Understanding the TSBME discipline process, and how to avoid it Robert S. Bennett The Bennett Law...

Understanding the TSBME Understanding the TSBME discipline process, and how discipline process, and how

to avoid itto avoid it

Robert S. Bennett

The Bennett Law Firm, P.C.

Houston, Texas

Objectives of PresentationObjectives of Presentation

• To inform the participant about the Texas State Board of Medical Examiners and current developments

• To familiarize the physician with the TSBME disciplinary process

• To inform the participant of some of the most common issues that can give rise to TSBME disciplinary action

Legal Advice Legal Advice • The following presentation is intended for

informational purposes only.

• It is recommended by the presenter, as well as the Texas Medical Foundation, that Physicians who become the subject a TSBME investigation should seek qualified legal advice.

• To find a qualified lawyer, you can contact Harris County Bar Assoc. Referral service at 713-236-8000

The Texas State Board of The Texas State Board of Medical ExaminersMedical Examiners

• The TSBME was established in 1907

• The TSBME represents the public, not physicians

• Regulation through licensure, education, and discipline

Texas State Board of Medical ExaminersTexas State Board of Medical Examiners TSBME

18 Member Board(12 physicians & 6 public members)

TSBME 18 Member Board

(12 physicians & 6 public members)

Texas State Board ofPhysician Assistant Examiners

9 Member Board

Texas State Board ofPhysician Assistant Examiners

9 Member Board

Texas State Board ofAcupuncture Examiners

9 Member Board

Texas State Board ofAcupuncture Examiners

9 Member Board

Donald Patrick, M.D., J.D.Executive Director

Donald Patrick, M.D., J.D.Executive Director

Investigations andCompliance Department

Investigations andCompliance Department

Complaints and DisciplinarySupport Department

Complaints and DisciplinarySupport Department

Litigation DepartmentLitigation Department

Finance DivisionFinance Division

Customer Affairs DivisionCustomer Affairs Division

Licensing DivisionLicensing Division

“Sitting in that little room, trying to make decisions about

somebody's fate, we all get a little weak in the knees. We're less

weak-kneed than we used to be.”

Donald Patrick, Executive Donald Patrick, Executive DirectorDirector of TSBME of TSBME

October, 2002October, 2002

TSBME dramatically increased TSBME dramatically increased its disciplinary activitiesits disciplinary activities

- - Individuals Sanctioned & Total Fines -Individuals Sanctioned & Total Fines -

0 100 200 300 400

1997

1998

1999

2000

2001

2002

2003

Individuals Sanctioned Total Fines (in thousands)

361361276276

9999

FY

0 20 40 60 80 100

1997

1998

1999

2000

2001

2002

2003

Revocations Suspensions

4444 3737

1212 1717

TSBME dramatically increased TSBME dramatically increased its disciplinary activitiesits disciplinary activities

- - Revocations & Suspensions -Revocations & Suspensions -FY

Final Sanctions FY 2001-2003

105

187

276

15

37

44

24

39

37

0 50 100 150 200 250 300

2001

2002

2003

Total Sanctions Revocations Suspensions

Disciplinary activities should Disciplinary activities should continue to increase as TSBME continue to increase as TSBME gets significant budget increasegets significant budget increase

• Senate Bill 104 - increased TSBME budget from $5 million to $8.5 million annually

• New $80 surcharge on annual license renewal and increases in existing fees

Increase in disciplinary actions Increase in disciplinary actions should continue in 2004 should continue in 2004

Increased funding will be used to form expert review panels and increase the Board's enforcement activities

Ken Ortolon, Making the Bite Equal the Bark: Legislature Gives Board of Medical Examiners More Power, Texas Medicine, Sept. 2003.

Increase in disciplinary actions Increase in disciplinary actions should continue in 2004 should continue in 2004

The Board expects to double* its investigation’s department and to hire new attorneys for its litigation department

* from 8 investigators to 16

Ken Ortolon, Making the Bite Equal the Bark: Legislature Gives Board of Medical Examiners More Power, Texas Medicine, Sept. 2003.

Commencement of Disciplinary Commencement of Disciplinary Action Action

3. Report filed in National Practitioner Data Bank*

* New under S.B. 104

2. Three or more malpractice claims in five year period

1. Complaint: Anyone can file a complaint against you

ComplaintsComplaints

Complaints filed with the TSBME have nearly doubled since 1996

Most common Most common Complainants Complainants

• PatientsPatients• PharmacistsPharmacists• NursesNurses• Other physiciansOther physicians

Avoid ComplaintsAvoid Complaints

• About ½ of all complaints allege quality of care issues

• Most are unfounded and eventually dismissed

Final Sanctions – FY 2002

7,317 Complaints

1,725 Investigations Opened

1,448 Investigations Completed

278 referred to Litigation Dept.

187 Sanctions

Avoiding Complaints Avoiding Complaints Effective, empathetic communication

• Communicating bad news– Sit down with patient in private – Consider the individual – Be empathetic

• Communicating errors– Be honest – Don’t try to cover it up

Report filed in National Report filed in National Practitioner Data BankPractitioner Data Bank

Under Texas Senate Bill 104, the TSBME will review the NPDB and investigate

reports on Texas physicians

Report filed in NPDBReport filed in NPDB

1. Termination

2. Limitation

3. Suspension

4. Restriction

5. Probation

* New under S.B. 104

Expert Panel will review NPDB for any report involving clinical or hospital staff privileges, including:

Report filed in NPDBReport filed in NPDB

1. A hospital; 2. A health maintenance organization;3. An independent practice association;4. An approved nonprofit health

corporation; or5. A physician network.

Expert Panel will review NPDB for any report filed by,

What happens once you’re What happens once you’re in the TSBME crosshairs?in the TSBME crosshairs?

An overview of the An overview of the disciplinary system disciplinary system

TSBME Disciplinary SystemTSBME Disciplinary System

Investigations Department

TSBME issues order

Hearing atState Office of Administrative Hearings

ComplaintDismiss

No jurisdiction or

No violation of Texas Occupations Code

licensee receives written notice of complaint

Informal Settlement Conference (ISC)

Exceptions

Formal complaint

A good presentation is crucial – you can kill a lot of complaints here

A comprehensive, well prepared response is essential and can end the investigation.

You can (and should) request a meeting with the investigator.

Findings of fact

Some Discovery permitted

Rules of Evidence apply

Appeal - Travis County District Court

MP Claims NPDB report

Informal ProceedingsInformal Proceedings


• At least 30 days notice

• Complainant and the license holder have opportunity to be heard

Tex. Occ. Code § 164.003


• A strong presentation at the informal meeting can help to resolve the case quickly–This can save you the cost and

emotional distress of having a drawn out legal proceeding


A member of the board's staff … will present to the board's representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

Tex. Occ. Code § 164.003 (5)


An affected physician is entitled to: (1) reply to the staff's presentation; and (2) present the facts the physician reasonably believes the physician could prove by competent evidence or qualified witnesses at a hearing.

Tex. Occ. Code § 164.003 (5)c 1-2


After each side concludes its presentations, the board representative will recommend to

Tex. Occ. Code § 164.003 (2)d

• Terminate the investigation, or

• Propose and Agreed Order


• Most cases (if not dismissed) result in an Agreed Order

• This is a public reprimand – Will be reported on TSBME website– Often the media will publicize, naming the

disciplined physician as a ‘questionable physician’


Under certain circumstances a physician with a substance abuse or mental disorder may qualify for a confidential Rehabilitation Order

TSBME Rules, Chapter 180

Disciplinary actions against a Disciplinary actions against a physician are also reported tophysician are also reported to

(1) the appropriate health care facilities and hospitals;

(2) professional societies of physicians in this state;

(3) the entity responsible for the administration of Medicare and Medicaid in this state;

(4) the United States Secretary of Health and Human Services or the secretary's designee; and

(5) the complainant. Tex. Occ. Code § 164.060

Agreed OrderAgreed Order

• Binding contract between the physician and the Board

• You must take seriously• Violation of an Agreed Order is per se

Unprofessional or Dishonorable Conduct which subjects the physician to discipline for violation of the Order in addition to the underlying offense*

* TSBME Rules, Chapter 190

What happens if the case is What happens if the case is not resolved with an Agreed not resolved with an Agreed

Order? Order?

State Office of Administrative Hearings

• Formal complaint filed in the State Office of Administrative Hearings (SOAH).

• Set for trial before and administrative law judge.

• If you have not hired a lawyer to represent you by this point, you should do so now!

State Office of Administrative Hearings

SOAHTSBME

Litigation Dept. Formal

Complaint

Findings of Fact & Law

TSBME, 18 member board

Respondent Physician

ExceptionsFinal Order

Pretrial discovery

Pretrial mediation

Trial (in Austin)

Judicial Review Judicial Review

A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final.


License Status Pending AppealLicense Status Pending Appeal

• Board's decision may not be enjoined or stayed except on application to the court after notice to the board.

• A stay or injunction may not be granted if the license holder's continued practice presents a danger to the public. A stay or injunction may not be granted for a term that exceeds 120 days.


Avoiding the disciplinary Avoiding the disciplinary processprocess

Common grounds for discipline Common grounds for discipline less serious violationsless serious violations

• failure to timely provide the Board with requested information ($5,000)

• Violation of Board rule 166.2 relating to annual CME requirements ($1,000)

• Violation of Board rule 165.2 relating to allowable charges for medical records ($1,000)*

• failure to release medical records ($500)• failure to keep adequate medical records (this

is usually brought as part of a more serious charge, e.g., nontherapeutic prescribing or administering a drug.)

*physicians may charge no more than $25 for the first twenty pages, and 15¢ for each page thereafter, and a reasonable fee for the actual costs of mailing, shipping or delivery (22 TAC § 165.2 (1998)).

Common grounds for discipline Common grounds for discipline serious violationsserious violations

• Unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure the public

• Use of alcohol or drugs in an intemperate manner • Non-therapeutic prescribing or administering a

drug or treatment• Fraudulent delegation or Inadequate supervision• Sexual misconduct

§ 164.054. Additional Requirements § 164.054. Additional Requirements

Regarding Drug RecordsRegarding Drug Records (a) Each physician shall keep a record of the

physician's purchase and disposal of drugs and controlled substances … (1) the date of purchase and the date of the sale or disposal of the drugs and controlled substances by the physician; (2) the name and address of the person receiving the drugs or controlled substances; and (3) the reason for the disposing or dispensing of the drugs or controlled substances to the person.

§ 164.054. Additional Requirements § 164.054. Additional Requirements

Regarding Drug RecordsRegarding Drug Records (b) Failure to keep the records required by this section

for a reasonable time constitutes grounds for revoking, canceling, suspending, or placing on probation the physician's license.

(c) The board or its representative may enter and inspect a physician's place of practice during reasonable business hours to: (1) verify the accuracy of the records; and (2) perform an inventory of the prescription drugs on hand.

Disciplinary GuidelinesDisciplinary Guidelines

Physicians should also be familiar with Chapter 190 of the TSBME rules

There are many rules and a violation of any of these rules is a violation of the Medical Practice Act and grounds for discipline by the Board

TSBME Rules, Chapter 190TSBME Rules, Chapter 190

• Failure to disclose reasonably foreseeable side effects of a procedure or treatment

• Failure to disclose reasonable alternative treatments to a proposed procedure or treatment


Failure to obtain and document informed consent from the patient or other person authorized by law to consent to treatment on the patient’s behalf before performing tests, treatments, or procedures;


Termination of patient care without providing reasonable notice to the patient and a reasonable alternative for the patient’s care;


Inappropriate prescription of dangerous drugs or controlled substances to oneself, family members, or others in which there is a close personal relationship

Handling a TSBME Handling a TSBME complaintcomplaint

• Take any correspondence with the Board seriously

• Prepare a thorough response

• Don’t let your emotions get to you –avoid responding while angry or upset

Final Thought Final Thought

• A TSBME action can be a very serious and can be a stressful ordeal

• Get Help! Protecting your reputation and your medical license is too important to be taken lightly

Understanding the TSBME discipline process, and how to avoid it Robert S. Bennett The Bennett Law...

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