You have just spent years of your life in the classroom and walking the hallways of teaching hospitals developing the skills and knowledge needed to be a member of the Texas medical establishment. In many instances, you still find the federal government or a local lending agency reminding you every month that part of your hard-earned salary still belongs to them in the form of a school loan (I know that feeling!). And you have taken and passed your boards exams and now you are full-fledged licensed doctor, nurse or dentist in the State of Texas. Now, you find yourself faced with an accusation from an employer, patient or a colleague that threatens to hurt your reputation and even end your new medical professional career. For those who have never faced the complaint process that is practiced by the Texas Licensing and Boards agencies, the road ahead may seem quite daunting. But, learning as much as possible about what to expect as the complaint process moves forward and having an experienced attorney by your side through every step of the process can make the defense of your professional standing a more manageable ordeal.
This article will target Texas medical professionals and will clarify the licensing complaint process from the moment that an accusation is made through any possible appeals to the determined findings and subsequent punishment. While there are commonalities to the procedures for the Texas Medical Board, the Texas Board of Nursing, and the Texas State Board of Dental Examiners, any details that are specific to one or more of these governing boards will be described as well.
Step I: Someone is very Miserable
Somewhere out there, a patient, co-worker, employer, pharmacist, or anyone else who has had professional contact with you believes that you are acting in a way that violates the behavior or practices expected of someone in your position. Every complaint that is submitted to one of Texas’ licensing boards is taken very seriously and must be reviewed by investigators. Concerning licensed doctors, the most common complaints are inappropriate prescription of a drug or treatment plot, unprofessional conduct, or mental or physical impairment that makes it impossible to practice medicine.
The complaints filed against dentists are automatically issued a level of priority, with Priority One representing serious violations such as patient death, patient injury, practicing without a license, and unsanitary conditions and Priority Two including less-serious threats, such as records-keeping and advertising violations.
The Texas Nursing Practice Act is the guiding law for the appropriate practices of nurses, and violations of the Act may include unnecessarily exposing a patient to harm, unprofessional conduct, failure to provide adequate care, and impairment due to addiction or mental illness.
Investigators who are assigned to the licensee’s case may determine that either no violation has occurred or, while the reported behavior was inappropriate or not reflective of the best possible customer service, the act that occurred does not fall under the jurisdiction of the licensing boards. The boards will not investigate a bedside manner that is less than warm and friendly. They are way too busy for that. Neither will the Board of Nursing investigate a violation of a specific administrative hospital policy, as such problems should be handled within the institution itself. And, if one of your patients had to sit in a waiting room for two hours before he was taken back to your office, he may have a right to be frustrated and annoyed, but he generally does not have grounds for an official complaint or referral to the Texas Medical Boards.
Step II: Someone is very Miserable and You Need to Know about It
Once the investigators determine that there is factual and/or legal merit to the complaint, you will be told in writing and will then take on the role as a “respondent.” It is in your best interest to respond to a complaint against you quickly and thoroughly. Please follow the specific deadlines given to you in the complaint letter, which normally requires a response within two weeks (or maybe 30 days) of receipt. You cannot hide the complaint letter under a stack of papers on your desk and hope the problem will go away, which is what many licensees do. You also cannot be incredulous that anyone would make such an unfounded accusation and choose not to dignify the letter with a response. You must provide as much detailed information about the complaint as possible. Be prepared with patient records, eyewitnesses, medical research—any piece of evidence that will result in justification for the decisions you made. The investigators assigned to the case also will be completing their own research, subpoenaing records from hospitals and pharmacies. Know that, under HIPAA, the Texas Medical Board and the other related licensing boards are authorized to view medical records without patient consent.
After information has been gathered from all parties involved, the applicable Texas licensing board may then make a choice to go forward with litigation, request more documentation, or dismiss the complaint outright. In the case of the Texas Medical Board, this choice will be made by two members of an expert panel who are board certified in the same specialty as the respondent. For dentists, the next step is determined by the Board Secretary. Nurses can expect that the Board of Nursing (or a committee) will review the evidence concerning their complaints as a whole.
Step III: Welcome to Litigation
If the complaint against you is found to have legal and/or factual merit, your presence may then be requested at an informal settlement conference. And if you are not already a resident of Austin or the surrounding areas, prepare to pack your bags for a trip to our beloved state capital.
During this conference, you will have the opportunity to present your case before a panel of medical licensing Board members. Attorneys are both welcomed and recommended to take part in the process, but realize that the Board wants to hear from you directly. This is not a formal courtroom in which specific legal procedures or rules are expected to be followed, but instead an opportunity for arguments to be presented and questions to be questioned.
In an overwhelming number of Texas license cases, the complaint process comes to its conclusion here. The Board will determine whether or not a violation occurred and propose a settlement, known as an agreed or board order, which includes any fines or other restitution to be made by the respondent. If both parties agree to the proposals and sign the document, the order is place before the entire Board for approval and ratification. Recommendations in the order may include; restriction or suspension of your license, additional training or medical education, drug testing, a fine, a public apology, or a combination of these penalties.
Step IV: Here Comes the Administrative Law Judge
There are instances in which a resolution cannot be reached through the informal settlement conference. In these situations, your case will be forwarded to the State Office of Administrative Hearings (SOAH). A formal and public filing will be posted and an administrative law judge (ALJ) will be assigned to your case. Witnesses are called to testify, records are place into evidence, and legal arguments are made by representation for both sides. Reckon of this process just like a trial but without a jury present. Once both sides have presented their case to the ALJ judge, he or she will issue a Proposal for Choice (PFD) to the appropriate Board. The authority to determine appropriate sanctions is now once again with the Board members, who now have the added authority of a judge’s ruling to consider and perhaps ratify. The determined penalties following a judge’s PFD are similar to those you could expect from the informal settlement process.
Step V (option one): Do What They Say
Assuming you have come to an agreement with the complainant, either through the informal settlement conference or in front of an administrative law judge, now is the time to comply with the order to which you provided your signature. As mentioned earlier, this could include the payment of fines, completion of some continuing education, handing over your license for a designated period of time, participation in a drug or alcohol program, or a variety of other reprimands. In most instances, you will be given a specific time frame in which you must complete all of the assigned penalties. Whatever the consequences may be, note that these orders are part of your permanent public record and may be told on the Board’s web site or the next quarterly newsletter.
Step V (option two): Don’t Do What They Say—The Appeals Process
Perhaps you have gone through both the informal settlement efforts and had your case heard before an ALJ judge and you still do not agree with the choice that has been reached concerning the complaint against you. As with any other legal matter, you have the right to appeal the determined order. An Appeal of the Findings of Fact and Conclusions of Law or the Proposal of Choice issued by the administrative law judge may be filed with the Travis County District Court in Austin. Medical professionals also may file an appeal against the appropriate Board if they believe the punitive measures determined by the Board do not match the findings issued by the administrative law judge. Appeals can also go all the way to the Texas Supreme Court. Depending on the specifics of the complaint, in rare circumstances the case may find its way into the federal court system as well. Nevertheless, if you take this option, expect to pack your bags for another trip to our state capital.
Conclusion
The reality is that if you are a doctor, nurse, dentist, or other medical professional in the state of Texas, there is a excellent chance that you will be called upon to defend your reputation (and your license) at some point in your career. There are around 6000 complaints filed every year just with the Texas Medical Board, and nearly half of these are opened for investigation. You will do yourself a fantastic service by knowing the complaint process from beginning to end before a problem ever arises. This way, you will be educated and prepared to act in the midst of what can be a very emotional experience. In addition to knowing what to expect once a complaint is filed against you, you also should make it a priority to have experienced legal counsel with you every step of the way. You need an attorney who knows what it means to appear before your professional licensing boards and to participate in administrative law hearings. With the benefit of your own knowledge and the expertise of a lawyer, you place yourself in the best possible position to maintain the professional reputation you have worked tirelessly to make.
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Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio, Texas. A member of the Trial and Appellate Litigation Team, Mr. Bertolino’s practice is devoted largely to complex transactions, commercial litigation, business law, entertainment law and family law matters. You can read more about Mr. Bertolino at www.belolaw.com
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