The Claims Process, Episode 3: Texas Medical Board defense

In episode 3 of this podcast series, Jim Boston of Boston & Hughes, PC reviews the differences between a lawsuit and a Texas Medical Board (TMB) case; how board complaints are filed and what to expect; common patient complaints; and some best- and worst-case scenarios when faced with a TMB complaint.

Also available on Apple and Spotify. A transcript of this podcast is found below.

Additional episodes in this series:

Episode 5: Impact of technology on your organization today
Episode 4: TMLT's Risk Management's Greatest Hits
Episode 2: Five things that get physicians sued
Episode 1: Lawsuit defense

Transcript: 

Tony Passalacqa: Hello and welcome to this edition of TMLT's podcast, TrendsMD. I'm your host, Tony Passalacqua, and today we have Jim Boston of Boston & Hughes. Jim has 40 years of experience as an attorney defending medical liability cases and representing health care professionals before licensing boards. He is consistently listed among the best lawyers in America and Texas.
 
We are very happy to welcome Jim to our podcast today. Our topic today is Texas Medical Board Defense.
 
What is the difference between a TMB case versus a lawsuit?
 
Jim Boston: Okay, well a lawsuit, um, is about money. The plaintiff has experienced a bad result, it's caused them economic and emotional harm, and they go to the court seeking relief.
 
And that relief in a civil lawsuit is in the form of monetary damages. The medical board, on the other hand, is a licensing agency. And so, the medical board, while it takes less of your time, potentially, and the process of going before them is less time consuming and less involved, the outcome can be far more devastating if they decide to restrict your license or to revoke your license or to place your practice under supervision or to administer some kind of an agreed order that lists all kinds of problems that they've discovered with your practice and they can leave that on their website for you know, for indefinitely, quite honestly. If it's a remedial plan, those usually fall off within five years, but an agreed order can be there indefinitely.
 
So potential consequences of a state board hearing are probably more devastating in some respects than that of a lawsuit. I will say though, I don't want the audience to become paranoid about this. Most of the time, the state board is pretty reasonable. I mean, I haven't had that many occasions when the outcome has been so devastating to the doctor that it was, uh, horrible. But it can. I mean, the potential is there.
 
Tony Passalacqa: Uh, one of the most interesting things that I find is that Texas Medical Board has specific requirements on postings. Where do you usually see those postings at?
 
Jim Boston: So yeah, if you go into the Medical Board website under a particular physician's name, it will show whether there's an agreed order that has been implemented against that physician for whatever reason.
 
Whether there is a remedial plan that's been implemented within the last five years. Those are the two things you find most often if you go to the medical board website. Either that or it recites that there's no complaints, no actions. That's pretty much it, really.
 
Tony Passalacqa: Who exactly can file a complaint against a physician?
 
Jim Boston: Anyone. It doesn't necessarily have to be the patient. Somebody can file on the patient's behalf. A wife can file on her husband's behalf; a friend can file on a patient's behalf. I mean, it really, it doesn't matter who files it. What matters is whether or not there's some justification to the complaint based on the care provided.
 
Tony Passalacqa: So, a complaint's been filed against you, well, let's just say hypothetically, and you're a physician. What should you expect?
 
Jim Boston: Okay, so the complainant, the patient, writes a letter often or an email to the board explaining their dissatisfaction with whatever care they got from the doctor. The board then writes a letter to the doctor explaining that a complaint has been filed by such and such patient based on such and such allegation.
 
And they request records and or a narrative explaining your side of the problem. When you get one of those letters, you need to turn that over immediately to your insurance carrier and they will then give you a list of lawyers from whom you can pick to represent you before the board under your Medefense part of your policy.
 
What you don't want to do is represent yourself before the board. Now, can you do that successfully? Yes, you can. Just like you can represent yourself in a lawsuit if you want to. You can represent yourself pro se, but it's not advisable for a lot of reasons. It's much better for you to get a lawyer involved than to try to defend yourself in either circumstance.
 
Tony Passalacqa: So, one of the things that I think of is, is if you're a physician, right, and you have this, this personal relationship with the patient that is filing a complaint, do you think that sometimes maybe having that relationship can be detrimental to writing a response to the Texas Medical Board?
 
Jim Boston: Well, I mean, it depends on the nature of the relationship. Patients often file cases before the medical board because they can't find lawyers to represent them in a medical malpractice lawsuit. And so, um, you know, with the advent of tort reform, fewer plaintiffs’ lawyers take medical liability cases because the potential payday is less in many of them. So, to get satisfaction, many of these patients who wouldn't necessarily think to go to the medical board now do so.
 
When that happens, you know, obviously the board is going to take whatever complaint the patient brings to them seriously. Now the nature of the relationship with the patient may have an impact on how the board views the complaint. It kind of depends. So, if, for example, the doctor and the patient had an intimate relationship, the board's going to take a close look at that. And we can go into that more if you want to, but that's, that's always a problem. But otherwise, it really doesn't have an impact on the board so much. I mean, as long as it's a professional relationship, no matter how close you were as friends or relatives or whatever, you know, that's often not going to have an impact.
 
Now, there is a recommendation that doctors not treat close relatives because it affects your objectivity and may affect your recordkeeping and what you do for them. So, they're going to take a look at that perhaps. But otherwise, you know, for the most part, the relationship isn't all that significant.
 
Tony Passalacqa: Having a close relationship with a patient - do you think that sometimes the response, it may be more hostile?
 
Jim Boston: Well yeah, so the more emotional the doctor is about the interaction and the complaint, the more likely he is to be emotional in his response. So, that's one reason why you need to get an objective person involved early on before you create your own response.
 
The board's gonna request two narratives from you. They're gonna request one initially, when they want your response to the initial accusation, and then when they get the records and have them reviewed by a consultant, they're going to want your response to the consultant's opinions from the record review.
 
So, you get to present more than one narrative to the board. It's important that you make a good first impression. And, uh, having a lawyer participate in writing that narrative, especially that first one, helps leave a good first impression, or can help leave a good first impression.
 
Not to be judgmental here, but doctors often don't communicate effectively in writing. They communicate like they speak. It's difficult to read. Sometimes it's disorganized. Sometimes it's, uh, too long and cumbersome to get through easily.
 
You don't want to send something like that to the medical board. It's better to send, uh, communicate with a lawyer, write a draft narrative that you send to your lawyer that the lawyer can then revise to put it in a format that makes a better first impression than you're likely to leave with your communication.
 
Tony Passalacqa: How long does it usually take to go through the complaint process, the Texas Medical Board complaint process?
 
Jim Boston: It varies considerably. So, you know, the steps are these. The complaint is received by the board from the patient. The board decides that they're going to pursue it, to some extent. So, they write a letter to the doctor, they get medical records and an initial narrative, and then they decide, after that, if they're going to open an investigation.
 
If in response to the initial letter, they don't reason to open an investigation. They can dismiss it immediately and do nothing. However, if questions have arisen that garner their attention and they want to open an investigation, they will request more information from the doctor, perhaps more records, perhaps other things, usually just more records.
 
They will send those records then to a physician of like medical specialty and have him comment on the care. Sometimes they send it to two of them. If the initial evaluating board physician finds no problem with the care, uh, they may dismiss it. On the other hand, if the initial board consultant finds problems with the care, they may send it to a second one.
 
And if they both agree there are problems with the care, then they will schedule a hearing, uh, informal settlement conference, ISC, to discuss that with you. So, the process from getting the complaint until getting to the ISC stage can take as few, it can take a few months, or it can take years, depending upon how many delays are occasioned by getting the records, getting them to the consultants, having the consultants respond to them, writing their analysis, etc.
 
They're very tight with their deadlines, with the deadlines they impose upon the physician to respond to them. They are less disciplined about keeping the deadlines in responding to the physician. So, it can go on for a while. I've had some go on for a couple of years.
 
Tony Passalacqa: What are some common complaints that you see from the Texas Medical Board that need defending?
 
Jim Boston: Well, it's really wide and varied. So, there are some complaints that I am amazed that the board would even take seriously, and they do. There are some complaints that seem more worrisome to me that are dismissed without an investigation. So, there's no rhyme or reason to this. There's no formula. There's no trend.
 
It's almost luck of the draw in terms of how your case is perceived by those who initially look at it and what they do with that information. I'll give you an example. I had a case come before the board — or a complaint come before the board — by a patient whose surgeon went into his son's room and took what the father believed to be a pocketknife from his scrubs to cut a drain stitch.
 
Now you have to understand that this stitch was not in the skin where it was cut. It was extending from the skin to the drain with a space, a large space actually, between the part of the suture that was cut and the skin. In other words, this blade never touched the skin. But the impression left by the complaint, although erroneous, was that my client took a pocketknife, an unsterilized pocketknife, from his scrubs to cut that stitch.
 
Alright, we explained to them from the outset that the blade was not from a pocketknife, it was a surgical blade. And that while not sterilized in the sense that it was, um, it was still clean with betadine. So, it was not a dirty pocketknife like something you would use to cut worms at a fish camp. It wasn't like that, but that was the impression the patient left.
 
Alright, so we sent them a picture of the blade to show that it was a surgical blade. We explained that it was, um, cleaned with alcohol or betadine and that it was a non-sterile procedure to begin with. Didn't matter to the board. They wanted an ISC on this. I even sent them photographs of what a drain stitch holding a drain in place looked like so they could see that the part of the stitch that was cut was not embedded in the skin and therefore this blade that was clean never touched the skin.
 
They did not care. They wanted an ISC. I couldn’t believe it. The panel consultant doctor or doctors were so inflammatory in their analysis of this situation, it made me believe that they too had a misimpression of what happened. I thought, the misimpression that existed at the panel level and at their consultant level was that he used a knife to take the stitches from the skin as opposed to simply cutting the drain holding suture.
 
Anyway, uh, we went to the ISC, and we explained ourselves and the complaint was ultimately dismissed. But you would be surprised at how thoroughly they questioned him about this and how much import they assigned to what to me seemed like an insignificant complaint. All right, so good outcome, but it was a very tedious process getting to that good outcome.
 
But I mentioned this to show you how random this can be. I would have thought this would have been dismissed with our first response in photographs, but it wasn't. So, you need a lawyer because you just don't know who you're going to be dealing with at the board level. or what significance they're going to attach to the complaint.
 
Tony Passalacqa: I bet a lot of our listeners out there are kind of curious, but what is an ISC?
 
Jim Boston: So, an informal settlement conference is a forum in which you get to address a panel directly. Now, it's done by Zoom. We used to go to Austin and go into their conference room and do it. But you get to talk directly to the panel.
 
The panel, um, is comprised of a layperson that's a member of the board and a physician that is a member of the board. It is presided over by a board attorney who acts as sort of a moderator or judge, not to make decisions, but to facilitate the process. And then there is a board lawyer who acts as a prosecuting attorney to bring the board's case against you.
 
So, all of these people are on the screen. We'll talk about it being done by Zoom, cause that's how they do it now. And they introduce themselves. Um, some of the panel members and the board members are presenting themselves from home. I mean, it's a fairly relaxed process. Not — for them it's relaxed — not for the doctor.
 
What they want in the ISC is to be able to ask very poignant questions of the doctor and get his honest responses. That's what it is. It is a conversation. It's a very, uh, I'm gonna call it deceptive conversation, because it seems fairly cordial at first and fairly relaxed. But they're taking very copious mental and physical notes of everything you say.
 
It's a serious process. The results are generally okay. I mean, they're not looking for a reason to restrict a license, or revoke a license, or implement an unreasonable agreed order necessarily, although I've had to contend with that from time to time. But they do want you to give a really good, thorough explanation of your position so that they can evaluate it.
 
And if you get a good panel, you're likely to get a good result. If you get a rogue panel, which I've had happen, you may get a surprisingly poor result.
 
Tony Passalacqa: So, as we're talking about like the, the different paths that kind of occur during a Texas Medical Board complaint process, what's like worst case scenario?
 
Jim Boston: Well, the worst-case scenario is that they revoke a license. I had that happen one time to a doctor who was prescribing a Schedule 3 substance within an ointment without ever seeing the patient. They were just sending him a request to authorize the dispensation of this ointment with a Schedule 3 drug within it.
 
And he was having his office manager sign his name to those requests without ever seeing the patient or even talking to them. And they revoked his license. Now, he, um, was at retirement, the retirement point anyway. He was in his 70s. He had no desire to practice anymore. Ultimately, it didn't affect him that much.
 
He wasn't really practicing except to the extent that he was working with this compounding pharmacy. But they did revoke his license. That's the only time I've ever had that occur. Criminal charges were also brought in that case because one of the patients died, and the autopsy pathologist erroneously concluded that the death was caused by the Schedule 3 substance that this doctor authorized for this topical ointment.
 
I actually had to hire a pharmacologist to debunk that notion. In other words, we were able to successfully argue that the death was not because of this. And so, they actually withdrew that allegation at the ISC. But the nature of the interaction with patients, being no interaction with patients, and a Schedule 3 drug being administered to patients, even topically, was enough for them to revoke his license.
 
He actually passed away, uh, within a month or two of that hearing and so the criminal matter against him was dropped, and the license revocation that was of no import. He was, he was not in good health. But it did happen. That's the only time I've ever had that happen.
 
Tony Passalacqa: What's the, uh, the best-case scenario that occurs in these Texas Medical Board complaint processes?
 
Jim Boston: Well, the best case is that they dismiss it at the outset without an investigation. That's the best case. But let's say it gets to the ISC, and it's a serious complaint. The best case is that they dismiss it without a remedial plan or agreed order during the ISC. And they can do that. The mere fact that the board wants to talk to you does not mean that they are going to implement a sanction against you.
 
It just means they want to hear from you. And so, after hearing from you, they may, in fact, at that informal settlement conference, dismiss the complaint. And that happens quite a bit, actually. The other thing that can happen is that they can implement a remedial plan. Now, a remedial plan is not disciplinary in nature, and it says so on the plan, but you would be surprised how many hospital credentialing committees don't understand the difference.
 
You have to explain it to them. But a remedial plan is merely a plan in place that they think allows you to remedy whatever deficiency you had without a disciplinary action being made. It's called a remedial plan for that reason. It costs about 500 bucks and some CME, but it's still on their website for about five years.
 
An agreed order is a disciplinary, in nature, uh, and it can, it can include all number of different terms. But it is disciplinary. And that is the most common bad scenario, if you want to call it that, that can happen at an ISC. It doesn't end up in license revocation or anything like that necessarily, but it looks bad.
 
And that can include a fine, it can include CME, it can include reporting to another physician for a while about a certain aspect of your practice. It can include practicing under the supervision of another physician if the infraction was deemed to be particularly serious or anything else.
 
But an agreed order is disciplinary, and that, you know, that's typically the worst thing you see is this agreed order. Even if the terms of the agreed order are innocuous and, really just amount to CME, the fact that it's disciplinary in nature is something you're going to have to explain.
 
Tony Passalacqa: So, what happens after a Texas Medical Board complaint?
 
Jim Boston: I mean, I'm sure a lot of physicians out there probably have a complaint filed against them and they feel like it's going to follow them forever, but what's the general understanding that a lot of these physicians have after the complaint process has been finalized? And let's say in an instance where there's an agreed order, how much does that impact them on a daily basis?
 
Well, it really doesn't. I mean, it kind of depends on the terms of the order, but for the most part, these things do not impact your practice significantly. The lay public, I think, typically doesn't go on the medical board website to even learn about the agreed order being in place. It's mostly something that a hospital credentialing committee would have access to and want to take a look at, and they'll talk to you about it.
 
The National Practitioners Data Bank will have a record of it, and they, it's up there for credentialing committees to have access to. But in terms of the patient population itself? You know, I'm not aware of many patients going on the medical board website and discovering an agreed order or remedial plan or anything of that nature. Um, so in more times than not, what happens at the board will not detrimentally impact your practice to any significant degree.
 
Tony Passalacqa: Jim, what is the one thing that you would like our physicians to leave with in the event there is a TMB complaint?
 
Jim Boston: It's best not to represent yourself at any stage before the Texas Medical Board as soon as you get a letter from them, turn it over to your liability insurance carrier and let them assign a lawyer or give you a list of lawyers from whom you can choose to represent you.
 
It can turn out okay sometimes if you represent yourself. I'm not saying it's never going to be a positive experience, but you are much better off, believe me, having a lawyer by your side to work you through this process.
 
Tony Passalacqa: Thank you so much, Jim. And thank you for listening to this podcast. If you are a policyholder, please feel free to contact us with any questions by calling 1-800-580-8658 or check out our resources at www.tmlt.org and clicking on our Resource Hub.