Medical board issues top the list of threats doctors fear the most, and for good reason. Not many of us know what to do or who to contact when the Board comes knocking – but best practices do exist. And it’s important doctors take these issues seriously, even if the threats themselves come from a meritless source. Doctors need expert guidance no matter what. Enter James McClendon. Mr. McClendon is a Partner at Husch Blackwell and an expert at addressing Board issues of all kinds. Mr. McClendon helps doctors survive high-stakes conflicts and come out on top. Medical Justice and Mr. McClendon speak at length about what doctors can do to increase their odds in the event a confrontation with the Board is inevitable.
Jeff Segal, MD, JD
Welcome to the Medical Liability Minute. I’m your host, Jeff Segal, Founder and CEO of Medical Justice – and we speak for more than a minute. One day, we’ll change the title of the podcast. I’m joined today with a colleague and a friend. His name is James McClendon. He’s a partner at the law firm Husch Blackwell in Austin, Texas. And he’ll probably give you his own caveat, but we’re going to talk about license defense law, among other things.
His legal expertise is limited to Texas, where he is licensed, but I’ll let him do the longer caveat. His bio is as follows: When Texas physicians, dentists, psychologists, and similar healthcare professionals face licensing and other high-stakes career-threatening issues, they turn to Jim to set things right.
I can agree with that, because I have sent people to Jim, and I’m in North Carolina. When people call me and they’re in Texas, I send them to Jim. Jim helps clients navigate regulatory and licensing hurdles and return to focusing on their professional work. He represents clients (primarily doctors) before professional boards when faced with matters relating to complaints, contested reviews, hospital privileges, and regulatory matters.
These are all high-stakes ventures. If you get them wrong, you may lose your ability to practice and earn a living. It’s helpful to have someone in your corner. Jim began his career as a trial lawyer. He also advises professionals on litigation involving disputes over noncompete agreements, physician group breakups, management agreements, and much more.
Jim, I’m delighted that you’ve decided to join us today. Thanks so much for participating.
James McClendon, JD
Well, Jeff, thank you for the opportunity, from sunny and hot Austin, Texas. I look forward to visiting with you today.
Jeff Segal, MD, JD
As we got started, we reminisced that we have a common Venn diagram. We were both undergrads at the University of Texas at the same time, and I won’t date us on the air. People can look at our bios down the road, but we were both there for the exact same four years. And the University of Texas is a big school in Austin with many, many people attending. So, it’s not shocking that our paths did not intersect. But then also, it turns out that you grew up in Houston, as did I. You went to the high school that my wife attended. A very small world indeed, which is why I try not to piss off too many people. You never know when you’re going to see them again. Right?
James McClendon, JD
That’s good advice.
Jeff Segal, MD, JD
Let’s start with the typical caveat. You are licensed in Texas. You’re a partner at Husch Blackwell. I think we’re going to go through a roadmap of what it’s like broadly to be involved in a Medical Board complaint. And there certainly are common threads between getting a complaint in Texas and in other states. But there are probably also differences. And we do want to caution our listeners to make sure that when they seek advice, counsel, and are represented, they do so with an attorney licensed in their state, particularly when there’s a hearing before the Board. Jim, do you want to follow up on my abridged version of that with something a bit more detailed?
James McClendon, JD
I have been defending physicians before the Texas Medical Board since 1990, to date myself a little bit. I did graduate from law school at the University of Texas in 1983. Everybody can do the math as to my age. And yes, I am old, but I’m proud of it. I’m still very happy in my profession and love defending doctors and other professionals. We have a very good team of lawyers at Husch Blackwell, and I kind of jokingly say that I’m just a deep thinker and a problem solver. But like I said, I still love what I do. I have extensive experience before the Texas Medical Board, and you’re right, each state is going to have its own unique set of rules and procedures. And not only do you want an attorney licensed in your state, part of the art of practicing before the state Medical Board is developing trust in a relationship with the Board members so that you know the ins and outs of who works there and their personalities and their idiosyncrasies.
It’s very important that you work with a licensed professional in your state that is familiar with and regularly appears before the Board. I think that’s very important. There is some overlap, though. For instance, if you’re licensed in multiple states, whatever happens in your state could affect your license in other states, and you might have to draw upon the expertise of lawyers in other states where you are licensed. There’s a ripple effect, unfortunately. If you get sanctioned in your state or disciplined in your state, and you’re licensed in multiple states, you can expect that it’s going to get on the radar of those other states, and you’re probably going to have to get legal counsel involved in those states as well.
Jeff Segal, MD, JD
We’re going to chat about the ripple effect. That’s certainly a nice euphemism. So many dominoes start to fall once you have a complaint that has reached fruition in one state. There tends to be this effect in many other states, and there are people who never give it a second thought because they haven’t actually practiced medicine in the “other state(s)” for decades. They just keep it as a license to retire with, or maybe they just want to keep their options open and practice in another state down the road. But the more licenses you have, and there are certainly benefits to having more than one license, if you run into a problem with one, you will often run into a problem with many.
Not all the time. There are times that you will dodge a bullet, but it’s something to be mindful of. Jim, I want to start with the skill set, because you allude to it in terms of trust and relationships. There is a tendency amongst doctors to assume that the right skill set to managing a Board complaint or defending the license is that of a professional liability defense attorney.
And I think that’s a mistake.
I think there’s certainly some overlap between the two. But I explain to doctors that the person who defends your license should be perceived as a diplomat. The person who is fighting for you in court against an allegation of professional liability is a warrior. Now, there are certainly exceptions to that, but I would just say broadly, if you bring a warrior’s mentality and style to the Board of Medicine, there’s a good possibility you will be crushed and disappointed. I think the people that do this a lot have developed these relationships and understand the type of tone that needs to be addressed. It doesn’t mean rolling over. It just means understanding how to work with or against the Board to try and achieve a particular outcome. What are your thoughts on that? Let’s open with that.
James McClendon, JD
That’s an excellent observation. I do no medical malpractice work whatsoever. I refer those cases out, and often Medical Board complaints go along simultaneously with a medical malpractice suit. And so, I coordinate with the medical malpractice attorney. As you mentioned in my bio, I am somewhat of a reformed trial lawyer. I used to vet company litigation. I enjoyed doing that. There’s no greater high than trying a lawsuit, but there’s a lot of stress involved with that also. I got this opportunity to segue my practice starting in 1990 into this area and have enjoyed this from a kind of holistic lifestyle viewpoint – much more than I did as a trial lawyer, anyway.
I do have that trial lawyer litigation mindset though, and I know how to try a lawsuit and that can be very helpful in Medical Board matters. But what I’ve learned over the years is that a cooperative approach with the other side in the Medical Board matter makes much more sense than trying to be obstreperous. The Medical Board will immediately assume that you’re trying to hide something if you go about that approach.
The much better approach in a Medical Board matter is to admit or acknowledge when you have made a mistake or you didn’t have your finest moment, that you could have done better. They love to hear that. They love to hear that you have learned something from the process. I always try to acknowledge that there was a documentation error rather than a standard of care error. But at the same point in time, if you cannot get the result that you want with the Medical Board through the informal process that we’ll go through, as we’re talking here this afternoon, and you must try the lawsuit, then you do become a warrior.
And in Texas, at least, if you can’t reach the results of the informal process, you go to an Administrative Law Judge trial at the State Office of Administrative Hearings, and it is a contested case. And then you do go into “warrior mode” because you are going to try to convince the judge that there was no violation of the Medical Practices Act so that you can come out as unscathed as possible through that process.
Jeff Segal, MD, JD
Doctors typically react to a Board complaint in one of two ways. One is that they ignore it utterly and don’t give it the proper response. In fact, they might ignore the deadline, even when the Board asks for nothing more than records. And for whatever reason, they move on and do other things and ultimately get around to it when they can. So, that’s typical response number one.
The other typical response is complete panic.
To paraphrase this doctor’s inner monologues: “I did nothing wrong. I can’t sleep. I can’t take any action.” These are the two different modes I encounter the most frequently. And you can comment on that because I’m sure you’ve seen at least those types of reactions, as well as a handful of others.
James McClendon, JD
Well, certainly those are kind of the opposites I encounter in my practice. I also get everything in-between. I want my clients that get a Medical Board complaint to be engaged in the process. They are the best resource for information critical to their defense. I know how to format it. I know how to guide them through the process. But at the end of the day, they are the doctor and I’m not. I want the doctor to be engaged. But I must talk them off the ledge, as you say, and convince them that I’m going to get them through this.
I provide them with assurances. There are only a couple of things that will absolutely cause you to lose your license, and revocation and suspension are in play. Otherwise, I can get you through the process. You might have some scars. But I must talk my clients into continuing to do what they do best, which is practice medicine, and to try to keep their minds off this as much as possible as we go through the process, because I don’t want them to divert their attention from the practice of medicine. They must remain focused on their patients.
We have this problem, I believe, and I’ve talked to the Medical Board about this in Texas, and here’s the issue: Sometimes doctors don’t ignore these letters of complaint deliberately – they just don’t realize they’ve come in.
They’re mailed via regular mail. They’re not sent certified. They don’t have “confidential” on the outside of the envelope. They don’t say “time sensitive deadline, open immediately.” It’s just a letter addressed to the doctor from the Texas Medical Board. And inside is this ticking time bomb. And since it’s been sent by regular mail, you’re depending on the US mail to get it there in time, which doesn’t always happen.
And then sometimes the staff members are the ones opening the mail. They may not get around to it immediately, or recognize the importance of what they are holding. And I have lots of situations where I’m contacted three or four days before the complaint response is due saying, “Hey, we just either got this letter, or it didn’t get brought to my attention until now.”
Some of these doctors practice in very large groups and sometimes the mail doesn’t make it into their inbox. It’s rare, Jeff, that a doctor will just absolutely ignore the letter. Many times, they will respond on their own without an attorney’s help or contact their carrier to get an attorney involved on their behalf, and then they don’t pay much attention to the issue or take it seriously enough until they get the follow-up letter from the Board saying, “We’ve opened an investigation.”
Jeff Segal, MD, JD
I am so glad you brought up the point about how the letters get mailed, at least in Texas, by the Texas Medical Board. That’s a plug for making sure that your address of record is correct on your profile on the website. Every state treats this differently, so listen to this story.
We have a client who mostly, in fact, entirely practices in Colorado, where he’s been for decades, and I do mean decades. But he started his career in California, and he’s maintained a license in California for four decades, intending to go back after he retires. I think he still has a home there, but he hasn’t practiced in California in decades. Anyway, he got a Board complaint in Colorado and was given a letter of admonition, which is the lowest level of discipline, and in his estimation, he thought it wasn’t inappropriate. He never defended against it. I think he was close to 70 when this happened. He just basically accepted it and went back to work the next day, in Colorado, where he’s an extremely talented surgeon. In parallel, he kind of forgot that he had a California license.
California sent a letter to him based on what they thought was his address of record, and the letter made it to the correct building. It made it to the correct floor, but it did not make it to the correct suite number. I repeat: It did not make it to the correct suite number, and so he didn’t find out about it until California revoked his license.
And this created this cascade of doom because he’s an employee of a healthcare system, and in its bylaws, it says that you cannot continue as an employee if your license has been revoked anywhere. Now, remember, he’s not stepped foot in California to practice in decades, but his primary livelihood in Colorado is now threatened by this reciprocal action because somehow, it’s not clear what happened, the address of record was screwed up. Whether it was the Board or the doctor, nobody knows. But I want to use this as a big pitch to make sure that your address of record is correct. And the thing that’s so maddening about this is that the California Medical Board was spamming him using his correct email address with all types of notices during the height of the COVID pandemic.
It’s clear they had his email address, but they relied upon a single address, as opposed to the fact that almost everybody’s got a home address, everybody’s got an email address, everybody’s got a business address. And they said, “Well, we’re only doing it based on this one address. We’re not giving you a second chance.” This is being litigated and I’m keeping my fingers crossed it’ll have a positive outcome. But it’s been extremely painful for him. The point of all this is that if you’ve got a license in more than one state, or even you just have it in one state, for God’s sake, make sure the Board has your correct address.
What do you think of that?
James McClendon, JD
That is a horror story, and I can’t think of one like that off the top of my head. But once a month I get hired on matters where the doctor never got the complaint letter in time to respond. And in Texas, that means it’s going to automatically go to an investigation. Now, you can still defend yourself and respond to the investigation at that point in time and do a Mea culpa that you didn’t get the letter and you weren’t intentionally ignoring the Board.
But a couple of important things: For one, at least in Texas, you have two addresses on the Medical Board’s website. One is the public address that’s on your physician profile that the public can see, and that is almost always your practice address. But there’s a second address, which is your mailing address, which the public cannot see, and you need to make sure both of those addresses are always current.
And just as important: If you are in a big group or in a practice where you don’t get your own mail directly and open it yourself, alert your staff. Tell them that if ever there is a letter from the Medical Board, do two things.
One, tell them to bring it to your attention immediately. And two, tell them not to open it because you as the doctor have a right to have confidentiality through the complaint process, and you may want to bring your staff members into the complaint and help them respond to it. But at the same point in time, you may not want them to know that it’s going on. And you have the absolute right statutorily, at least in Texas, and I presume it’s probably this way in every other state, that the process is confidential as you go through it.
Jeff Segal, MD, JD
I find it shocking that it’s not even marked confidential on the outside of the envelope. Things get shipped that are confidential every day across the country and it would take two seconds to stamp “confidential” on it. Is this something that’s never come up before in the Texas Medical Board? Has it been brought to their attention, or is that deliberate and they just really don’t care?
James McClendon, JD
I hope it’s not deliberate. I have brought it to their attention before. I’m sure other practitioners have as well. And I think today the fact that you don’t also send a copy via email, which goes directly into the physician’s email inbox is something that needs to be addressed.
Jeff Segal, MD, JD
The reaction that people get is sometimes a little misguided. When they get a Board complaint, sometimes they pay less attention to it than a professional liability claim. I generally tell people that if you get a professional liability claim, 99 times out of 100, because you have insurance, it will be disposed of. You may not like how it gets disposed of, but you’ll still be able to practice medicine for the most part and do so on your terms. If you have a Board complaint that doesn’t turn out in an optimal way or even a reasonable way, you may lose your ability to practice medicine, which is how you put food on the table. It’s your livelihood, it’s how you make money.
If I had to catalog which of the two are more important, of course, they’re both important, but I would argue that maintaining your license in good standing is probably even more important than just prevailing in a professional liability case. Sometimes they go together, sometimes a Board complaint and a Med Mal case go together. But I think if I had to prioritize, I would put more effort into resolving a license defense case successfully.
James McClendon, JD
And Jeff, that’s exactly right, because like I alluded to earlier, I can get you through the process, or other attorneys that are helping you in your state can get you through this process. There’s only a couple of things that you can do that will result in you losing your license. The other thing that you certainly want to avoid is a restriction on your license. And whereas you can continue to practice medicine, you must abide by that restriction. That restriction is going to have its own set of ripple effects on your insurance contracts, hospital privileges, employment, all that sort of stuff.
It is imperative a physician defend him or herself in front of their Medical Board when they get a complaint letter. And in Texas, at least, most medical malpractice insurance companies now provide for the cost of defense, and they will pay for the Jim McClendon’s of the world to represent them as they go through the process. It’s a policy benefit that you should take advantage of and notify your carrier immediately when you get this letter and have them help you find defense counsel.
Jeff Segal, MD, JD
Jim, that is true that as a perk of having professional liability coverage, they will often throw in legal defense coverage to the tune of $25,000, or even $50,000. And you can add to those limits if you are so inclined. And the cost to add to those limits is not particularly high. I’m a big fan of taking advantage of the fact that you typically have coverage. I think what many people don’t understand is that if all you have is $25,000 in legal coverage, that may fully cover you, and it may not. And if you must go to an Administrative Law Judge, it probably will not cover everything. I think it’s important to try and get as much coverage as you can reasonably afford. But the cost for this type of rider pales in comparison to what people typically pay for professional liability coverage. Has that been your experience?
James McClendon, JD
I will say that based on my experience and I’ve defended 600 – 800 physicians, 97% of the cases can be handled within policy limits. And you’re right, typically it’s $25,000. The ones that end up exceeding policy limits are the ones that go to an Administrative Law Judge trial or start out as a temporary suspension where there’s kind of a mini trial right off the bat with witnesses and cross-examination and the whole kit and caboodle (legal term there) protecting your license from a temporary suspension. Those tend to get very expensive as well. But 97% of the time, the run-of-the-mill Texas Medical Board complaint can be handled within the $25,000 policy, and well within that limit.
Jeff Segal, MD, JD
Well, that’s great news. I will also make the pitch that if you do get a Board complaint, I highly recommend tapping into that and getting an attorney to help. Here’s why: There’s a tendency among some doctors to see a complaint and go, “You know, I’m pretty sure I can just respond to this, and surely they’ll see the wisdom of my care.”
And not surprisingly, sometimes the response looks like it was dictated into Siri. It’s unprofessional and full of typos. But more importantly, sometimes these responses do irreparable harm to the doctor’s case down the road. Once you do get an attorney, the initial response can be managed. But once the toothpaste is out of the tube (the doctor speaks out before consulting an expert), it is much more challenging to “undo” that action. Clients are better served having a professional response drafted with attention to both style and content in advance, rather than trying to play catch up down the road and repair these mistakes. What are your thoughts?
James McClendon, JD
I completely agree. Medical malpractice companies typically have a panel of attorneys like me that they have vetted and used in the past and have good experience in this area. Turning this case over to your malpractice carrier does help you get in touch with an attorney that specializes in this area. The second big advantage is that the bills go to the insurance company and not the physician. And the physician is not out of pocket other than what quite possibly is a deductible. Experience matters in this area, Jeff. There is no question about it. I have seen a lot of handwritten responses by physicians where they go off on tangents and raise issues that weren’t brought up in the complaint letter. These “unexpected issues” can create havoc down the road, sometimes going so far as to transform the nature of the investigation. Doctors who cop an attitude create problems for themselves.
And that’s the worst thing you can do in your response letter. Writing something like: “Why in the heck are you writing me this letter? I’m a very good doctor, I didn’t do anything wrong. Go away.” will only make matters worse. That is not the right approach. You want to educate the Board in your response. Copping an attitude will not help you.
Jeff Segal, MD, JD
One of my pet peeves in terms of a potential response is when the doctor writes back, “I always do X, Y and Z, so there’s no way this allegation could be correct.”
And when people use the word always, that sets them up for a potential problem, either there or down the road. It’s like when a couple is in counseling, and one spouse says, “You’re saying you always do X, Y and Z.” And almost nobody does “something” all the time. They may do it frequently, but I think the word “always” just sets one up for failure down the road. That’s inside baseball. That’s the type of thing you know, and I know, but it’s the type of thing that I think doctors don’t appreciate until it’s too late.
And the thing is, medicine is complicated. It’s complex and complicated and every patient is different. There are times we make exceptions to a guided rule, and we may do something different. And if that’s the case, we won’t be doing something “always.” We’ll be doing something most of the time. And I know that distinction sounds very subtle between “always” or “most of the time”, but it matters when the stakes are this high.
I thought I’d throw that one out. Let’s dive into the weeds here. Let’s start with a couple of things that a doctor could do that will likely damage his or her career. Things that may turn into a summary suspension or a permanent revocation. In terms of the Parade of Horribles, what are the things that are hard to recover from just as a fact pattern? And I know every case is different, but you mentioned that there are two specifics that come to mind.
James McClendon, JD
To give this some color, something that comes to mind immediately: Don’t have sex with a patient.
If you have sex with a patient, more than likely you’re going to get your license temporarily suspended or in the long run face severe challenges to the continuation of your practice. Inappropriate text messaging to a patient, I can probably help you get through, but it’s not going to be fun.
And you probably would either need a chaperone in the room as a restriction or a restriction from seeing/treating the gender of the patient that you were inappropriately texting. But crossing the boundary, inappropriate touching or having sex with a patient is likely the death knell of your practice. The other one is getting convicted of a felony related to healthcare. In Texas, that’s an automatic revocation of your license. It most often happens in connection with intentional overbilling or Medicaid or Medicare fraud. It’s not good to be arrested for any type of felony. Child pornography and murder are other obvious examples. You certainly don’t want to deal drugs out of your office, either.
And even if you’re prescribing legal drugs, if you are running some type of a pill mill, which is very much on the radar in Texas, that’s a huge problem. Sometimes undercover agents will come into the physician’s office when there is a suspicion that there is inappropriate prescribing. And the agent will come in and say, “Hey, I’ve got a hurt shoulder. Can I get some pain meds?” And you don’t even look at the shoulder and just give them what they want, that may ruin you.
Jeff Segal, MD, JD
You opened the door to a doctor having sex with a patient. And I want to expand on that because there are certainly black and white situations. There are also gray zones. And I’ll start by commenting that it doesn’t matter what your sex is or your gender. It doesn’t matter if you’re male or female. Everyone can get burned.
One of the highest profile cases that I can recall where a doctor had their license revoked, this was up in Canada, but the same principles apply. She was an oncologist who saw a somewhat younger patient in the emergency room that was diagnosed emergently with either leukemia or lymphoma. She started treatment with chemotherapy as an inpatient, and the patient was somewhat flirtatious with the female oncologist, and she reacted and responded, and they went back and forth. She would spend the night in the hospital room with him while he was getting chemotherapy. They started having sex. They started having a relationship. She ended up staying at his house on overnight stays, while he was living with his parents. And there was no problem from the patient’s perspective. Until she decided it was time to get serious and have a real relationship with a colleague.
She calls up this patient, and he was still her current patient, by the way. She was still taking care of him. And she said something to the effect of, Hey, this was fun while it lasted, but I’m older than you, and I’m looking for someone who’s my professional peer to have a long-term relationship with, have a nice life….
And he wanted to meet with her. And she intimated, “Look, I don’t think that’s productive for either of us.” And so, what did he do? He filed a complaint with the equivalent of the Board of Medicine in Canada. They opened an investigation. They ultimately revoked her license. And that was particularly challenging in Canada because broadly they have a shortage of oncologists. By removing this one oncologist, this one specialty from its ecosystem, not only did this doctor have a problem, but a lot of people with cancer had to wait a little bit longer to be seen. Sex with a patient affects everyone. Often, it’s the male in the crosshairs. But I would argue men are not the only ones in the crosshairs. Everybody should at least pay attention to the possibility.
Have you noticed that this also affects women, and they also need to pay attention to the problem and follow the dictum?
James McClendon, JD
Clearly, it can apply no matter the gender of the physician. I think it’s important for every doctor to realize there is no such thing as consensual sex with a patient, no matter how consensual the doctor thinks it is or how consensual the patient may believe it is.
And Jeff, in your story there, everything was going swimmingly for everybody until it wasn’t, and then the rug gets pulled out from under you. And I’ve had situations where everything seemed to be going swimmingly until one of their spouses found out, and then they’re the ones who end up filing the complaint. And I was in a Medical Board hearing one time where the DPS officers had to come into the waiting room to separate the husband and the woman that was involved in the affair. And that changed the Medical Board rule here in Texas where they now let the witnesses wait elsewhere rather than putting them into the same waiting room.
The point I want to make is no matter how consensual you think it is, if it is with a patient, it is not consensual under all the ethical rules that govern physicians.
Jeff Segal, MD, JD
And that’s a key point, having sex with a patient. One question would be when does a patient not become a patient? And are there some patients that you can never have sex with? And I’ll try to divide the universe into two situations.
One would be one where the doctor acquires intimate information about the patient and is in a power position where the patient could never be perceived as consenting on their own. And two situations would be one, a psychiatrist. If you (as a psychiatrist) have a relationship with a patient, I will argue that no matter what, you should never have sex with that patient. Okay? That’s number one.
Number two would be a patient who is in a life altering situation where the patient is extremely grateful that their life has changed for the better, for example, oncology or a trauma patient where their head goes through the windshield and the doctor shepherds this patient back to health. I would also argue that long after the former relationship is terminated, I think it’s a bad idea to have to engage in sex with that patient. But there are other situations where the type of doctor-patient relationship has been brief and tangential.
Let me give this color.
Let’s say a patient comes to an urgent care center and has a laceration on their finger. The doctor sews up the laceration and that’s the end of it. There is no further doctor-patient relationship. And let’s say he even goes further and formalizes the termination of the relationship and says we’re not going to do any type of dating or anything for six months. In that situation, I would argue that it’s probably less black and white and it may be less problematic. And let me change the fact pattern a little bit more. Let’s say next that you’re a doctor in a rural area. The community itself has 600 people. You’re single. It’s the only community 100 miles around, and you want the ability to have a social life. And so, the question is, if you’ve been attracted to that community, do you have to take a vow of celibacy or just go to the metro areas for any type of sexual activity or dating?
Are there situations where, based on the facts, it is possible to engage in a sexual relationship, particularly if you formally terminated the doctor-patient relationship and you waited some period of time? I know I’ve given you a thousand facts here, so feel free to pick and choose the one that makes sense to you on your own terms.
James McClendon, JD
No, this is all good stuff. The rule doesn’t talk in terms of sex with a patient, and I probably was throwing that term out there maybe a little too loosely. It talks about having an inappropriate relationship with a patient.
Jeff Segal, MD, JD
Right.
James McClendon, JD
And that can include dating a patient. I think under the fact scenarios that you have put out there for psychiatrists, I think it’s almost an absolute “never.” I don’t know that Texas has codified that in its Medical Practices Act, but I believe the Board of Ethics for Psychiatrists and their professional boards have made it clear that thou shalt not ever have a relationship with a patient, or it might be like a two-year waiting period.
Jeff Segal, MD, JD
No, I think you’re correct. Our psychiatrists can write in and correct us. But my understanding is it’s a “never rule” and that once you’ve established a psychiatric relationship with a patient, from an ethical perspective, you just cannot have a relationship with them down the road. And if you have an ethical violation, the Board can always jump in and say one acted unprofessionally using its catchment term for all the things that aren’t enumerated in the Medical Practice Act.
James McClendon, JD
In fact, if you lose your board certification, that would be something that would be reported to the National Practitioner Data Bank, and that would get you on the Texas Medical Board’s radar. Or when you’re renewing your license, you would have to acknowledge that you did have your board certification taken away from you. But Texas does not have a hard and fast rule.
And I don’t know if any other jurisdictions have a hard and fast rule, regarding how long the waiting period is or what the extenuating circumstances are, but I think under your scenarios, Jeff, if done properly, and I would certainly recommend and encourage that a formal termination of patient-physician relationship letter be sent and put into the file. And it made clear that this relationship did not blossom as a result of this incidental meeting in connection with the provided healthcare but blossomed afterwards and after the patient-physician relationship was terminated. I would feel very good about getting you through that scenario at the Texas Medical Board if, in fact, the relationship went awry in the future and the patient decided to file a complaint against the physician.
Jeff Segal, MD, JD
There’s a very famous case out of Pennsylvania, a family practice doctor who was seeing both a husband and wife for general practice issues. This family practice doctor was having an affair with the wife, but he was still taking care of both husband and wife at the same time.
And the husband would come in and say, “I’m really stressed out. I’m having this nagging feeling. My wife isn’t into me any longer.” And the treatment that the family practice doctor gave was to pile on with various psychotropic medications to say, “Here, let me help ease your anxiety,” without paying attention to the fact that he was the source of anxiety because he was engaged in that ongoing affair.
You’ll probably predict how this ended. I think at some point, I can’t remember who called it off, but it was likely the doctor who called it off, or the wife decided she was going to reconcile with her husband. But the husband found out about this and was appropriately shocked, saying, “I can’t believe you were taking care of both of us, piling on medications to me when you were the source of my grief.”
He filed a Board complaint, and he also filed a professional liability case. And what was fascinating in terms of the precedent now, this became very public, and it went up to an appellate court. He was suing for malpractice as well as intentional infliction of emotional distress. And this was 20 years ago. It’s a dated case, and I’m not sure it would reach the same outcome now. In fact, I’m positive it wouldn’t.
A court in Pennsylvania concluded that because he was a family practice doctor and not a psychiatrist, while his behavior may have been unsavory, they couldn’t conclude that he had violated some standard of care. And so, he walked. Now, he didn’t really walk because this became public, and I think he was shamed into submission, but I don’t think people should rely upon that now. Can you imagine how that would be received today in the age of the internet?
James McClendon, JD
Most fact patterns that get presented to me, I’m very proud to go defend in front of the Medical Board. I would not be proud to defend those facts in front of the Texas Medical Board. You’re not going to keep your license in Texas under that fact scenario or in almost any other jurisdiction.
Jeff Segal, MD, JD
I would say they should probably start looking overseas for potential opportunities, doing medical mission work, for example, I might argue at that point.
Jeff Segal, MD, JD
Let’s go through the anatomy of a case. If somebody gets a Board complaint, what do they often see? What triggers the typical Board complaint that requires a reaction? And of course, not all complaints merit attention by the Board. Sometimes the complaint gets snuffed out before it even gets started, correct?
James McClendon, JD
Well, not in Texas. If the complaint letter is filed in Texas, unless you have filed a complaint with the Texas Medical Board against a veterinarian, which would get snuffed out for jurisdictional reasons. Basically, in Texas, there’s a statutory duty to notify the doctor about every complaint that comes in. And a doctor in Texas has at least 28 days to respond to the complaint. Now, a lot of them get snuffed out after the response is filed and before an investigation is opened. But of course, I don’t know about those that are never brought to the doctor’s attention and are snuffed out early.
But it’s my understanding that unless it’s just patently non-jurisdictional like in my veterinarian example, the doctor will receive a letter from the Texas Medical Board with the opportunity to respond. Typically, complaints come from the patient. That’s not an absolute, though. There are plenty of other sources of complaints. They can come from the patient’s loved one. I have many examples where the patient is very happy with the physician’s care, but a loved one, a sister or a husband, is not happy with the care and files a complaint against the doctor.
And it makes for an awkward situation when the physician is trying to determine whether to continue the patient-physician relationship in a situation where there is a complaint against him involving his or her care for the patient.
Another big source for Medical Board complaints comes from disgruntled ex-employees. A lot of times these employees will think they’re seeing the doctor do things wrong or see the doctors doing things wrong and file complaints with the Texas Medical Board.
Disgruntled ex-spouses oftentimes file complaints and use the Board as potential leverage in their divorce action. I’ve never quite understood that one, but we do get that a lot. Insurance companies file complaints a lot. Those are usually related to either billing issues that insurance companies witness, and I’m talking about the Aetnas and the Cignas of the world, or that they have seen a pattern of excessive billing, for example, billing for a Level 5 code visit on every patient. Sometimes the complaints come from other sources. I would say 70% of them are patient-driven, and I would estimate 30% are not patient-driven.
Jeff Segal, MD, JD
Once the doctor gets the complaint, what’s the next step? Let’s say they’ve called you up on the phone, they’ve educated you on their defense or their fact pattern. I’m sure the clock starts ticking at that point because you want a timely response. But what is it that they can expect in terms of getting a response put together, how they can participate and help, and what’s the universe of options based on this stage of the process?
James McClendon, JD
In Texas, you get 28 days to respond to the complaint, not from the date you receive the letter, but from the date the letter is mailed. And so oftentimes it takes a week to get brought to the doctor’s attention. I feel lucky when I get hired and have three weeks, 21 days to get the response put together. At that point in time, I usually need all the medical records for that patient.
Jeff Segal, MD, JD
Right.
James McClendon, JD
We secure the medical records. And typically, I have my clients send me a narrative of the background for the care for the patient and then a specific response to each of the allegations. Like the allegation may say, “You failed to meet the standard of care and the treatment of patients X and Y by failing to timely call about the lab results, by failing to timely refill prescriptions, and by having your staff be mean to them,” which is a common complaint in Texas, believe it or not.
So, doctors, tell your staff members to be nice to the patient and bend over backwards to keep them happy, because, under the Medical Board’s rules, if your staff is mean to the patient, your license can get dinged. Don’t want that to happen.
Jeff Segal, MD, JD
You could be the nice one, even. Your staff can be mean, and you’ll get beaten up because of the staff you hired.
James McClendon, JD
That’s exactly right. Your staff reflects you, and you’re responsible for your staff. It’s obvious that you’re responsible for your medical assistants and your nurses and your nurse practitioners, but it’s maybe less obvious that you’re also responsible for the receptionist, the front office people, the billing people.
A lot of times complaints come in when the doctor has the audacity to try to collect the bill and the patient will file a complaint that the doctor is threatening to send them to collections. Be careful about that. You’re going to win that complaint more than likely, especially if you bill appropriately, but your conduct then gets on the Texas Medical Board’s radar, and you’re going to have to produce your medical records and the billing records, and somebody might go through those and start closely examining them.
And while it was perfectly okay for you to send this case to collections, they may notice that your medical records aren’t up to their standards. And complaints can morph and result in investigations into matters unrelated to the issues that spawned the complaint in the first place. You want to stay off the Medical Board’s radar. But once I get input from the physician in terms of the medical records and their narrative, my staff and I go to work.
We turn that input into a well-drafted response that talks in terms of the physician being a very good physician, how long they’ve been practicing, if they’re board certified, etc. We state that we feel under these circumstances, the physician met the standard of care in all respects. We write a letter that cites the medical record. We supply detailed information, but only detailed information relevant to the complaint. We don’t overshare.
I tell my staff and my team members to spoon feed the Board data so that they can see our statement in the letter.
The goal is to get the complaint dismissed as early as possible. Sometimes you’ll need witness statements. For example, if a staff member violated HIPAA by talking about a case in the lobby, the doctor may not have known what was even happening. And so, the doctor will be relying on the staff member to write a letter saying, “I do recall this patient. I did not talk about any specific medical care in front of the patient in the open. And in fact, I recall that when she kept asking me questions about when the doctor was going to schedule an appointment for her follow-up, I asked her to step inside another room so that we could talk about this privately.”
Once all is packaged and put together and sent to the Board, the Texas Medical Board has a fixed number of days to either dismiss the complaint or open an investigation. Some cases almost always result in an investigation, no matter what your response. Alleged inappropriate sexual conduct almost always goes to investigation. Those involving a patient death almost always go to investigation. But there’s a good chance, and I’d say probably in Texas, 70% of them are dismissed based on the initial response letter.
But a lot of those that get dismissed on the initial response letter are those that simply state a staff member was mean. To me, it’s always phrased differently than that. But in general terms, we see a lot of complaints about staff members or the doctor being mean to the patient.
And if you’ve got a chaperone in the room, that can work in your favor. For example, if the chaperone signs a statement that says he (or the doctor) wasn’t mean to the patient, and in fact they both treated the patient with respect even after the patient lost his temper, those are the types of circumstances that typically are dismissed in that initial 45-day time period.
Jeff Segal, MD, JD
Let me start with the spoon-feeding of the medical records. I think there’s a tendency to send superficial responses to the Board stating the following: “All of this is in the medical record – just read it.” Cue the unorganized pile of papers in a wheelbarrow dropped off at the Board of Medicine’s office.
Contrast this with a crisp narrative and pulling out the quotes and showing which page number and which line numbers in the record support a response.
Again, I know it sounds like such a minor thing to do, but these are busy people. They’ve got 1,000 things going on and they do not have the time to go through a 400-page medical record. But the ball is in your court. If you make it easy for them and point out the relevant defense points, then it’s likely to be received more positively than a comparatively disorganized record. That’s a really important point.
James McClendon, JD
I agree. And a corollary to that is this: Don’t overproduce medical records in your response.
If the complaint involves the date of service of June 26, 2021, and you can respond to the complaint by just referring to the records of June 26, 2021, even though this has been a long-time patient of yours, just stick to the date specified. I never produce too many records because it goes back to the idea that if you give them lots of stuff, they start looking through it, and they may find a deficiency completely unrelated to the complaint.
Now, sometimes we must give them the entire medical record, like in an OBGYN case or a baby delivery case. You’ll want them to see the entire record leading up to whatever the problem was at birth. But often if it’s just a complaint involving a specific date of service, give them only the records for the dates they ask for. Don’t give them anything else.
Jeff Segal, MD, JD
You mentioned the value of a chaperone. And there is an intuition that a chaperone is certainly mandatory or at least a good idea when you’re doing intimate examinations. For example, if it’s a gynecologic examination. If somebody’s in stirrups for an examination, then having a chaperone in the room would be helpful.
I’m curious as to your opinion on having a chaperone in the room for men having a prostate examination. Does that follow the same rules? Because when I’ve had a prostate exam, I probably would prefer no one else being in the room. But I wonder if making the option available and having the patient make the final decision is beneficial. This is 2022. The rules have changed in our society. Things that may have been acceptable 30 years ago are not acceptable any longer. Any guidance on that?
James McClendon, JD
Guidance, yes – hard and fast rules, no. In today’s world, literally anybody at any time can file a Medical Board complaint against you. It is fantastic if a physician has the luxury of a scribe in the room with them because no one knows what kind of fact pattern a patient might imagine in their head or fabricate. It would be awesome if every physician could always have either a medical assistant or a scribe in the room with them. That’s not possible, though, economically, and I understand that.
But many times, that has helped me get a physician out of a Medical Board complaint because there actually was a person in the room, not a chaperone in the sense of these gynecological exams, but in the sense of having a witness present to assist the doctor. Medical record documentation is so important for protecting yourself in front of the Medical Board. If you’ve got a scribe that can put detailed notes into the record, that’s fantastic.
But as far as Texas is concerned, there are no hard and fast rules in the Medical Practices Act that dictates when you do and when you don’t have to have a chaperone in the room for an intimate exam. I think it’s generally accepted standard of care, though, that if you are going to be examining any sensitive part of either the same sex’s body or the opposite sex’s body, that you certainly would want a chaperone in the room, not only to make the patient feel more comfortable, but for your protection as well.
The prostate exam, I’m old enough to have had those, and I don’t ever get offered that option by my physician. You raise an interesting point, though. There is a potential vulnerability there though, Jeff, that you put your finger on – that’s just a bad pun right, though.
Jeff Segal, MD, JD
I was going to point that out if you didn’t.
James McClendon, JD
You must be careful as a physician in today’s world, certainly. And there are situations where the physician deserves to have a Medical Board complaint filed against them. But I have defended plenty where the physician did not deserve to have a complaint filed against them. And if there had been a chaperone in the room or a scribe in the room or a witness in the room, that would have saved a lot of heartache and turmoil for that physician.
Jeff Segal, MD, JD
And it’s hard to predict what allegations will be made. We worked with a client out on the West Coast who was just doing a normal physical exam. No clothes were removed, no intimate body parts were examined. I believe he was just listening to the chest for breath sounds, just to make sure there weren’t any problems, just doing a standard physical exam.
And the woman was irritated for whatever reason and filed a complaint with his employer, filed a complaint with the Department of Public Safety, and ultimately filed a complaint to the Board alleging that while he was performing the examination, she didn’t say anything about him touching her breast inappropriately, the allegation was that he was grinding his groin into her knee. Grinding his groin into her knee. The follow-up was a two-year saga, and I can only imagine that had a scribe been in that room, it would have shaved off just under two years of that problem. But it lingered for quite a while, and I felt horrible for him.
James McClendon, JD
I’ve encountered that fact pattern dozens and dozens of times and that’s why I got a finance degree from the University of Texas. And so, I know the economics of having a scribe in the room, but if it is a luxury that a physician can afford, I certainly recommend it.
Jeff Segal, MD, JD
What a great argument. I’d never thought of a scribe serving a double role, not just documentation, but also as a professional witness, if you will. I think that’s a great idea.
I’m kind of going around here, but some of this is related to things that I’ve seen recently.
In one case, and I’ve seen this on more than one occasion, a patient says, “I want you to give me my money back, or I’m going to file a complaint to the Board of Medicine.”
In a sense, it’s veiled extortion and the doctor doesn’t know what to do. On the one hand, he may be thinking, “I don’t want to create a problem with the Board of Medicine, so I’ll just pay them off and hopefully they just will honor their end of the bargain and not file a complaint.”
But in their heart of hearts, they don’t believe they did anything wrong. But the Board of Medicine is not designed to be a point of leverage to allow a patient to achieve personal gain. It’s not designed to squeeze the doctor to open his pockets and pay the patient off. In such circumstances, sometimes I wonder whether it makes sense, and I’m of two minds on this, to just write a preemptive report to the Board describing what a particular patient is threatening and make it clear they are trying to extract cash from the doctor in exchange for not filing a complaint.
Because I think if they do it in advance of the patient making good on that threat, then the doctor has explained it up front as opposed to reacting after the fact. But I can certainly understand the flip side: Why alert the Board to a potential patient problem and get yourself on the radar? Do you have any general thoughts on that?
James McClendon, JD
I’ve never thought about a preemptive strike, and typically I get involved after the complaint gets filed, so it would be too late to do that type of preemptive strike. It’s an interesting idea and potentially worth exploring in those types of situations. I’ve encountered that fact-pattern myself on several occasions.
And I make that front and center in my response to the Board that the patient is using the Board improperly to obtain leverage, to skirt an unpaid bill, or to get their money back in a situation where the standard of care was met in all respects.
Now, having said that, if a doctor did make a mistake, I would make sure I contact the medical malpractice carrier and discuss with them the best way to handle the situation because you certainly don’t want to create an admission of liability by refunding the money. But at the same point in time, if that’s potentially the appropriate thing to do, it can help you out at the Medical Board level. That’s where you must work two different pathways simultaneously.
Jeff Segal, MD, JD
And one cautionary tale to our listeners is that if you give a patient money back in exchange for a release, certainly one term you can put in that release is that they can’t sue you for your past treatment. On the other hand, there’s a tendency for doctors to believe incorrectly that the patient is sworn to silence and cannot file a complaint to the Board of Medicine.
And I’ve seen that term in release agreements. I don’t think that they are enforceable because I believe it’s against public policy. And I’ve certainly seen one doctor get crushed in California when records were requested, and he said, “I can’t give them because I signed a mutual confidentiality agreement with the patient.” They said, “If you don’t give us his records, we’re going to revoke your license.”
And I’m accelerating the timeline for how this played out. But my point is that the purpose of the Board, among other things, is public safety, and a patient cannot leverage any rights to sidestep the Board’s mission, which is public safety. If that’s a term in a release agreement, I’d be cautious about leaving it in there.
It’s the type of term that I believe is unenforceable and more likely than not to create a problem.
James McClendon, JD
In Texas, we have a rule that says you can’t interfere with a patient’s right to file a complaint, and that can be a separate violation of the Medical Practices Act. And I can assure you that those type of clauses that say, “In exchange for this money, I, the patient, promise not to file a Medical Board complaint,” would be unenforceable against public policy.
Jeff Segal, MD, JD
Food for thought. In the interest of time, we’re going go through quickly the whirlwind tour. Let’s say that the doctor (who has a Board complaint) learns that the Board is opening an investigation and they’re moving forward with wild abandon and that this process is not over. The process continues. What can the doctor expect next?
James McClendon, JD
In Texas, the Medical Board will notify you that you are under investigation. They’ll ask you to fill out a two-page medical practice questionnaire, which gives basic statistical data about your practice and asks questions like, “Have you ever been arrested before?” And you certainly want to tell the truth because you don’t want to create any other problems. You will then get a subpoena for the medical and billing records, and you will have to produce it.
For example, if you had just given a response for that one date of service and they ended up opening an investigation and you had seen this patient for three to five years, they would subpoena the entire medical record at that point in time. You would be duty-bound to produce the entire medical record and the billing records, along with an affidavit affirming that this is a true and correct copy of all the medical and billing records. Medical records include all labs, prescriptions, portal communications, patient communications, telephone notes, internal communications, et cetera. Then in Texas, it kind of goes into a hole.
After you’ve produced all of that, your response and the medical records pursuant to the subpoena, Texas has a statutory duty to conclude its investigations within six months. However, if they don’t conclude their investigation within six months, their only duty is to write you a letter explaining why they haven’t completed it within six months.
But eventually you will get another letter in the future, either saying, “We’ve reviewed this completely and we’re dismissing it,” or “We reviewed this completely and we’re going to offer you a slap on the wrist,” or “We reviewed this completely and we’re inviting you into the principal’s office to discuss this with representatives of the Texas Medical Board.”
One of three outcomes.
During that six-month period, the Medical Board has your case reviewed by two outside board-certified experts in your area. If those two experts agree that you met the standard of care, you’ll get that letter that says the case has been dismissed. If the two experts agree that you have not met the standard of care, you will get the letter inviting you to talk about it in the principal’s office. And if those two experts disagree, they must hire a third expert to review it to be the tiebreaker.
Jeff Segal, MD, JD
Does the doctor know who those experts are in Texas, or are they anonymous?
James McClendon, JD
We do not, they’re anonymous, just like whoever files the complaint is anonymous. That’s a point I didn’t make earlier. I walked through all the different people that could potentially file a complaint.
By statute, the doctor is never allowed to find out who filed the complaint. The complainant can waive their right to their confidentiality, and the doctor can find out. The same rules apply to the expert reviewers. They’re assigned a number. They’ll give a brief description about the expert in the expert report.
It will say: “Such and such is a board-certified family practice position that has been working in a large metropolitan area for 25 years.” And that will be all you know about the Board’s expert.
Jeff Segal, MD, JD
You don’t really know about their CV, their background, training, and experience, correct?
James McClendon, JD
Nothing.
Jeff Segal, MD, JD
Once the record has been reviewed by experts and let’s say it is a standard of care violation, what is the universe of options the Board has at its disposal to get a resolution for this? Do they propose a resolution?
James McClendon, JD
They can. One, they can dismiss it if the experts agree that there’s no violation of the standard of care.
Two, if the experts believe there was a violation of the standard of care, but it was a minor deviation, or that communication could have been better, or if the documentation could have been better, the Texas Medical Board can propose what’s called a remedial plan, which I call a kind of the proverbial slap on the wrist.
It’s non-disciplinary, so it’s not reported to the National Practitioner Data Bank, and there is no fine attached to it. If you’re asked in the future if you’ve ever been disciplined or if you’ve ever paid a fine and you agree to one of these remedial plans, or you eventually get a remedial plan, you can truthfully answer “no.”
Your name is not put in the quarterly newsletter of doctors that were disciplined by the Board, and so your name does not get broadcast out in that press release that goes to all the doctors, newspapers, insurance companies, the National Practitioner Data Bank, et cetera.
It is, however, posted on your physician profile so that if anybody looked you up on the Texas Medical Board website, they would see that you received this remedial plan.
The third option is to invite you into the principal’s office.
It’s called an informal settlement conference, where you get a letter that gives you the results of the Board’s investigation, including the expert reports. It gives you 45 days’ notice that you’re going to come talk to the Board and allows you an opportunity to provide a written response 15 days in advance of your informal settlement conference.
In Texas, the informal settlement conference is attended by, under statute, one physician Board member or a deputized Board member that’s a physician and one public member.
The Board wants equal representation at the settlement conference, one physician, and one layperson public member. The Board staff attorney will be there. There will be a Board staff attorney that runs the meeting, and then there’ll be your attorney, along with yourself. And it’s your opportunity to discuss with the Board members and answer their questions, go over in depth your response that you filed 15 days in advance. They often prefer to hear from the doctor, rather than the doctor’s attorney. The limelight is on the doctor.
They want to hear what happened in the doctor’s own words. The attorney has a role to play here, though. I set the stage with an opening statement. I will talk about any of the legal issues that are involved. And then I’ll kind of help the doctor go through a dog and pony show by asking them questions to prompt them and elicit their response, to put the best light on their case and explain it to the panel members.
But at any point in time, the panel members can interrupt and say, “Hey, we’ve read your response. We got a couple of questions.” When that happens, I tell my clients to shut up, listen, and answer their questions. You answer their questions thoroughly.
This is the time for you to admit that some of the things you did were not your finest moment, that you have learned from it, that you’ve benefited from this process, that you’ve put steps in place to make sure this sort of stuff won’t happen again.
But as I tell my clients, it’s perfectly okay to disagree with the panel members.
It’s the way you disagree with them that’s important. Don’t cop an attitude here. Be respectful. I don’t care how flippant the question is: You don’t give a flippant response. You give a thoughtful response. But at the same point in time, if you could have done better, this is the time to let them know that.
Jeff Segal, MD, JD
I frequently tell doctors to think of this as if there was a bad outcome or judgment lapse for one period of time. Think of it as a snapshot, not a movie. You’re trying to portray that this is a one-off. And to your point, you’ve learned from it. Steps have been put into place so it’ll never happen again.
I think if the Board is left with that impression, they’re going to go softer most of the time, compared to somebody that comes out there with brass knuckles looking for fight.
James McClendon, JD
You can feel the tension evaporate if the doctor comes with the right attitude, no question about it, especially if you say, “I could have done better.”
The Medical Board’s job is to protect the public. And once they realize that you’re a caring, compassionate, knowledgeable physician, that works in the favor of the doctor. Once they figure that out, then they just have to figure out what the right thing to do is at that point in time.
And they’re not so much worried about protecting the public. They’re just trying to figure out what’s the right thing to do in this circumstance, given that the doctor’s got a good attitude about this. He clearly didn’t do as many bad things as alleged against him, but he could have done better. And that’s usually when the remedial plan starts coming into play, or sometimes you get dismissed, even when you came in there and admitted you could have done better and that you’ve learned from this. I would say once you get to the informal settlement conference stage, all is not lost.
A lot of my clients will think, “Oh, well, I’m getting called into the principal’s office. I’m going to get disciplined.”
No, that is not necessarily true. We’re going to defend your in there. We’re especially going to defend the standard of care, especially when it’s a righteous defense of the standard of care. We can talk in terms of, yes, you could have documented better, but all doctors can document better. The standard of care for documentation is generally, could another doctor pick up your case if something suddenly happened to you and had to take over the patient care? And I will generally argue that, yes, that is present.
Now, sure, he could have put more of his thought process into why he or she did something, but in general, this documentation does meet the standard of care, but it could have been better. I walk out of these principal’s office meetings with quite a few dismissals, and I provide my clients with assurances that that can happen.
Jeff Segal, MD, JD
Once you’re done with that meeting, what’s the next step? Let’s assume beyond dismissal, because dismissal is a great outcome. You’re done. Everybody is doing high-fives. I think that’s a great outcome. But in terms of a remedial plan, is that the type of thing that can be worked on during the informal settlement conference?
James McClendon, JD
No, that’s not worked on during the informal settlement conference. It can get proposed, or an agreed order can be proposed. Both of those are just proposals made by the panel members that day. You do not accept it or reject it right there in front of them. You just say, thank you very much, and you leave the room.
And then the Medical Board attorney reduces tes that remedial plan or that proposed agreed order to written form and sends it to me, and then we have 20 days to respond. It can be wordsmithed some during that time period, I can try to soften the fact findings. I can try to soften the conclusions of law. I can try to soften the discipline.
Like, if they say, we want a monitor to review your records for eight quarters, and there really was bad documentation, I might say, “We’ll sign this if you’ll just give us four quarters of chart monitoring.” There are some negotiations that can go back and forth, but at the end of the day, if an agreed order is proposed and not signed, or remedial plan is proposed and not signed, then that’s when it goes to the State Office of Administrative Hearings and a whole new process starts, which is the Administrative Law Judge process.
Jeff Segal, MD, JD
That’s real court. The Board is on one side, and you’re on the other, but a judge is the one that’s going to make the decision, and the exact rules vary from state to state, but sometimes it’s not even binding at that level. I think it’s probably useful to chat about that briefly.
James McClendon, JD
In general, if it goes to the Administrative Law Judge, the Administrative Law Judge is the final decision maker when it comes to the finding of facts and conclusions of law. And by the conclusions of law, was there or was there not a violation of the Medical Practice Act?
Jeff Segal, MD, JD
Right.
James McClendon, JD
If you go over to the Administrative Law Judge and the Medical Board says you failed to meet the standard of care on this patient, and your medical record documentation was poor, and you go over to the Medical Board and get a finding from the Administrative Law Judge that states the standard of care was met, but yes, the documentation was poor, the judge does not, in Texas at least, do the discipline.
That decision is bundled up and then sent back over to the Medical Board, and the Medical Board gets to make the final decision as to what the discipline law is for the failure to have good medical record keeping.
There are very limited circumstances where the Medical Board can reverse the decision of the Administrative Law Judge on the standard of care. It happens very rarely. There’s a famous case in Texas where it did happen, but I have not had that happen in any of my situations.
Generally, what the Administrative Law Judge says as to the findings of fact and conclusions of law are binding on the Medical Board, but the Medical Board gets the final say on discipline.
Now, if the judge states there is no violation of the standard of care and no violation of documentation is found, then it’s likely to be dismissed by the Medical Board and the physician will likely see no sanction.
Jeff Segal, MD, JD
That’s a great outcome. It does seem to vary state by state. In some states the decision of an Administration Law Judge is persuasive, but not necessarily binding, and frequently they will listen to it.
But I’ve seen situations in other states where you get what appears to be a win, or mostly a win in court, the case goes back to the Board and they say, “Yeah, we got it. But if you really don’t like our ruling at the Board level, you’re going to have to appeal it and take it up to the Appellate Court,” which is yet one more round, more time, more expense, etc.
It seems like it varies state by state in terms of whether the Board must follow the ruling of an ALJ at that level before it goes up to an appellate court.
James McClendon, JD
Texas law has changed over my many years of practice, and it’s gotten better about the Board following what the Administrative Law Judge does. But back in the mid-90s, I had to take one all the way to the Texas Supreme Court. And just before we were going to do the oral arguments before the Texas Supreme Court, my client and I reached a deal with the Medical Board.
But that’s the furthest I’ve had to take one.
Jeff Segal, MD, JD
I love that. I think it’s fairer to the doctor because the whole purpose of a court system is to adjudicate conflict. And if there’s a conflict between the doctor and the Medical Board and they’re both on different sides of the scales, then at least you get a fair shot.
But in other states, it’s almost like a dictatorial process where you take it to ALJ, but it’s not the end of the matter. If you don’t like the way it comes back, you’ve got to go one more round in the appellate system. I like the way Texas has done this and it probably did evolve over time because of some prior egregious acts.
James McClendon, JD
That’s exactly right. The Medical Board is the judge, the Medical Board is the jury, and the Medical Board is the prosecutor.
When I go back to talking about in terms of hiring an attorney that has experience in this area, you’ve got to realize that going into the process, you’ve got to work within that framework and that rubric and achieve the best result for your client within that ultimate kangaroo court setting.
The Administrative Law Judge is one step removed from a kangaroo court because there is an independent judge making the decision of the findings of fact and the conclusions of law. Although it is another state agency, just like the Texas Medical Board is a state agency, the Administrative Law Judge, the State Office of Administrative Hearings is also a state agency.
It’s a sister state agency. But in Texas, I’ll give a big shout out to the State Office of Administrative Hearings and Administrative Law Judges. They are truly independent of the Texas Medical Board and do independent decision-making. I’ll also give out a shout out to the Texas Medical Board. I have worked with them for many years.
I know a lot of clients are disillusioned with the Medical Board, and some of them have every right to be so. But I have seen the Medical Board process work most of the time. What I generally end up telling clients is 80% of the time, I think the Texas Medical Board gets it right.
I think 15% of the time, in my opinion, they get it wrong, but I can see the grey.
And I think it’s only 5% of the time where I’m like, “What the heck just happened?”
And we do have to go to the Administrative Law Judge process. But in general, the Texas Medical Board is a very well-run organization. I think there’s many well-intentioned people there. Again, this has changed over time. We have a fantastic Medical Board as far as membership these days. When I first started out, it was not so kind and gentle and friendly and was used by competitors to get each other. That has gone away over time.
Jeff Segal, MD, JD
Jim, we’re pushing up against our time limit here. I can’t thank you enough for taking us on this whirlwind tour. I’m certain we could speak for hours about various vignettes and the other questions that I have, and I will tap your brain going forward. We’ll have to do another round at some point. Before we leave, do you have any final thoughts for our listeners?
James McClendon, JD
Well, thank you for the time, Jeff, and this opportunity. I kind of tried to do my little summation there at the very end, putting in a plug for the State Office administrative hearings and the Medical Board. I know it can be daunting to doctors. Doctors hate uncertainty, and there is uncertainty when you’re going through the Medical Board process.
But if you get the right lawyer and you trust the process and you generally do the right thing with good intentions, even if you had a bad day, we’re going to get you through the process, we’re going to save your license, and you’re going to have a long and successful career.
Jeff Segal, MD, JD
Boy, amen to that. I’m going to end on that note, because that’s an uplifting note, Jim, thanks again for participating. I can’t wait until we talk again. Thank you.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
