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

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.

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