By Franklin Hopkins
Physicians licensed by the Texas Medical Board (TMB or Board) are required by law to renew their medical license every two years either online or by regular mail.
During the registration renewal process, physicians are required to answer questions regarding any status changes since their last renewal. Certain answers or omissions of information can trigger an investigation by the Board, and physicians may find themselves explaining their answers before an Informal Settlement Conference.
Four of the six questions in the “Professional History” section of the renewal application are routinely misunderstood and are often the cause of a Board investigation. The first two questions were explored in a previous blog post. Questions 3 and 4 are presented below along with an examination of where misunderstandings may occur and a hypothetical example of how a physician may consider responding.
Question 3 — criminal conduct
“Since your last registration or submission of your license application, have you been arrested, fined, charged with or convicted of a crime, indicted, imprisoned, placed on probation, or received deferred adjudication? (Unless the offense involved alcohol or drugs, you may exclude: 1) traffic tickets; and 2) violations with fines of $250 or less).”
Where misunderstandings may occur: Physicians must report not only convictions and deferred adjudications, but also arrests. It doesn’t matter whether the local prosecutor has dropped the charges.
Physician Example: In January 2014, Physician C was arrested for DUI. The prosecutor did not pursue the case, and the charges were dismissed shortly thereafter. In February 2015, Physician C renewed her license, but did not report her arrest since the DUI was dismissed.
What should Physician C have done?
Reporting the arrest that occurred in January 2014, along with the dismissal in September 2014, would have been appropriate. She may also supply letters of support from supervisors, family, and friends, along with a personal letter explaining what happened. Physician C would also be wise to obtain an examination by a substance abuse counselor to show the Board that she does not have an alcohol problem.
Physicians who are worried about reporting an arrest, consider this: The Board does not initiate an ISC for every physician who is arrested. The Board simply wants physicians to be forthcoming; the Board may find the failure to report more serious than the initial criminal allegation. Moreover, if the Board sees that a prosecutor took no action, it makes it easier for the Board to do the same.
Question 4 — physical/mental/emotional condition
“Since your last registration or submission of your license application, do you have any condition or behavior, including, but not limited to, any physical, mental, or emotional condition, which has impaired, which could impair, or which is impairing or limiting, your ability to practice as a physician in a competent manner?”
Where misunderstandings may occur: “Condition” and “behavior” are broad terms and could mean anything from having had a stroke, going to counseling, or being prescribed psychotropic drugs.
If there is any question about a condition, someone independent must objectively decide whether the condition affects that physician’s competence to practice medicine. How physicians do that is by obtaining letters from their treating medical provider that state the condition does not render the physician incompetent or unsafe to practice.
Physician Example: In October 2014, Physician D fell asleep during his practice group’s “staff appreciation day” lunch. Physician D suffers from intense insomnia and takes medication to help him sleep and stay awake. As a result of falling asleep at the lunch, he had his medication adjusted. Since taking action, he has had no issues. Physician D renewed his license in December 2014. Physician D answered “no” to the question about any conditions that affected his competence to practice.
What should the physician have done?
It would have been advisable for Physician D to notify the Board that his medication was adjusted. He may also have provided letters of support from physicians in his practice. Most importantly, the best tactic for Physician D would be to submit a letter from his treating physician, explaining that the condition is managed and that Physician D is competent to practice medicine.
The best approach to these Board questions is to disclose with explanation. The Board may be more concerned about a failure to report than the subject of the omission. Failing to report creates an impression that you have something to hide.
When in doubt, consult a medical license defense attorney who is experienced in handling Medical Board investigations and complaints.
Franklin Hopkins is an Austin-based attorney, Board Certified in Administrative Law, with Germer PLLC. His practice focuses on representing physicians before the Texas Medical Board, along with other healthcare licensees in front of their respective licensing agency. He can be reached at firstname.lastname@example.org.
All examples are hypothetical scenarios and not based upon actual physicians or cases. This article is purely informational and not intended to be legal advice and should not be construed as such.