-Texas Web Page
The Texas Medical Association strives to be your one-stop resource for all of your professional needs. That's why it developed a Web page dedicated to guiding you through the process of getting your medical license and setting up your practice in Texas.
The new one-stop location includes information on the licensure process, physician demographics, a credentialing application, establishing a practice, state and federal agencies, and much more.
Patrick to Retire as TMB Executive Director
First, he was a surgeon, then a lawyer. Now a music historian?
Texas Medical Board (TMB) Executive Director Donald Patrick, MD, JD, announced in April that he would retire from the agency effective Aug. 28, his 70th birthday. His plans include pursuing a master's degree in music history at The University of Texas at Austin.
"This is a job that I've loved probably more than any other I've ever had before," Dr. Patrick said. "I've had a tremendous attachment to the profession and the people who work here in this agency and the board."
Dr. Patrick joined TMB as executive director in September 2001. Before that, he had been a practicing neurosurgeon in Austin since 1969.
Dr. Patrick graduated from Baylor College of Medicine in 1962 and trained in neurosurgery at Baylor and the University of Washington. He served in the U.S. Army as chief of neurosurgery at the 24th Evacuation Hospital in Vietnam during 1967-68 and received the Bronze Star for his work there.
He also has served as chief of staff at both the University Medical Center at Brackenridge Hospital and The Rehabilitation Hospital of Austin (now Health South) and as chief of surgery at Round Rock Medical Center.
He received a law degree from UT Austin in 1996.
Dr. Patrick began contemplating retirement last year and made the decision in February. He decided to pursue a music history degree because of his love of education, his love of history, and his love of classical music, he says. Dr. Patrick is a violinist. UT accepted him into its music program in April.
"I had to pass a very serious diagnostic examination in music theory and music history to make sure I'm a suitable candidate," he said.
As for his tenure at TMB, Dr. Patrick believes the board and the agency have achieved "a standing of increased accountability" for Texas physicians.
"We've engineered a lot of changes in our disciplinary processes so that statutorily we have strength to do the things that are required, removing doctors from practice who are a danger to their patients and disciplining doctors who are not able to practice medicine in a competent fashion," he said.
He also cites the new rules for fast-tracking administrative violations as a major accomplishment. Those rules will allow physicians to recognize they made a mistake, pay a fine, and move on. Plus, it will let the board focus more attention and resources on standard-of-care cases, he says.
"It's what the legislature wants us to do," Dr. Patrick said. "And I think to a pretty high degree that's what the profession wants us to do."
"Dr. Patrick was earnest in his efforts to ensure Texas had a strong and accountable board," TMA's Immediate Past President William W. Hinchey, MD, said. "It was important to him that all Texans are 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."
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