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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. James is a Partner at Husch Blackwell. James helps doctors survive high-stakes conflicts and come out on top. Medical Justice and James spoke 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

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. 

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Meet Your Hosts

Jeff Segal, MD, JD

Founder & CEO, Medical JusticeDr. Jeffrey Segal is a board-certified neurosurgeon. 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.

James McClendon, JD 

Partner

Husch Blackwell