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The "Dos and Don'ts" of Appearing Before the Texas Medical Board or Texas Board of Nursing

As you may already know from the unwanted experiences of your colleagues, the number of complaints filed with the Texas Medical Board and Texas Board of Nursing has greatly increased over the past several years. This influx of cases that must now be reviewed by overworked state board investigators is due largely to Proposition 12, which was passed by Texas voters in 2003. Under this legislation, the maximum amount that patients could win in a medical malpractice lawsuit was lowered and capped to $250,000.00. While Texas became a more welcoming place for doctors who appreciated the lower malpractice insurance and the lessened threat of a lawsuit, more patients now feel that their grievances are better addressed through the medical boards instead of the courtroom. Question: Will you be prepared if a written notice of investigation into a complaint lands on your desk?

One of the most important steps that you can take when preparing for an appearance before the medical or nursing board is retaining experienced counsel. I know this piece of advice is exactly what you would expect from a member of the legal profession. However, please know that there are several critical reasons you should hire an attorney as soon as you receive a letter of complaint from the board.

First, investing in legal counsel demonstrates to the board members that you are taking the complaint seriously. Just walking into the hearing room with a professional litigant by your side will show that you are serious. Unfortunately, there may be instances in which members of the panel and their board prosecutor will be more aggressive if you do not counter with your own attorney.

Second, by retaining counsel, you will be sending the message that you believe in your case and you are prepared to fight the charges all the way to district court. The members of the medical and nursing boards do not want to face the money and time that accompanies an actual trial. The efforts to reach a mutually acceptable resolution during the informal hearing may increase noticeably with an attorney present.

Next, you can trust that your personal counsel will treat your hearing in the same way that he or she would approach any other civil litigation matter. You can expect that claims against you will be investigated, legal authority will be researched, colleagues will be interviewed, supporting evidence will be gathered, and experts will be asked to offer testimony. In addition, there likely will be many volumes of medical records that need to be reviewed. A set of expert eyes will quickly be able to locate any mitigating evidence that can be used on your behalf. This extensive amount of information alone may convince the board that your offense was simply a one-time occurrence, a minor incident or that there is no reason to assume that you are involved in a pattern of problematic behavior that poses a danger or harm to patients.

Please remember, the cost that comes with retaining a lawyer to guide you through the board review process is minimal when compared to the fines and other punishments you may face if the board finds the complaint against you to be justified.

While your attorney should prepare you for what you can expect when you appear before the medical or nursing board to answer the complaint filed against you, I would like to share my recommendations on what your chosen approach should be from the moment you find out that your day in front of the panel is coming.

The "Dos"

Do Dress professionally

This first point may seem like an obvious one, but there is never a chance to replace a first impression. You may believe you are demonstrating a dedication to your profession by arriving at your hearing in scrubs or wearing a stethoscope, but there will be other opportunities to prove that you are a serious member of the medical community. Instead, the business attire that you would wear in any courtroom setting should be your clothing of choice for this important day. For men, I recommend wearing a pressed suit and tie and well-polished shoes. For women, I recommend a neat business suit, hose and clean, well-polished shoes.

Do be willing to admit to an error

In many situations, humility is the answer. The board will be more lenient in the penalty rendered if you acknowledge that perhaps your best efforts were not demonstrated during the instance in question. As with Americans and their elected leaders, an honest apology goes a long way in mending a wrongdoing. If you are insistent that there were no poor decisions for substandard care for which an apology is needed, at least make the concession that you will think about other ways that you could have approached the same situation. Of course, your counsel should be very careful in advising that you not testify to matters that may be self-incriminating or self-indicting.

Do reinforce your position with documentation

The best way to avoid your day in front of a board panel is to be meticulous in your words, actions, and decisions. Nurses need to know everything possible about their responsibilities regarding record keeping, how to provide optimal patient safety, the correct administration of medication, and the procedures to follow when leaving an assignment. Doctors must always be polite and honest with patients, keep good records of every conversation, and be thorough in documentation and reporting. If a patient, one of your peers, or the board itself still finds reason to file a complaint against you, having made a regular practice of professionalism will be of great value. Review all related documentation with your attorney and make sure you know every detail of its contents. A solid paper trail that supports your side of the story is one of the strongest weapons that you have at your disposal.

Do Accept the decision of the panel

Once both sides have presented the facts, witnesses have spoken, and you have had a chance to share your recollection of the incident, the board is going to issue its decision. If the panel finds that the complaint has merit, the panel will share its recommendation for your penalty. This penalty could include fines, probation, further review of your records, or other actions as determined by the three-member panel. There will be some room to negotiate here, however. If all parties agree upon a resolution, an Agreed Order is signed and presented to the entire board for approval. If you do not agree with the panel's finding of wrongdoing on your part, do not get into a defensive argument. You will have the opportunity to appeal the decision to the State Office of Administrative Hearings (SOAH), at which time an administrative law judge will be assigned to the case and a more formal trial system takes over.

The "Don'ts"

Don't ignore notices from the board

Like the electricity bill and those weekly phone calls from your father, notices that you receive from the medical or nursing board must receive a response. Pretending an allegation against you does not exist is not a wise way to assert your innocence. No one on the board is going to think, "He will not even dignify us with a response. I guess we were way off base to think that these complaints against him could be true! I guess we will just have to close the case." That is just wishful thinking.

When you receive a written notice that an investigation is beginning into a complaint against you, you have fourteen days to respond. Make sure you do so.

Do not circumvent the chain of command

Perhaps your favorite cousin is a staffer for your state representative and you think that a good word from the legislator would make this problem disappear. Or, you are considering a phone call to the local newspaper to share the unfair accusations that are being made against you. Think twice about going around the standard procedure that the law has established. Do not contact politicians, lobbyists or other outsiders to influence the outcome of your hearing. This approach will usually backfire, particularly when discovered by the board members who will then believe you are minimizing their importance. Be a strong advocate for yourself, but do so within the legal system.

Do not expect your attorney to do most of the talking

The members of the board want most of the discussion to be directly with you. You must be thoroughly prepared on the facts of the complaint; the details can be presented on your behalf, and your version of the events that prompted the hearing in the first place. As I already mentioned, you should have an attorney in the room to provide, guidance, assistance and refute challenges made by the board. Nevertheless, unlike in a courtroom, you need to provide the voice for your own defense. If you defer to your legal counsel, your competence and confidence in your own actions will be questioned and remain under serious scrutiny.

Do not claim ignorance of the rules and procedures related to your case

If a board member asks you, "Didn't you realize it was wrong to amputate your patient's left leg when only her right leg was mangled in the car accident just as, in your words, 'a preemptive measure in case she has another accident later'?" Don't say, "What was wrong with that? If I had known that was against the rules, I certainly would not have done it." I use this absurd example to prove an important point. Sometimes in life, it is better to ask for forgiveness instead of permission. This adage does not hold true when practicing medicine, however. You want the board to be assured that you are an expert in your field and that you will properly treat your patients and do no harm. This will give the members more confidence in your actions and more credence to your testimony.

To be certain, no medical professional wants to be brought before a review board to defend his or her practices against the complaints of an unhappy patient, medical professional colleague or employer. However, if you find yourself in that situation, you want to know that you are taking every step possible to insure the best outcome. Your license, livelihood and reputation as a doctor or nurse may be at stake. By knowing what to expect before that board notice ever arrives in the mail, you are creating the circumstances for a pleasant resolution to the complaint process.

Categories: Articles

Attorney Tony R. Bertolino is the Managing Partner with Bertolino LLP. Our Law Firm has been able to help people across the state of Texas through our offices in Austin, Houston and San Antonio. If you need an experienced lawyer to represent you, contact Bertolino LLP today.

Super Lawyers Rising Star American Bar Association Defending Liberty Pursuing Justice State Bar of Texas Pro Bono College Super Lawyers New York State Bar Association Houston Bar Association Austin Bar Association American Center for Law and Justice 10.0Tony Ray Bertolino

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