Texas Medical Board License Defense FAQs : Bertolino LLP

What does it mean when I receive a complaint notice from the Texas Medical Board (TMB)?

This letter is an early stage in the Texas Medical Board’s investigation process to determine the merits of a complaint the TMB has received regarding you. The letter likely contains some vague statements alleging that you have violated the Texas Medical Practice Act, which is the statute regulating the practice of medicine in the State of Texas. The letter will also request that you answer questions regarding those allegations within a certain time frame.

After I receive a complaint letter from the Texas Medical Board, what should I do next?

A Complaint Letter or Notice Letter initiates the investigative phase. The first thing you need to do is consult with an experienced attorney immediately.

A knowledgeable attorney will know that responding to the requests in the complaint letter is your first step during this investigation process. This can be a difficult process since the questions are often open-ended and may be answered in a variety of ways, which is why you will need to consult with a TMB defense lawyer. Your attorney’s response to the initial complaint letter can be of extreme importance in defending your case and narrowing the points at issue in the investigation. Involving an attorney specialized in medical licensure defense at this stage can be very helpful in ensuring that you set the stage with a professional, compelling, and legally sufficient response that places you in the best possible light.

While the complaint letter does provide a deadline for a response, a TMB attorney can likely have this deadline extended through communications with the Texas Medical Board. Your attorney may also be able to achieve an extension by calling the investigator.

If I just tell the Texas Medical Board what really happened, will they go away?

Not necessarily. While it is possible the complaint was filed because of a misunderstanding, once the Texas Medical Board has gotten to the point of drafting and mailing a complaint letter, it is unlikely that the TMB will let down based on your story unless it is backed up by competent evidence and argued in a compelling way based on the TMB rules and regulations. This is where an attorney experienced in medical license defense can be especially helpful. Such an attorney will know the Texas Medical Board Rules well and be able to pitch your story in the best possible light. Often when license-holders attempt to respond to the Texas Medical Board on their own, they inadvertently admit to actions that the Texas Medical Board may see as admission to the violation alleged in the complaint or grounds for other violations. Your attorney will be able to avoid these inadvertent admissions and will be familiar with the Texas Rules of Evidence and the requirements for competent evidence to back up your story sufficiently.

While it may be tempting to “come clean” to the TMB and hope they will be lenient, in our experience, this strategy can often still result in significant penalties. A lawyer who is experienced in responding to Texas Medical Board complaints can help you respond in a way that avoids making damaging admissions and presents your story in a believable fashion. The earlier you have an attorney help you in the process, the better you can control how the Texas Medical Board views your case. For this reason, it is important that you seek legal counsel before communicating with the Texas Medical Board regarding the complaint letter.

Can the Texas Medical Board really revoke my license?

Yes. While you have worked very hard to receive the education and experience necessary to practice medicine, the ability to practice medicine is a privilege, not a right. Unfortunately, it is a privilege that is primarily in the hands of the TMB to administer and regulate. While the TMB must meet certain standards to deny an applicant licensure or revoke a currently practicing physician’s license, the Texas Medical Board has fairly wide discretion in making these determinations. Even if the allegations against you do not seem very serious, the TMB may still be able to take away your license.

The TMB complaint only lists minor violations that do not seem very serious. Will the Texas Medical Board really seek serious penalties for such small violations?

Maybe. The Texas Medical Board follows disciplinary guidelines in the TMB Rules which suggest certain penalties based on the nature of the violation. While these guidelines are in place to provide a baseline for what action the Texas Medical Board can take against license-holders, the Texas Medical Board is often able to get around them and seek heavier penalties than may initially seem justified by the guidelines. This is because multiple violations can raise the penalty sought to a higher level. The Texas Medical Board’s staff attorneys are intimately familiar with the Texas Medical Board Rules because all of their cases revolve around them. This gives the Texas Medical Board a significant advantage since the staff attorney will look for every possible violation that an act could constitute, including rather broad categories such as “unprofessional or dishonorable conduct.” The Texas Medical Board often uses these blanket allegations in order to ratchet up the disciplinary penalties and fees sought. While this may seem unfair, this practice is likely done because the Texas Medical Board wants to ensure that violations are punished and in the event some of their allegations are defeated, they will have others to rely on. Your license defense attorney should be quite familiar with these sorts of blanket allegations as they appear in the vast majority of complaint letters and can argue them down to narrow the allegations and achieve a lighter penalty.

Can the Texas Medical Board discipline me if no patient was injured?

Yes. The Texas Medical Board can and will seek discipline if it believes the TMB Rules have been violated regardless of whether or not actual harm resulted. The Texas Medical Board, among other things, seeks to maintain certain standards for the profession to prevent patient harm as well as maintain the dignity of the profession. This means that while patient harm is certainly relevant, it is not essential for the Texas Medical Board to seek disciplinary matters. Patient harm is often most relevant when the Texas Medical Board considers the “aggravating factors” laid out in the TMB Rules. These factors are considered by the Texas Medical Board in seeking harsher penalties. Often, the presence or absences of these factors are an excellent place for an attorney to argue down the penalty sought against you.

How long does it take to conclude a legal proceeding filed by the Texas Medical Board?

Unfortunately, there is no simple answer to this question as it depends entirely on the circumstances of the case. Theoretically, the Texas Medical Board can dismiss a Complaint at any stage if it deems that the proceeding is unwarranted, unjustified, or outside of their jurisdiction. However, generally, the TMB will pursue a case until it is fairly certain that liability is not present. Depending on the seriousness of the matter, a proceeding can take years. While a lengthy proceeding is not ideal, you should be prepared in the event that the matter may take an extended period of time. While an early settlement is often offered at the investigation or informal settlement conference stage, your attorney may be able to negotiate for a better offer at a later stage in the process. You should discuss any proposed Texas Medical Board order with an attorney before accepting it as the consequences can substantially affect your license and employability.

I do not plan to practice medicine in Texas anymore. Is there any reason I should fight the TMB in Texas on the complaint? Is there any penalty to just ignoring the Texas complaint and practicing in another state?

Unfortunately, even if you do not plan to practice medicine in Texas, the disciplinary proceeding can still have significant effects on your future. Failing to answer at all can result in a “default judgment” which allows the Texas Medical Board to obtain an order on your license saying nearly whatever they want since the findings are uncontested. The immediate effect is that any time you wish to practice in Texas, your license will be subject to whatever order they have put in place. Once that order is entered, it becomes a public record and medical boards in other states can, and often will, find these orders and give them some weight in considering whether or not to discipline you. For instance, the Texas Medical Board can review an order from the Maryland Board of Physicians and provide discipline consistent with that order. Other state medical boards implement similar policies. This can put you at a severe disadvantage if you did not contest the first order since the board of the state you are applying in will take that order as at least some evidence that the allegations in it are true. It will then be up to you to contest that order in the new state, which can be an uphill battle.

If you communicate to your license defense attorney that you do not plan to practice medicine in Texas, the attorney may be able to negotiate your case more easily in a way that suits your purposes without incurring the heavy costs that are otherwise necessary to avoid heavy discipline. While there are exceptions, generally, the Texas Medical Board is most concerned with standards of practice in Texas and your intent to cease practice in the state may help your case. However, this is a very fine line since the Texas Medical Board does not want to certify that a physician is fit to practice in another state if it does not believe he is. Your license defense attorney should understand your position and communicate it to the Texas Medical Board in a way that justifies minimal legal proceedings without incurring significant disciplinary penalties or damaging fact-findings that can follow you into another state.

The TMB Complaint letter provides contact information for an investigator that can answer any questions regarding the investigation. Is this someone I can rely on for advice in this matter?

No. While investigators are not necessarily malicious individuals, their interests are often directly adverse to yours as their job is to find any possible violations in your practice of medicine. Even if you are calling to ask a question regarding the investigatory process, the investigator may try to get information from you that can be damaging to your case. Hiring an experienced defense attorney is the best way to prevent these communications. If you are represented by an attorney, the investigator will be unable to contact you directly without your attorney’s consent.

I have heard that some of these license defense matters can be expensive to defend. Is hiring an attorney really worth the cost?

The cost of a license defense matter can vary greatly depending on the allegations in the complaint, the evidence the Texas Medical Board has, the number of witnesses and whether or not an expert is necessary. While it is true that these costs can be high, every case is different and the costs are not necessarily going to be high. Further, it is vital that you realize that when the Texas Medical Board is seeking discipline against you, this can drastically affect your livelihood as a physician. Even license stipulations short of revocation can have a dire effect on a physician’s employability or areas of practice. While the costs of contesting a complaint may be intimidating, the costs in the long run can be far greater if the complaint results in disciplinary penalties, monetary or otherwise. Your attorney can fight the Texas Medical Board and prevent it from taking away your ability to practice. In the long run, legal defense will pay for itself by helping you keep your license and minimizing the stipulations the Texas Medical Board will impose on your license.

Can I represent myself against the Texas Medical Board?

Yes; but it is not advisable. Texas law permits you to represent yourself in a licensure matter against the Texas Medical Board. However, even experienced attorneys are sometimes caught up by the special procedures in licensure matters. Understanding these procedures and navigating the administrative proceeding can be quite difficult. If you choose to represent yourself, be careful to find the latest version of the SOAH procedural rules and the TMB Rules that the Texas Medical Board alleges you have violated. The Texas Medical Board will often indicate what TMB rules it is alleging you have violated in the complaint letter. It is highly advised that you seek legal counsel in these matters since disciplinary proceedings can result in dire consequences and are full of traps for the unwary that an attorney experienced in license defense can help you avoid.

What can an attorney do to contest the allegations the Texas Medical Board is making against me?

While the particular strategy that your attorney will implement depends on the nature of the case, attorneys have several options for contesting the Texas Medical Board’s claims. At the investigation stage, it is important to communicate to your attorney exactly what happened and disclose any witnesses that can corroborate your story. Your attorney can then speak with the investigator on the case in order to uncover the specific basis for the TMB’s allegations. This may involve reviewing documentation or witness statements that the Texas Medical Board claims substantiate the allegations in the complaint. After gathering this information, your attorney will be better able to assess the merits of your case and determine the best course of action as to how to argue your case before the Texas Medical Board. This can be helpful in preparing for an informal settlement conference and hopefully settling the matter at that stage. While the investigation stage appears fairly informal, it can be one of the most important stages for the attorney to defend you. This is the point that the Texas Medical Board is assessing if and to what extent it should seek further disciplinary proceedings.

The Texas Medical Board has filed formal charges and my case is now before the State Office of Administrative Hearings (SOAH). What next?,

If your Texas Medical Board matter proceeds beyond the investigation stage to the State Office of Administrative Hearings (SOAH), an attorney can navigate the procedures and requirements of formal legal proceedings. While SOAH is an administrative court, the procedure is still quite formal and involves specific adherence to the SOAH rules of procedure as well as special procedural rules specific to the Texas Medical Board’s cases. This is another reason an attorney with experience in Texas Medical Board cases can be especially helpful. Your case will also be heard by an Administrative Law Judge (ALJ) after your matter has been referred to SOAH.

Attorneys who are unfamiliar with administrative law cases can often make mistakes that could result in missing important deadlines and possibly prejudicing the case. For instance, many attorneys that are unfamiliar with the SOAH rules may not realize that discovery requests in SOAH proceedings are due in twenty (20) days instead of thirty (30) as required in Texas district courts. There can be very harsh penalties for missing such a deadline. For instance, the Texas Medical Board can seek a court order stating that you have admitted all of the requests that were unanswered. While this is just one example, the SOAH rules are full of similar pitfalls. While the staff attorney for the TMB may be lenient and understanding, that is not something you want to count on. At the SOAH stage, several discovery tools are available to your attorney under Texas law. These tools generally include five discovery devices:

Request for Disclosure:

These requests seek basic information regarding the Texas Medical Board’s legal and factual basis for the case as well as contact information for any witnesses or experts that party plans to utilize in the matter.

Request for Production:

These requests require the Texas Medical Board to provide documents and other evidence that the other party possesses that are relevant to the case. Production requests can be quite broad and request documents, photographs, records, bank statements, logs, emails, and other tangible evidence.

Request for Admissions:

These requests require the Texas Medical Board to either “admit or deny” a particular statement.

Written Interrogatories:

These requests are written questions that require an open answer. These can be especially helpful in requiring detailed responses on pivotal points of the case.

Oral Depositions:

This devise includes oral questions that are asked and answered under oath in front of a court reporter or stenographer.

Once the attorney has propounded sufficient discovery to have a strong grasp of the case, the attorney can seek to settle the matter either through informal negotiations with the TMB’s staff attorney or by setting up mediation or other alternative dispute resolution. The prospects of a settlement are based primarily on the strength of the Texas Medical Board’s case and legal arguments that can be made against it. If the Texas Medical Board is confident in its case, negotiating a settlement can be difficult with the knowledge and expertise necessary to understand what the Texas Medical Board is seeking and how these matters are generally dealt with.

If settlement with the TMB is not feasible, the attorney can begin to prepare for trial before an Administrative Law Judge at SOAH. This process can be extremely difficult for the inexperienced because the Texas Rules of Evidence are quite strict. While SOAH proceedings involve a relaxed evidentiary standard, the staff attorney will seek to have the license-holder’s evidence thrown out because it will make the Texas Medical Board’s stance much stronger if there is no controverting evidence against its claims. An attorney experienced in licensure defense is best prepared to fight these motions and provide the best case going into trial.

At the final trial, your attorney can represent you in questioning witnesses and making your arguments before the Administrative Law Judge. After the Administrative Law Judge issues its order and findings of fact, the Texas Medical Board will consider the record to determine an appropriate order against the license-holder. Once the Texas Medical Board issues its decision, that decision can be appealed to a Texas district court in which the attorney can further represent you if necessary.

What is the process for contesting a Texas Medical Board Complaint?

With some caveats, the general Texas Medical Board Complaint process follows a fairly uniform general process. First, the Texas Medical Board receives some information from a complainant or other source and determines whether or not to launch an investigation. If the Texas Medical Board chooses to proceed with the matter, you will receive a complaint letter laying out the basis for the Texas Medical Board’s investigation that asks for you to respond with a written statement and/or certain documents. After you respond, the TMB may take further action based on its assessment of your response. This usually entails initiating a full-blown investigation against you.

During this investigation, the Texas Medical Board can issue Formal Charges against you, which evidences that the Texas Medical Board has been convinced that a violation has occurred. Near the conclusion of the investigative process, often an informal conference is set in an attempt to allow the parties to settle the matter by demonstrating that the license-holder has complied with the law or is willing to agree to a board order based on the evidence that has been uncovered. Following the informal settlement conference, often the Texas Medical Board will propose an agreed order that the license-holder may accept or reject which will lay out proposed stipulations on the license-holder’s license depending on what the Texas Medical Board determines is warranted by the facts uncovered thus far.

If the license-holder does not accept the Texas Medical Board’s proposed order, the case will be referred to the State Office of Administrative Hearings (SOAH). This will initiate a more formal process before an Administrative Law Judge in an administrative court. Here, the license-holder (or the license-holder’s attorney) can propound discovery and seek to uncover the facts that can be established by competent evidence. Once discovery and depositions have been completed, the parties will prepare for trial, filing any exhibits or pre-trial motions that will bolster their cases at trial. At the trial, the parties will put on evidence and investigate witnesses before the Administrative Law Judge.

After the trial, the Administrative Law Judge will draft a Proposal for Decision laying out the findings of fact for the matter as well as an opinion on what discipline should be imposed on the license-holder. The Texas Medical Board will review the Proposal for Decision and determine what sanctions it deems appropriate based on the record.

Once the Texas Medical Board has issued its order after the SOAH proceeding, it is considered a “final” order that can bind your license after it is issued. However, you can still appeal the order to a Texas district court if the Texas Medical Board’s decision is unjustified or improper. Any of a district court’s final decisions can be appealed to the Texas Court of Appeals and further to the Texas Supreme Court, if necessary.

The Complaint letter and Notice alleges that I violated the Texas Medical Board Rules during a time I was not practicing medicine. Can the TMB really discipline my license for actions in my personal life?

Yes. The Texas Medical Board Rules, among other things, are designed to maintain the dignity of the medical profession. While there are many rules that pertain to standard of care and procedures that doctors must follow when on duty, there are other rules that regulate actions performed by license-holders outside of their practice. As a license-holder, the Texas Medical Board does have jurisdiction to impose sanctions for certain actions that are deemed to reflect poorly on the medical profession.

The Texas Medical Board will not tell me who filed the Complaint against me. Is there a way to find this information?

No. Unfortunately, complainants may remain confidential indefinitely. While this may seem unfair, this is the Texas Medical Board’s method of ensuring that individuals are not afraid to report violations of the TMB rules. While generally the Sixth Amendment of the U.S. Constitution provides a right to face your accuser, this right only extends to criminal proceedings. However, under general Texas procedural rules, you will have the ability to cross-examine witnesses testifying against you in the proceeding itself. Thus, if the TMB wishes to use the complainant’s testimony, the complainant generally would have to be disclosed. You may also be able to obtain this information through requests for disclosure in the discovery process.

Will my insurance cover my legal representation?

Maybe. It is possible that your insurance will cover the costs of your defense against the Texas Medical Board. You should carefully review the terms of your insurance policy to determine whether or not your licensure matter will be covered under your policy.

I have applied for a medical license in Texas and received a letter proposing stipulations on my license. What effect can this have on me if I do not yet have a medical license in Texas?

If you have received a Complaint in response to your application for licensure, it means the Texas Medical Board has uncovered something that it deems may make you unfit for an unencumbered license. The Texas Medical Board may propose certain stipulations to be placed on your license including monitoring requirements or restrictions on certain areas of your practice (such as the ability to prescribe narcotics or practice in certain environments). These stipulations can be contested in a process similar to the process for contesting disciplinary sanctions against a license holder. Depending on the circumstances, you may be able to receive a license without encumbrances or with lighter stipulations.

While the Texas Medical Board keeps the initial application and investigative procedure confidential, this process can still result in an order containing findings and conclusions that will be a public record. These orders can follow you throughout your career even if you do not wish to practice medicine in Texas.

I have done something recently that may be a violation of the Texas Medical Practice Act. Should I self report it to the Texas Medical Board?

Possibly. The Texas Medical Board does require self-reporting of certain acts. However, this duty to report only arises in those cases required under the Texas Medical Practice Act. While the TMB will certainly not punish you merely for reporting something unnecessarily, depending on the act reported, the TMB may treat such voluntary reports as admissions of a violation and seek disciplinary proceedings based on it. The act you reported may not even be a violation of the rules, but if it suggests a possible violation, the TMB may still open an investigation. Voluntarily self-reporting a potential violation can result in the TMB imposing a lighter penalty, but disciplinary action is still likely. While you should comply with Texas law regarding self-reporting, you should be sure self-reporting is necessary (or beneficial if you are voluntarily self-reporting) before you potentially open yourself up to disciplinary action.

Generally, events that must be reported to the TMB include: change of mailing or practice address, certain criminal convictions, and acts of other medical practitioners that may present a continuing threat to public welfare, among others. If the Texas Medical Board is notified of such events from another party, your failure to self-report can be considered a violation of the TMB Rules in itself. If the event itself constitutes a violation, failure to self-report can be considered an aggravating factor that justifies imposing harsher penalties than the Texas Medical Board would otherwise seek.

Because there are negative and positive results that can arise from reporting or not reporting, this is an area in which caution is crucial. Failure to report when required or reporting something unnecessarily can result in serious consequences for your license. If you are ever uncertain about whether or not you should report something to the Texas Medical Board, you should consult an attorney who is familiar with the TMB Rules and Texas Medical Practice Act and can advise you on whether or not you should send a report to the Texas Medical Board.

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