1. Understanding the TSBME discipline process, and how to avoid it Robert S. Bennett The Bennett Law Firm, P.C. Houston, Texas

2. Objectives 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

3. 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

4. The Texas State Board of Medical Examiners The TSBME was established in 1907 The TSBME represents the public, not physicians Regulation through licensure, education, and discipline

5. Texas 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 of Physician Assistant Examiners 9 Member Board Texas State Board of Physician Assistant Examiners 9 Member Board Texas State Board of Acupuncture Examiners 9 Member Board Texas State Board of Acupuncture Examiners 9 Member Board Donald Patrick, M.D., J.D. Executive Director Donald Patrick, M.D., J.D. Executive Director Investigations and Compliance Department Investigations and Compliance Department Complaints and Disciplinary Support Department Complaints and Disciplinary Support Department Litigation Department Finance Division Customer Affairs Division Licensing Division

6. “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 Director of TSBME October, 2002

7. TSBME dramatically increased its disciplinary activities - Individuals Sanctioned & Total Fines - 361 276 99 FY

8. 44 37 1217 TSBME dramatically increased its disciplinary activities - Revocations & Suspensions - FY

9. Final Sanctions FY 2001-2003

10. Disciplinary activities should continue to increase as TSBME gets 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

11. Increase in disciplinary actions 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.

12. Increase in disciplinary actions 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.

13. Commencement of Disciplinary 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

14. Complaints Complaints filed with the TSBME have nearly doubled since 1996

15. Most common Complainants PatientsPatients PharmacistsPharmacists NursesNurses Other physiciansOther physicians

16. Avoid Complaints About ½ of all complaints allege quality of care issues Most are unfounded and eventually dismissed

17. Final Sanctions – FY 2002 7,317 Complaints 1,725 Investigations Opened 1,448 Investigations Completed 278 referred to Litigation Dept. 187 Sanctions

18. 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

19. Report filed in National Practitioner Data Bank Under Texas Senate Bill 104, the TSBME will review the NPDB and investigate reports on Texas physicians

20. Report 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:

21. Report filed in NPDB 1.A hospital; 2.A health maintenance organization; 3.An independent practice association; 4.An approved nonprofit health corporation; or 5.A physician network. Expert Panel will review NPDB for any report filed by,

22. What happens once you’re in the TSBME crosshairs? An overview of the disciplinary system

23. TSBME Disciplinary System Investigations Department TSBME issues order Hearing at State Office of Administrative Hearings Complaint Dismiss 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

24. Informal Proceedings

25. At least 30 days notice Complainant and the license holder have opportunity to be heard Tex. Occ. Code § 164.003

26. Informal Proceedings 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

27. Informal Proceedings 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)

28. Informal Proceedings 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

29. Informal Proceedings 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

30. Informal Proceedings 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’

31. Informal Proceedings Under certain circumstances a physician with a substance abuse or mental disorder may qualify for a confidential Rehabilitation Order TSBME Rules, Chapter 180

32. Disciplinary actions against a physician 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

33. Agreed 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

34. What happens if the case is not resolved with an Agreed Order?

35. 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!

36. State Office of Administrative Hearings SOAH TSBME Litigation Dept. Formal Complaint Findings of Fact & Law TSBME, 18 member board Respondent Physician Exceptions Final Order Pretrial discovery Pretrial mediation Trial (in Austin)

37. 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. Tex. Occ. Code § 164.009

38. License 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. Tex. Occ. Code § 164.011

39. Avoiding the disciplinary process

40. Common grounds for discipline less 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)).

41. Common grounds for discipline serious 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

42. § 164.054. Additional Requirements Regarding 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.

43. § 164.054. Additional Requirements Regarding 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.

44. Disciplinary 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

45. TSBME 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

46. TSBME Rules, Chapter 190 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;

47. TSBME Rules, Chapter 190 Termination of patient care without providing reasonable notice to the patient and a reasonable alternative for the patient’s care ;

48. TSBME Rules, Chapter 190 Inappropriate prescription of dangerous drugs or controlled substances to oneself, family members, or others in which there is a close personal relationship

49. Handling a TSBME complaint 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

50. 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