The Texas Medical Board has seen patient complaints nearly double during the past 10 years, and such complaints are as anxiety-inducing as lawsuits, if not more. The source of the Board’s increased scrutiny likely can be found in the complainants’ disagreement with tort reform measures and the cap placed on non-economic damages in medical malpractice lawsuits.
Whatever the cause, Texas physicians are finding themselves before the TMB more frequently, facing actions that could significantly impact their medical careers.
The TMB was established in 1907 as the Texas State Board of Medical Examiners. Since 2003, it has consisted of 19 members, including 12 physicians and seven non-physicians. Now, the TMB is charged with regulating approximately 55,000 physicians statewide and 67,000 physicians nationwide. The Board’s mission is to:
Protect and enhance the public’s health, safety and welfare by establishing and maintaining standards of excellence used in regulating the practice of medicine and ensuring quality healthcare for the citizens of Texas through licensure, discipline and education.
The “protect” aspect of the TMB’s mission has kicked into high gear the past several years. Board complaints have fluctuated over the years, but they increased 76 percent between 2004 and 2013, rising to 912 individual complaints from only 519 complaints in 2004. The number of Board disciplinary actions rose by more than double during the same timeframe. Also, the number of TMB compliance proceedings, called “Informal Settlement Conferences,” increased by nearly 80 percent between 2004 and 2013. Ultimately, in large part due to tort reform, patients now are seeking recourse against physicians at the Board level instead of the courtroom.
Handling a Board complaint
The majority of Board complaints stem from direct patient care and, more often than not, a perceived negative interaction with the physician or their staff. The interaction may not rise to the level of legal negligence, but it is significant enough to the patient to warrant a Board complaint. Prevention of a complaint is always the best “treatment”—see my earlier blog item on bedside manner for more advice along those lines—but there are several important steps you should take if a Board complaint is made against you, including:
– Take it seriously
– Get help
– Respond on time (Submit a narrative response explaining your care, provide the board the relevant medical record, complete the Medical Practice Questionnaire)
– Be ready to wait
A Board complaint is a serious matter—some might argue more serious than a medical malpractice lawsuit—because the outcome has a direct impact on your medical license. Take it seriously and get legal help right away. Most liability insurance carriers will pay for or reimburse physicians for legal fees associated with defense of a Board complaint, so notify your insurance carrier as soon as you receive notice and they will connect you with an attorney with related experienced.
Once a complaint has been made, the Board will send a letter notifying you of the response timeline. The Board has 45 days to determine whether a violation of the Texas Medical Practice Act has occurred. This means you have less time—usually 28 days from the date of the letter—to provide your response and the data requested, which typically includes medical and billing records. Don’t miss this deadline. Ensure your staff knows that Board letters are important and time sensitive.
Based upon your narrative response and medical/billing records, the Board will either dismiss the complaint or proceed with a formal investigation. If the complaint is dismissed, you will receive a letter notifying of you of the dismissal. Such letters typically include language that the Board investigated the complaint and found that your care and treatment of the patient complied with the standard of care. This is the best possible outcome.
The investigation stage
If, on the other hand, the Board proceeds with a formal investigation, you will be asked for additional information, including a straightforward medical practice questionnaire and additional records that you may not have provided previously.
At the investigation stage, the Board will elicit a review by another physician of your specialty to determine if the complaint has merit. This process can take several months, sometimes up to a year (the Board has to update you every 90 days regarding the investigation status). This process can end in one of two ways: a dismissal of the complaint or a determination that a violation of the Medical Practice Act has occurred, which results in an invitation to Austin for an informal settlement conference.
If you have not already done so, you should absolutely obtain legal help at this stage. The ISC, though called “informal,” can be a very confrontational Q&A between you and two to three board members who will grill you about your care. Prior to the ISC, you are given an opportunity to submit “rebuttal materials” addressing the allegations against you, which will often include a report from a retained expert to help defend your care. There is always a chance you can convince the ISC panel members that you did not violate the Medical Practice Act, but that requires provision of ample rebuttal materials and a great deal of preparation by both you and your attorney prior to the conference.
Following the conference, which typically lasts 30 minutes to an hour, you and your attorney will be sent downstairs to wait while the panel members confer. You then will be called back and informed of the panel’s decision, which can range from dismissal of the complaint to suspension or, in rare instances, revocation of your license. Many cases conclude with the panel determining there was some type of violation and offering a resolution through a non-disciplinary remedial plan, a fine, and continuing medical education hours, or possibly chart monitoring.
The panel’s decision then is submitted to the full Board for approval. You can agree to the “resolution” by signing a consent order, or you can essentially appeal the panel’s decision to the State Office of Administrative Hearings or even the district court level.
Defending a Texas Medical Board complaint can be incredibly stressful and disconcerting for most physicians, which is why prevention is best. But when a complaint does occur, seeking help and providing a timely response is critical.
Kimberly Bocell, a former registered nurse, is a shareholder at Dallas’ Chamblee, Ryan, Kershaw & Anderson, where she represents healthcare providers in all facets of health law.