The Texas Medical Board Remains Busy Due to High Number of Complaints Filed in 2012

Medical Board

(February 7, 2013): The Texas Medical Board (Medical Board) was quite busy in 2012. While the number of disciplinary action taken had dropped in some categories, it rose in others. In fact, the overall number of complaints filed with the Medical Board was the 2nd highest in the last decade. The Medical Board’s workload numbers for 2012 are now in – a total of 7550 complaints were filed by complainants with the Medical Board against physicians last year. Notably, this was second highest number of complaints filed in the last decade, only surpassed by the number of complaints filed with the Texas Medical Board in 2011. Notably, a total of 755 "Informal Settlement Conferences" were conducted by panels assigned by the Medical Board, 85 of which were later advanced to the formal stage, with cases being filed with the State Office of Administrative Hearings (SOAH). What was the result of this heightened adminstrative activity? An overview of the disciplinary actions taken is set out below.

I. Temporary Suspension Actions Were Way Down From 2011

While the number of disciplinary actions taken against physicians was relatively stable (327) when compared to previous years, the number of "Temporary Suspensions" assessed by the Medical Board was only about a third of the suspension actions taken in 2011 (11 in 2012 versus 32 in 2011).

II. Probation Placement Actions Were the Highest Number in the Last Decade

Notably, 917 physicians were placed on "Probation" by the Medical Board in 2012. This was the highest number of probation actions taken in the last decade.

III. Why Are the Number of Complaints Filed with the Medical Board Continuing to Rise?

At the outset, it is important to keep in mind that Medical Board complaints can be generated in a number of ways. In recent years, the number of complaints filed by disgruntled or unhappy patients has continued to rise. Two of the primary reasons for this increase include:

  • Physicians are treating an educated, consumer driven public. Now, perhaps more than ever before, patients know their "rights" and will not hesitate to complain if they believe that their concerns have been ignored, their care has been substandard, or that they have been treated unprofessionally by a physician or other licensed clinician.
  • Filing a complaint is as easy as filling out a form. Moreover, it can literally done online, with relatively little effort on the part of the complainant. With the advent of the internet, it is easier than ever for a patient (or a member of their family) to file a complaint with Medical Board. Complaints may now be filed online.

The three primary reasons cited in a complaint against a physician include:

  1. "Practice of Medicine Inconsistent with public health and welfare; unprofessional conduct which may endanger the public;
  2. Non- therapeutic prescribing/administering of a drug or treatment; and
  3. Inability to practice medicine by reason of mental or physical impairment (alcohol or chemical abuse, mental or physical condition)."

Importantly, patients and their families are not the only parties to file complaints with Medical Board against their physician. We have represented a number of physicians in cases brought by another licensee, where it is alleged that a physician has engaged in unprofessional conduct which allegedly triggers the complainant’s statutory obligation to file a complaint against their fellow clinician. While a number of these cases are undoubtedly filed in good faith, we have seen the complaint system "used like a club" by one physician against another because of a personal grudge, a business dispute or even a failed romance.

Finally, physicians need to keep in mind that both Medicare contractors (such as Zone Program Integrity Contractors (ZPICs) and private insurance payor Special Investigative Units (SIUs) are now actively filing complaints with Medical Boards around the country due to payor billing concerns (such as alleged upcoding, double-billing, billing for services not rendered and billing for medically unnecessary services). In some states, the reverse has occurred. When a Medical Board has found that a physician has failed to provide adequate supervision or may have engaged in improperly billing, referrals have been made from the Medical Board to the ZPIC in their state. This often results in a new round of billing reviews and audits by ZPICs (and later SIUs) of the physician’s billing practices.

IV. What Can You Do to Reduce the Likelihood of a Medical Board Complaint?

To the reduce the likelihood of a Medical Board complaint, a physician needs to ensure that he/she is readily accessible to patients and their families. Moreover, let your patients know that you are interested in hearing their views regarding the quality of care provided, the administrative efficiency of your staff, and any concerns which might arise in connection with the cost of care. Steps to take would include, but are not limited to:

Listen to your patients. Many complaints filed with the Medical Board are the result of bad communication practices between a physician and his / her patient. A patient with a complaint wants an opportunity to share his/her concerns with you. Listen to your unhappy patients. Are their grievances legitimate? You will undoubtedly find that some of their issues are, in fact, valid. Use this opportunity to improve your organization. Moreover, by showing your interest in the patient's complaints, you will serve as a role model for your staff.

Follow-up with your patients. Return their calls if an issue has not been resolved. Be responsive. The business of medicine is getting more and more competitive each year. By resolving a patient's concerns, you will likely keep the patient as a client and may avoid alienating the patient and giving the patient a reason to still recommend you to their peers.

Don’t be afraid to set up a Complaint Hotline or E-mail Address for patients to lodge any concerns that they might have. Let patients advise you of their concerns rather than feel that they have no choice but to go straight to the Medical Board with their concerns.

Patients often don’t know how to read an "Explanation of Benefits" (EOB) form sent to them by Medicare or their private insurance company. This confusion may lead a patient to believe that your charges are incorrect or that certain billed services were not rendered. Take the time to have someone on your administrative staff explain to patients how charges are likely to show up on their EOB./em>

Importantly, a number of complaints filed against a physician are the result of statements, improper actions or the failure to take an action by someone on your staff. In many cases, the complaint is caused by your lowest-paid, least trained staff member – your receptionist. We have worked on cases where the staff member failed to mail out a patient’s lab results in a timely fashion, ultimately resulting in a Medical Board complaint. Our attorneys have seen cases where an administrative staff member accidentally switched two sets of medical records, resulting in breaches of Personal Health Information (PHI). The bottom line is this regard is relatively simple – train each and every member of your staff and ensure that they know their obligations and the adhere to practice policies and regulatory requirements.

Finally, develop and implement an effective Compliance Plan. Identify potential weaknesses in your organization and take remedial steps to fix them.

Robert W. Liles - Managing Partner - Senior Health care attorneys - Liles Parker

Robert W. Liles, JD, serves as Managing Partner at Liles Parker. Robert and a number of other firm attorneys have represented physicians in a number of State Medical Board disciplinary investigations and actions around the country. Already represented? We are more than happy to work with your local counsel and assist him / her in responding to any inquiry or investigation initiated against you by your State Medical Board. Questions? Please feel free to call Robert for a free consultation. He can be reached at: 1 (800) 475-1906.