Saturday, August 20, 2005
Recommended changes to Sunset Re: Abusive TSBME activity towards some Doctors in Texas
February 22, 2004
Texas Legislature Sunset Advisory Committee
Information concerning the present status of the Texas State Board (TSBME) and ways of improving this state agency
Outline of TSBME issues that need to be addressed
1) Proper Selection/Representation of Board members
2) Physician Reviewers and their Responsibilities
3) Improving/ Streamlining the Complaint Process
4) Due Process and the Investigation of Complaints
5) Investigative Time Frames
6) Temporary Suspension of Physician License
7) Informal Settlement Conference (ISC)
8) Wording of the Agreed Order
9) TSBME and the State Office of Administrative Hearings (SOAH)
10) Hospital Peer Review and the TSBME
11) The TSBME Website
12) Accountability of the TSBME
13) Utilizing Data from the Texas Health Care Information Council (THCIC)
Information for Sunset Review Committee
1) Proper Selection/ Representation of Board Members
1.1. We need to remove any political overtones of the TSBME. One should not be on the TSBME strictly because he/she donated money or are politically affiliated with the governor. The TSBME should also be composed of at least one to two members elected from the TMA and TOMA and several representatives from different state specialty associations. Physicians are the best jury with regards to their own peers (pg 4, parag 4 Fed. Of State Medical Boards). An equal number of M.D. and D.O. representatives will also remove any controversy of bias. All Board members appointed by the Governor need term limits of no more than one four (4) year term and the appointments need to be staggered (pg 4, parag. Fed. Of St. Medical Boards). Board members are not elected but appointed by the Governor (at least at this time) and must not be allowed to remain on the Board indefinitely since this can result in cliques and abuse. By doing this, the Board becomes medical and objective without becoming self-serving.
2) Physician Reviewers and their Responsibilities
2.1. There should be some type of rotation for doctors who review complaints. In fact, it should be a requirement for every board certified physician who has a Texas license be required to review for the TSBME. That way, every physician becomes a reviewer which would benefit doctors by improving their skills in chart/patient review.
2.2. On the other hand, if the TSBME has to have control over its “selected” reviewers, then no physician reviewer hired by the TSBME should ever review another doctor twice. Additionally, the TSBME relies too heavily on retired or retiring physicians as well as the Executive Director’s cronies to review complaints. Only physicians in active practice in the same or similar specialty who are Board certified should be allowed to review complaints and give opinions since medicine and treatment choices are also ever changing. These TSBME reviewers should also be held accountable if they are found to show any bias, are arbitrary and commit fraud with their evaluations. In the initial review, an MD specialist should review the accused MD just like a DO reviewer should review an accused DO. SB 104 passed in 2003 has provided that once an initial evaluation demonstrates a possible breach in the standard of care, three additional doctors on a panel need to review the complaint. The accused doctor should be required to have an ISC if at least two of the three reviewers agree to a breach in the standard of care. One of those two reviewers must also be present at the ISC as well as the fact that at least one Board member of same or similar specialty must also be present. Additionally, the basis for an ISC should be that the investigation has demonstrated that the accused physician has demonstrated that the care given was contraindicated, not based on the reviewer’s opinion that it should have been done a different way. The reviewers’ who participate in the investigation of a complaint must not have blanket immunity. Currently, a physician who reviews a complaint for the TSBME is immune from any liability. This is appropriate as long as the “reviewer” is being fair and unbiased. If on the other hand the “reviewer” is found to be unfair and/or commits fraud, the accused physician must be able to initiate an investigation on that (those) reviewers. If the reviewing doctor feels that there is something wrong with the quality of that other doctor, then that needs to be documented and defended by the “reviewer” at the Informal Settlement Conference. Why should the accused physician be forced to wait several more months and face additional financial burden “waiting” for the next legal hearing, (the SOAH hearing) to finally be able to question the TSBME’s expert(s) why they rendered this opinion when it could just as easily be done at the Informal Settlement Conference and maybe the issues could have been resolved there?
2.3. Accountability as an “expert reviewer” is essential. This issue has become a driving force nationally regarding “experts” in medical malpractice cases where the push is to only have actively practicing physicians who have actually done specific cases are allowed to comment on the accused physician. Physician review by the TSBME is no different since the “expert reviewer” is opining on the way care was delivered by another clinician and whether the “standard of care” was maintained.
2.4. Finally, the TSBME in 2003 was mandated by SB 104 to have three (3) additional reviewers of the same specialty review a physician complaint further if an initial review of the complaint demonstrated a possible breach in the “standard of care”. To date, almost a year after this law was initiated in April of 2003; the TSBME has not even started using this mandate. This is unacceptable since physicians are asking; does it take 1 out of 3 doctors to agree? , Does it take 2 out of 3? Does it take 3 out of 3? Does the initial reviewer count as 1 doctor vote? Will one of these doctors be present at the ISC to defend their position against the doctor? Are the reviewers “retired” or “actively in practice”? Instead, what has been received by the TMA is that the TSBME has interpreted the law to allow it to perform pretty much in the same manner as before. Citing expense as a major factor in its decision, the TSBME still uses its same investigators to make the initial determination whether or not the complaint is valid and should proceed to an ISC. The new legislation stated that the complaint would be reviewed by three (3) specialists of the same or similar specialty and the complaint would be pursued at the ISC if the majority agreed that the complaint was warranted. What the TSBME has done is maintain the same procedure whereby its initial reviewer decides whether to pursue or not and then sends it out to one doctor to review and then another until the initial reviewer finds someone to agree with him/her. How is this fair? The system smells of biased, unscrupulous decision making on the part of the TSBME who is not interested in doing the right thing but getting numbers. How is the TSBME saving and more importantly the taxpayers of Texas saving money with this process that is not unbiased when deciding whether or not to review a physicians’ complaint? Has the TSBME looked at the cost of doing an ISC and possibly going to SOAH and how the taxpayer and the physicians are really paying for potentially wasted investigations that are being started by the TSBME if only for show in that they are able to tell the public how busy they are! The TSBME has shown once again that they are not interested in the checks and balances being placed on them by the legislature but are only committed in their own selfish goal of trying to show the taxpayer that they are a necessary agency whatever the cost to weed out doctors and they are willing to forfeit the rules laid down by the legislature in order to achieve their goal.
3) Improving/ Streamlining the Complaint Process
3.1. A complaint system has to be maintained and made more efficient. The complaint itself needs to be written clearly and succinctly. The accused doctor should have a clear understanding as to what the accusations are by having the allegation(s) simply stated instead of relying on generalized statements and code numbers written by the case manager to the accused physician. Currently the allegations are too vague and general. TSBME needs to review the complaints in their entirety and come out with a complaint against the physician and not rely on the investigation of others including hospital boards for example before pursuing this accused physician. The Board reviewer(s) need to be given the entire contents of the patient chart and not “snippets” marked by the Board staff’s attorneys or nurses. Additionally, the investigation of the complaint needs to be accelerated. It is not fair for the accused to have to wait in excess of six months to know whether or not he/she has been adjudicated or will have a formal complaint by the TSBME. It also does not serve any purpose to place allegations on its web site that the TSBME has made on an alleged physician since the complaint is “alleged” and has not been found to be substantiated at the present time. Placing the complaint on the TSBME web may make the TSBME feel empowered that they can demonstrate their “usefulness” but in effect it is another form of physician abuse and extortion since the TSBME has not proven their complaint(s) but is already attempting to undermine the physician. This in and of itself is another form of harassment and abuse of power.
3.2. TSBME needs to investigate and focus on valid claims from patients, physicians, and hospitals. The TSBME needs to stratify and triage these complaints in order to identify “problem physicians.” Obviously, if a physician is having many complaints and lawsuits about the same issue from patients, this is more serious than a physician involved in hospital politics. The TSBME should not rely necessarily on purported “adverse actions” coming from a hospital especially if that physician does not have a corresponding malpractice trail. The TSBME should be sophisticated enough to understand that hospital-generated complaints as well as those from competing physicians may, and often do, arise from political and economic “turf battles” and therefore would not warrant the same attention. Malpractice claims although not necessarily indicative of “problem physicians” are potential indicators especially if there is a trend resulting to more morbidity and mortality.
4) Due Process and the Investigation of Complaints
4.1. “Due process” needs to be practiced by the TSBME. This philosophy is not currently acknowledged or observed by the TSBME which essentially views all alleged doctors as “guilty” until proven innocent. “Due process” means that any physician who is required to come to the TSBME for evaluation needs to have his/her rights protected. The burden of proof needs to be on the TSBME and not on the physician. Additionally, as recommended by the Federation of State Medical Boards, a preponderance (page 10, paragraph 13 of Elements of a Modern State Medical Board) of evidence is needed to prove that the practioner is guilty of practicing below the standard of care. Why is it that only in medicine is one considered guilty until proven innocent? Unsubstantiated allegations, innuendos, etc. should not be used against a physician in order to discipline him/her. Medicine is complicated and has many approaches. A difference in opinion is not grounds to discipline a physician. The TSBME has to demonstrate that the care provided by the accused physician was contraindicated in the current literature. The TSBME has a duty to itself, the Legislature and to the public at large to review an allegation completely and with an unbiased approach. Only then has it fulfilled its mandate to protect both the residents and doctors of Texas.
5) Investigative Time Frames
5.1. All investigations need to be completed by the TSBME within 6 months of a complaint. If not completed, the case will be dismissed. Doctors should not be held waiting indefinitely as to the status of a case. The investigative process needs to be organized in such a way as to determine whether or not a complaint is indeed valid. The process must be such that it pursues facts not innuendo and is based on the “rules of evidence” doctrine. It is not difficult to identify true improper medical care and or drug and alcohol abuse, etc. from that which is based on personal vendetta and innuendo. Additionally, once a case is dismissed, it cannot be reopened by the TSBME unless new and convincing evidence emerges.
5.2. SOAH also needs to observe time lines when a hearing has been scheduled by the TSBME in its effort to discipline a physician. Irregardless of the circumstances, a doctor facing a “temporary suspension” must have the hearing within three (3) months of the accusation and a decision made during the next three (3) months. Delay in these cases only adversely affects the doctor since the burden of proof was with the TSBME.
6) Temporary Suspension of Physician License
6.1. The use of a Temporary Suspension by the TSBME must be better defined. The stigma attached to this decision by the TSBME can be devastating to the doctor, his office staff, as well as his/her patients. The issuance of a “temporary suspension” is the same as giving the practitioner a death sentence. Being “temporarily suspended” is similar to being a leper. It is also akin to being placed under house arrest. Your career, your livelihood is placed on hold. Your ability to meet daily financial burdens is disrupted. Other state licensing boards will not accept your application to practice since everyone is waiting on the final outcome of the complaint process. As a result of this very serious decision by the TSBME, it is imperative that the burden of proof to hand out a “temporary suspension” must be with the TSBME and not the practitioner. Additionally, any decision initiated by the TSBME to “temporarily” suspend a doctor from practicing must be reviewed by Board members of the same or similar specialty and not rely on Board staff of attorneys and nurses. The only exception to this would be in cases where the suspension is based on clear and convincing evidence of drug/alcohol impairment or conviction of a felonious act. In all cases of “Temporary Suspension”, the accused practioner as well as the TSBME must be forced to go in front of a SOAH panel made up of at least two judges to discuss the merits of the suspension. Currently, the TSBME is acting as the judge, jury and hangman when it comes to “temporary suspension”. This agency has too much of a vested interest in keeping this doctor from not practicing and politicizing this action. Since SOAH will ultimately be reviewing the allegations, it is only correct that the TSBME show its evidence that based its decision for a temporary suspension to an unbiased entity (SOAH) to decide the merits of the TSBME’s decision. SOAH should then be allowed to make a binding decision based on the evidence presented by both the TSBME and the accused physician as to whether the “Temporary Suspension” is in fact warranted and at the same time initiate a time table for the TSBME’s complaint of the accused physician’s temporary suspension hearing in the following months regardless if the accused physician is allowed to return to practice or if the evidence is in fact indicative that they are in fact a continuing threat to the public. After that determination is made, and then all parties can then work on scheduling the actual hearing dealing with the TSBME’s allegation(s).
7) Informal Settlement Conference (ISC)
7.1. The TSBME relies too heavily on the Informal Settlement Conference (ISC) when it deals with accused physicians. These hearings are currently not transcribed but should be and considered more formal since they require the physician to defend his/her position. By not “transcribing” the ISC, it makes it easier for the TSBME to add additional complaints afterwards if the physician decides to seek remedy at SOAH. Examples of “adding” additional complaints following the ISC are well known and the TSBME defends these additional complaints as “mistakes” when they are later thrown out by the SOAH judge. This defense by the TSBME attorneys would be moot if the ISC proceeding was taped and everyone was able to review what exactly was said by both sides. When the physician presents to the TSBME to discuss the allegation(s), this hearing needs to follow “due process” and one way of ensuring that is to have it transcribed. In addition, a TSBME member of the same specialty in addition to the “expert reviewer” needs to be present. Currently, a TSBME member who specializes in pediatrics for example, is able to comment on the performance of a cardiac surgeon. This is ridiculous since how can someone of a different specialty have any way of understanding the complexities and treatments of another and properly judge that practitioner? Additionally, specific actions by the accused physician should be dealt with appropriately if adverse finding(s) are found. At the present time, there is no standard penal code which identifies a specific reprimand with a specific allegation and seems to depend upon which Board members are sitting in judgment at that time. This is substantiatiated by reviewing the TSBME web site and reading its own database of disciplined physicians.
7.2. The next issue deals with following proper time lines when investigating a physician. Any and all ISC Agreed Orders must be received by the accused physician within twenty (20) days of the hearing. This is done to offer the physician a choice as to accept the Order or resort to SOAH for an independent hearing. If the doctor chooses to pursue a SOAH hearing, then the same Agreed Order must be submitted by the TSBME and not one that contains additional complaints that were either never determined at the ISC or dismissed at the ISC. The required use of transcripts would cut down on this problem.
8) Wording the Agreed Order
8.1. Agreed orders need more latitude. That is to say that the words “defrauding the public must be used when in fact a physician has done that. Maybe the TSBME needs to define its charges as they relate to the medical practice act. The TSBME has a way of exaggerating a complaint to make it sound worse than what is. For example, if an application is missing information that is found somewhere else but not found on that particular line, it would seem hardly that the physician intended to defraud anyone. Who in fact is defrauding the public, the physician or the TSBME?
9) TSBME and the State Office of Administrative Hearing (SOAH)
9.1. SOAH needs to be the final decision maker regarding any physician investigation by the TSBME since this is the only opportunity the accused and the TSBME have to present their full case including witnesses, current literature,etc. SOAH was established to work between state agencies and those licensed by these agencies. A good example deals with the TWCC and insurance companies challenging injured workers regarding responsibility of injuries and proper medical care. Whenever SOAH makes its decision on these matters, that decision is final. It has the unique position of being a neutral party that bases its decisions on “rules of evidence” and the predominance of evidence. Currently, the TSBME is the only state agency that has been allowed by the Texas legislature to challenge SOAH by actually allowing that agency to change parts of the decision it (TSBME)feels are incorrect (under the guise that SOAH was misinformed). The decisions made at S.O.A.H. (State Office of Administrative Hearings) should not be usurped by the TSBME if it is not to its liking. SOAH decisions should be final and if either the TSBME or the accused physician wants to appeal them they will need to go to the District Court. If the TSBME is not happy with the ALJ’s decision, they should not be allowed to stop the physician from practicing while the case is being appealed to the District Court. If allowed to continue in this fashion, what is the purpose of having (SOAH), a non-biased entity reviewing the complaint in the first place? This is all about checks and balances. The District Courts have ruled against the TSBME for attempting to change the decision of SOAH several times. (See No. 03-03-00180CV). In this ruling, the 345th District Court held that the TSBME does not have unlimited discretion to change an ALJ’s findings of fact and conclusions of law.
10) Hospital Peer Review and the TSBME
10.1. The TSBME in its Self Evaluation Report stated that it wants more authority to investigate hospital “peer review” matters. This is a good start since the TSBME should ensure “due process” as well as “rules of evidence”. The TSBME is mandated to investigate every adverse action that is received from a medical facility. The TSBME or the State Legislature should force hospitals involved in “peer review” actions to follow due process and rules of evidence at these hearings since that information will be sent to the TSBME. It would make the TSBME’s job much easier if it received valid evidence based medicine decisions and not those based on innuendo, and not based on facts. SOAH has made it clear to the TSBME that unless they present evidence based on “rules of evidence” then SOAH will in fact throw it out. Instead of fighting to overthrow SOAH, it would serve everyone, the accused doctor, TSBME and its staff, as well as SOAH to have valid evidence before even investigating if the accused doctor is in fact deserving of discipline from the TSBME or is a victim of “sham, bad faith” peer review. “Bad faith peer review” is on the rise nationally and seems to affect doctors in solo practice and without political backing at a hospital when they come up against dominant doctor groups or hospital administrators as whistle blowers. There is no room for inappropriate destruction of a physician’s career solely based on anticompetitive motives or personal vendettas.
10.2. The TSBME should be allowed to force a hospital to take back an accused physician if in its investigation, the doctor is adjudicated. Currently, the accused physician must undergo a “second” investigation by the State (TSBME) and if “cleared” receives a letter to that effect. In the mean time, the hospital has sent an adverse inquiry to the National Practitioners Data Bank (NPDB) and has affected the accused physician’s practice by keeping him/her of staff and forcing that practioner to notify the insurance carriers, malpractice carriers, and other hospitals of this adverse action even though the practitioner has been cleared. To make matters worst, if the “peer review” was initiated by his competition and/or administrator as a vendetta and was arbitrary and capricious, the accused physician is unable to pursue any legal recourse at this time due to federal law (HCQIA) Health Care Quality Assurance act of 1986 which in effect gives complete immunity to the hearing regardless if the accusers were disingenuous. The TSBME needs to get more involved with disciplining those involved in defrauding the public by becoming more proactive with those physicians involved in “sham peer review”. The TSBME should investigate all adverse hospital decisions but if the accused doctor is “cleared”, then those doctors that were involved with initiating the peer review action should themselves be investigated and disciplined if it is found that their motives and behavior was unprofessional and unethical. Additionally, the TSBME should be allowed to force a hospital to remove a Data Bank entry if the doctor is adjudicated or at least send its own entry to the Data Bank stating that it has adjudicated the doctor during its own investigation.
11) The TSBME Website
11.1. While most medical boards try to make their sites educational by offering links to medical conditions and the licensing process, the TSBME reminds me of a slot machine in Las Vegas with its prominent blinking icon advising the public of disciplinary record. Why? Because it obviously feels that the public needs to be reminded that it is there to protect since it was so lack in the past and hopes that the “bells and whistles” will offer the agency some respectability. Unfortunately, the TSBME is not being forthright with the information it is giving the public and how it being presented. An egregious example is the Board’s website complaint to SOAH if a doctor does not accept the Agreed Order during the ISC which incidentally is itself not published on the website. Why? So that the TSBME can attempt to allege more complaints and allegations which were dismissed at the ISC but why not use the opportunity to undermine that physician for not giving into the Board order to begin with. Essentially, this complaint to SOAH is another form of extortion and slanderous and should not be printed especially as the agreement to use the website explicitly states” that the TSBME is not responsible for errors and omissions”. If that is the case, then why even place it since this space should only be reserved for actual completed disciplinary actions not allegations. After all, aren’t you presumed innocent until proven guilt?
12) Accountability of the TSBME
12.1. The Executive Director, along with each member of the Board needs to be accountable to the physicians who are licensed by the TSBME. The Executive Director as well as the President and vice-president should not be allowed to utilize “cronies” over and over again in order to proceed with disciplinary actions against physicians it is targeting. The Executive Director and his staff attorneys have very little in the way of checks and balances at this time and this can lead to “abuse of power.” There is no room for any of these current members and the staff attorneys to have a personal agenda. If so, they should be held accountable for their actions and severely reprimanded. The TSBME has taken upon itself to behave in a free for all manner. An easy and fair mechanism whereby the TSBME itself can be investigated needs to be developed quickly. Doctor’s who have been unreasonably treated need to be able to initiate an investigation of the TSBME and its employees with the Attorney Generals’ office or SOAH.
12.2. This discussion regarding the makeup and current attitude of the TSBME is meant to be enlightening. We are all very concerned with the state of health care in Texas, particularly with the current medical malpractice crisis, uninsured citizens, insurance reimbursement and the TSBME. “Due process” needs to be maintained throughout any physician investigation. Everyone deserves fairness and the burden of proof needs to be with the TSBME and not the physician. Physicians by and large are good people who are trying to help and serve the public daily. They should not be treated as ogres or terrorists by an agency that feels it is above the law and self-serving. The medical community does not need to be afraid of Machiavellian tactics from a perceived “self regulated, politically appointed” agency bent on demonstrating antagonism to the very group of members they are supposed to improve. This country was founded on checks and balances, and unfortunately, the TSBME has demonstrated that it cannot administer itself in a fair, professional way and as such is in need of additional legislative checks and balances.
13) Using Data from theTexasHealthCareInformationCouncil (THCIC)
13.1. The TSBME has another tool which it has not used regularly which involves monthly mortality and morbidity results sent to the Texas Health Care Information Council from every hospital in the state. This data collection was established by the Texas legislature in order to evaluate how patients were doing in Texas hospitals. This data collection would be invaluable and an excellent way to be able to review any “outlying physicians” which may be having increased mortality and/or morbidity and follow their practice to see if there are any ongoing problems. Since each licensed physician has a license number, the data collection would be confidential and used to help spot a physician who is having potential problems and working with him to improve. Obviously, if the practitioner did not improve or had had some serious issues, then the TSBME could be proactive in its discipline. This is a great benefit to the TSBME since it can follow all practitioners independently and proactively instead of being retroactive and waiting to hear about bad outcomes from the press. To date, this monitoring system has not been implemented nor has been advocated by the President or Executive Director of the TSBME.
Sincerely,
Roland Chalifoux Jr., D.O. Peter McGanity, M.D.
John B. Payne, D.O. Michael Moisant, D.O.
Michel Wagner, M.D. Michael Basco, M.D.
Kundan Gupta, M.D. David Taylor, M.D.
Harold Granek, M.D. Albert Shaw, M.D.
Charles Silver, M.D. Fred Bracket, M.D.
Texas Legislature Sunset Advisory Committee
Information concerning the present status of the Texas State Board (TSBME) and ways of improving this state agency
Outline of TSBME issues that need to be addressed
1) Proper Selection/Representation of Board members
2) Physician Reviewers and their Responsibilities
3) Improving/ Streamlining the Complaint Process
4) Due Process and the Investigation of Complaints
5) Investigative Time Frames
6) Temporary Suspension of Physician License
7) Informal Settlement Conference (ISC)
8) Wording of the Agreed Order
9) TSBME and the State Office of Administrative Hearings (SOAH)
10) Hospital Peer Review and the TSBME
11) The TSBME Website
12) Accountability of the TSBME
13) Utilizing Data from the Texas Health Care Information Council (THCIC)
Information for Sunset Review Committee
1) Proper Selection/ Representation of Board Members
1.1. We need to remove any political overtones of the TSBME. One should not be on the TSBME strictly because he/she donated money or are politically affiliated with the governor. The TSBME should also be composed of at least one to two members elected from the TMA and TOMA and several representatives from different state specialty associations. Physicians are the best jury with regards to their own peers (pg 4, parag 4 Fed. Of State Medical Boards). An equal number of M.D. and D.O. representatives will also remove any controversy of bias. All Board members appointed by the Governor need term limits of no more than one four (4) year term and the appointments need to be staggered (pg 4, parag. Fed. Of St. Medical Boards). Board members are not elected but appointed by the Governor (at least at this time) and must not be allowed to remain on the Board indefinitely since this can result in cliques and abuse. By doing this, the Board becomes medical and objective without becoming self-serving.
2) Physician Reviewers and their Responsibilities
2.1. There should be some type of rotation for doctors who review complaints. In fact, it should be a requirement for every board certified physician who has a Texas license be required to review for the TSBME. That way, every physician becomes a reviewer which would benefit doctors by improving their skills in chart/patient review.
2.2. On the other hand, if the TSBME has to have control over its “selected” reviewers, then no physician reviewer hired by the TSBME should ever review another doctor twice. Additionally, the TSBME relies too heavily on retired or retiring physicians as well as the Executive Director’s cronies to review complaints. Only physicians in active practice in the same or similar specialty who are Board certified should be allowed to review complaints and give opinions since medicine and treatment choices are also ever changing. These TSBME reviewers should also be held accountable if they are found to show any bias, are arbitrary and commit fraud with their evaluations. In the initial review, an MD specialist should review the accused MD just like a DO reviewer should review an accused DO. SB 104 passed in 2003 has provided that once an initial evaluation demonstrates a possible breach in the standard of care, three additional doctors on a panel need to review the complaint. The accused doctor should be required to have an ISC if at least two of the three reviewers agree to a breach in the standard of care. One of those two reviewers must also be present at the ISC as well as the fact that at least one Board member of same or similar specialty must also be present. Additionally, the basis for an ISC should be that the investigation has demonstrated that the accused physician has demonstrated that the care given was contraindicated, not based on the reviewer’s opinion that it should have been done a different way. The reviewers’ who participate in the investigation of a complaint must not have blanket immunity. Currently, a physician who reviews a complaint for the TSBME is immune from any liability. This is appropriate as long as the “reviewer” is being fair and unbiased. If on the other hand the “reviewer” is found to be unfair and/or commits fraud, the accused physician must be able to initiate an investigation on that (those) reviewers. If the reviewing doctor feels that there is something wrong with the quality of that other doctor, then that needs to be documented and defended by the “reviewer” at the Informal Settlement Conference. Why should the accused physician be forced to wait several more months and face additional financial burden “waiting” for the next legal hearing, (the SOAH hearing) to finally be able to question the TSBME’s expert(s) why they rendered this opinion when it could just as easily be done at the Informal Settlement Conference and maybe the issues could have been resolved there?
2.3. Accountability as an “expert reviewer” is essential. This issue has become a driving force nationally regarding “experts” in medical malpractice cases where the push is to only have actively practicing physicians who have actually done specific cases are allowed to comment on the accused physician. Physician review by the TSBME is no different since the “expert reviewer” is opining on the way care was delivered by another clinician and whether the “standard of care” was maintained.
2.4. Finally, the TSBME in 2003 was mandated by SB 104 to have three (3) additional reviewers of the same specialty review a physician complaint further if an initial review of the complaint demonstrated a possible breach in the “standard of care”. To date, almost a year after this law was initiated in April of 2003; the TSBME has not even started using this mandate. This is unacceptable since physicians are asking; does it take 1 out of 3 doctors to agree? , Does it take 2 out of 3? Does it take 3 out of 3? Does the initial reviewer count as 1 doctor vote? Will one of these doctors be present at the ISC to defend their position against the doctor? Are the reviewers “retired” or “actively in practice”? Instead, what has been received by the TMA is that the TSBME has interpreted the law to allow it to perform pretty much in the same manner as before. Citing expense as a major factor in its decision, the TSBME still uses its same investigators to make the initial determination whether or not the complaint is valid and should proceed to an ISC. The new legislation stated that the complaint would be reviewed by three (3) specialists of the same or similar specialty and the complaint would be pursued at the ISC if the majority agreed that the complaint was warranted. What the TSBME has done is maintain the same procedure whereby its initial reviewer decides whether to pursue or not and then sends it out to one doctor to review and then another until the initial reviewer finds someone to agree with him/her. How is this fair? The system smells of biased, unscrupulous decision making on the part of the TSBME who is not interested in doing the right thing but getting numbers. How is the TSBME saving and more importantly the taxpayers of Texas saving money with this process that is not unbiased when deciding whether or not to review a physicians’ complaint? Has the TSBME looked at the cost of doing an ISC and possibly going to SOAH and how the taxpayer and the physicians are really paying for potentially wasted investigations that are being started by the TSBME if only for show in that they are able to tell the public how busy they are! The TSBME has shown once again that they are not interested in the checks and balances being placed on them by the legislature but are only committed in their own selfish goal of trying to show the taxpayer that they are a necessary agency whatever the cost to weed out doctors and they are willing to forfeit the rules laid down by the legislature in order to achieve their goal.
3) Improving/ Streamlining the Complaint Process
3.1. A complaint system has to be maintained and made more efficient. The complaint itself needs to be written clearly and succinctly. The accused doctor should have a clear understanding as to what the accusations are by having the allegation(s) simply stated instead of relying on generalized statements and code numbers written by the case manager to the accused physician. Currently the allegations are too vague and general. TSBME needs to review the complaints in their entirety and come out with a complaint against the physician and not rely on the investigation of others including hospital boards for example before pursuing this accused physician. The Board reviewer(s) need to be given the entire contents of the patient chart and not “snippets” marked by the Board staff’s attorneys or nurses. Additionally, the investigation of the complaint needs to be accelerated. It is not fair for the accused to have to wait in excess of six months to know whether or not he/she has been adjudicated or will have a formal complaint by the TSBME. It also does not serve any purpose to place allegations on its web site that the TSBME has made on an alleged physician since the complaint is “alleged” and has not been found to be substantiated at the present time. Placing the complaint on the TSBME web may make the TSBME feel empowered that they can demonstrate their “usefulness” but in effect it is another form of physician abuse and extortion since the TSBME has not proven their complaint(s) but is already attempting to undermine the physician. This in and of itself is another form of harassment and abuse of power.
3.2. TSBME needs to investigate and focus on valid claims from patients, physicians, and hospitals. The TSBME needs to stratify and triage these complaints in order to identify “problem physicians.” Obviously, if a physician is having many complaints and lawsuits about the same issue from patients, this is more serious than a physician involved in hospital politics. The TSBME should not rely necessarily on purported “adverse actions” coming from a hospital especially if that physician does not have a corresponding malpractice trail. The TSBME should be sophisticated enough to understand that hospital-generated complaints as well as those from competing physicians may, and often do, arise from political and economic “turf battles” and therefore would not warrant the same attention. Malpractice claims although not necessarily indicative of “problem physicians” are potential indicators especially if there is a trend resulting to more morbidity and mortality.
4) Due Process and the Investigation of Complaints
4.1. “Due process” needs to be practiced by the TSBME. This philosophy is not currently acknowledged or observed by the TSBME which essentially views all alleged doctors as “guilty” until proven innocent. “Due process” means that any physician who is required to come to the TSBME for evaluation needs to have his/her rights protected. The burden of proof needs to be on the TSBME and not on the physician. Additionally, as recommended by the Federation of State Medical Boards, a preponderance (page 10, paragraph 13 of Elements of a Modern State Medical Board) of evidence is needed to prove that the practioner is guilty of practicing below the standard of care. Why is it that only in medicine is one considered guilty until proven innocent? Unsubstantiated allegations, innuendos, etc. should not be used against a physician in order to discipline him/her. Medicine is complicated and has many approaches. A difference in opinion is not grounds to discipline a physician. The TSBME has to demonstrate that the care provided by the accused physician was contraindicated in the current literature. The TSBME has a duty to itself, the Legislature and to the public at large to review an allegation completely and with an unbiased approach. Only then has it fulfilled its mandate to protect both the residents and doctors of Texas.
5) Investigative Time Frames
5.1. All investigations need to be completed by the TSBME within 6 months of a complaint. If not completed, the case will be dismissed. Doctors should not be held waiting indefinitely as to the status of a case. The investigative process needs to be organized in such a way as to determine whether or not a complaint is indeed valid. The process must be such that it pursues facts not innuendo and is based on the “rules of evidence” doctrine. It is not difficult to identify true improper medical care and or drug and alcohol abuse, etc. from that which is based on personal vendetta and innuendo. Additionally, once a case is dismissed, it cannot be reopened by the TSBME unless new and convincing evidence emerges.
5.2. SOAH also needs to observe time lines when a hearing has been scheduled by the TSBME in its effort to discipline a physician. Irregardless of the circumstances, a doctor facing a “temporary suspension” must have the hearing within three (3) months of the accusation and a decision made during the next three (3) months. Delay in these cases only adversely affects the doctor since the burden of proof was with the TSBME.
6) Temporary Suspension of Physician License
6.1. The use of a Temporary Suspension by the TSBME must be better defined. The stigma attached to this decision by the TSBME can be devastating to the doctor, his office staff, as well as his/her patients. The issuance of a “temporary suspension” is the same as giving the practitioner a death sentence. Being “temporarily suspended” is similar to being a leper. It is also akin to being placed under house arrest. Your career, your livelihood is placed on hold. Your ability to meet daily financial burdens is disrupted. Other state licensing boards will not accept your application to practice since everyone is waiting on the final outcome of the complaint process. As a result of this very serious decision by the TSBME, it is imperative that the burden of proof to hand out a “temporary suspension” must be with the TSBME and not the practitioner. Additionally, any decision initiated by the TSBME to “temporarily” suspend a doctor from practicing must be reviewed by Board members of the same or similar specialty and not rely on Board staff of attorneys and nurses. The only exception to this would be in cases where the suspension is based on clear and convincing evidence of drug/alcohol impairment or conviction of a felonious act. In all cases of “Temporary Suspension”, the accused practioner as well as the TSBME must be forced to go in front of a SOAH panel made up of at least two judges to discuss the merits of the suspension. Currently, the TSBME is acting as the judge, jury and hangman when it comes to “temporary suspension”. This agency has too much of a vested interest in keeping this doctor from not practicing and politicizing this action. Since SOAH will ultimately be reviewing the allegations, it is only correct that the TSBME show its evidence that based its decision for a temporary suspension to an unbiased entity (SOAH) to decide the merits of the TSBME’s decision. SOAH should then be allowed to make a binding decision based on the evidence presented by both the TSBME and the accused physician as to whether the “Temporary Suspension” is in fact warranted and at the same time initiate a time table for the TSBME’s complaint of the accused physician’s temporary suspension hearing in the following months regardless if the accused physician is allowed to return to practice or if the evidence is in fact indicative that they are in fact a continuing threat to the public. After that determination is made, and then all parties can then work on scheduling the actual hearing dealing with the TSBME’s allegation(s).
7) Informal Settlement Conference (ISC)
7.1. The TSBME relies too heavily on the Informal Settlement Conference (ISC) when it deals with accused physicians. These hearings are currently not transcribed but should be and considered more formal since they require the physician to defend his/her position. By not “transcribing” the ISC, it makes it easier for the TSBME to add additional complaints afterwards if the physician decides to seek remedy at SOAH. Examples of “adding” additional complaints following the ISC are well known and the TSBME defends these additional complaints as “mistakes” when they are later thrown out by the SOAH judge. This defense by the TSBME attorneys would be moot if the ISC proceeding was taped and everyone was able to review what exactly was said by both sides. When the physician presents to the TSBME to discuss the allegation(s), this hearing needs to follow “due process” and one way of ensuring that is to have it transcribed. In addition, a TSBME member of the same specialty in addition to the “expert reviewer” needs to be present. Currently, a TSBME member who specializes in pediatrics for example, is able to comment on the performance of a cardiac surgeon. This is ridiculous since how can someone of a different specialty have any way of understanding the complexities and treatments of another and properly judge that practitioner? Additionally, specific actions by the accused physician should be dealt with appropriately if adverse finding(s) are found. At the present time, there is no standard penal code which identifies a specific reprimand with a specific allegation and seems to depend upon which Board members are sitting in judgment at that time. This is substantiatiated by reviewing the TSBME web site and reading its own database of disciplined physicians.
7.2. The next issue deals with following proper time lines when investigating a physician. Any and all ISC Agreed Orders must be received by the accused physician within twenty (20) days of the hearing. This is done to offer the physician a choice as to accept the Order or resort to SOAH for an independent hearing. If the doctor chooses to pursue a SOAH hearing, then the same Agreed Order must be submitted by the TSBME and not one that contains additional complaints that were either never determined at the ISC or dismissed at the ISC. The required use of transcripts would cut down on this problem.
8) Wording the Agreed Order
8.1. Agreed orders need more latitude. That is to say that the words “defrauding the public must be used when in fact a physician has done that. Maybe the TSBME needs to define its charges as they relate to the medical practice act. The TSBME has a way of exaggerating a complaint to make it sound worse than what is. For example, if an application is missing information that is found somewhere else but not found on that particular line, it would seem hardly that the physician intended to defraud anyone. Who in fact is defrauding the public, the physician or the TSBME?
9) TSBME and the State Office of Administrative Hearing (SOAH)
9.1. SOAH needs to be the final decision maker regarding any physician investigation by the TSBME since this is the only opportunity the accused and the TSBME have to present their full case including witnesses, current literature,etc. SOAH was established to work between state agencies and those licensed by these agencies. A good example deals with the TWCC and insurance companies challenging injured workers regarding responsibility of injuries and proper medical care. Whenever SOAH makes its decision on these matters, that decision is final. It has the unique position of being a neutral party that bases its decisions on “rules of evidence” and the predominance of evidence. Currently, the TSBME is the only state agency that has been allowed by the Texas legislature to challenge SOAH by actually allowing that agency to change parts of the decision it (TSBME)feels are incorrect (under the guise that SOAH was misinformed). The decisions made at S.O.A.H. (State Office of Administrative Hearings) should not be usurped by the TSBME if it is not to its liking. SOAH decisions should be final and if either the TSBME or the accused physician wants to appeal them they will need to go to the District Court. If the TSBME is not happy with the ALJ’s decision, they should not be allowed to stop the physician from practicing while the case is being appealed to the District Court. If allowed to continue in this fashion, what is the purpose of having (SOAH), a non-biased entity reviewing the complaint in the first place? This is all about checks and balances. The District Courts have ruled against the TSBME for attempting to change the decision of SOAH several times. (See No. 03-03-00180CV). In this ruling, the 345th District Court held that the TSBME does not have unlimited discretion to change an ALJ’s findings of fact and conclusions of law.
10) Hospital Peer Review and the TSBME
10.1. The TSBME in its Self Evaluation Report stated that it wants more authority to investigate hospital “peer review” matters. This is a good start since the TSBME should ensure “due process” as well as “rules of evidence”. The TSBME is mandated to investigate every adverse action that is received from a medical facility. The TSBME or the State Legislature should force hospitals involved in “peer review” actions to follow due process and rules of evidence at these hearings since that information will be sent to the TSBME. It would make the TSBME’s job much easier if it received valid evidence based medicine decisions and not those based on innuendo, and not based on facts. SOAH has made it clear to the TSBME that unless they present evidence based on “rules of evidence” then SOAH will in fact throw it out. Instead of fighting to overthrow SOAH, it would serve everyone, the accused doctor, TSBME and its staff, as well as SOAH to have valid evidence before even investigating if the accused doctor is in fact deserving of discipline from the TSBME or is a victim of “sham, bad faith” peer review. “Bad faith peer review” is on the rise nationally and seems to affect doctors in solo practice and without political backing at a hospital when they come up against dominant doctor groups or hospital administrators as whistle blowers. There is no room for inappropriate destruction of a physician’s career solely based on anticompetitive motives or personal vendettas.
10.2. The TSBME should be allowed to force a hospital to take back an accused physician if in its investigation, the doctor is adjudicated. Currently, the accused physician must undergo a “second” investigation by the State (TSBME) and if “cleared” receives a letter to that effect. In the mean time, the hospital has sent an adverse inquiry to the National Practitioners Data Bank (NPDB) and has affected the accused physician’s practice by keeping him/her of staff and forcing that practioner to notify the insurance carriers, malpractice carriers, and other hospitals of this adverse action even though the practitioner has been cleared. To make matters worst, if the “peer review” was initiated by his competition and/or administrator as a vendetta and was arbitrary and capricious, the accused physician is unable to pursue any legal recourse at this time due to federal law (HCQIA) Health Care Quality Assurance act of 1986 which in effect gives complete immunity to the hearing regardless if the accusers were disingenuous. The TSBME needs to get more involved with disciplining those involved in defrauding the public by becoming more proactive with those physicians involved in “sham peer review”. The TSBME should investigate all adverse hospital decisions but if the accused doctor is “cleared”, then those doctors that were involved with initiating the peer review action should themselves be investigated and disciplined if it is found that their motives and behavior was unprofessional and unethical. Additionally, the TSBME should be allowed to force a hospital to remove a Data Bank entry if the doctor is adjudicated or at least send its own entry to the Data Bank stating that it has adjudicated the doctor during its own investigation.
11) The TSBME Website
11.1. While most medical boards try to make their sites educational by offering links to medical conditions and the licensing process, the TSBME reminds me of a slot machine in Las Vegas with its prominent blinking icon advising the public of disciplinary record. Why? Because it obviously feels that the public needs to be reminded that it is there to protect since it was so lack in the past and hopes that the “bells and whistles” will offer the agency some respectability. Unfortunately, the TSBME is not being forthright with the information it is giving the public and how it being presented. An egregious example is the Board’s website complaint to SOAH if a doctor does not accept the Agreed Order during the ISC which incidentally is itself not published on the website. Why? So that the TSBME can attempt to allege more complaints and allegations which were dismissed at the ISC but why not use the opportunity to undermine that physician for not giving into the Board order to begin with. Essentially, this complaint to SOAH is another form of extortion and slanderous and should not be printed especially as the agreement to use the website explicitly states” that the TSBME is not responsible for errors and omissions”. If that is the case, then why even place it since this space should only be reserved for actual completed disciplinary actions not allegations. After all, aren’t you presumed innocent until proven guilt?
12) Accountability of the TSBME
12.1. The Executive Director, along with each member of the Board needs to be accountable to the physicians who are licensed by the TSBME. The Executive Director as well as the President and vice-president should not be allowed to utilize “cronies” over and over again in order to proceed with disciplinary actions against physicians it is targeting. The Executive Director and his staff attorneys have very little in the way of checks and balances at this time and this can lead to “abuse of power.” There is no room for any of these current members and the staff attorneys to have a personal agenda. If so, they should be held accountable for their actions and severely reprimanded. The TSBME has taken upon itself to behave in a free for all manner. An easy and fair mechanism whereby the TSBME itself can be investigated needs to be developed quickly. Doctor’s who have been unreasonably treated need to be able to initiate an investigation of the TSBME and its employees with the Attorney Generals’ office or SOAH.
12.2. This discussion regarding the makeup and current attitude of the TSBME is meant to be enlightening. We are all very concerned with the state of health care in Texas, particularly with the current medical malpractice crisis, uninsured citizens, insurance reimbursement and the TSBME. “Due process” needs to be maintained throughout any physician investigation. Everyone deserves fairness and the burden of proof needs to be with the TSBME and not the physician. Physicians by and large are good people who are trying to help and serve the public daily. They should not be treated as ogres or terrorists by an agency that feels it is above the law and self-serving. The medical community does not need to be afraid of Machiavellian tactics from a perceived “self regulated, politically appointed” agency bent on demonstrating antagonism to the very group of members they are supposed to improve. This country was founded on checks and balances, and unfortunately, the TSBME has demonstrated that it cannot administer itself in a fair, professional way and as such is in need of additional legislative checks and balances.
13) Using Data from theTexasHealthCareInformationCouncil (THCIC)
13.1. The TSBME has another tool which it has not used regularly which involves monthly mortality and morbidity results sent to the Texas Health Care Information Council from every hospital in the state. This data collection was established by the Texas legislature in order to evaluate how patients were doing in Texas hospitals. This data collection would be invaluable and an excellent way to be able to review any “outlying physicians” which may be having increased mortality and/or morbidity and follow their practice to see if there are any ongoing problems. Since each licensed physician has a license number, the data collection would be confidential and used to help spot a physician who is having potential problems and working with him to improve. Obviously, if the practitioner did not improve or had had some serious issues, then the TSBME could be proactive in its discipline. This is a great benefit to the TSBME since it can follow all practitioners independently and proactively instead of being retroactive and waiting to hear about bad outcomes from the press. To date, this monitoring system has not been implemented nor has been advocated by the President or Executive Director of the TSBME.
Sincerely,
Roland Chalifoux Jr., D.O. Peter McGanity, M.D.
John B. Payne, D.O. Michael Moisant, D.O.
Michel Wagner, M.D. Michael Basco, M.D.
Kundan Gupta, M.D. David Taylor, M.D.
Harold Granek, M.D. Albert Shaw, M.D.
Charles Silver, M.D. Fred Bracket, M.D.
// posted by texas shammed @ 6:18 PM 
