Avenue Q meets the Texas Medical Board
BY HUGH M. BARTON, JD The Tony Award-winning musi- cal “Avenue Q” is an R-rated look at children’s educa- tional television. Among its memorable characters are the Bad Idea Bears, who cheerfully dispense harm- ful advice to the street’s residents. How would they counsel a physician being investigated by the Texas Medical Board (TMB)?
The complaint and investigation letters A case typically starts with a letter stating that a complaint has been received (the “complaint letter”), along with a brief (and usually cryptic) description, and offering Dr. Smith the opportunity to respond before an “investigation” begins. The investigation letter typically informs Dr. Smith that an investigation is being commenced and directs him to complete a Medical Practice Questionnaire and send any relevant information not previously sent. How would the Bad Idea Bears respond? Ignore it. No one said the practice of medicine is a popularity contest. What are they going to do, any- way? After all, it’s just paper with words on it. Send a cranky response. The nastier the better.
Characterize the complaint as “felonious, outrageous, and slanderous.” Refer to TMB staff as “Gestapo,”
“KGB,” or “goons.” Demand an apology for wasting your time.
Respond but don’t say anything. Tell TMB that you
are a good doctor who did nothing wrong. Tell them that when someone with even minimal medical train- ing — certainly not TMB staff — reviews the records, he or she will see that the treatment was exemplary. If TMB is so smart, they can figure that out for them- selves. Copy everyone. Send copies to every medical so- ciety of which you are a member, all of your elected representatives, including the governor, U.S. senators, U.S. representatives, state senators, state representa- tives, chairs of legislative committees, and so forth, so TMB will be intimidated because everyone important knows you are being treated unfairly.
Don’t worry if your answers on the Medical Practice
Questionnaire don’t match your last license registra- tion form. Where specific questions are asked, such as what is your average weekly patient caseload, answer “none of your business.” TMB doesn’t need to know such things.
Reality Check: A physician must respond in writing to all written board requests for information within 10 days of receipt, and failure to do so may, in itself, be grounds for disciplinary action. Nasty responses and copies to politicians never deter investigations.
Medical records In a case involving the charge of inappropriate or inadequate patient care, TMB will want to see the medical records of the patient(s) in question. The investigation letter will ask for the records within a specific time. Sometimes TMB will issue a subpoena for the records. How would the Bad Idea Bears respond? Stall. Tell TMB the records are in storage and you will get them when it is convenient. Require consent. Tell TMB that you will release the
records if they give you a valid signed authorization from the patient(s). Demand payment. Tell TMB that you will release
the records when they pay you a copying fee, prefer- ably in excess of what TMB allows you to normally charge. Give the records away. Send original records to the
patient who is the subject of the request and tell TMB you no longer have them.
Reality Check: A physician is required to furnish copies of medical records within “a reasonable time period,” usually 14 days. Patient consent is not re- quired under the Medical Practice Act or the Health Insurance Portability and Accountability Act. There is a fee structure only when records are sought by sub- poena, and this is much less (10 cents a page) than
July 2011 TEXAS MEDICINE 25
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