Posted May 23, 2002
If you are a doctor, you’re aware of the risks you face when dealing with patients. Unsatisfied patients can file complaints against you and seek disciplinary action, and it is possible that your license to practice may be placed in jeopardy. Other issues such as substance abuse or mental disorders can limit your ability to practice medicine. You should know your rights and the process that is followed when an alleged violation of the Medical Practice Act occurs so that you can protect yourself.
The Texas State Board of Medical Examiners (the “Board”) has established a system of procedures for practice before the Board to advance the just and efficient disposition of proceedings and encourage public participation in the decision-making process. The guidelines govern the initiation, conduct, and determination of proceedings required or permitted by law, including proceedings referred to the State Office of Administrative Hearings (“SOAH”).
The process begins when an applicant or person licensed by the Board is accused of violating The Medical Practice Act (the “Act”). Upon finding that an applicant or licensee has committed a prohibited act under the Act or Board rules, the Board may enter an order imposing one of more of the following actions:
- deny the person’s license application or other authorization to practice medicine;
- administer a public reprimand;
- revoke, suspend, limit or restrict a person’s license or other authorization to practice medicine;
- require the person to submit to care, counseling or treatment by a health care practitioner designated by the Board;
- require the person to participate in an evaluation, educational or counseling program;
- require the person to practice under the direction of a physician for a specified period of time;
- require the person to perform public service;
- require the person to participate in continuing education programs;
- require the person to be monitored for a specific period of time with or without restrictions on the person’s practice of medicine; or
- assess an administrative penalty against the person.
Prior to any disciplinary action against a licensee, the licensee shall be given notice of allegations and the facts that the Board staff reasonably believes could be proven, and the licensee shall have the opportunity to show compliance or have an informal disposition of the matter. Upon notice of the allegations, the licensee has 30 days to respond and may include information they want to be considered. The licensee must submit written notification to the Board within 14 days of the mailing indicating whether the licensee has chosen to waive an opportunity to show compliance, to have a determination of compliance be made based upon written information submitted to the Board representatives, or to attend an Informal Show of Compliance (ISC). The ISC gives the doctor a chance to explain in writing or in person his/her side of the story. If the licensee fails to provide any written response, the Board shall assume the licensee has elected to personally appear at ISC.
Informal Show Compliance Proceeding Based on Written Information
The licensee may request in writing that a determination of show compliance be made based on the written information provided by the licensee and Board staff for review by the Board representatives. After this request, one or more Board representatives shall review the written information and deliberate in person or by telephone in order to make recommendations for the disposition of the complaint and/or allegations. If the Board representatives determine there has been no violation, the Board representatives may recommend that the complaint or allegations be dismissed. If the Board determines that the licensee has violated the Act, Board rules, or Board order, the Board representatives may propose resolution of the issues to the licensee that shall be reduced to writing and processed by agreed order.
Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance
If the licensee does not request an ISC based on written information, the licensee shall be scheduled to appear for an ISC with one or more Board representatives. Notice of the ISC shall be extended to the licensee and the complaints sent in writing at least ten days prior to the date of the ISC. The notice shall include details of the ISC, the rules governing the ISC, the deadlines for submitting additional materials, as well as a brief written statement of the nature of the allegations to be addressed at the ISC.
In the course of the ISC, the Board staff will present a summary of the allegations and the facts that the Board reasonably believes could be proven by competent evidence. The licensee may reply and present facts that the licensee believes are reasonable. Witnesses may also be used. At the conclusion of the presentations, the Board representatives shall deliberate in order to make recommendations for the disposition of the complaint or allegations.
The Board representatives may make recommendations to dismiss the complaint or allegations. Upon determination that the licensee has violated the Act, Board rules, or Board order, the Board representatives may propose resolution of the issues to the licensee be reduced to writing and processed.
Resolution by Agreed Order
Once the Board representatives determine that the licensee has violated the Act, Board rules, or Board order, the Board representatives may recommend Board action and terms and conditions for informal resolution. The licensee may accept the proposed settlement within the time period prescribed. Upon acceptance of the settlement agreement, the agreement shall be submitted to the Board for final approval.
If the licensee rejects or fails to timely accept the proposed agreement, Board staff may proceed with the filing of a complaint at SOAH.
Formal Proceedings at SOAH
The State Office of Administrative Hearings shall hear contested cases. These cases are akin to a bench trial in State District Court in that no jury is present. An administrative law judge (ALJ) shall hear the arguments of both parties and then make a proposal for decision which summarizes the evidence provided by each party, a statement of reasons for the proposed decision, findings of fact based on the evidence and matter officially noticed, conclusions of law necessary, a listing and explanation of all mitigating and aggravating circumstances necessary to a complete understanding of the case by the Board, and a finding whether the Board is authorized by the Act to take disciplinary action against the respondent.
Presentation of Proposal for Decision before the Board
After the ALJ makes the proposal for decision, it shall be presented to the Board. All parties and the ALJ who issued the proposal for decision shall be given notice and the opportunity to attend and provide oral argument before the Board.
After each party has argued, the Board may deliberate in closed session and shall take action on a final decision in open session. Board action shall be taken to finalize the decision. A motion for rehearing must be filed with the Board within 20 days after a party has been notified of the final decision or order of the Board.
Disciplinary Guidelines
Disciplinary guidelines have been laid out to provide a framework for ALJs to follow when making proposals for final decisions in contested licensure and disciplinary matters and for Board members to use when imposing sanctions. The following may be considered aggravating factors and may merit more severe or more restrictive action by the Board:
- patient harm and the severity of patient harm;
- economic harm to any individual or entity and the severity of such harm;
- environmental harm and severity of such harm;
- increased potential for harm to the public;
- attempted concealment of misconduct;
- premeditated misconduct;
- intentional misconduct;
- motive;
- prior misconduct of a similar or related nature;
- disciplinary history;
- prior written warnings or written admonishments from any government agency or official regarding statutes or regulations pertaining to the misconduct;
- violation of a Board order;
- failure to implement remedial measures to correct or mitigate harm from the misconduct;
- lack of rehabilitative potential or likelihood for future misconduct of a similar nature; and,
- relevant circumstances increasing the seriousness of the misconduct.
The following may be considered extenuating and mitigating factors so as to merit less severe or less restrictive action by the Board:
- absence of patient harm;
- absence of economic harm to any individual or entity;
- absence of environmental harm;
- absence of potential harm to the public;
- self-reported and voluntary admissions of misconduct;
- absence of premeditation to commit misconduct;
- absence of intent to commit misconduct;
- motive;
- absence of prior misconduct of a similar or related nature;
- absence of a disciplinary history;
- implementation of remedial measures to correct or mitigate harm from the misconduct;
- rehabilitative potential;
- prior community service and present value to the community;
- relevant circumstances reducing the seriousness of the misconduct; and,
- relevant circumstances lessening responsibility for the misconduct.
Rehabilitation Orders
Doctors who have drug or alcohol abuse problems can avoid further complications by obtaining a rehabilitation order to seek treatment.
Under Chapter 180, the Board may review and propose a non-disciplinary private rehabilitation order to a licensee or applicant. The purpose of rehabilitation orders are to provide incentive to a licensee or applicant to seek early assistance with drug- or alcohol-related problems or mental or physical conditions that present potentially dangerous limitations or an inability to practice medicine with reasonable skill and safety. They also protect the public by requiring the impaired licensee or applicant to obtain treatment and/or limit or refrain from the practice of medicine while suffering from impairment.
The Board will consider the following factors prior to proposing a rehabilitation order:
- steps taken to prevent potential future harm to the public that may include a treatment and monitoring plan;
- existence of rehabilitative potential;
- a clinical diagnosis of a physical or mental condition and supporting medical records;
- that the licensee or applicant cooperated with the Board staff during the course of the investigation.
The Board will keep the terms and conditions of a rehabilitation order confidential. This type of order is not subject to disclosure under the Texas Public Information Act. However, violation of the rehabilitation order will result in the document becoming public and subject to the Texas Public Information Act.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
