November 16, 2004

Thank you for receiving our comments today. I am an attorney for the Association of American Physicians and Surgeons (AAPS), a national group founded in 1943 to defend the ethical practice of private medicine and the patient-physician relationship. We have many members here in Texas, including some who requested that we submit this testimony today.

Our concerns about the Texas State Board of Medical Examiners (TSBME) focus on five areas:

1. Ensuring the protections of Due Process in disciplinary actions in order to provide fairness to the physician and his patients.

2. Ensuring the proper role and use of Experts when reviewing another doctor, and holding them accountable if and when they give false testimony.

3. Adding some checks and balances on the power of the TSBME so that it cannot act as Judge, Jury, and Executioner. Many of our members feel that the TSBME has been arbitrary at times in the exercise of its power.

4. Ensuring that the TSBME web site is used to only identify doctors who have completed the process and have had an adverse action by the TSBME. Currently, we are told that the TSBME publicizes on its web site mere allegations before the investigation has been completed.

5. Protecting doctors against consequences of “sham peer review” procedures by hospitals that have a chilling effect on the practice of good medicine.

Please allow me to discuss each of these points in greater detail.

Issue # 1 Due Process

In the area of rulemaking, we feel that all meetings/hearings (including informal settlement conferences (ISC)) should be recorded and transcribed by the TSBME. This would ensure fair use of those proceedings by either side.

We would also like to limit Board members’ terms to four years to guard against overreaching in power.

Finally, we would like to see inclusion of a greater percentage of practicing physicians on the Board, particularly independent specialists capable of making informed decisions about physicians practicing in certain fields.

In the area of handling complaints, we would like to see adoption of a pleading requirement similar to Rule 9(b) of the Federal Rules of Civil Procedure, which requires specifying detail in fraud allegations. Physicians should not be targeted first with vague allegations and then subjected to repeated attempts to find something wrong somewhere.

The TSBME should not simply rely on what has been provided by other biased sources, such as competitors or hospital boards. The TSBME should have a healthy skepticism about possible motives behind complaints and should do some independent investigation before drawing any conclusions. Such investigation should include reviewing the entire chart, prioritizing the significance of complaints, bearing the burden of proof, and recognizing that mere differences in medical opinion are not grounds for discipline. Current literature and studies should be included in the analysis to avoid stifling innovative medicine.

Complaints should not drag on indefinitely. If the TSBME cannot conclude an investigation within 180 days, then the investigations should be closed and the doctor exonerated. Once closed, the case and contents should not be reopened to harass the doctor further.

We feel that “temporary suspension” has been abused, and the TSBME needs to be held accountable. Temporary suspension requires a real threat of imminent harm to a patient, not something to be done for the media or to enhance bargaining power. The standard of proof should be clear and convincing evidence, and testimony by physician members in the same specialty as the accused should be required rather than merely a recommendation of a staff attorney.

Due Process should require the right of the suspended physician to appear within a panel of more than one judge of the State Office of Administrative Hearings (SOAH) within 14 days of the suspension order, with a decision to be rendered within a week of conclusion of the hearing. The TSBME should then abide by the ruling of the panel.

With respect to the Informal Settlement Conferences, the TSBME should be held to its burden of proof and a mere difference in medical experts is not a basis for disciplining a physician. The TSBME should not be allowed to repeatedly add allegations to the complaint when a physician declines to accept the proposed action. Also, a TSBME member of the same specialty as the accused physician should be present at the ISC, along with the Board-hired reviewer, to explain why they think the care was substandard.

Concerning inconsistent decisions, these examples of enormous disparities have been provided to us:

Issue #2 Use of TSBME Experts

Improper use of medical experts can have disastrous consequences for the accused physician, his patients, and the medical profession as a whole. The TSBME should hire only board-certified physicians in active practice in the same or very similar specialty who is experienced in doing similar procedures as the physician being investigated. These physicians need to be from different parts of the state rather than competitors of the accused. The same reviewer should never review a physician more than once.

The use of retired, semi-retired or retiring physicians should be curtailed. Physicians primarily engaged in administrative cases are not familiar with practice issues and should not serve as experts. The rules for medical malpractice experts should apply in disciplinary actions. Action should be taken to ensure that the TSBME complies immediately with SB 104, which orders the Board use three (3) additional reviewers of the same specialty to further review a complaint against a physician accused of breaching “standard of care” before the case is elevated to the next level involving possible discipline by the Board.

Blanket immunity for TSBME-hired reviewers is unwarranted. Unscrupulous or biased reviewers who commit fraud must face ethics/unprofessional conduct charges/sanctions from the TSBME.

Issue #3 Adding Checks and Balances to the TSBME

The TSBME should not be accuser, judge, jury, and executioner. The TSBME should do a thorough and complete investigation prior to the Informal Settlement Conference (ISC), and should bear the burden of proving to the Attorney Generals that a physician is justified to be prosecuted.

The SOAH or the District Court should be the final arbiter in any appeals it hears because:

• This is the accused physician’s and the TSBME’s only opportunity to present their full cases including witnesses, corroborating literature, etc.
• Both SOAH and the District Court follow the rules of evidence, due process, and the preponderance of evidence, which ensures the integrity of the proceedings and fairness to all parties. Additionally as the third party, these entities have no investment in the outcome of the hearing.

If the ALJ or District Court rules for restoration of physician’s license, TSBME should not be able to overturn that decision or find ways to prohibit that physician from practicing. Following the decision by SOAH or the District Court, the decision should be final and the TSBME should have to accept the judgment.

The appeals process should utilize a voluntary “peer panel” composed of several (MD and DO practitioners of the same specialty from the TMA and TOMA) to review any and all decisions in which the accused practitioner is going to lose his/her license either by the District Court or SOAH judges. Losing a medical license is akin to a professional death sentence and this must be reviewed by an independent body of similar doctors particularly in complaints from the TSBME addressing medical decision making. This is similar to the types of reviews in civil and criminal cases as practiced in our federal and state courts.

Doctors who feel that they have been treated unreasonably by the TSBME must be provided with a means to file a complaint either through SOAH or an independent third party, so that an investigation of Board members and/or staff can be initiated and the guilty parties disciplined. Currently, there is no avenue to complain about the agency’s actions except to complain to the TSBME itself, to a local state representative, or to initiate a lawsuit, which is an additional financial burden for the physician and will take years to complete.

Issue #4 TSBME Website

The TSBME website should be curtailed and used as a site for information on a disciplined doctor, not one who is being investigated. Specifically, the TSBME should stop posting allegations against physicians on its website before a full investigation, hearing, and/or appeals have been completed. Otherwise guilt is presumed. Moreover, the TSBME should be responsible for errors and omissions posted on the site, lest it malign and impugn the reputation of Texas physicians with impunity.

TSBME must be required to post not only its disciplinary actions but also decisions favorable to the physician in the case, even if at odds with the Board’s actions, as handed down by SOAH and/or District Court. Data gathered and disseminated by the TSBME to the Governor, the legislature, and the public must include outcomes of SOAH and District Court Proceedings.

Issue #5 TSBME and Hospital Peer Review

TSBME stated in its Self–Evaluation Report to the Sunset Committee that it wants more authority to investigate hospital peer review matters. But peer review at hospitals is often politically motivated by a doctor’s economic competitors and is used to “eliminate the competition.”

For this reason it is essential that the TSBME require hospitals to follow rules of evidence (due process) at peer review hearings, since TSBME will be required to follow same procedures if the case is elevated to SOAH. The TSBME should be allowed to order a hospital to reinstitute privilege of an accused doctor who has been adjudicated by the Board. The TSBME should be allowed to order a hospital to remove negative reports it provided to the National Practitioner Data Bank (NPDB) if doctor is adjudicated by the Board. The TSBME should discipline doctors who participate in “bad faith” peer review as unprofessional and unethical and as trying to defraud medicine and the public.

Thank your for your interest in these issues, and for accepting testimony from the public on these matters of grave concern.