The Informal Settlement Conference hearing is both interesting, misleading and most importantly a misnomer in that in most cases it is a "kangaroo court" and lately no more than a mechanism to extort and /or "bully" Texas physicians. Normally there are two members of the Board, usually not of the same specialty as the accused physician. They are there to determine whether or not the doctor is guilty as has been determined by the "reviewer" who has opined that the allegations are valid. The State’s " reviewer" however is not present to discuss/ defend his/her claim of the defendant’s inadequacies. How is this "due process?" A more appropriate way of dealing with this is to have the "expert reviewer" from the State be in the same room as the other person and discuss this issue in front of the Board members. A truly peer to peer discussion is the right thing to do.

After the Informal Settlement Conference is complete, the defendant can either accept what the TSBME has decided or ask for a S.O.A.H. hearing. The S.O.A.H. hearing is then heard by an Administrative Law Judge. Only then will the defendant ever meet the "expert reviewer." The S.O.A.H. hearing does not occur immediately after an informal hearing, and in fact, if the TSBME wants to remove that practitioner’s license, then they can do that prior to the S.O.A.H. hearing. Suspension of a practitioner’s license has become of late another interesting sideline of the TSBME. It is up to the disciplinary hearing panel (composed of two physicians and one layman) to decide if that doctor’s license should be suspended based on the findings of usually one "expert reviewer" who again is not present at this very important meeting which may change this practitioner’s life along with his office staff, and other patient’s to whom he or she is treating.
The TSBME must be held accountable and demonstrate without any doubt that the practitioner is a real and true threat to the public at the time that his/her license is suspended, not base its decision on innuendo or on the report of one "reviewer". Taking away a physician’s license is a very serious action and one in which this TSBME should be made accountable for. The ramifications of this action especially if not truly done on merit are devastating on that practitioner. It is incumbent upon the TSBME to have all the facts and have completed a thorough investigation that is "air tight" before even contemplating this action. If the practitioner is later exonerated, those members of the TSBME involved in the suspension hearing should be held accountable for their actions. 

"Due process" or the current lack of due process has become a very serious issue with the way in which the TSBME is attempting to "bring about justice." According to its own regulations, if a practitioner is being considered for a temporary suspension of their license, they are to be notified at least ten(10) days prior to the hearing date. 22 Tex.Adm. Code,187.60(d). The TSBME however has not followed their own rules and has suspended physicians without this basic "due process."A physician apparently received this packet three days after being suspended. It appears that the TSBME is willing to sacrifice and forfeit a physicians’ "due process" in order to demonstrate to its citizens how it is abusing power.

Physicians in Texas are fortunate however to have the ability to request an unbiased evidentiary hearing from the State Office of Administrative Hearings (S.O.A.H.) This body was created to review any disagreements between state agencies and people affected by these agencies. A physician and/or the TSBME may request a hearing in front of an Administrative Law Judge to review a complaint. From the accused standpoint, this seems more independent, fair and implies"due process." The problem however, is that the decision of S.O.A.H. is not final as the TSBME does not have to accept the decision thereby forcing the practioner to go to district court. Why should the legislature give the TSBME the ability to be above the law? The TSBME is required to present their "air tight" case against the accused practitioner just like the accused practitioner is trying to prove his/her innocence. Why should the TSBME be allowed to continue to "harass" a physician who may have been cleared of wrongdoing by an independent body? Since when is the TSBME above the law? The TSBME has become too politicized and needs to have checks and balances placed on it. They, the TSBME has become arrogant as a result of not being answerable to the public for its policies and procedures. In fact it appears that the TSBME believes that it is able to properly function without any help or input from any other state agency. It appears that the TSBME looks at S.O.A.H. as meddling in its affairs. As physicians, we should be thankful that S.O.A.H. is part of the checks and balances put there by the legislature and strengthen its decision making position against the TSBME.

There are several ways of improving the TSBME in order improve its fairness to all. First and foremost, the TSBME intentions and actions should be for the good of all. That means that each case must be investigated thoroughly to identify whether the "standard of care" has been breeched. One way of achieving this is to recruit and appropriately compensate good reliable nurses( R.N.) who must complete competency screening exams as well as complete appropriate CME’s yearly to initially screen the "complaint" before it is passed on to a physician reviewer. It is also important that the "expert reviewing doctor" Board Certified and in active practice, not retired, and not review the same doctor twice. Additionally, if the initial "expert reviewer" has concerns about the accused physician, a second reviewer should be required to evaluate the complaint to double check that the overall process is as unbiased as possible. The burden of proof should be with the TSBME and not the accused physician. The TSBME should not assume as it has publicly stated that the accused doctor is automatically guilty and that " adverse actions" from a hospital or elsewhere are true and not politically motivated. There is an obvious antagonism between the TSBME and the physicians it licenses in this state and this needs to improve. The Executive Director has publicly stated that he will view all allegations as a prosecuting attorney.

Richard B. Willner, President
The Center for Peer Review Justice, Inc
info@peerreview.org

• We need to remove the political overtones of the TSBME. One should not be on the TSBME strictly because they donated money or are politically affiliated with the governor. The TSBME should be made up randomly of one to two members from the TMA and TOMA and several representatives from different specialties. Again, physicians should be the best jury with regards to their own peers. An equal number of M.D. and D.O. representation will also remove any controversy of bias. By doing this, the Board once again becomes medical and not political.
   
• There should be some type of rotation for doctors who review complaints. No physician reviewer should ever review another doctor twice. Additionally, the TSBME relies too heavily on retired or retiring physicians as well as the Executive Director’s cronies to review complaints. Only physicians in active practice who are Board certified should be allowed to review complaints and give opinions since medicine is ever changing and treatment choices are also ever changing. We have many subspecialty societies in Texas. Doctors within a subspecialty should be required to review charts and be held accountable for them.
   
• Blanket immunity from reviewing a complaint needs to be amended. Currently, a physician who reviews a complaint is immune from any liability. This is appropriate as long as the "reviewer" is being fair and unbiased. If one the other hand the "reviewer" is found to be unfair, he or she should face license revocation and possible civil repercussions. If the reviewing doctor feels that there is something wrong with the quality of that other doctor, then that needs to be documented and defended by the "reviewer" at the Informal Settlement Conference.
   
• Accountability as an " expert reviewer" is essential. This issue has become a driving force regarding "experts" in medical malpractice cases where the push is to only have actively practicing physicians who have actually done specific cases are allowed to comment on the accused physician. Physician review by the TSBME is no different since the "expert reviewer" is opining on another doctor’s care.
   
• A complaint system has to be maintained but made more efficient. The complaint itself needs to be written clearly and succinctly. The accused doctor should have a clear understanding as to what the accusations are in terms by stating the allegation(s) instead of relying on generalized statements and numbers written by the case manager to the accused physician. Currently the allegations are too vague and general. TSBME needs to review the complaints in there entirety and come out with a complaint against the physician and not rely on the investigation of others including hospital boards for example before pursuing this accused physician. Additionally, the investigation of the complaint needs to be accelerated. It is not fair for the accused to have to wait in excess of three months to know whether or not he/she has been adjudicated or will have a formal complaint by the TSBME. It also does not serve any purpose to place allegations on its web site that the TSBME has made on an alleged physician since the complaint is "alleged" and has not been found to be substantiated at the present time. Placing the complaint on the TSBME web may make the TSBME feel empowered that they can demonstrate their "usefulness" but in effect it is another form of physician abuse and extortion since the TSBME has not proven their complaint(s) but is already attempting to undermine the physician. This in and of itself is another form of harassment and abuse of power
   
• TSBME needs to investigate and focus on valid claims. Complaints sent to the TSBME come from patients, physicians, lay people, and hospitals. The TSBME needs to stratify and triage these complaints in order to identify "problem physicians." Obviously, if a physician is having many complaints and lawsuits about the same issue from patients, this is more serious than a physician involved in hospital politics. The TSBME should not rely necessarily on purported "adverse actions" coming from a hospital especially if that physician does not have a corresponding malpractice trail. The TSBME should be sophisticated enough to understand that hospital-generated complaints as well as those from competing physicians may, and often do, arise from political and economic "turf battles" and therefore would not warrant the same attention. Malpractice claims although not necessarily indicative of "problem physicians" are potential indicators especially if there is a trend resulting to more morbidity and mortality. The TSBME has another tool which it has not used regularly which involves monthly mortality and morbidity results sent to the TSBME and/or the Texas Dept. of Health which was mandated by the Texas legislature several years ago. This is a great benefit to the TSBME since it can follow all practitioners independently. To date, this monitoring system has not been implemented by the TSBME.
  
• The TSBME relies too heavily on the Informal Settlement Conference when it deals with accused physicians. These hearings are not transcribed and should be made more formal since they require the physician to defend his/her position. When the physician presents to the TSBME to discuss the allegation(s), this hearing needs to follow "due process" and one way of ensuring that is to have it transcribed. In addition, a TSBME member of the same specialty in addition to the "expert reviewer" needs to be present. Currently, a TSBME member who specializes in pediatrics for example, is able to comment on the performance of a cardiac surgeon. This is ridiculous since how can someone of a different specialty have any way of understanding the complexities and treatments of another and properly judge that practitioner?. Additionally, specific actions by the accused physician should be dealt with appropriately if adverse finding(s) are found. At the present time, there is no standard penal code which identifies a specific reprimand with a specific allegation.
   
• "Due process" needs to be practiced by the TSBME. This philosophy is not currently acknowledged or observed by the TSBME which essentially views all alleged doctors as "guilty" until proven innocent. "Due process" means that any physician who is required to come to the TSBME for evaluation needs to have his/her rights protected. The burden of proof needs to be on the TSBME and not on the physician. Why is it that only in medicine is one considered guilty until proven innocent? Unsubstantiated allegations, innuendos, etc. should not be used against a physician in order to discipline him/her. Medicine is complicated and has many approaches. A difference in opinion is not grounds to discipline a physician. The TSBME has a duty to the public at large to review an allegation completely and with an unbiased approach. Only then has it fulfilled its mission to protect the residents of Texas.
   
• The decision of S.O.A.H. (State Office of Administrative Hearings) should not be usurped by the TSBME if not to its liking. The TSBME should not be allowed to attempt to overrule its decision. If allowed to do this, what is the purpose of having a non-biased entity to review the complaint in the first place? This is all about checks and balances.
  The Executive Director, along with each member of the Board needs to be accountable to the physicians who are licensed by the TSBME. The Executive Director as well as the President and vice-president should not be allowed to utilize "cronies" over and over again in order to proceed with disciplinary actions against physicians it is targeting. The Executive Director and his staff attorneys have very little in the way of checks and balances at this time and this can lead to "abuse of power." There is no room for any of these current members and the staff attorneys to have a personal agenda. If so, they should be held accountable for their actions and severely reprimanded. The TSBME has taken upon itself to behave in a free for all manner. A mechanism whereby the TSBME itself can be investigated needs to be developed quickly.
  

Roland F. Texas NeurosurgeonJr., D.O.
1400 Dartmouth Drive
Southlake, Texas 76092
neuroswbs@yahoo.com