September 2007

Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.

Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.

Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e).  Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.

Continue Reading The Vanishing Informal Conference & The Texas Board of Nursing

The resignation last week of Keith Miller, MD, a 2003 Perry appointee to the Texas Medical Board, has sparked an outpouring of relief and further recriminations from the beleaguered doctor’s many critics.[i]  A longtime member of the TMB’s disciplinary committee, Dr. Miller claims his resignation is due to the enactment of a rule law barring Board members from serving as expert witnesses in medical malpractice cases. Dr. Miller, who has a long history of serving as a plaintiff’s expert in such cases, believes his resignation was necessary to prevent any appearance of a conflict of interest.[ii]

Opponents of Dr. Miller have alleged that he has exploited his position on the Enforcement Committee, which has the power to revoke and restrict a physician’s state medical license, in his role as an expert witness.[iii]  They claim his involvement in disciplining doctor’s who have violated the Medical Practice Act, including standard of care allegations, at the same time that he has maintained close connections with the plaintiff’s bar and served as an expert, has placed a cloud of impropriety on the Board. In fact opponents could point to his resignation in response to a new Board Rule addressed to precisely this issue as vindication of this claim. 

However, critics of Dr. Miller’s tenure have further accused him of improperly using his position on the TMB to transform the Enforcement Committee into a virtual arm of the insurance industry.[iv]   Board Rules allow anonymous complaints to be made to the TMB which can then serve as the basis of a disciplinary action. Aggrieved physicians have alleged that insurance providers who are dissatisfied with the level of care provided to a covered patient have used such anonymous complaints as a way to punish doctors and maintain low cost levels. Such physicians point out that it is not actually the standard of care which motivates these anonymous complaints but rather a doctor’s decision to supply care whose cost exceeds insurance company guidelines and therefore hurt profits. These maligned anonymous complaints originate from the insurance providers and not the actual patients. In fact the patients whose care is supposedly at issue are frequently surprised when notified of the pending disciplinary action and often testify in favor of their doctor.

Continue Reading Member of Texas Medical Board Resigns Amid Flood of Criticism