Summary of Comprehensive Revisions to the Texas Medical Practice Act

H.B. 3816 - Sponsored by Rep. Fred Brown / SB 2336 - Sponsored by Senator Dan Patrick
March 16, 2009

This 2009 reform of the Texas Medical Practice Act is motivated by the need for (1) more transparency and accountability and (2) reducing time spent by the Board on frivolous, malicious and/or anti-competitive complaints. In short, this reform strengthens the Board with respect to serving and protecting public health.

Section One: ensure that physicians who serve on the board have been practicing in Texas for at least five years, so that they have adequate experience (currently merely three years is allowed).

Section Two: eliminate the conflicts of interests, such how a Board member was receiving checks from Blue Cross/Blue Shield while he served as the top disciplinarian on the Board.

Section Three: provide some accountability for the TMB with a new advisory commission having oversight and subpoena powers (currently there is virtually no accountability).

Section Four: ensure that the Executive Director is a physician in good standing in this State (currently a lawyer holds this important position which is equivalent to a doctor being the executive director of the State Bar Association).

Section Five: provide transparency by disclosing who has served on the panels for Informal Settlement Conferences, and how often (currently panel assignments are easily manipulated).

Section Six: require sworn complaints, encourage amicable settlement, have sensible time limits on old complaints, and remove immunity for malicious complaints (promotes truthfulness).

Section Seven: provide the practitioner with a copy of the complaint (other States, such as Kansas, already do this; the Board could still redact the complainant’s name for good cause). This eliminates anonymous complaints.

Section Eight: give the accused 30 days to respond, require prompt resolution afterward, and require the Board to review an expert report submitted by the practitioner (basic due process).

Section Nine: use independent expert reviews, provide exculpatory expert reports to the practitioner, and disclose the identity and qualifications of the experts (more due process). This eliminates anonymous witnesses.

Section Ten: experts must be in active practice in the same or similar specialty as the accused, and their reports must be sworn (just as expert testimony in court is sworn).

Section Eleven: preserve patient privacy by allowing patients to object to an invasion of their right to privacy in their medical records (currently there is no protection of patient privacy).

Section Twelve: (i) require “clear and convincing evidence” for discipline rather than a mere preponderance of evidence (merely 51%), (ii) respect medicine practiced as taught by accredited organizations, (iii) refrain from trying to dictate how a physician must practice medicine while retaining full power to stop anything that might harm the public, (iv) refrain from increasing penalties beyond what is recommended by the Board’s own panel, and (v) not discipline doctors based on how he maintains office records unless there is a likelihood of causing patient harm.

(Reasons: (i) the trend among other States is toward the stronger “clear and convincing” standard, which gives the Board full power to prevent harm yet also protects patients and physicians against arbitrary injustice; so much is invested in a medical license, and so many patients depend on it, that the mere 51-49% preponderance of the evidence is not sufficient for revoking a medical license; (ii)&(iii) the Board does not have the authority to practice medicine and should not be punishing practitioners who abide by the teachings of accredited organizations, (iv) the Board should not be ratcheting up penalties beyond what its own panel recommends, which the Board currently does to punish practitioners in an abusive manner, and (v) the Board should not be wasting its scarce resources on picayune office-record issues unless it is preventing a likelihood of harm to patients).

Section Thirteen: provide at least 48 hours prior notice to the practitioner of the identity of the panel members presiding over an Informal Settlement Conference proceeding, and allow the practitioner to record or transcribe it (again, this is basic due process). This provides for transparency by eliminating Star Chamber proceedings cloaked in secrecy.

Section Fourteen: require random assignments to the Informal Settlement Conference panels (again, basic due process, and ends the manipulation of panel assignments to stack the deck). This prevents the TMB from manipulating assignments of its members to influence the outcome of the hearing.

Section Fifteen: require that the decision of the SOAH judge shall be binding on the Board (this ends the abusive practice of the Board simply ignoring the outcome of the costly SOAH procedures), and enable a practitioner to have access to information held about him by the Board (this enhances the fact-finding of the proceeding and enables the practitioner to defend himself fully, just as everyone in civil and criminal proceedings have a right to do).

Section Sixteen: require courts to use the “clear and convincing” standard discussed above for reviewing disciplinary decisions, and give practitioners the same right to a jury trial provided to attorneys before disbarment.

Section Seventeen: require that discipline for nontherapeutic treatment be limited to where there is a likelihood of harm to a patient (this enables the Board to focus on its proper function: preventing harm to patients).

Sections 18-23: these are standard provisions for this type of legislation, as added by Legislative Council.