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WHEN THE BOARD COMES KNOCKING:
FIVE RULES FOR RESPONDING TO INVESTIGATIONS
BY THE TEXAS MEDICAL BOARD
The ink is newly dry in Texas on sweeping tort reform favoring physicians and other health care providers bringing much needed relief to a medical profession under attack. Premiums for medical malpractice insurance have eased, and the number of lawsuits filed against physicians since the most recent statutes took effect in September 2003 is but a fraction of what it had been. But these benefits have come at a price. In exchange for some sanity on the medical malpractice liability front, the profession has been called upon to do a better job of policing itself. That is precisely what the Texas Medical Board ("TMB") has set out to do. Part of the TMB’s game plan is to investigate more doctors. The numbers suggest a steep rise in disciplinary inquiries. The TMB completed 1,238 investigations in 2000. By 2004 that number had jumped to 1,977. The message is simple: investigations are a fact of life for healthcare providers. To complicate matters, one apparent effect of the medical liability tort reform measures has been an increase in complaints filed by patients who feel they have no alternative means to shine a spotlight on the care or conduct of their physician. With that in mind, every physician should know what to do with a letter from the TMB.
A complaint may be presented to the TMB by anyone, for almost any reason. The only complaints the TMB openly discourages are scenarios of failure to give enough information, complaints that a visit that was too brief or hurried, or where the physician’s staff was "abrupt". Based on what we have seen, almost any other complaint against a licensed physician can result in opening an investigation. Investigations can spawn from several different sources including patients, peers, pharmacies, and hospital committees. In addition, an investigation will follow if a physician has been convicted of certain criminal offenses. Sanctions issued by other state boards could lead to an investigation in Texas. An investigation will automatically follow if a physician has three or more medical liability lawsuits within a five year period – the "three in five rule". Complaints can range from gross violations of the standard of care, to a violation of the Americans with Disability Act, sexual misconduct, substance abuse, or simply a patient taking offense to a mundane comment that passed unnoticed in conversation. The accusations may be dead-on accurate, or a complete fabrication and fantasy on the part of the patient. A complaint is no evidence whatsoever of any misconduct at all by the physician. Nonetheless, a prompt and complete response is absolutely necessary.
The timetable for a complaint to the TMB to be resolved depends, in part, on the nature of the complaint. Priority is given to complaints that involve sexual misconduct, quality of care, and impaired physician issues. See Texas Occupations Code, section 154.056(a)(1). The TMB’s concern is to address potentially dangerous practitioners or specific harmful practices of otherwise very good physicians. But be warned, it can take a year or more for a complaint to be resolved, and longer than that if the complaint is referred for litigation. With that in mind, there are five basic rules that every healthcare provider should keep in mind if a letter comes from the TMB.
Rule One: Never ignore a letter from the TMB.
Oftentimes, the first indication from the TMB that there is a complaint or other reason for an investigation will arrive by mail, and without prior warning. The first letter usually invites a physician’s narrative telling her side of the story and requesting a copy of a patient’s medical chart. This is intended to help supply the TMB with sufficient information to confirm that they have jurisdiction over the matter. If no response is received by the TMB within 14 days after their letter was sent (not received) an investigator (Peace Officer) will be assigned and an investigation opened. In some cases, this notice from the TMB gets lost in the mail and arrives after the response is due. Nonetheless, if possible, it is essential that the due date for the physician’s narrative response and chart be strictly observed. The TMB has authority to subpoena a medical chart from a physician or other health care provider, and a physician’s license can be sanctioned for failure to comply. Subpoenas to other entities are enforced in District Court. Ignoring these requests can have devastating consequences. The TMB can schedule a hearing on the failure to comply with their request, where they will serve as the prosecutor, judge and jury in that proceeding.
Any response to the request for a narrative should avoid guesswork. The TMB wants hard facts. References to the chart or other records are helpful. The physician should take all available steps to retain her credibility. A professional, factual response that is well reasoned will establish the proper tone with the TMB. This is not a good time to express anger about a patient, or about having to respond to an investigation. Any reference to what others may have told you should be made only when necessary, and with extreme care. Witnesses will likely be contacted and any inaccuracy in reporting the statement will count against your credibility. The narrative will be evaluated by medical professionals who can smell deception a mile away. Keep the narrative truthful, respectful and clinical.
Rule Two: Never assume the TMB is your friend.
Yes, the TMB is run by doctors. And yes, they know that sometimes there are patients who indulge their every fantasy in a complaint to the board. But the mission of the TMB is not to take the physician’s side. On the contrary, their very purpose is to protect the public safety and welfare; a charge they take very seriously. The public expects and deserves no less.
Rule Three: Never assume the complaint lacks merit and will be dismissed or forgotten.
Once a complaint is made, there are only a limited number of ways it can be finalized. Even assuming the complaint is entirely without merit (i.e. naming the wrong physician or other obvious mistake), the complaint still requires closure (such as a dismissal). However, a dismissal is highly unlikely if the physician does not respond appropriately and take the matter seriously. Even in the misnomer situation, the physician who is too busy to be bothered by a proper reply may well be reprimanded for failing to respond. A more common and dangerous situation is one in which the physician earnestly feels the complaint lacks merit, but the TMB, for whatever reason, does not. The last thing a physician wants to convey to the TMB is that she does not share their concern for what they think is a valid issue. All complaints, therefore, deserve a respectful and focused response.
Rule Four: Never assume that the lack of real harm to the patient will end the inquiry.
While the element of harm is a crucial part of a medical malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed. The TMB’s focus and mission is on protecting the public. Conduct that produces no real harm to a particular patient on any given occasion may have the potential to produce very real harm if it is allowed to persist. It is these harmful habits and conduct capable of repetition that concern the TMB. The harm element is therefore of limited use in the initial discussions with the TMB after an investigation has been initiated. Therefore, a response to the TMB suggesting the patient was not hurt by the failure to comply with the standard of care is not ordinarily an ideal response.
Rule Five: Check with your professional liability carrier.
Some professional liability policies provide limited coverage for defense costs in the event of a disciplinary action. Rather than try to go it alone on the narrative, you will want to notify your carrier immediately upon receipt of a notice or request for a narrative. Depending on the offense, the stakes can be very high and the costs associated with defense can mount quickly. A disciplinary action can be increasingly difficult and costly to defend as the case progresses. Because of this, a forceful, well documented defense is almost always required. The "narrative" response the TMB requests can throw a doctor off the track in the early stages of the proceeding. Witness statements, expert reports, medical literature and good advocacy skills can mean the difference between a devastating blow to a medical practice and a defense that is coherent and convincing. An early call to the carrier’s claims department is always a good idea. If there is no coverage for disciplinary actions, retaining an attorney familiar with the TMB is strongly advised.
Matthew T. McCracken is a shareholder with Marshall & McCracken, P.C. in Houston, Texas. He has been licensed to practice law in Texas since 1989 and has devoted much of his career to representing healthcare providers and other professionals in litigation and disciplinary actions. Other areas of practice include legal malpractice, products liability, insurance law and other serious personal injury and death cases in both trial and appellate courts.
