Austin Family Law Attorney
Adverse Peer Review & The Texas Medical Board
Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee. This relationship is a two-way street as under state law a peer review committee must report to the TMB the results and circumstances of any peer review that adversely affects a privileged physician. Such a committee must also report when a physician surrenders their privileges in lieu of subjecting themselves to a peer review. See §§ 160.002 and 164.051(a)(7) of the Texas Medical Practice Act. Upon receipt of this information, the Medical Board will start their own investigation which will very likely lead to a licensing action. This is a complex area of the law dealing with issues related to state medical licensing, privileges, hospital by-laws, and confidentiality to name a few. It readily illustrates the house of cards nature of the legal issues surrounding medical practice: remove one card and the rest can quickly come tumbling down.
The Medical Practice Act generally treats peer review records as strictly confidential and only available after the physician waives privilege, however, the Texas Medical Board, along with other state licensing boards and certain government agencies, is legally entitled to the records of a negative / adverse peer review. § 160.007. Yet, the Act still requires the TMB and the State Office of Administrative Hearings to maintain the strict confidentiality of such records. § 160.006(d).
The peer review process itself is governed by each individual hospital’s set of by-laws, a complicated set of rules setting out the grounds for when a physician’s privileges can be suspended or revoked and outlining the procedures which the committee and hospital must follow. Most by-laws provide that an attorney will be on hand to provide the committee with any needed legal advice. Furthermore, another lawyer may be responsible for presenting the case in favor of restricting, terminating or suspending the physician’s privileges or scope of practice. The physician is also allowed to retain their own attorney to represent their interests before the committee.
Because the peer review committee is generally made up of physicians and administrators from the hospital and local area, one of the dangers of this procedure is that it has the potential of being misused by a disgruntled or opportunistic colleague. A few of the reported cases have included particularly egregious situations where rivals have inappropriately used the review as a platform for an inquisition against every real or perceived past mistake of the doctor. Texas statutory and case law rightly recognizes this danger and provides powerful civil penalties against fraudulent peer review in order to protect the physician. As a result, most hospitals are advised to ensure that all or nearly all of their committee membership consists of non-local physicians who do not compete with the physician under review so as to ensure a disinterested process.
The interplay between the Texas Medical Practice Act and a hospital’s by-laws can be complex. On its own a negative / adverse peer review action can trigger the disciplinary process at the Texas Medical Board while much of the conduct that can beget a peer review can also be grounds for an investigation and disciplinary sanction at the TMB. See § 164.051(a)(7). A negative result under either can be ruinous to a physician. Potential consequences include the loss or restriction of the physician’s state medical license, their privilege to practice at a particular medical institution and the initiation of review procedures by provider networks. The likelihood of a positive outcome is best secured at the hands of an attorney with ample background in each environment who is knowledgeable of the likely impact a given result in one will have on the other.
TMB & BNE's Policy on Deferred Disposition Arguably Unlawful
Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.
Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients. Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.
