Surviving an investigation
by the Texas Medical Board

By Stacey J. Simmons, J.D., and Dan Ballard, J.D.

Your office manager interrupts you between patients and says, “You need to read this.” The letter you are handed says a complaint has been filed against you at the Texas Medical Board. You may instantly experience physical discomfort, or even feel like you were punched in the stomach.

If the alleged violation is serious, some physicians may initially feel that this is the proverbial straw that breaks the camel’s back—that there are simply too many negatives in the practice of medicine and that they want to find a way out of this profession as soon as possible. Fortunately, the vast majority of those physicians eventually rethink that position. The purpose of this article is to give you a framework for re-evaluating that decision and for surviving the emotional turmoil caused by a TMB investigation.

How do you successfully manage the adverse impact that this process will have on your life for the next year or longer? First, you need to recognize and understand the array of emotional responses you may experience. Implicit in this first step is an acknowledgment that you are most likely going to be emotionally affected by the process in a significant way. In our law practice, we have observed that physicians who are notified that they will be investigated by the TMB go through an emotional process similar in many ways to the recognized stages of grief.

Often, your first reaction will be denial that there was any impropriety in the care you provided to your patient. This emotional reaction frequently leads to internally downplaying the significance of what can happen when the TMB investigates you or your patient care. Thus, you may fail to respond to the situation with an appropriate level of concern and attention.

Many physicians make the mistake of acting as though the complaint against them is so frivolous that they merely need to explain their care and then the TMB will surely see the lack of merit in the complaint and dismiss it. Moreover, you may have the impression that the process is informal and collegial, but in truth, this is serious business. It is very important then that you obtain an attorney’s expertise early to respond to the Board and present the information in a persuasive and appropriate way. It is essential to capture the opportunity to make the best possible first impression to the Board.

Any attorney who represents physicians before the Board can relate instances where he or she was hired late in the process, after the physician has filed an inadequate response to a patient’s complaint. The physician will often tell the attorney, “I just didn’t think the Board would take this complaint seriously.” If you are insured by TMLT, you have coverage that will reimburse you for reasonable legal expenses and expert witness fees incurred in defending a TMB complaint (up to $25,000 per policy period, subject to the terms and conditions of the policy). This coverage is provided to help you financially cope with what is already a difficult and emotional situation. We encourage you to take advantage of this resource.

You should also be aware that if the Board has concerns about your medical care, but feels the case is not really clear cut, they may reprimand you for poor documentation. TMB rule violations regarding chart documentation are frequently found in patients’ charts. (For details on these rules, please visit http://www.tmb.state.tx.us/rules/rules/bdrules_toc.php.) These factors make it very difficult to justify “going it alone” when you are called upon to defend yourself against a Board complaint.

Anger often follows denial, and can be a double-edged reaction. It may begin as anger directed at the patient, family member or other individual who has filed the complaint, leading some physicians to feel “victimized” by ungrateful patients. Unfortunately, even the more philosophical physician who may have gone through the TMB’s complaint process before is often left with a bad taste about the entire medical care system. In addition, some physicians who have gone through a Board investigation based on a patient complaint retain some degree of anger which may change how they feel about their patients. They should seek assistance in working through this anger.

The second phase of anger comes later as the Board, rather than the patient or complainant, becomes the active party. It is the very rare physician who, at the end of the investigation process, feels the complaint was warranted, the process was productive and the result was fair.

One of the most disturbing parts of the process is that you will not be told the specifics of the complaint until several months into the process. Frequently, the TMB simply notifies you that some unidentified person or the TMB itself has filed a complaint regarding your care of a particular patient. The TMB is not required to provide you with a copy of the medical records they have obtained from other providers or with a copy of their experts’ analysis of your care until 30 days before the Informal Settlement Conference hearing. The Board can take several months to develop the case against you before telling you the specific allegations and criticisms. But you will have only three weeks after receiving this information to respond! Frequently, it is also necessary to have your care reviewed by experts on your behalf and to provide their reports to the TMB. This can be difficult to accomplish in the time you are given. Once physicians learn of this timetable, they generally wonder why the playing field does not seem level. This is one reason why it is very important to seek legal assistance at the time you are first notified of the complaint.

Another frustration you may experience concerns obtaining medical records that you may need in order to defend yourself. The TMB obtains whatever records they deem relevant to the complaint. You do not have the same access to medical records from the patient’s other health care providers that you may need to defend yourself before the Board. If you request the TMB’s assistance in securing records, you may be disappointed. However, your attorney will make every effort to get the information needed to defend your conduct.

Probably the best emotional defense for this perceived lack of fairness is simply to go in with your eyes open. While anger is a natural response, it can hamper your ability to effectively address the allegations that have been brought against you. Competent counsel can be of great assistance in helping you develop and present your defense to the Board. If the case is taken to an ISC hearing, you may worry that some form of sanction or disciplinary action from the Board could occur. Concerns about damage to your professional reputation become a major issue in cases where it appears likely that the Board is going to issue some form of disciplinary action (e.g., in the form of an “Agreed Order.”) The depression that can flow from this becomes a substantial factor in the lives of many physicians in the months leading up to and following a Board hearing.

Probably the most difficult thing to deal with is the publicity that may follow, either in the TMB’s newsletter or other media, if even a minor sanction was issued against you. You may worry that even a relatively minor complaint may affect your reputation and this can lead to considerable anxiety.

Like lawsuits, some negative outcomes from a TMB complaint will be reported to the National Practitioner Data Bank. Fortunately, however, only a small number of people—including hospital credentialing committees and insurance companies—have access to the NPDB. Members of the public do not have access. Typically, those who do have access understand that complaints are being filed and physicians are being disciplined with greater frequency. Having an Agreed Order in your NPDB file is not looked upon with the same suspicion as it probably once was.

It is important to note that a complaint against a physician is confidential and will remain so in the event that the complaint is dismissed at or before the first hearing stage (i.e., at the ISC). There is a common misconception that the Formal Complaints mentioned in the TMB newsletter are published simply on the basis of a complaint letter by a patient. To the contrary, these published Formal Complaints have already gone through the initial hearing stage wherein the complaint was not dismissed and the physician refused to accept the terms of the Agreed Order that was offered after the hearing.

It is also worth noting that, as of Fall 2007, the TMB made a significant change regarding how it releases information to the public about “minimal statutory violations.” These actions, although still public and part of the physician’s record, will not be listed in TMB press releases or the TMB newsletter by the physician’s name. Only the numbers of such violations will be listed. “Minimal statutory violations” are based on violations that do not involve the standard of care and are for rule violations such as failing to release medical records in a timely fashion, failure to obtain required CME, or failure to timely sign a death certificate. (For more information, please see the Fall 2007 issue of Texas Medical Board Bulletin, available at http://www.tmb.state.tx.us/news/newsletters.php.)

Following the publication of a Board order, some physicians report a great deal of anxiety about whether specific colleagues, friends and patients had found out about it. This usually leads to a more general concern about whether the sanction will actually have a serious financial impact on them due to decreased referrals from colleagues or fewer self-referrals by patients. For example, a surgeon would have a legitimate concern that a publicized Board order based on a surgical mishap could have a negative effect on his or her referral base. In our experience, a pure “standard of care” complaint has a higher likelihood of a favorable outcome than many other types of investigative actions by the Board (such as self-prescribing, substance abuse and boundary issues).

Perhaps the most difficult emotional aspect of dealing with a Board complaint is realizing that you may need to accept a sanction or other outcome that you feel is entirely undeserved. Although many physicians begin the process saying and truly believing “I’ll fight this until the bitter end,” in our experience the vast majority of physicians who receive an adverse recommendation by the Board’s hearing panel eventually (typically within a few weeks) decide to compromise and accept some degree of sanction from the Board. Instead of drawing a line in the sand, it is best to reconcile yourself to the situation as it presents itself, considering how defensible your medical care was and what the potential long-term ramifications of accepting an Agreed Order may be. Making an informed and rational decision will generally leave you with the best outcome under the circumstances.

In our years of defending physicians against TMB actions, we have found that for physicians struggling with whether to accept a Board order, it is helpful to understand that if your peers hear about your Board order, they will likely understand that in the current environment, the same thing could happen to them or any number of competent physicians. While your patients and other members of the public cannot necessarily be expected to share this view, most of them may not ever know about it. It may be very consoling to know that your peers actually understand what it is like to be in your shoes. More than likely, they feel great empathy for what you are going through.

When faced with a TMB investigation, consider the following:

1. Acknowledge that any TMB complaint is significant. Promptly obtain competent legal help and invest the time necessary to develop a proper defense. TMLT’s Claim Department can provide assistance to you if you need it.
2. Realize that anger is not productive. Talk openly about your anger with your attorney. Your family and colleagues may be counted on to assist you through any emotional turmoil that you may be experiencing. However, follow your attorney’s advice regarding those in whom you may confide. Leave your anger at home on the day of your Board hearing.
3. Be comforted by the fact that, if you already have a good professional reputation, it will likely remain intact.
4. Defend yourself and re-evaluate your strengths and weaknesses at each step in the process. Try to avoid drawing lines in the sand.

This article was previously written and published for TMLT. The information and opinions in this article should not be used or referred to as primary legal sources nor construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generalization can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor Texas Medical Insurance Company is engaged in rendering legal services.

Stacey Simmons and Dan Ballard are partners with Ballard & Simmons, LLP. Stacey Simmons can be reached at staceysimmons@ballardfirm.com. Dan Ballard can be reached at danballard@ballardfirm.com.

© Copyright 2008 TMLT.