Report on Texas Medical Board Disciplinary Actions

To study and monitor the Texas Medical Board’s disciplinary actions, documenting the

application of overly harsh punishments – by fine and publicity – for minor infractions,

and suggest alternatives that could be advanced to the board.1

 

At the 2006 Annual Meeting of the TMA House of Delegates, Resolution 104 was

adopted. The resolution called for a study of overly harsh punishments of minor

infractions of the Texas Medical Practice Act (MPA) and Texas Medical Board (TMB)

regulations. The TMA was also charged to suggest alternative sanctions that could be

advanced to the Texas Medical Board to ensure that the punishment was in proportion to

the alleged violation.

 

The study reviewed historical documents, legislative reports, news reports, member

surveys, law journal articles, case law, historical statutes and regulations, current statutes,

proposed and enacted bills, current and proposed regulations, commentary upon proposed

regulations, and TMB newsletter summaries and disciplinary orders. The overwhelming

number of TMB disciplinary orders are agreed orders. This means the accused physician

has entered into a negotiation with the TMB and has agreed to the statement of facts,

conclusion of law, and imposed sanction. The benefit to the physician in making such an

agreement is that an agreed order may not be entered as evidence by a plaintiff’s attorney

in a civil trial. The physician may also succeed in negotiating an order that imposes a

TMB sanction that is not reported to the National Practitioner Databank. There is also a

significant financial incentive to negotiate an agreed order as defending against a TMB

allegation will likely cost much more than the offered administrative penalty.

The fact that most of the TMB orders are negotiated settlements introduced a level of

subjectivity into this study’s results. As stated, the findings of fact are modified through

negotiation and it can be very difficult to determine exactly what circumstances gave rise

to the imposed sanction. Further, many orders contain a finding that the physician

continues to dispute the TMB allegations, but accepts the disciplinary action to resolve

the complaint. Often it was only upon review of TMB State Office of Administrative

1 TMA House of Delegates, Resolution 104, A-06.

 

Hearings (SOAH) filings that provided insight into a particular order. Not all complaints

with the TMB result in SOAH filings.

 

The TMB received, for the years 2003 through 2005, 21,980 calls (many of which do not

regard physicians) to its complaint lines. During those same years the TMB dismissed

7,657 complaints against physicians. For the period of time covered by this study, the

TMB disciplined 968 physicians. Physicians, the public, and the Texas Legislature expect

the TMB to pursue meritorious complaints made against physicians. The Legislature,

through the Legislative Budget Board review process, has set goals for TMB discipline

(as it does for all licensing agencies). The Legislature expects that 18% of complaints

made against physicians to result in disciplinary action for the years 2006 and 2007 and

expresses its expectation in the appropriations bill. Furthermore, as a result of

unfavorable news articles and the perception of weak enforcement by the TMB, the MPA

has been modified to allow for public scrutiny of TMB activity and physician discipline.

In the late 1980s, as a political compromise in a bill addressing professional liability

protections, the Legislature removed the authority that previously permitted the TMB to

issue private reprimand letters. This means the TMB lacks the statutory authority to keep

disciplinary activities from the public. In later reforms, the TMB was directed to make

summaries of disciplinary actions available in its newsletter. The TMB, however, is free

to interpret what a “summary” is in regard to compliance with this provision. We believe

the TMB may refrain from listing names for minor administrative violations.

 

For the review period over three hundred physicians were, in whole or in part, sanctioned

for minor infractions of the MPA or regulations. The results of a Harris County Medical

Society survey seem to indicate that physician members believe that publication of a

physician’s name along with the summary of violation is overly harsh in regard to a

failure to timely provide medical records. The TMA Patient-Physician Advocacy

Committee agrees with this sentiment. It is recommended that the names of physicians

disciplined for administrative violations be omitted from the TMB newsletter summaries.

Minor violations not requiring publication of names should include, but are not limited

to, the failure to release records timely, the failure to obtain necessary CME, the failure to

timely sign a death certificate, inappropriate advertising, and defaulting on a student loan.

Additionally, failure to timely provide copies of information to the board (as opposed to

failure to reply to a TMB subpoena) is a minor violation which can be dealt with

proactively and the TMB should ensure that its investigatory personnel provide

physicians with an adequate time period to reply with such requests.

 

The authority to sanction others is commensurate with responsibility to act reasonably.

The Legislature recognizes this and has granted the TMB with discretion in pursuing

certain complaints. TMA urges the TMB to utilize its discretion in administrative

violations and refrain from disciplinary action for good cause, such as mistake by staff or

physician.

 

Almost 1/4 of the physicians sanctioned by the TMB were disciplined for minor

infractions only. TMA believes all Texans must be confident that their physicians are

qualified, competent, and uphold the highest ethical and professional standards. TMA

supports a strong and well-funded TMB to carry out this critical function. To this end, the

TMA urges the TMB to refocus its efforts on investigations and prosecutions of

allegations regarding sexual misconduct and violation of standards of care.

 

As this review has classified board orders, 137 actions were for “inadequate medical

records.” That is 43% of all minor infractions sanctions reviewed in this study. The

genuine absence of an adequate medical record is certainly a serious issue that can impact

patient well-being. Despite the number of disciplinary actions taken by the TMB, we

doubt there is a crisis in patient care and medical records. This information may indicate

that the regulation is not used as intended or as it should be. TMA, in its comments when

the regulation was proposed for adoption, stated its fear that the regulation was overly

technical. TMA suggests the TMB regulation on “adequate medical records” should be

revised and returned to the previous language. Modification of its own regulation is

within the Board’s discretion. A return to the viewpoint that the medical record is a tool

created by physicians for their use in the care of patients, as opposed to a regulatory

checklist, would be helpful. In any event, in addition to modifying the regulation, the

TMB should undertake an education effort in regard to its position on self-prescribing,

prescribing for family or close friends, CME, confidentiality, and other issues of ethics

relevant to MPA enforcement.

 

Based upon the review of the information and data outlined, the TMA Patient-Physician

Advocacy Committee submits this report on Texas Medical Board discipline of minor

infractions of the Medical Practice Act.

 

 

The first Texas Medical Practice Act (MPA) was written by Dr. Anson Jones and the

Congress of the Republic of Texas consequently established the Board of Medical

Censors for the purpose of granting medical licenses.2 The Board of Medical Censors

was later abolished and eventually succeeded, in 1907, by the governmental body that has

become the Texas Medical Board (TMB). In Texas “A license to practice medicine is a

privilege or franchise granted by the government. . . .” Morse v. State Board of Medical

Examiners, 122 S.W. 446 (Civ. App. – Austin 1909).

 

The modern TMB has 19 members appointed by the governor, twelve of whom are

licensed physicians (nine doctors of medicine and three doctors of osteopathic medicine)

and seven non-physicians who represent the public.

 

2 “The attention of the Surgeons and Physicians practicing in Texas, is respectfully invited to the law creating a board of Medical Censors. It is to be found on the thirty-ninth page of the second volume of the ‘Laws of the Republic of Texas.’” Nixon MD, Pat Ireland, The Medical History of Early Texas, 1946, Published by Mollie Bennett Lupe Memorial Fund, page 459, citing a notice appearing in the Telegraph and Texas Register, May 16, 1838.

 

Administrative agencies are creatures of statute; meaning that agencies cannot exercise

power that has not been granted to them by the legislature. Administrative agencies are

created with the concept that experts are the best persons to bestow with the authority to

regulate a particular area. However, the legislature does not grant blanket authority and

often places specific and general controls on agency power and conduct.

 

The TMB is like any other agency and is therefore only able to exercise authority that has

been delegated by the Texas Legislature. The TMB is granted "the power to regulate the

practice of medicine.”3 However, the authority to regulate is accompanied by duties. The

TMB is commanded to conduct its business in such a manner as to permit public scrutiny

of its actions and to inform those subject to its regulation. The TMB is therefore required

to disseminate, at least twice a year, summaries of disciplinary orders, board activities,

changes in the MPA and regulations, and relevant attorney general opinions.4 By law the

information must be sent to each practicing physician, each health care entity in Texas,

each member of a legislative committee related to health, public libraries, and any

member of the public who requests the information. Furthermore, the TMB must, not

later than the 30th day after the date the board takes disciplinary action against a

physician, report that action in writing to the appropriate health care facilities,

professional societies, the Centers for Medicare and Medicaid Services, the United States

Secretary of Health and Human Services, and the complainant.5

 

The legislature has instructed the TMB as to how it may discipline physicians holding

licenses to practice medicine in Texas. “Except for good cause shown, the board, on

determining a violation . . . shall: (1) revoke or suspend a license; (2) place on probation a

person whose license is suspended; or (3) reprimand a license holder.”6 The permitted

methods of discipline are:

 

• Denial of the person’s application for a license or other authorization to practice

medicine;

 

• administer a public reprimand;

 

• suspend, limit, or restrict the person's license or other authorization to practice

medicine, including: (1) limiting the practice of the person to or excluding one or more specified activities of medicine, or (2) stipulating periodic board review;

3 Texas Occupations Code §152.001

4 Texas Occupations Code §154.003

5 Texas Occupations Code §164.060

6 Texas Occupations Code §164.001. (emphasis added)

 

• revoke the person's license or other authorization to practice medicine;

 

• require the person to submit to care, counseling, or treatment of physicians

designated by the board as a condition for: (1) the issuance or renewal of a license or other authorization to practice medicine, or (2) continued practice under a license;

 

• require the person to participate in an educational or counseling program

prescribed by the board;

 

• require the person to practice under the direction of a physician designated by the

board for a specified period;

• require the person to perform public service considered appropriate by the board;

or

• assess an administrative penalty.7

 

 

The phrase “good cause” has been interpreted several times by the Texas Supreme Court

in regard to its use in the Texas Rules of Civil Procedure. The two most relevant lines of

interpretation in regard to “good cause” is that non-compliance with a rule of civil

procedure may be excused so long as non-compliance was not intentional or the result of

conscious indifference and is merely due to a mistake or accident.8

 

Prior to the Texas Legislative Sessions in 1987, the MPA, which was then contained in

the Texas Revised Civil Statutes Ann. Art. 4495b, read, in pertinent part:

 

Except as otherwise provided in Section 4.01, if the board finds any person to have committed any of the acts set forth in Section 3.087 of this Act, it may … administer a public or private reprimand ….

 

The Legislature, during a 1987 legislative session that was addressing tort reform,

removed the provision in the MPA that conferred the ability to issue private reprimands

as a political compromise in a bill shoring-up peer review and other professional liability

protections. Thus, absent the grant of authority, the TMB is precluded from imposing

private sanctions.

 

Presumably to ensure that disciplinary sanctions were meted out in a fair and consistent

fashion, the legislature required the TMB to adopt a schedule of sanctions and ensure that

7 Id.

8 Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939).

 

However, there is one additional line of cases in which the Texas Supreme Court has required “strict showing” of good cause in order to ensure the purpose of the rules of civil procedure was not frustrated and would not allow “trial by ambush.” McCuistion, Naomi, Good Cause in the Texas Rules of Civil Procedure, 36 St. Mary’s Law Journal 445 (2005).

 

The severity of the sanction imposed is appropriate to the type of violation.9 The TMB

did adopt disciplinary guidelines.

 

House of Delegates Resolution 104 (A-06) calls for a study of minor infractions. The

following violations are, for the purpose of this study, interpreted to be minor infractions

and appear with the associated standard TMB sanction:

 

• Failure to Timely Provide Copies of Medical or Billing Records.

(1)  furnishing medical records requested;

 

(2) restitution; and

 

(3) administrative penalty of $1,000 per violation.

 

• Failure to Maintain Adequate Medical Records; 10

(1) probation for 2 years under terms and conditions, including, but not

limited to:

     (a) competency testing;

     (b) directed CME;

     (c) monitoring of practice; and

     (d) administrative penalty of $2,000 per violation.

 

• Inappropriate Advertising;

(1) No Specific Sanction Adopted. Thus, according to regulation, the TMB

shall apply a sanction that generally follows the spirit and scheme of the

other sanctions listed.

 

• Failure to Timely Comply with a Board Subpoena or Request for Information;

(1) public reprimand;

(2) compliance with the subpoena or request; and

(3) administrative penalty of $500 for each day of noncompliance.

 

• Failure to Obtain or Document Continuing Medical Education; and

(1) directed CME; and

(2) administrative penalty of $1,000 per violation.

 

• Failure to Sign/Complete a Death Certificate.

(1) No Specific Sanction Adopted. Thus, according to regulation, the TMB

shall apply a sanction that generally follows the spirit and scheme of the

other sanctions listed.

 

• Default on a Student Loan.

(1) No Specific Sanction Adopted. Thus, according to regulation, the TMB

shall apply a sanction that generally follows the spirit and scheme of the

other sanctions listed.

 

9. Texas Occupations Code §164.001. SB 104 placed the following provision in law but not in statute: “The Texas State Board of Medical Examiners shall adopt rules required by Subsection (f), Section 164.001, Occupations Code, as added by this Act, not later than January 1, 2004.” Up to that point the TMB had not acted upon the directive contained in §164.001. The regulations for disciplinary guidelines were adopted

November 30, 2003.

 

10. It should be noted that inappropriate prescribing to family members is generally characterized as a failure to maintain adequate medical records. However, there were times when the physician was also disciplined for prescribing to a family member or others in a non-therapeutic manner. This may be a serious violation.

Also, any particular case may have involved patient harm, the cause of which may have been due, in some manner, to poor record keeping.

 

The standard disciplinary sanctions above are, generally, where the TMB will begin in its

determination of the appropriate punishment. The TMB may depart from the standard

sanction where mitigating or aggravating circumstances exists. Although quite broad, the

TMB has adopted a regulation that attempts to provide some insight into what is a

mitigating or aggravating circumstance.

 

Aggravating circumstances are:

• Harm to one or more patients;

• The severity of patient harm;

• One or more violations that involve more than one patient;

• Economic harm to any individual or entity and the severity of such harm;

• Increased potential for harm to the public;

• Attempted concealment of the act constituting a violation;

• Intentional, premeditated, knowing, or grossly negligent act constituting a

violation;

• Prior similar violations;

• Previous disciplinary action by the board, any government agency, peer review

organization, or health care entity;

• Violation of a board order; and

• Other relevant circumstances increasing the seriousness of the misconduct.

Mitigating circumstances are:

• Self-reported and voluntary admissions of violation(s);

• Implementation of remedial measures to correct or mitigate harm from the

violation(s);

• Acknowledgment of wrongdoing and willingness to cooperate with the board, as

evidenced by acceptance of an Agreed Order;

• Rehabilitative potential;

• Prior community service and present value to the community;

• Other relevant circumstances reducing the seriousness of the misconduct; and

• Other relevant circumstances lessening responsibility for the misconduct.

 

In late 2003, the Texas Medical Board proposed a modification to its regulation on the

contents of an adequate medical record. Prior to the modification, the regulation stated,

simply, yet succinctly, adequate medical records were “any records documenting or

memorializing the history, diagnosis, and treatment of any patient.”

 

11. The regulation is now a rather lengthy provision that states, in pertinent part:

11 28 TexReg 5031 (2003)

 

 “(a) Contents of Medical Record. Each licensed physician

of the board shall maintain an adequate medical record for

each patient that is complete, contemporaneous and legible.

For purposes of this section, an "adequate medical record"

should meet the following standards:

 

(1) The documentation of each patient encounter should

include:

 

(a) reason for the encounter and relevant history,

physical examination findings and prior diagnostic

test results;

(b) an assessment, clinical impression, or diagnosis;

(c) plan for care (including discharge plan if

appropriate); and

(d) the date and legible identity of the observer.

 

(2) Past and present diagnoses should be accessible to the

treating and/or consulting physician.

 

(3) The rationale for and results of diagnostic and other

ancillary services should be included in the medical record.

 

(4) The patient's progress, including response to treatment,

change in diagnosis, and patient's non-compliance should

be documented.

 

(5) Relevant risk factors should be identified.

 

(6) The written plan for care should include when

appropriate:

 

(a) treatments and medications (prescriptions and

samples) specifying amount, frequency, number of

refills, and dosage;

 

(b) any referrals and consultations;

 

(c) patient/family education; and,

 

(d) specific instructions for follow up.

 

 (7) Billing codes, including CPT and ICD-9-CM codes,

reported on health insurance claim forms or billing

statements should be supported by the documentation in the

medical record.

 

(8) Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly

indicating that there has been an amendment, supplementation, change, or correction.

 

(9) Records received from another physician or health care

provider involved in the care or treatment of the patient

shall be maintained as part of the patient's medical records.

 

(10) The board acknowledges that the nature and amount of

physician work and documentation varies by type of

services, place of service and the patient's status.

 

Paragraphs (1)-(10) of this subsection may be modified to

account for these variable circumstances in providing

medical care.”

 

12. When the TMB proposed to modify the medical record regulation, the TMA objected to the modification providing the following rationale as to why the proposed rule change

was inappropriate:

 

“[The proposed medical records regulation] . . . presents a rather lengthy complex cookbook formula for the mandated contents of a medical record. This list is so detailed that a busy office practice will be unable to comply with all the requirements mandated by the TSBME. The medical record is a tool created by the physician to aid himself or herself in the continuation of treatment of that patient. As such the

physician should be given the latitude to create a tool that best suits their specialty, practice, and patient population.

 

We believe the TSBME establishes this ability in the opening phrase that requires an adequate medical record to be complete, contemporaneous, and legible. It is clear the

TSBME has developed these requirements for the ease of prosecution, as it is apparent that the Board no longer wishes to use expert testimony of physicians to establish

(12 22 TAC §165.1) the standard of care for the maintenance and creation of

medical records . . . . Accordingly, we comment that the TSBME should not adopt §165.1(a) (1)-(7), inclusive.

 

Ensuring patient access to care and tort reform was the top issue for the Association

during the 2003 legislative session. Opponents of reform criticized the TMB and its

enforcement of the MPA in an attempt to bolster the value of private civil enforcement

and large jury awards. The argument put forward the proposition that a strong civil

justice system was needed because the TMB was very weak in its enforcement. To

further complicate the issue, the Dallas Morning News printed a series of articles

detailing several cases where one could argue enforcement was less than what one would

have otherwise expected.

 

13. The legislature reacted to the arguments of tort reform opponents and the perception of weak enforcement by reforming the TMB. Senate Bill 104, the TMB reform bill, focused almost entirely upon the enforcement process at the board. A surcharge was imposed upon physicians to fund a strengthened enforcement effort and additional disclosure was specifically required in regard to ongoing TMB activities.

 

14. For instance, a physician’sTMB profile, available through the internet, must include not just final TMB orders butthe text of any formal complaint filed against the physician by the board.

 

The enforcement process was reformed in attempt to provide a fair forum even in light of

increased enforcement. Thus, the TMB was required to have an expert panel of

physicians available to review investigations related to quality of care and medical

competency – ensuring that physicians would have their medical judgment reviewed by a

physician of the same or similar specialty. Further the expert panel was required to

provide the accused physician with a written report outlining the panel’s determination,

specifying the standard of care that applies along with the basis for the determination,

including peer-reviewed journals, studies, and reports.

 

15. Most importantly, the legislature commanded the TMB to adopt rules to distinguish

among categories of complaints and “give priority to complaints that involve sexual

misconduct, quality of care, and impaired physician issues….”

 

16. The efforts of the TMB are to focus on those areas most likely to benefit and protect the life and limb of Texas citizens. Simply, the Legislature expects the TMB to enforce the MPA focusing on these three violations.

13 Swanson, Doug. Sexual Misconduct: The Cases, Dallas Morning News, January 6, 2002. Swanson, Doug. Board easy on doctors’ sex offenses, Dallas Morning News, January 6, 2002.

 

14 Texas Occupations Code §§153.0535 and 154.006.

15 Texas Occupations Code §154.058

16 Texas Occupations Code §154.056; Section 9, Senate Bill 104, 78th Regular Session of the Texas Legislature.

 

 

There is no financial incentive in place for the TMB to seek additional disciplinary orders

in that the TMB does not retain the funds recovered through administrative penalties

(which are devoted to the general revenue fund) nor is there a promise of additional funds

contingent upon the TMB meeting the goals contained in the LBB strategy. That is not to

say there will not be some consequences for a failure to meet the goals set by the

Legislature. The members of the LBB, certainly, and the legislature generally will likely

scrutinize the TMB should it fail to meet its strategic goals.

 

17. 

 

 

This study has examined the TMB disciplinary actions announced since the July 2003

TMB newsletter through the Spring 2006 newsletter. These dates were chosen as they

follow the enactment of the TMB reform contained in SB 104 and it is believed that will

facilitate comparisons without compensation for a difference in law that may apply.

 

18. For the years 2003-2005 (the relevant years for which information is available) the TMB determined that 7,657 complaints against physicians were not violations of the MPA.19 The TMB received, for those same three years, a total of 21,980 calls to its telephone complaint line.20 The calls regarded not just physicians, but also physician assistants, acupuncturists, and other issues that are wholly unrelated to the TMB’s functions or complaints. The number of calls to the complaint line has dropped from a high of 10,638 in 1998 to 6,543 in 2005.21

17 See Appendix D – Appropriations Bill Texas Medical Board Entry.

18 Nonetheless, some of the orders reported and imposed in mid-to-late 2003 will be predicated on the

previous law.

19 Texas Medical Board. Investigation Statistics Page.

www.tmb.state.tx.us/agency/statistics/enforce/inv.php August 8, 2006. Sum of non-jurisdictional

complaints against physicians for the fiscal years 2003-2005.

20 Id.

21 Id.

 

During the time period studied (July 2003 through Spring 2006), the TMB disciplined

968 physicians.22 Of those 315 were identified as minor infractions, in whole or in part.23

 

Of the 315 identified minor infractions, 215 were for minor infractions only. The

overwhelming majority of the disciplinary actions were agreed orders. This means the

physician in question agreed to accept the discipline contained within the order. An

agreed order is a product of compromise and may contain findings of fact that have been

modified, at the physician’s request, from the original TMB allegations.24

 

It is also important to note that in many of the agreed orders the findings of fact will contain a finding that the physician continues to deny the TMB allegations. All summaries of TMB actions that are included in this study should be reviewed with the understanding that many of the physicians in question continue to deny the TMB allegations. However, by agreeing to a disposition, the physician gains a benefit under the MPA which provides that an agreed to TMB action may not be introduced as evidence by a plaintiff attorney in a civil trial.25 Furthermore, an accused physician may negotiate the terms of an agreed order so that a report to the National Practitioner Databank by the TMB is avoided.26

Where a sufficient number of disciplinary actions existed, a scatter chart was created to

permit an easy visual comparison of the amount of the administrative penalty imposed by

the TMB over time. If the TMB had adopted a disciplinary guideline regarding

administrative penalties for a particular violation, that guideline is visually represented in

the scatter chart. Each point representing an administrative penalty may be one of two

colors – black or red. Black points represent penalties imposed solely for the violation

represented in the title of the chart. Red points represent penalties imposed for other

violations in addition to the violation listed in the title of the chart.

 

Figure 1, is a scatter chart for inappropriate advertising. Over the past four years the

highest administrative penalty imposed was for $25,000 and the least was $500. The

$25,000 penalty was imposed for multiple eye surgery advertisements that were alleged

to be false or misleading. Specifically, the TMB alleged the advertising claimed “[n]early

3 out of 4 patients are seeing better than 20/20 vision! As for that other one patient, well,

they’ll just have to settle for ‘perfect.’” The physician in question “did not acknowledge

that the advertisements could be misleading to the public.” 22

 

Total derived from sum of the number of physicians reported as disciplined in the TMB newsletters from June 2003-Spring 2006. 23

 

Several physicians were sanctioned for multiple violations, some of which could be considered serious. 24

 

This also means that the findings of fact within an order may be modified so as to inhibit a full understanding of the circumstances that gave rise to the disciplinary sanction.

25 Texas Occupations Code §164.002. 26 45 CFR Part 60.

 

Only four physicians were penalized in an amount greater than the TMB sanction

guideline. The uppermost penalty for a failure to obtain CME was imposed upon a Texas

licensed physician residing and practicing in Alabama. Over a two year period the

physician in question was 22 hours short of the required 24 hours of CME. Two of the

four physicians were disciplined for other violations of the MPA in addition to the

violation regarding CME. The fourth physician was disciplined for a CME violation

alone and the findings of fact do not indicate why the penalty imposed was greater. The

lowest administrative penalty imposed was $500. The TMB is very consistent in meting

out sanctions for this violation with 47% receiving the standard sanction and 36%

receiving a sanction below the guideline.

 

Inappropriate Advertising

$0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

 

5/24/2002 12/10/2002 6/28/2003 1/14/2004 8/1/2004 2/17/2005 9/5/2005 3/24/2006 10/10/2006

 

Failure to Keep or Maintain Adequate Medical Records; Figure 3

It should be noted, that for this type of violation there were 60 out of a total of 137

actions resolved without the imposition of an administrative penalty by the TMB. The

total number of disciplinary sanctions for “inadequate medical records” represent just

over 43% of all of the sanctions imposed on physicians for minor infractions.

Under this category, there are four high outliers. The physician who agreed to the

$25,000 administrative penalty was 58 years old and eventually (under another order)

surrendered his license to practice medicine. The agreed board order in this case

contained a denial of allegations made by the TMB in its complaint with the State Office

of Administrative Hearings. In that complaint, among other alleged violations, the TMB

alleged multiple billings for services for which there was no documentation

(overcharging). This disciplinary action is so classified based upon the findings of facts

in the final TMB order. Thus, this is not included in the table for improper billing.

The physician who accepted the $20,000 penalty was found to have also engaged in self

prescribing without documentation. Further, the physician was alleged to have prescribed

 

Continuing

Medical Education

$0.00

$500.00

$1,000.00

$1,500.00

$2,000.00

$2,500.00

$3,000.00

12/10/2002 6/28/2003 1/14/2004 8/1/2004 2/17/2005 9/5/2005 3/24/2006 10/10/2006

 

controlled substances for a girlfriend and her son without maintaining medical records.

These are separate offenses of the MPA and qualify as an aggravating factor.

One of the physicians who accepted a $10,000 penalty was the result of a TMB allegation

that extensive laboratory testing was undertaken without adequate justification in the

medical records.

 

The other physician who accepted a $10,000 penalty was originally accused of ordering

psychological evaluations of many patients without justification in the medical record

and of ordering X-ray examinations that were unnecessary. Eventually, the physician and

the TMB came to a settlement. There is a finding that the physician disputes the facts as

alleged by the TMB.

 

There are many disciplinary actions for which no administrative penalty was imposed.

Several of these actions were based upon allegations, which the physicians in question

dispute, that prescriptions were written for a non-therapeutic purpose.

 

Failure to Keep or Maintain

Adequate Medical Records

$0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

5/24/2002 12/10/2002 6/28/2003 1/14/2004 8/1/2004 2/17/2005 9/5/2005 3/24/2006 10/10/2006

 

Failure to timely comply with a TMB Subpoena or request for

information; Figure 4

 

The standard sanction permits an administrative penalty of $500 per day the physician

fails to respond to TMB requests, which can begin to add up fairly quickly if one does not

act promptly. For this class of violation, three physicians were subjected to an

administrative penalty of $10,000. One physician allegedly did not respond to multiple TMB subpoenas in an investigation regarding a failure to treat a patient in accord with the standard of care. According to the TMB findings of fact, the records were produced over one-year after the first subpoena was issued.

 

One of the physicians in question allegedly did not respond to subpoenas and refused to

appear at an informal settlement conference. The TMB summary states the discipline

was imposed for a failure to:

 

“Comply with the board’s subpoena of medical records; Failure to

correspond with the board regarding the matter in question; Failure to

appear at an informal settlement conference; Failure to respond to a

complaint filed with the state office of administrative hearings; and

Apparent willful disregard for the board’s authority in that he is

attempting to thwart the board’s ability to investigate and monitor him and

ensure that he is safe to practice medicine.”

The TMB imposed a $10,000 administrative penalty against a third physician for

allegedly falsifying CME education on a hospital credentialing form.

 

Failure to Timely Provide Copies of Medical or Billing Records;

 

Figure 5

The TMB has disciplined 72 physicians for violation of this provision.

The two high outlier penalties were both imposed for other violations in addition to the

failure to timely provide records. One physician also allegedly refused to respond to a

TMB subpoena, the other allegedly practiced with a delinquent license.

The TMB is rather consistent in the imposition of administrative penalties for this type of

violation. Thirty physicians (41%) received the standard sanction of a $1000

administrative penalties and thirty-six physicians (50%) received $500 administrative

penalties.

 

Failure to timely comply with a TMB

Subpoena or Request for Information

$0

$2,000

$4,000

$6,000

$8,000

$10,000

$12,000

May 24, 2002 December 10,

2002

June 28, 2003 January 14,

2004

August 1, 2004 February 17,

2005

September 5,

2005

March 24, 2006 October 10,

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