Medical board to undergo close legislative scrutiny

William Lutz
October 08, 2007

Politically-connected and sometimes controversial Houston physician Steve Hotze is questioning the methods the medical board uses to discipline doctors arguing they are unfair, while the board says it’s simply following the law and trying to protect the health and safety of the public.

Hotze is well-known in the Houston area for his pro-life activities as well as being the leader of Conservative Republicans of Harris County, a group that sends out a slate card during Republican primaries. He also hosts a one-hour daily show on health and wellness on Sen. Dan Patrick’s (R-Houston) KSEV Radio and its Dallas sister station.

Hotze also has collected his share of detractors over the years, including some Republicans he has opposed. He also was a vocal opponent of the revised franchise or gross margins tax that was the centerpiece of Gov. Rick Perry’s school finance plan, which cut property tax rates but broadened the state’s business tax.

Hotze is seeking a variety of statutory, regulatory, and personnel changes at the agency and argues its current procedures are unfair. Hotze has set up a website http://www.txppr.org to express his concerns.

It’s a safe bet lawmakers give the medical board a closer look during the next 18 months, though some of the issues that most interest them – such as whether the board is effectively spending its money and licensing new doctors fast enough – are not necessarily the ones focused on by Hotze and his supporters

“The Texas Medical Board allows anonymous complaints, specifically from insurance companies, pharmaceutical companies, competitors, hospitals, even pharmacists. Those complaints then are investigated then and examined by an anonymous board experts. Then, the doctor has to appear before a star chamber proceeding that’s not open to the public … Due process is denied. You can’t question your accusers,” said Hotze.

The Texas Medical Board licenses physicians. It also disciplines and revokes licenses of physicians who have violated the Medical Practice Act, either through their conduct or by failing to deliver the appropriate standard of care to their patients.

Board president Roberta Kalafut, in an Aug. 24 letter to lawmakers, said that a mere 85 complaints (less than one percent) of the complaints filed from Sept. 2005 to July 2007 were from insurance carriers.

Officials at the medical board note that most of their procedures, including the confidentiality that Hotze objects to, are specified in statute. (Occupations Code, Chapters 150-165 deal with the practice of medicine and is quite specific in spelling out exactly how the board should proceed when a complaint is filed and includes time limits.)

In her letter, Kalafut describes the board’s mission as “to protect and enhance the public’s health, safety, and welfare … through licensure, discipline, and education,” and also wanted to reassure lawmakers that “We appreciate your past support and want to assure you that the Board is operating within the statutory bounds to accomplish your legislative intent.”

In recent years, the medical board has gotten more funding and authority both because of a 2002 series in The Dallas Morning News, which described serious violations by doctors that received light punishment, and by lawmakers who wanted to make sure that patient safety was preserved even after they passed tort reform.

Hotze runs the Hotze Health and Wellness Center in Houston. When asked to describe his practice, Hotze said, “We treat individuals in mid-life who have health problems related to hormonal imbalance. We do a health-based practice where rather than mask problems with drugs we try to get at the root cause of the problems, which in many cases in women in mid-life and in men is the inevitable decline of their naturally-occurring hormones.”

In addition to the procedural concerns Hotze cites, he also objects to the way the board handles standard of care cases and selects expert witnesses, who are anonymous.

The medical practice act allows the board to sanction a physician who “fails to practice medicine in an acceptable professional manner consistent with public health and welfare.”

In one case Hotze cited, a Medical Board’s attorney argued that Dallas physician William Rea violated the medical practice act in tests and remedies he ordered. “The tests do not even qualify as experimental, and are more properly described as pseudoscience. There are no reputable studies from peer review journals that confirm their use in clinical practice,” wrote the board’s attorney Mark Martyn in a complaint filed with the State Office of Administrative Hearings.

Martyn went on to say that “doing no harm is necessary, but not sufficient, to meet the standard of care” and that treatment must be done using scientifically accepted methods.

LSR called Rea’s office and was informed that he was traveling and unavailable for comment.

Hotze, however, noted that all the patients in those complaints are happy with Rea’s treatment and wrote supportive letters to the medical board. “These patients who go and see Dr. Rea because they’ve gone to conventional doctors and haven’t gotten helped.” He noted that the five patients in question were clients of the same insurance company. “Who is some expert on the board to say that Dr. Rea’s treatment isn’t helpful or not, when these patients say, ‘that guy gave me my life back.’”

Officials at the medical board say they assign peer reviewers to specialties based on the medical specialties recognized by the American Board of Medical Specialties.

The board has submitted Rea’s case to the State Office of Administrative Hearings (the next step after an Informal Settlement Conference), which will submit a proposal for decision that the board can accept or reject. After that, the physician has the ability to appeal to district court.

The legislature will soon begin looking at the medical board, though it will not be initially focusing on the issues cited by Hotze.

Rep. Fred Brown (R-College Station), chairman of the regulatory subcommittee of the House Appropriations Committee, told LSR he will be holding a hearing Oct. 23 to conduct of his subcommittee to cover appropriations issues, but he added that he expects that several doctors with concerns about the board will discuss them at his hearing.

Brown also said he requested the creation of a special Interim committee on the board. “The Speaker is going to name an Interim Select Committee to deal with [Medical Board] issues other than appropriations issues over the Interim,” he said.

When contacted, the speaker’s press office noted that the speaker has not issued Interim committee charges yet, and therefore, the office could not confirm or deny Brown’s statement.

One key issue in Brown’s hearing is the Medical Board’s progress in improving its licensing functions. The State of Texas has seen a dramatic increase in the number of doctors seeking a Texas Medical license since 2003 – a fact tort reformers attribute to a cap on non-economic damages in medical malpractice lawsuits.

According to the board’s Spring 2006 newsletter, license applications for the board increased 88 percent in the first half of fiscal year 2006, compared to a similar period in 2003.

During the legislative session, the legislature granted additional resources to the board to hire more staff and beef up its licensure function – both through an emergency appropriation and the regular appropriations bill. There are, however, some strings attached. The board has to submit quarterly financial reports and has to prioritize licensure of doctors planning on treating Medicaid and Medicare patients.

Brown said he wants to see how that money is being spent and how much progress the board is making in reducing the time it takes to license doctors, since Texas may lose doctors it paid to train if they cannot get licensed promptly.

The agency’s communications director Jill Wiggins said that improving the speed at which doctors are licensed is a priority for the agency, and the average number of days to license a doctor has been coming down.

When he first came to the agency, one of executive director Donald Patrick’s first acts was to simplify the licensing application and system.

Another factor cited by lawmakers is concern about what happens to doctors accused of minor paperwork violations.

Brown said right now, he’s primarily concerned with appropriations issues, but he wants to hear the concerns of doctors on the board. “I know there’s going to be a number of doctors testifying on minor infractions that they’ve had that they’ve had to incur nine or 10 months of mental anguish and large attorney’s fees just to get to the end result of ‘go back home and sin no more’,” Brown said.

One difference may be what is considered minor. Wiggins noted that the medical practice act requires doctors to keep good records of the procedures performed on patients. Failure to do so violates the standard of care.

That said, the board has created a streamlined procedure for patients accused of minor violations of the medical practice act. Wiggins said that for minor offenses, the board has created a streamlined process where doctors can agree to pay a fine and sign an agreed order and not have to come in for an Informal Settlement Conference. She also noted that the medical board is planning soon not to name minor offenders in its newsletter.