The Disciplinary Process
The disciplinary process within the Texas Medical Board usually begins with either a letter of self-report from the physician or a complaint from a patient, co-worker, pharmacy, hospital, judicial agency or angry spouse. Adverse peer review determinations, multiple malpractice claims and the filing of criminal charges or a criminal conviction can also trigger an investigation into physician misconduct and alleged violations of the Texas Medical Practice Act.
 Once a complaint is lodged an investigation is initiated by Staff of the Board. The physician is generally notified by certified letter from the Board’s Manager of Investigations -an attorney who oversees investigator's and other members of Board Staff and ensures that probable cause exists to intiate the Medical Board's investigative power and authority. This correspondence denotes the assigned investigator and includes a Medical Practice Questionnaire (MPQ) as well as a subpoena demanding relevant patient records. The physician is further instructed to explain and respond in a detailed narrative his position regarding the alleged professional misconduct and purported violation(s) of the Texas Medical Practice Act / Board Rules. Once the investigation is initiated the assigned investigator may contact the physician directly or by telephone. If the physician has hired an attorney Board Staff is prohibited from directly questioning or communicating with the physician. Therefore, it is wise for a physician to obtain legal counsel as soon as they become aware an investigation has been opened. If a physician has not hired an attorney but intends to do so they may tell the Board’s investigator they are in the process of hiring legal counsel and will get back to them once they have done so. If a physician employs this strategy they should follow through with the retention of an attorney otherwise their actions may be construed as uncooperative and designed to thwart off and hide from the Board’s investigation.
| "If the physician has hired an attorney the Board is prohibited from directly questioning or communicating with the physician" |
The Board’s investigators then gather evidence regarding the allegations by interviewing witnesses and obtaining records and other documentation about the relevant issues. If the physician has not hired an attorney the Board’s investigator may contact them periodically for further questioning and information. The Texas Medical Board by statute has 180 days to complete an investigation unless there is good cause for the investigation to continue or not to have been finalized.
 Once the investigation is complete the material and evidence gathered is sent to the legal department and reviewed by the staff's lawyers. If it is determined that probable cause exists to believe the physician has violated the Texas Medical Practice Act an Informal Settlement Conference / Show Compliance Hearing (ISC) is scheduled. In cases where the alleged misconduct is severe or it is apparent that the physician poses a continuing threat to the health, safety and welfare of the public the Board may seek an Emergency Suspension order or immediately file formal charges against the physician through the State Office of Administrative Hearings (SOAH).
During the ISC the Texas Medical Board’s staff attorney begins with an opening statement and then presents its evidence and theory of the case to the Board’s panel members. The physician is then given a chance to present his defense and/or mitigation evidence in reply. He is then questioned by the panel members at length and each side is afforded the opportunity to present a closing argument. After a private review and rconsideration of the evidence the panel members decide if the physician has committed professional misconduct and make recommendations for a sanction. The physician is then informed of the panel’s decision and a formal offer is presented in writing by the staff attorney representing the Board–generally within one month of the hearing. The physician is then afforded twenty days to accept or reject the offer. If the offer is rejected the Board Staff will generally file formal charges against the doctor at SOAH.
 The State Office of Administrative Hearings (SOAH) is the where hotly contested cases and matters of law are often decided. The proceeding is in front of an Administrative Law Judge and is similar in form to a civil trial. This is a complicated legal proceeding in which a medical doctor will find themselves lost without the assistance of an experienced lawyer. Witnesses are called, evidence is submitted and at the conclusion the Administrative Law Judge renders a decision which includes findings of fact and conclusions of Law. The matter is then remanded to the Board for a disciplinary penalty or licensure action consistent with the SOAH Judge’s findings.
In the event either the Board or the physician disagrees with the findings, or the Board does not issue a disciplinary sanction consistent with the Judge’s opinion, then the matter can be appealed to District Court and beyond if necessary. Please see the section on appeals for a further explanation of the Appellate Process. For current information related to current legal topics, investigations and rule changes please visit our blog: www.txmedicallicensinglaw.com/articles/texas-medical-board/ |
