a physician can charge for routine release. Giving records away to avoid turning them over has resulted in license suspension.
Investigation phase Standard investigative techniques are used, includ- ing interviewing witnesses, obtaining records from hospitals, pharmacies, and other sources, consulting law enforcement agencies, and even undercover op- erations. The physician is not entitled to know when this is occurring. In quality-of-care cases, TMB sends records to a panel of physicians in the same specialty for review and opinion. Identities of the reviewers are not disclosed. Investigations are supposed to take 180 days, but seldom do. There isn’t much the Bad Idea Bears can do to
mess this up.
Informal settlement conference If, after investigation, TMB staff believe a physician has violated the Medical Practice Act or a board rule, it will schedule an “informal settlement conference” (ISC) in Austin. TMB sends notice of the ISC at least 30 days before the date. The notice includes:
• A statement that he or she can attend and partici- pate in the conference,
• Specific written allegations, and • A copy of information the board intends to use. In quality-of-care cases, this includes the expert panel’s report stating the facts, the standard of care, and its application to the facts.
What do the Bad Idea Bears advise about the ISC? Attendance. Schedule patients that day and tell TMB you are too busy to attend. That way, they will respect you for the dedicated physician you are. Dress. Though panel members will wear business
suits, wear a lab coat (or scrubs) and carry a stetho- scope. This way, the panel knows you’re serious about medicine and have to get back to work immediately. Demeanor. First, express displeasure at being sum- moned to a ridiculous meeting. Then, like a politician, don’t answer the questions asked, just the ques- tions you want to answer. Clearly indicate that the
26 TEXAS MEDICINE July 2011
panel cannot grasp the complexity of the case or the subtleties of judgment needed for proper care. If the complainant turns out to be another physician or in- surance company, dismiss the matter as nothing more than retaliation by jealous persons. The complainant has a right to attend and speak. When the complainant attends, yell “I’ll get you!” so that he or she will know not to do it again.
Reality Check: Failing to attend will not stop the ISC, so the panel recommendation may be much worse than if one attends and defends oneself. Or, the panel might recommend filing of a formal complaint. The panel will not be impressed by clinical garb, espe- cially if you live outside Austin. Likewise, expressing contempt for the ISC panel rather than dealing openly with the issue at hand is counterproductive. Whether someone is retaliating is not TMB’s business — it only matters if the complaint is true of false. And intimi- dating the complainant demonstrates that a physician may be dangerous to the public (not to mention con- vincing the complainant to seek a restraining order).
After the ISC The ISC panel will typically either recommend dis- missal or recommend an agreed order imposing some sort of discipline. Post-ISC negotiation may be pos- sible, but consult your lawyer first. If understanding cannot be reached, a formal complaint is filed at the State Office of Administrative Hearings (SOAH), be- ginning a new process. What do the Bad Idea Bears think about this? Automatically take the case to SOAH. Say the panel
recommends a $4,000 fine, three years of medical chart review, and 30 hours of focused continuing medical education (CME). Go to SOAH because you really think a $3,000 fine, two years of chart review, and 20 hours of CME is more fair. What’s another year (and more legal fees) to resolve the case? Accept the order and then try to get out of it. So
what if you are told at the ISC that the agreed order is public. So what if the agreed order states “This is a public order” right above your signature? Complain if the local newspaper publishes a story about your case and demand the order be rescinded.
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