Dr James Schaller
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Ending State Medical Board Doctor Abuses in States
Like Texas, Connecticut and North Carolina

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SUGGESTIONS BY AAPS FOR THE SUNSET REVIEW COMMITTEE

The Association of American Physicians and Surgeons, Inc. ("AAPS") is one of the oldest and largest defenders of the practice of private medicine. Founded in 1943, we are an organization of thousands of physicians, including many in Texas, who have consistently advocated quality and ethical private medicine. We participate frequently in correcting injustices in the field of medicine and promoting what is best for patients. We have filed many amicus curiae briefs in legal proceedings and have testified at state and federal hearings. We have also helped physicians regain licenses that were unjustly revoked.

We respectfully endorse the following suggestions for improvement of the Texas State Board of Medical Examiners (TSBME):

  1. Proper Selection/Representation of Board Members
    • Limitation of Board members' terms to four years. This would guard against overreaching in power
    • Inclusion of a greater percentage of practicing physicians on the Board and in particular the inclusion of independent specialists so that informed decisions can be made about physicians practicing in certain areas.
  2. TSMBE-hired Physician Reviewers and their Responsibilities
    • TSBME should hire only board-certified physicians in active practice in the same or very similar specialty who is experienced in doing similar procedures as the physician being investigated.
    • The same reviewer should never review a physician more than once.
    • Retired, semi-retired or retiring physicians should not conduct reviews; neither should physicians who are primarily engaged in administrative cases.
    • Action should be taken to ensure that the TSBME complies immediately with SB 104, which orders the Board use three (3) additional reviewers of the same specialty to further review a complaint against a physician accused of breaching "standard of care" before the case is elevated to the next level involving possible discipline by the Board
    • Blanket immunity for TSBME-hired reviewers must be eliminated
    • Unscrupulous or biased reviewers who commit fraud must face ethics/unprofessional conduct charges/sanctions from the TSBME and should not be used
    • Doctors who have been treated unreasonably by the TSBME must be provided with a means to file a complaint, either through SOAH or an independent third party, so that an investigation of Board members and/or staff can be initiated and the guilty parties disciplined. Currently, there is no avenue to complain about an agency's actions except through a lawsuit
    • Data gathered and disseminated by the TSBME to the Governor, the legislature, and the public must include outcomes of SOAH and District Court Proceedings
  3. Improving TSBME Complaint Process
    • Require specificity in complaints similar to the Rule 9(b) of the Federal Rules of Civil Procedure requiring particularity in federal complaints of fraud. The details of alleged wrongdoing must be stated clearly and specifically
    • Physicians should not be targeted first with vague allegations and then subjected to repeated attempts to find something wrong somewhere.
    • TSBME should not simply rely on what has been provided by other sources, i.e., hospital boards, peer review, etc., and should conduct its own investigation.
    • TSBME-hired reviewers need to be provided with and must review the entire chart
    • TSBME should prioritize complaints
    • TSBME should realize that complaints from hospitals, lawyers, or disgruntled patients can stem from anticompetitive motives or from issues such as a billing dispute. There must be accountability for malicious and unjustified complaints.
  4. Due Process and the Investigation of Complaints
    • Burden of proof must be on the TSBME, not on the accused physician
    • A medical difference of opinion with TSBME-hired physician reviewers is not grounds to discipline a physician
    • TSBME must prove that care provided by accused physician was substandard by referencing current literature, studies, and/or research-not just because it is their reviewer's professional opinion based on his/her (limited) professional experience
  5. Temporary Suspension of Physician's License
    • Temporary suspensions of licenses occur far too frequently, needlessly destroying medical practices and harming thousands of patients.
    • Because of serious consequences to the physician as well as his or her patients from a summary suspension of a license, clear and convincing proof of likely and immediate harm by the physician should be the standard.
    • Decisions to suspend physician's license must be recommended by TSBME members of the same or similar specialty as accused physician—NOT just the recommendation of staff attorneys and/or nurses
    • Require TSBME and accused physician to appear in front of a SOAH panel comprised of two (2) administrative law judges (ALJ) within 10-14 days of suspension order
      • Based on evidence provided by both sides, SOAH judges will make binding decision within one week after the initial hearing to let suspension stand or to allow physician to return to practice while full case is being presented
      • ALJ's develop timetable for hearing complete details of case (within three months) regardless of their decision relating to the temporary suspension
      • Utilizing SOAH early on ensures:
        • Due process for accused physician
        • More discriminate, less politicized use of temporary suspensions by TSBME for "grandstanding" purposes or as a punitive method for dealing with less cooperative physicians
        • Limits TSBME's role as judge, jury, and executioner by allowing an unbiased third party to evaluate facts of a case
  6. Informal Settlement Conference (ISC)
    • The TSBME should make ISC formal by recording and transcribing hearings
    • The TSBME should not attempt to add complaints to record, which often happens if a doctor informs the Board s/he does not accept their action and seeks remedy at SOAH
    • The TSBME member of the same specialty as the accused physician should be present at the ISC as well as the Board-hired reviewer to defend his/her decision why care was "substandard"
  7. Complaints and Sanctions
    • TSBME exaggerates its complaints to make accused physician sound worse that he or she is
    • Information inadvertently left off an application but indicated elsewhere leads TSBME to charge physician with "defrauding the public"
    • There needs to be consistency and a sense of proportionality in the TSBME actions. We were surprised at the disparity in discipline in these recent board actions:
      • Physician removes wrong lung during surgery ? public reprimand plus $2500 fine VS. Physician fails to provide TSBME with records within 2 weeks of Board's request ==> public reprimand plus $10,000 fine
      • Failure to recognize artery injury in child resulting in later amputation of leg ==> public reprimand VS. Failure to maintain medical records ==> $5,000 fine
      • Fusing the spine in the wrong area resulting in patient's need for additional surgery ==> public reprimand VS. Failure to provide requested information to Board in a timely manner ==> $5,000 fine
    • TSBME needs guidelines to curb abuses and ensure proportionality: Make the "punishment" fit the "crime" in every case
  8. TSBME and the State Office of Administrative Hearings (SOAH)
    • Make SOAH the final arbiter in any appeals it hears because:
      • This is the accused physician's and the TSBME's only opportunity to present their full cases including witnesses, corroborating literature, etc.
      • SOAH insists on following the rules of evidence, due process, and the preponderance of evidence, which ensures the integrity of the proceedings and fairness to all parties
    • If ALJ rules for restoration of physician's license, TSBME should not be able to overturn that decision and prohibit that physician from practicing.
    • At most, the SOAH should only be able to remand to an ALJ to reconsider a ruling with which the SOAH disagrees. Reform legislation pending in New York, for example, would allow at most a remand by the administrative board if it disagrees with a recommendation of a dismissal of charges by a hearing committee.
  9. TSBME and Hospital Peer Review
    • TSBME stated in its Self –Evaluation Report to the Sunset Committee that it wants more authority to investigate hospital peer review matters
      • Peer review at hospitals is often politically motivated by a doctor's economic competitors and is used to "eliminate the competition"
        • Therefore, TSBME must require hospitals to follow rules of evidence (due process) at peer review hearings, since TSBME will be required to follow same procedures if the case is elevated to SOAH
    • TSBME should be allowed to order a hospital to reinstitute privilege of an accused doctor who has been adjudicated by the Board
    • TSBME should be allowed to order a hospital to remove negative reports it provided to the National Practioner Data Bank (NPDB) if doctor is adjudicated by the Board
    • TSBME should discipline doctors who participate in "bad faith" peer review as unprofessional and unethical and as trying to defraud medicine and the public
  10. TSBME Website
    • TSBME must stop posting allegations against physician's on its website before a full investigation, hearing, and/or appeals have been completed
      • This activity presumes guilt over innocence
      • TSMBE should be responsible for errors and omissions posted on the site, lest it malign and impugn the reputation of Texas physicians with impunity
    • TSBME must be required to post not only its disciplinary actions but also decisions favorable to the physician in the case, even if at odds with the Board's actions, as handed down by SOAH and/or District Court

Source: www.aapsonline.org/testimony/txsrc.htm

Underline inserted by Dr. Schaller


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