Legislative Affairs Feature -- April 2002
By Ken Ortolon
In what may be the opening shots of the 2003 legislative battles over medical liability and managed care reform, the Texas Medical Board (TMB) recently has come under intense fire for the way it handles discipline of wayward physicians.
In a series of articles published in January, The Dallas Morning News excoriated the TMB for failing to act aggressively against physicians guilty of sexual misconduct with patients. Over the past five years, the newspaper said, the board revoked the licenses of only a handful of physicians who had sex with patients or committed other sexual transgressions while dozens were allowed to stay in practice.
On the heels of those articles, the Texas Association of Business and Chambers of Commerce (TABCC) joined the criticism and called for stricter penalties for physician misconduct, more funding for investigation and enforcement, and an increase in the number of nonphysicians on the TMB.
"I commend The Dallas Morning News for bringing this issue to the public's attention," TABCC President Bill Hammond said in a Jan. 24 news release. "However, sexual misconduct is just the tip of the iceberg. Physician misconduct is a much broader issue that includes unnecessary or incorrect medical procedures and drug abuse, all of which must be brought to light and addressed in the appropriate manner, with appropriate repercussions."
Waco internist Joe H. Cunningham, MD, chair of the Texas Medical Association Council on Legislation, called TABCC's criticism of the TMB disingenuous. "It's a diversion, a 'watch my thumb' strategy," Dr. Cunningham said. TABCC's real intent, he says, is to put physicians on the defensive so they cannot push aggressively for prompt payment, standardized contracts, and other managed care reforms.
Similar strategies can be expected from plaintiff's attorneys, Dr. Cunningham says. "The line of attack from the plaintiffs' bar will be if you want malpractice reform, you must first do more to prevent malpractice," he said.
Whether or not the criticism of the TMB is deserved, physicians say it may have finally forced lawmakers to take a serious look at what TMA leaders and many members of the board itself have long felt is the agency's biggest shortcoming -- funding.
Follow the Money
"I believe that the board, within the confines of its resources and authority, has done a good job in protecting the public," said Austin physician Bruce A. Levy, MD, JD, who served as executive director of the TMB from 1993 to 2000.
The problem is the board's resources are extremely limited for the size of its task. The 18-member board includes 12 physicians (both medical doctors and doctors of osteopathy) and six public members. It currently licenses more than 52,000 physicians.
Although the TMB collects some $22 million annually in physician licensing fees, the legislature appropriates only a fraction of that amount back to the board. The rest goes into general revenue for other state services. For fiscal year 2002, the board received only $5.25 million in appropriations, says current TMB Executive Director Donald Patrick, MD, who joined the agency in September. By comparison, Dr. Patrick says the California medical examiners board has an annual budget of $39 million.
"For years we have been begging the legislature to put more of our own licensure fees into that agency so they can do their job," Dr. Cunningham said.
"Generally speaking, the board has fallen behind the power curve in a lot of its activities," Dr. Patrick said. "It's been a slow process because of a flat budget over the last three biennia."
Funding woes have created problems for the board in terms of hiring and retaining attorneys. Until this year, the board employed 19 investigators and four attorneys, who investigate about 1,500 complaints per year. Dr. Patrick says the board receives about 3,500 complaints annually, but about 2,000 of those are against hospitals, nurses, or others who do not fall under the board's jurisdiction. Dr. Patrick says the board used some "creative financial decisions" to hire two additional attorneys this year.
Even with that addition, former TMB President William H. Fleming III, MD, of Houston, says the board's attorneys are overworked and underpaid. "Bright, young, smart attorneys just don't stay with the board because they can do better elsewhere," said Dr. Fleming, whose term on the board expired earlier this year.
"Our average attorney earns $42,000," said current TMB President Lee Anderson, MD, a Fort Worth ophthalmologist. "It's very difficult to keep a seasoned litigator in Austin, Texas, for $42,000."
Dr. Patrick says the board's attorneys earn about the same as lawyers employed at other state agencies. Unfortunately, the agency's budget doesn't allow it to pay more. Some 80 percent of current funding already goes into salaries, Dr. Patrick says.
High attorney turnover and lack of funds have created two distinct problems for the board. First, skilled defense attorneys representing physicians before the board frequently use a series of delaying tactics hoping the TMB attorney assigned to their case will leave the agency and the complaint will fall through the cracks. Dr. Patrick says a good attorney can drag a case out for years. Meanwhile, the board is powerless to take action against the doctor unless it can prove he or she represents an "ongoing and imminent" threat to the public welfare. In those cases, the board can temporarily suspend a doctor's license pending a hearing, but that's a difficult standard to meet, Dr. Patrick says.
Copping a Plea
Second, the cost of prosecuting cases against physicians often means the board has to seek a compromise rather than take a case to an expensive administrative hearing.
The board's investigative and disciplinary process is quite complex. If investigators and attorneys determine that a complaint involves a standard-of-care problem or a violation of the Medical Practice Act, the doctor is brought in for an informal settlement conference, where he or she is asked to agree to a disciplinary order. Punishment can range from a reprimand to restrictions on the physician's practice to license revocation. If the physician agrees, the order goes to the board for approval. If not, the case is referred to the State Office of Administrative Hearings for an evidentiary hearing before an administrative law judge. That judge then issues a proposal for decision that goes back to the board for final action.
Dr. Anderson says that is an expensive process that can quickly eat up the board's resources, therefore prompting it to seek what is essentially a plea bargain. Not only does it save money, but it also prevents the case from ending up in the courts, where a good defense attorney can drag the process out even longer and where board actions frequently have been overturned.
"Many times it's better to place a physician under an order and make sure he can't see any patients without a chaperone, for example, than to let him continue practicing without any restrictions while he's fighting for a year or two in the courts," Dr. Levy said.
Supporters and critics of the board alike seem to agree that the board needs more money. In 1999, the legislature increased physicians' license renewal fees by $20 to pay for a new physician-profiling program. But $10 of that fee was set to be rolled back once the profiling system was up and running.
In 2001, the board went to state Rep. Glen Maxey (D-Austin), author of the profiling bill, and asked that the fee be maintained. "The doctors of Texas were willing to pay for better services through the board if the legislature would just appropriate the money," Dr. Anderson said.
The extra $10 would have generated roughly $500,000 per year, which the board earmarked for enforcement activities. TMA supported the idea and Representative Maxey agreed to sponsor the bill to maintain the additional fee, but the rider appropriating the money was pulled from the appropriations bill at the last minute.
Plugging the Gaps
With that funding lost, Dr. Patrick and the board turned to the governor for assistance. Earlier this year, the board asked Gov. Rick Perry for emergency funding to hire an attorney, an investigator, and a paralegal to focus exclusively on seeking temporary license suspensions against physicians the board believes are an imminent risk to the public. The governor had not responded as of late February.
Meanwhile, the board wrote several lawmakers asking that the statutory definition of "ongoing and imminent threat" be broadened to allow the board to seek temporary suspensions against physicians. Dr. Levy says that would be a major step forward.
"The board needs greater authority to issue temporary suspensions to be able to immediately remove any physician from practice who has committed crimes of moral turpitude, whether that physician has diverted drugs, is incapacitated due to psychiatric disorders or substance abuse, has sexually abused a patient, or is incarcerated," Dr. Levy said.
Let the Sunshine In
Lisa McGiffert, senior policy analyst for Consumers Union's Southwest Regional Office, says her group would not oppose additional funding, but she believes the agency's problems are deeper than finances. She wants more of the board's activities brought out into the public spotlight.
"We need more sunshine over there," she said. "The public should have access to complaints against doctors. Without that kind of access it's really difficult to see what kinds of problems are coming in their door."
Dr. Levy agrees, up to a point. He says there should be some window in the process when complaints could be made public -- possibly when the cases go to administrative hearings. But he says full disclosure of complaints could have a chilling effect on the number of complaints filed.
"A lot of complaints come in from other physicians, from hospital staff, from nurses in doctors' offices," he said. "If a doctor knows his own nurse is complaining about him, it is unlikely the nurse will raise that complaint for fear of losing her own position."
Dr. Levy also disagrees with another Consumers Union proposal to make a majority of TMB members nonphysicians. Nonphysicians simply don't have the expertise to determine whether a physician has provided appropriate medical care, he says.
Ms. McGiffert says the board could employ physician consultants to provide advice on quality-of-care issues. She says public members are less likely to let a doctor off the hook.
"When a physician looks at a case, he probably looks at it from the perspective of a physician rather than the perspective of the patient," Ms. McGiffert said. "It's very difficult to divorce yourself from your own perspective."
But Dr. Patrick says in the few months he's been at the board, he's been impressed with the "tenacity, enthusiasm, and fervor" of all the board members -- physician and public members alike.
Dr. Patrick says part of the misperception that the board has been soft on bad doctors arises from its own failing to publicize its actions. That's about to change. He says the agency will be more aggressive in publicizing major actions, such as temporary suspensions and license revocations.
Ken Ortolon can be reached at (800) 880-1300, ext.1392, or (512) 370-1392; or by e-mail at Ken Ortolon.
PHR Committee Helps Doctors With Sexual Boundary Problems
The Texas Medical Association Committee on Physician Health and Rehabilitation (PHR) provides monitoring for physicians who have committed sexual misconduct or had sexual boundary concerns.
Monitoring is done by a county medical society PHR committee or the state committee's district coordinators. A physician who has demonstrated poor conduct with regard to sexual boundaries but whose judgment was impaired by chemical dependency, or a physician who has been treated for sexual addiction and has a good prognosis for rehabilitation would be a "good candidate" for monitoring by the PHR committee.
In addition, "Maintaining Professional Boundaries" is a course available for presentation by the committee's education team members to county medical societies, hospitals, and other interested physician and spouse groups upon request. It also is available on the TMA Web site and for home study. The course is designated for 1 hour of Category 1 continuing medical education (CME) credit in ethics.
PHR also provides monitoring of physicians in recovery for chemical dependency and psychiatric disorders.
For more information on the CME presentation or sexual misconduct monitoring, contact Linda Kuhn, TMA Office of the General Counsel, at (800) 800-1300, ext. 1342, or (512) 370-1342, or via e-mail at Linda Kuhn .
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