Through the labyrinth

The investigation and litigation process of the Texas Medical Board

By Jill Wiggins
Public Information Officer of the Texas Medical Board

Texas physicians read the Medical Board Bulletin, the newsletter of the Texas Medical Board, to find out who has been disciplined. Each of those actions in the newsletter is the result of a complaint being filed, an investigation being completed and the board determining there was a violation of the Medical Practice Act. Filing a complaint with the TMB triggers a process far more complex than the average physician imagines.

In 2003, the Texas Legislature mandated changes to the Medical Practice Act requiring the TMB to complete the complaint investigation process within 180 days. TMB staff has developed processes to meet that mandate for complaints that are determined to be a possible violation of the Medical Practice Act. This article will follow a complaint as it moves through this labyrinth.

In the first step of the process, an analyst reviews the complaint and determines whether it falls under the board’s jurisdiction over physicians, physician assistants, acupuncturists, non-certified radiologic technicians and surgical assistants. If the complaint involves someone the TMB does not license, such as a dentist, the complaint is sent to the appropriate agency.

TMB staff then searches the National Practitioner Data Bank and other entities to determine if the physician has any disciplinary history. A staff member then contacts the complainant to clarify the facts of the complaint and sends a letter to the physician asking for a response. If the physician presents evidence that there is no violation, the case is counted as “jurisdictional—not filed.” For example, a complaint may state that a physician failed to take X-rays but if the physician submits those X-rays, there is no violation found. If the staff member finds that the allegations would constitute a violation of the Medical Practice Act should they be proven true, the case is filed as a complaint and assigned to an investigator.

About 60 percent of TMB investigations are based on alleged violations of the standard of care. The remaining investigations involve boundary issues, impairment, inadequate medical records or some lesser violations that are assessed as “minimal statutory violations.”

Every standard-of-care case opened by the board must be reviewed by at least two physician consultants in the same or similar specialty as the respondent. The TMB has a large roster of consultants available and after the medical records are subpoenaed, they are provided to the lead panelist and a second panelist. If both physicians agree there is no violation, the case is recommended to the board for dismissal. If they both agree that there is a violation of the standard of care, the case goes forward. If they disagree in either direction, the case goes to a third panelist. If two of the three say there is no violation, the case is recommended for dismissal. If two agree there is a violation, the lead panelist prepares a report and the case goes back to an investigator, who prepares a final summary.

Once the case has made it this far, it is reviewed by the Quality Assurance Committee. The committee comprises the enforcement director, the litigation manager, and the executive director, who may recommend the case for dismissal or move it forward into litigation.

Once a case is turned over to the litigation department, the TMB has 180 days to bring it to a hearing. The case is assigned to a board attorney and another complex process begins.

First, the attorney reviews the case for sufficiency. If it is deemed sufficient, the attorney proceeds and if it’s deemed insufficient, the case is reviewed by the legal management team. Then either it is returned to investigations or it’s sent to the attorney for guidance on how to proceed.

Next, a legal assistant prepares case materials and an informal settlement conference, or ISC, is scheduled. The respondent is notified at least 60 days before the ISC. The attorney finalizes the allegations for the board disciplinary panel that will hear the ISC proceeding. At least 30 days before the hearing, the ISC packet is distributed to the disciplinary panel, the respondent and the hearings counsel.

Finally, within a year after the complaint was opened, a disciplinary panel hears the case in an ISC. The disciplinary panels are drawn from the board and from disciplinary review committees representing all regions of Texas. By law, each disciplinary panel must be made up of at least one physician and at least one public member.

The respondent usually attends the ISC, and is encouraged to do so with legal counsel. The board’s attorney presents the case and the respondent and counsel have an opportunity to respond. Complainants and other witnesses may also appear.

Once each side has presented, the disciplinary panel deliberates and makes a recommendation for Board action. They may suggest that the case be dismissed or they may recommend an agreed order with various terms and conditions. For example, if they see a particular area of skill that the physician is lacking, they may recommend the physician be allowed to continue practicing, but prohibit that procedure. The panel could also call for the physician to complete additional training or CME or require the physician to employ a chart monitor or practice monitor. An administrative fine may also be assessed.

If the disciplinary panel recommends dismissal, a Board committee reviews the case and recommends final disposition. This committee usually agrees with the panel’s recommendations for dismissal, but occasionally a case is returned to staff for further investigation.

If the disciplinary panel finds a violation occurred, but the respondent does not agree to the order, the case goes to the State Office of Administrative Hearings, SOAH, for a contested case hearing.

If the respondent accepts the agreed order, it still must be approved by the full board, which usually happens at the next board meeting. The board approves most agreed orders, but it sometimes disagrees with the panel’s recommendation and suggests modifications. If the physician does not agree to the modified order, the case goes to SOAH.

Once the physician has signed an agreed order, TMB compliance officers follow up to make sure the physician complies with the terms of the order. Orders can include public reprimands with no further penalty, fines, training requirements, license restrictions and suspensions. Sometimes a suspension is probated and the physician is allowed to practice. The board cannot revoke a license unless the physician agrees to it or the case goes through SOAH. Orders may contain language allowing the physician to come back to the board and if he or she shows full compliance, the board can choose to terminate or modify the order.

This article was previously written for and published by Texas Medical Liability Trust, which has given permission to TAFP for subsequent publication. 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, Texas Medical Insurance Company nor TAFP is engaged in rendering legal services. © Copyright 2008 TMLT.