Adverse Peer Reviews, Complaints & The Texas Medical Board

Physicians are bound by a maze of regulatory, ethical, and professional duties, and there’s considerable potential for running afoul of any given law. Naturally, hospitals, medical practices, and the government encourage independent reviews and complaints to keep misconduct and substandard care in check.

In any disciplinary action concerning a medical professional in Texas, risks for unfavorable outcomes cannot be understated – especially when they concern peer review hearings and filed complaints that make their way to the Texas Medical Board.

Just as there are risks for raw deals, however, there are also opportunities to proactively prepare, defend, and strategize ways to protect yourself and your career.

How Do Peer Review Proceedings Relate to TMB?

The Texas Medical Board (TMB) – through power granted by the Medical Practice Act, a subsection of Texas' Occupation Code – has the authority to regulate practitioners and impose discipline upon the licenses it issues to physicians. In order to best protect patients and initiate needed investigations in a timely manner, the TMB relies on hospitals and other health care entities to report medical peer review actions.

The Medical Practice Act mandates reporting specific peer review proceedings to the TMB, including:

• Suspected drug or alcohol impairment
• Peer reviews resulting in adverse decisions or restricted clinical privileges over 30 days
• Physician surrender of privileges
• Adverse effects on a physician’s membership in a professional association
• Any instance where physicians are believed to pose threats to public welfare.

Both state and federal law encourage a fair and productive clinical peer review process by limiting immunity, and providing both peer committee members and physicians with certain privileges. Proceedings should be unbiased and, though they may vary from entity to entity, should generally consist of an investigation and a hearing (if requested). Physicians facing peer reviews, like any professional subject to administrative proceedings with potential for serious penalties and practice disputation, should consult with experienced attorneys to ensure due process and carefully navigate the unique investigatory, notice, hearing, and rebuttal or defense of their entity’s peer review process.

Medical peer reviews concerning physician privileges and employment or medical contracts may directly result in further investigations conducted by the TMB or other regulatory authorities, or may result from audits and investigations already in progress or resolved.

Which Entities Are Subject to Peer Review Reporting Requirements?

Peer review laws and reporting requirements apply broadly to “medical committees” and joint committees within hospitals, health care organizations, medical schools, health science centers, health maintenance entities, extended care centers, hospital districts, and hospital authorities, among other related medical entities.

Health care entity governing bodies have a right to review services and physicians (with some exceptions), and must maintain proper records and documentation. Texas law places reporting obligations upon peer review committees, individual members, and health care entity leadership. Failures to report can result in investigations against all individuals and committees that hold these duties as well as potential penalties.

Complaints Against Texas Physicians and the TMB:

Most complaints related to physicians are directed to and handled by the Texas Medical Board, though some may begin with internal peer reviews or other agencies (i.e. HHS-OIG, DEA, FBI, etc.). Typically, these complaints are filed by patients, colleagues, personal friends or family members, or other physicians who subsequently treat the same patient.

Complaints, even when submitted anonymously, may also involve a number of red flags and substantive matters, including alleged or perceived:

• Criminal conduct (arrests, convictions, etc.)
• Behavior or crimes of moral turpitude (DWI, domestic violence, substance abuse, etc.)
• Failures to meet accepted medical standards and duty of care
• Record-keeping and documentation violations
• Prescription violations or non-therapeutic prescribing practices
• Physical or mental conditions or disabilities that interfere with the practice of medicine
• Probation or restricted privilege violations
• Outcomes or findings of internal peer reviews, professional associations, or out-of-state licensing authorities

TMB Proceedings: Potential for Major Penalties

TMB disciplinary proceedings arising from complaints or adverse peer reviews can have varying timelines and repercussions, and create the need to tailored response strategies. Although cases vary, immediate and preventive action is critical to mitigating protracted, contested, and high-stakes proceedings – and potentially devastating penalties.

The TMB complaint process generally follows these steps:

1. A complaint is submitted to TMB and evaluated; if the complaint is jurisdictional and valid, it is formally filed.
2. An investigation is opened.
3. Informal Settlement Conference (ISC) is scheduled to review evidence. The physician may bring an attorney and present witnesses.
4. The ISC panel may recommend an Agreed Order, which the licensee may either accept or negotiate.
5. If an Agreed Order cannot be reached, the matter is raised to the State Office of Administrative Hearings (SOAH)
6. SOAH holds a mediation and reviews appeals, resulting in a final order.
7. A final order may mandate temporary suspension or the imposition of penalties.
8. Further appeals are handled within the state’s district court system.

Hendershot Cowart P.C.: Representation for Physicians & Health Care Providers

The health and medical law team at Hendershot Cowart P.C. counsels and represents health care providers and businesses across Texas in preventative and responsive matters involving alleged health care fraud, hospital peer reviews, formal complaints, licensure defense, and disciplinary proceedings conducted by the Texas Medical Board and other similar health care licensing boards.

The regulatory landscape surrounding Texas Medical Board (TMB) proceedings and related health care investigations has intensified in recent years, and are contentious and concerning for the naïve, unprepared, or unrepresented physician. No matter the basis for these actions, they demand the attention of proven lawyers.