TEXAS MEDICAL BOARD
Mediation at SOAH
Mediation at the State Office of Administrative Hearings (SOAH), like mediation in other arenas, is an opportunity to expeditiously resolve a disputed case. Mediation can only occur after the physician has been to an informal settlement conference and Board Staff has filed a formal complaint at SOAH. It is a potential cost-saver for both the Medical Board and physician, removes the uncertain outcome associated with proceeding to trial, and is an option which in most cases should be seriously considered by a licensee and their attorney. This is particularly true when it appears as though the Medical Board will be able to establish a violation of the Act and the main controversy is over the terms and conditions of a potential Agreed Order.
If you are interested in pursuing mediation at the State Office of Administrative Hearing, your case could greatly benefit from the assistance of an experienced attorney. For the representation you need, contact the Texas license defense lawyers of the Leichter Law Firm by calling 512-495-9995.
The Mediation Process
It is common for the Texas Medical Board to agree to mediation before proceeding to trial. This being said, the Medical Board has recently instructed its legal staff to not take part in mediation in cases that they perceive as particularly egregious, such as those against alleged “pill mills.” In practice, however, this stance is not necessarily definitive and mediation with the Medical Board is still a frequent occurrence.
Once both sides agree to the process, an impartial SOAH Administrative Law Judge (ALJ) will be assigned as a mediator. It will not be the same ALJ that is assigned to hear the case at trial— a rule meant to allow free discussion of the issues at the mediation without the worry that they will affect the outcome of the trial should mediation fail. Discussions which occur during the mediation and all other communications regarding this proceeding are confidential and cannot be introduced into evidence at a later hearing.
At the mediation, the SOAH mediator will moderate the meeting, allowing both sides to present their case and address their respective concerns first together, and then in separate rooms to only the mediator. Typically, the Board will be represented by one or more of their attorneys with a single Board member appearing as their official party representative empowered to reach a mediated agreement. The mediator then acts as a go between meeting with each party in turn and hopefully moving closer and closer to an agreement disposing of the case. In most mediations, an agreement is reached and Board staff will draft an Agreed Mediation Order that reflects the consensus. The licensee will then sign the Agreed Order which will later go into effect once it is approved by the full Medical Board.
Mediations do not always end with an Agreed Order. Sometimes the case is dismissed altogether, though this is very rare, and sometimes no consensus is met at all and the case proceeds to trial. Success at mediation requires careful preparation and a frank and accurate understanding of the strengths and weaknesses of both the Medical Board and physician’s case. A clear comprehension of the applicable law and what, if anything, the Board will likely be able to establish at trial is also key. Finally, the physician and their attorney must come into mediation with a clear outcome in mind which will not prevent or unduly restrict the licensee’s ability to move forward and continue to successfully practice.
The Leichter Law Firm has an excellent track record at mediations with the Texas Medical Board, and our attorneys are aided by familiarity with the process and established relationships with the Board’s representatives. Success at mediation is often dependent on knowing what the Board has done in the past in similar cases and being able to creatively craft an Agreed Order which will have a minimal impact on a physician’s case. For qualified and experienced representation at an SOAH Mediation, contact the Texas Medical Board attorneys of the Leichter Law Firm for a free initial consultation today by calling 512-495-9995.