Texas Legislative Hearing, Subcommittee on Regulatory, in Oversight of the Texas Medical Board (TMB) October 23, 2007 (Draft 12/14/07, all

rights reserved to make any corrections against the audio) Chairman: … (inaudible) … Subcommittee on Regulatory will now come to order and will the clerk please call the roll? Brown? Here. Menendez? Here. Taylor? Darby? Here. Lucio? Here. There is a quorum. I’d like to introduce some of our special guests today. Chairman Don Davis, chair of the health and human services subcommittee of appropriation. It’s good to have you here. Chairman Bill Callegari, Chairman of the regulatory, good to have you here. Corbin Van Arsdale, good to have you. [Inaudible, audio issues.] Debbie Riddle (inaudible) Let the record show that Representative Taylor is here. And we just got a call folks from one of the golf courses wondering where all of their doctors were today. [Laughter] There is an overflow room right across the hall if any of you would like to sit out. Members, this subcommittee is meeting today to discuss fiscal matters relating to the Texas Medical Board. Let me begin by thanking everyone for being here today. Thank you to the members of the Texas Medical Board and their staff for their attendance. We appreciate your service to the citizens of this state. Thank you to the members of the public for your participation today. As chairman of this subcommittee I take my oversight role very seriously. And to ensure the prudent use of funds of state agencies it is necessary for us to stay informed of agency operations. This is the purpose of this hearing today members. Aside from contingency appropriations and appropriations in the system benefit fund, the Texas Medical Board

Clerk: Brown: Clerk: Menendez: Clerk: Darby: Clerk: Lucio: Chairman:

Chairman:

received the third largest general revenue fund increase in percentage terms, almost 19%, and the second largest increase in dollar terms, $2.1 million of all regulatory agencies in the 2008-2009 budget. To meet our oversight duty and in light of the great demands for Despont, Texas, medical board resources in recent years, I wanted to hold this hearing today. We will cover the medical boards operations from the fiscal perspective. This allows for latitude, but I would like for everyone to present questions and testimony with that in mind. This subcommittee, even the full appropriations committee is not a committee that creates policy or amends laws related to the practice and regulation of medicine. However, as state representatives, we all represent citizens on every aspect of government. To the extent that we hear testimony regarding policy or statutory recommendations we will take these into consideration, to also forward these recommendations onto the members of the appropriate legislative committees and the sunset commission. Additionally, if you are a doctor and you have a legal proceeding currently before the Texas Medical Board or some other state of adjudication, you’re welcome to discuss that matter with us but in our role as legislators we do not have the authority to resolve these matters and we will not be prone to do that today. With that said, we can begin our invited testimony. Members, are there any questions or comments you’d like to make before we get started? If not, chair calls the legislative budget board. Hi, Nora. Velasquez: Chairman: Velasquez: Good Morning. Mark Wallace appeared also. Good Morning Mr. Chairman, members of the committee. My name is Nora [Velasquez], the legislative budget board. In response to the questions that you requested for today’s hearing, our office has prepared a brief overview of the Texas Medical Board. Each of you should have a packet similar to this one in front of you. Page one of your packet. Chairman: Velasquez: Does everybody have their copy? Okay. I’ll turn your attention to page one of the packet which includes a summary of expenditures of the fiscal years 2002-09 as well as FDE information for each fiscal year. I would like to highlight a correction at

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the bottom of that table for fiscal year ’08 and ’09. That number should read 142.5, not 140. In addition to that I would just like to point out that in fiscal year 2003 the 78th legislature passed Senate Bill 104 related to the regulation and enforcement of the practice of medicine. This bill also created a general revenue fund which surcharged on physician license registration. The initial implementation of this bill required and involved an annual registration and the collection of the $80. Following future years starting in fiscal year 2005, there was a biannual registration fee. As you will see from the table up at the top you will see that the amount of revenue collected started to decrease after fiscal year 2005. In addition to adding revenue available to help the agency, the bill also created an expert physician panel and strengthened the agency’s enforcement activity. As requested, on page two of the packet we’ve included performance measure highlights from extended 2002 through fiscal year 2009. At this time I’d like to direct your attention to page three of the packet and begin with some of the agency’s fiscal year 2006 financial challenges. The medical board presented information regarding a budget shortfall in fiscal year 2006. After further review the governor’s office provided the agency with an emergency in deficiency grant in the amount of $375,000. A table that begins at the bottom of page three details the agency’s total request and how those funds were implemented. On page four in fiscal year 2007 the agency submitted a similar request to our agency for a supplemental appropriation for an anticipated shortfall that fiscal year as well as additional funds to pay for the governor’s grant that had been provided to them the previous year. To address the agency’s shortfall, the 80th legislature passed House Bill 18 which appropriated the agency an additional $1.8 million. This money was to be used to pay for the governor’s grant as well as for expenses in the areas of licensing, enforcement, and information technology. The table on page four highlights the agency’s total request and how those funds have been implemented. I’d like to move forward to page six of your packet. We have also included information on the average cost per complaint resolved from fiscal years 2002-09 as well as expert witness information. The agency has reported that expert witness fees for [inaudible 7:22] cases are a major source of expense.

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In fiscal year 2006 the agency paid approximately $123,000. In ’07 the agency expended approximately $192,000. In looking forward to ’08 and ’09 the agency has estimated about $223,000 being paid each fiscal year. Members, this concludes the remarks that I have. Chairman: Menendez: Chairman Menendez? I would just like to ask a quick question. I was noticing the exponential increases in the funds allocated. I wanted to see if you could help me. On page one if I see – if I added correctly, from expended ’04 and you add to expended ’06, it looks like a 53.3% increase from ’03 to ’06. Is that correct? In general funds appropriated? That’s correct. Okay. The next – what my question is, I didn’t see on the expert witness information on page six the – if you could add for us the increases in as far as the percentage increase. When they come up with this $223,000 estimate, do they provide any sort of a support material to support why there’s such an increase? I mean that’s $100,000 increase in two years, in a two to three year period. I do not have that information from the agency. I’d like to know if that’s because of an increased number of cases or if the witnesses are charging that much and we need to look for different witnesses. I’d like to know why our fees are going up from $123,000 in ’06 to an estimated of $223,000 two years later for ’08 and ’09.

Velasquez: Menendez:

Velasquez: Menendez:

[Inaudible male voice off mic 9:15] Velasquez: I don’t have that information for you, but I can defer that question to the agency or I can get back to you on it. Yeah, after you finish I think we definitely want to ask the agency to answer that question. Thank you. Thank you Mr. Chairman. Go ahead, Nora. Mr. Chairman, I’ve completed my highlights of the overview. I’d be happy to answer any questions you have. Members, any questions? I want to have the staff come up and answer that question.

Menendez:

Chairman: Velasquez:

Chairman:

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[Inaudible noise off mic.] Chairman: We need to get somebody from audio/video to turn the mics up. [Inaudible 10:14] Good morning! Good morning! I’m Jane McFarland. I’m the Chief of Staff of the agency. I’m Mari Robinson. I’m the Director of Enforcement. I would be happy to address your question. Essentially what occurred, you did hear Nora mention it, is that Senate Bill 104 was passed. Once that passed, the agency was given the ability and the authority to investigate much more thoroughly, and a much more larger number of complaints specifically related to standard of care. We then had expert panelists who reviewed standard of care during the investigative process. So it allowed us to give more focus to that. The result of that that you are seeing in fiscal year ’05 and ’06 is we were able to then take those cases forward to SOAH. So you saw an increase in the expert testifying fees for those two fiscal years as we were able to try to eliminate any backlog that had been sitting, waiting to be filed because we did have a shortage in staff and we did have hiring freezes throughout that time. Once we were fully staffed and fully funded, we were able to go ahead and file those matters that had been pending, waiting funding from the legislature. We greatly appreciate that funding. As such, once those cases went forward, the fees that went out for experts to testify did increase. So that is why you are seeing that. Now related to the next year what I understand is that they estimated for next year by taking what we expended and guessing that it might go up 20-25%. You’ll hear later on that we’re having very large increase in complaints. In fiscal year ’06 we had 5200 complaints. In fiscal year ’07 we had 6800. So we’re expecting an increase throughout the cost of enforcement. We’re just trying to anticipate as best we can so that we can give the legislature the best information that they need to make appropriations decisions. Chairman: Robinson: I appreciate the answer. Thank you. I’m sorry, I didn’t get your name. I’m sorry. It’s Mari Robinson. I’m Director of Enforcement.

McFarland: Chairman: McFarland: Robinson:

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Chairman:

Thank you Ms. Robinson. Ms. Robinson, so it’s your testimony that the reason that the volume and dollar figure’s going from $123,000 that we paid in ’06 to $223,000 estimate for ’08 – ’09 is due to an increase in volume of cases. Yes. Yeah, well it’s a two part thing. We’re getting in more cases and in fiscal year, towards the end of fiscal year ’05 and ’06 we also filed many cases that we had been waiting to get filed when we had the appropriate funding. And then those expenses crossed over into the next year also. Right. The civil process unfortunately takes some time. So it’s not unusual for them to cross over one or two fiscal years. And as for what we budgeted for this fiscal year, we do the best we can. I’m sorry, I think for the recording you need to state your name for the record. Oh, I’m sorry. I’m Jane McFarland. I’m the Chief of Staff for the board. Our estimate, it is an estimate because this year we probably had budgeted and expected to spend a little bit more than we did on SOAH. Some cases settled in mediation prior to actually going into the SOAH hearing. So we saved some costs in the last quarter of the year. That may very well happen in the next two years. Those costs may be more in line with the current year. I can understand increasing costs due to volume. I guess my concern is I looked right above the eye witness information to an average cost per complaint resolved. I noticed that we have a similarly troubling table that takes our average cost for complaint resolved in 2002 from $1115 to a budgeted cost in 2008 of $2960 which is almost three times as much. Right. That’s because in 2002 we were not required to have two boardcertified physicians review standard of care cases. But when they passed Senate Bill 104 and then the subsequent Sunset Legislation 419, it does require us to have two board-certified physicians review every complaint that involves standard of care. Actually, you will see if you look a little differently, if you look at 2004, 2005, 2006 and 2007 we’re actually trending down right now from 2005 at $2900, 2006 at $2500 and 2007 $2288. We are trending down. There are two reasons for that. We’ve tried to increase efficiencies on that. I spoke last time that we met that we had instituted a computer system that

Robinson:

McFarland: Robinson:

McFarland: Chairman:

McFarland:

Menendez:

Robinson:

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allowed us to eliminate tens of thousands of shipping – dollars in shipping cost. That has been fully implemented. We’ve also added an efficiency within the panel process where if the second panel reviewing fully agrees with the first panelist, they simply have to write a senate saying, “I fully agree,” so that they do not have to incur additional fees for the board to pay. Additionally as I mentioned, we’re having an increase in complaints. So if you think that the cost is the numerator and the complaints is the denominator, as the denominator goes up, obviously it’s going to be a lower cost per complaint resolved. Right now we’re at $2288. Menendez: Robinson: Right. It’s very hard to budget out. You know how that is. They ask you to budget out for 2008 back in 2005. We really do not anticipate the 2008 number to be $2960, but of course at the time that we were making these estimates we really just did not know. We made our best guess on what we were spending at the time. We were surprised by how low 2007 came in at the end of the year. I guess that’s a concern to see that trend line. It’s a good trend line from ’05 to ’07 where you’re coming down from that high of $2919 to $2288. But then to see these budgeted numbers, they almost seem like they’re padded or inflated. Well, it’s because the year asked. We were in 2005 when we were getting $2900 per complaint. That’s when they asked us to project for 2008. So we thought based on the data that we had at the time that it would be the same. We weren’t aware of what would be coming out and all of the efficiencies we would gain in the computer system and things like that. And the other issue is that the cost to actually operate and enforce this program may be pretty much the same or slightly higher because of the additional expert panelists, but the cost per unit may go down because of increased numbers of complaints. So we’re doing the same number of complaints with the same staff. We budgeted… We’re doing a higher number of complaints with the same staff. Right. We projected this cost per complaint – we may end up – the budget will be the same, but the number of complaints we manage to do for that may be more and it may drive that down.

McFarland: Menendez:

Robinson:

McFarland:

Robinson: McFarland:

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Chairman: McFarland: Chairman: Chairman:

Thank you. Thank you for that explanation. Because we have the same staff regardless. Right. Jane, you don’t see us having the same problem this year as we did last year as far as shortfall? I do not anticipate that kind of problem. I think we have much better systems in place. There are, as always with the medical board and any regulatory agency, there are sometimes costs that are outside of your control that come up. But right now we are very satisfied with the appropriation we have. We’re grateful, very grateful to the committee for the funds that we received. We have a much better system in place for tracking costs and are implementing a new system now that you’ll hear more about. Okay. Thank you. Members, any questions? [Inaudible 18:05] Yeah. How long – you said you were Chief of Staff to the Board. Did I get that right? Is that your title? Yes. How long have you been at that position? One year. Were you at – did you have a promoted position that came before that? Yes, I was called a special project manager. And how long were you at that position? I have been with the board since about 2000. I came in in one position and moved into special projects. I was probably in the special projects position for about four years. Okay. And when you first came to the Texas Medical Board, who was the Chair and the ED at the time? Do you remember? I first came to the board, the ED was Bruce Levy. He was talked into coming over to the medical board from the health professions counsel and then left about two months later. Then there was another ED. His name was Dr. Langley who was here just a year. I believe the Board President

McFarland:

Chairman: Male:

McFarland: Male: McFarland: Male: McFarland: Male: McFarland:

Male:

McFarland:

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was Dr. Fleming when I first came and then Dr. Lee Anderson was the President. Male: Okay. Ms. Robinson, you’re the Director of Litigation and Enforcement, is that right? I’m the Director of Enforcement, yes. How long have you had that position? I started with the board a few days after I got married, so I know this. Seven years. [Laughter] I started out as a litigating attorney there. I held that position for a little over a year and a half. I was promoted to manager of investigation. I held that position for about three years. Then I managed both litigation and compliance for a very short time. Then we had a little bit of a realignment within the agency and I became the Director of Enforcement. That happened in September of last year. Okay. When you first came to TMB, who was the ED and the Chair? Dr. Langley was the executive director and the Chair I believe was Dr. Anderson, but it switched over right about that time between Dr. Fleming and Dr. Anderson. Okay, thank you. Members, any other questions? Thank you ladies. Let me remind the audience, if you plan on testifying today if you’ll pull out a Witness Affirmation form. We want to be sensitive to everybody’s time. I know some people have early flights or may have early flights today. So if you will let us know on your Witness Affirmation or pass us a note we’ll try to work you in so we can get you out of here on time. If you’ll just let Hunter know right over here. The chair calls Dr. Roberta Kalafut, President of the Board. Kalafut: Thank you Chairman Brown, and honorable representatives for allowing us the opportunity to highlight our progress in the seven weeks of fiscal year ’08. Before I begin my prepared statement I would like to take a moment to introduce the board members that have come today in attendance and the board staff. If the members and staff will please stand when I introduce you. There are 16 out of 18 board members here today. The executive committee of the Texas Medical Board consists of Dr. Larry Price, Vice President, serving since 1997. Mr. Kim Turner, Secretary/Treasurer, public member

Robinson: Male: Robinson:

Male: Robinson:

Male: Chairman:

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serving since 2003. Dr. Larry Anderson, Chair of the Disciplinary Process Review Committee serving since 2005. Dr. Michael [Arambula ??] newly appointed Chairman of the Licensure Committee serving since 2006. Board Members in attendance include Dr. Jose [Benevidie ??] serving since 1999, Miss Paullette Sutherd, public member, chair of the public information committee, serving since 1999. Miss Melinda Fredericks, public member, chair of the legislative committee serving since 2003. Dr. Manuel Guardo, chair of the [ad-house ??] committee for scope of practice serving since 2005. Dr. Irv [Geitler ??] serving since 2006. Dr. Charles Oswald, serving since 2006. Miss Julie Atterbury, chair of the finance committee serving since 2005. Mister Tim Webb, serving since 2007. Dr. [Kahn ??], I’m sorry, I won’t pronounce your first name, serving since 2003. Dr. Margaret [Knicknee ??], chair of the peer review committee serving since 2006. Dr. Melinda McMichael, serving since 2007. The remaining two public members couldn’t be with us today. Senior management team includes our executive director, Dr. Donald Patrick, Chief of Staff Miss Jane McFarland, Director of Enforcement Mari Robinson, Director of Licensure Jaime Garanflo, General Counsel, Mister Robert Simpson, Manager of Finance, Christine [Fuellar ??], Special Project Manager [Mi-ging ??] Good. Thank you. All of us board members are volunteers. We spend approximately 20-30 days per year in Austin away from our practices, jobs and families. It is a significant commitment we agreed to and we all take this responsibility seriously. I am proud and honored to be serving on this board with these individuals. Chairman Brown, you and I were called to a meeting in the governor’s office three weeks ago. During that meeting we discussed that there’s some in this hearing room today waiting to testify. This hearing has been widely publicized and anticipated as more than just an appropriations meeting. As you stated today in your opening remarks, to hold all participants and discussions strictly to the relevant topic of appropriations, I will in accordance with your discussion, follow your request. I would like to start out by reading our mission statement which we read out loud prior to each board meeting to remind each and every one of us of our duty and purpose on this board. The Texas Medical Board’s mission is to protect and enhance the public’s health, safety and welfare by establishing and maintaining standards of excellence used in regulating the practice of medicine and ensuring quality of healthcare for the citizens of Texas through licensure, discipline and education.

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Currently we have greater than 58,000 physicians holding a Texas license. I believe it is important to provide historical information regarding our recent appropriations and the role this subcommittee has played in strengthening our mission. Let me put this mission statement into perspective. I was appointed to this board in 2002 by Governor Rick Perry as one of three GL members and in 2005 as its first woman president. Two weeks before I was to serve on my first board meeting, the Dallas Morning News printed an article making the headlines of the Sunday paper. I have it with me today. “Board Easy on Doctors Test Offenses.” The article highlighted a board that was lax in its duty to protect the citizens of our state. Throughout the year of 2002, three additional articles were published by the Dallas Morning News, each more disturbing in the truth than the previous. “Harder Line Taken on Doctor Abuse.” [Audio problems.] It’s about our appropriations, how you’ve strengthened us. Thank you. Thank you, sir. I presented for my senate confirmation hearing in the Spring of the 78th legislative session. To say it was brutal is putting it mildly. I, and four other newly appointed members, were berated repeatedly for failing to protect the public and giving physicians a free pass, none of which we as newly appointed members were responsible for. The senators also held up these very articles that I held up today. But the message was loud and clear that day. The legislature would not tolerate a board that failed to hold physicians accountable for violating the Medical Practice Act. The Board must be strong in its charge, reinforced by statutes. The legislature would no longer tolerate requests for special favors or requests to turn a blind eye on the physician licensure and disciplinary processes. This subcommittee in conjuncture with the legislature… Chairman: Kalafut: Chairman: Dr. Kalafut, could you wait one minute? Yes, sir. We will not tolerate outbursts, okay? Everybody will have their time to be able to come up and present their case and talk about what they want to talk about. But we need to be respectful of the people that are before us as witnesses. Thank you, sir.

Kalafut:

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Chairman: Kalafut:

Go right ahead, doctor. This subcommittee, in conjunction with the legislature, recognized the important role of the medical board in protecting our citizens. You responded to our needs of the Medical Board by enacting laws that strengthened the board. In 2003 the legislature unanimously passed Senate Bill 104 by Senator Jane Nelson which provided new statutory strength and increased resources. Specifically, Senate Bill 104 included the following provision – it created an expert panel, physician panel to review standard of care cases, a dedicated fund from the $80 surcharge added to physician licensing fees. It covered the cost of enforcement for physician panel and costs of additional staff. Statutory deadlines were implemented for complaint investigations and litigation. It’s clarified and strengthened the board’s authority to take immediate action and temporarily suspend a physician’s license when necessary if a physician was felt to be an immediate danger to the public. We were given more funding and more manpower to keep up with the exponential growth in licensure. However licensure renewals went from annual registration to biannual registration, a move that would later have a significant impact on our budget. During the 2005 legislative session we went through a full Sunset review. The staff, Sunset staff, observed board meetings as well as informal settlement conferences throughout the year. They reviewed each and every one of our policies, rules and statutes. They interviewed countless staff and board members. Our rules, statutes, processes were fully dissected and vetted in an open public forum. The legislature made statutory the agency’s initial 30-day review process. It also created the new requirement for stakeholder input into board rules. During the last legislative session the agency’s budget shortfall noted in 2006 was addressed by the subcommittee. The primary reason for the shortfall was a significant decrease in appropriations in the general revenue dedicated fund through the Senate Bill 104 statutory change requiring annual to biannual registration. These funds were to be used for investigation and enforcement. By granting the supplemental appropriation, the legislature sent a strong message to us once again. If Texas enacts torte reform, we must have a strong medical board to oversee and police its own profession while protecting the citizens of Texas. We take this charge seriously and we have heard your message. As of this date in October 2007 we are seven weeks into our fiscal year ’08. While it

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is too early to provide any meaningful budget reports for the current fiscal year, we do have workload data for the first month of fiscal year ’08. I can recap specifically fiscal year ’07. During September ’07, the first month into our new fiscal year, we have received 372 applications for physician licensure, the highest in that month on record. That is a 9% increase over the previous record in fiscal year ’06 which was a 76% increase over the record set in fiscal year ’05. In fiscal year ’07 the Texas Medical Board received a record number of physician licensure applications, 4,041. We issued a record number of physician licenses, 3,324. This is 811 more licenses in fiscal year ’07 than ’06, almost an increase of a third. This was done with the same number of employees as [inaudible 32:26] legislature in 2001 despite a 60% increase in applications since fiscal year ’02. The emergency appropriations bill was not adopted until May ’07, authorizing six additional FTEs. The agency used temporary staff and overtime in attempts to keep up with the demand. Average days to issue a license in ’07 was 81 days, the second lowest in six years. A projected average for ’08 – ’09 is now 51 days. This subcommittee and the legislature responded to our needs with additional funds and six additional FTEs to aid in accomplishing its goal. We have reduced the backlog of physician applications by 20% compared to March ’07. In addition, the medical board authorized rule changes in the Fall of ’06 that reduced and/or eliminated certain documentation and other requirements making the overall process more efficient. During most of fiscal year ’07 [inaudible 33:45] gave priority to completing low-complexity applications so that more doctors could be licensed more quickly. The focus shifted from completing the more complex applications during July and August. Now I’m going to go on to enforcement. Just to put this in perspective over a three-year period, 99% of our licensees do not have board actions against them, 99%. During the first month of our new fiscal year we have opened 334 investigations which is a 17% increase from this time last year. During fiscal year ’07, 69% of the complaints were filed by the patient and/or family. The next largest number of complaints were filed by the TMB, 15% in response provided by the licensee on their annual registration form, audits of their CME compliance, multiple malpractice suits and media reports. Seven-percent were filed by healthcare professionals, physicians, pharmacists, nurses.

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Review of the last two years’ data show that we received close to 11,000 complaints. Insurance companies filed less than 0.8% of complaints, none of which have resulted in disciplinary action to date. Pharmaceutical companies have filed none. Since the inception of our current database in 1986, we have accepted anonymous complaints. The intent was to ensure public confidence in our system that a complaint could be filed without retribution from the physician. During the past two years as previously stated, we received close to 11,000 complaints. About one-hundredth of a percent of anonymous complaints received resulted in a board order. The following boards in Texas also accept anonymous complaints: pharmacy, psychology, dental, chiropractic, podiatry, nursing, OT/PT, optometry and 21 of 22 professions licensed [inaudible 36:09]. Massage therapy does not. I would hate to hold the medical board to lower standards. Chairman Brown, you have commented in the past and other representatives that you have heard from hundreds of physicians. We too have heard from our share of citizens looking to the medical board for help. During fiscal year ’07 the agency received a record number of complaints, 6,893 compared to a previous high of 6,038 in fiscal year ’05. A total of 63% of all complaints in fiscal year ’07 were dismissed during the initial 30 day review without investigation, saving enforcement resources. Thirty-seven percent resulted in investigation. There were 482 IFC’s held in formal settlement conferences in fiscal year ’07 and 36% were dismissed at the IFC resulting in 311 orders approved by the board. Of these 79 of the 311 were for minor violations, failure to obtain required CME, false advertising, failure to timely release medical records. Sixtyfour were settled by waiver, 14 after an IFC and one at SOAH. We looked at this and the agreed orders on these administrative cases one to two percent of agency resources. Twenty-five percent of agreed orders to charge administrative took one to two percent of agency resources. A review of complaints filed against physicians each fiscal year from fiscal year ’03 to ’07 shows that a consistent 7% of complaints resulted in action each year. This percentage has not changed since 2003. We have completed a record number of investigations – 2,550. We asked that you temporarily suspend or restrict a record 20 physicians who were found to be an immediate danger to the public pursuant to Senate Bill 104 by Senator Jane Nelson. With our previous statewide computer software we could not easily segregate from the entire cost to the investigation’s complaint. With your

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additional funding last session, this has allowed us to purchase software to individualize our needs and hire and IT staffer. This is just being implemented and we should be able to provide more detailed data in the future. However, with the previous limitations cited, I am able to report the average cost per complaint resolved. I think this was discussed previously with representative Menendez so I won’t repeat that. Finally, information technology. The agency has a large number of critical IT projects that must be completed. We have prioritized the projects. One of the most exciting projects in development is a web-based system for physician licensure applicants. This IT improvement project is going to be known as Licensing Inquiry System of Texas, or LIST. LIST will allow the applicants to check the status of their application and supporting documents online at any time. They will be issued a user ID and password that will allow them to log on to the website to check which documents have been received by the TMB and which have been accepted. This will significantly free up staff time to work on processing license applications. The TMB estimates savings equivalent of 1.8 FPE. All communications to the applicants will be immediately posted in the LIST with immediate access. Estimated time for full implementation is early spring 2002 – 2008. In conclusion, Chairman Brown, honorable representatives, thank you for the opportunity to speak today. With your support and insight you have helped this board continue to maintain standards of excellence in regulating the practice of medicine as well as ensuring quality healthcare for our citizens. Thank you. Chairman: Dr. Kalafut, let me first congratulate you on cutting the days in half on licensing. That’s a – now we have like 2200 doctors in queue back when we met during appropriations. You’ve cut that time in half. Congratulations on that. Let me just ask you a question because I don’t understand this, and this is what I hear I think more often from doctors that have been through the enforcement process and it had to do primarily with minor infractions, advertising or overcharges, things like this. What I hear so often is the fact from the time they get their initial packet from the medical board to the time they get to an informal settlement conference it normally lasts nine months and they have to spend a lot of money to get to that informal settlement conference as far as defending themselves plus the fact that during that time they worry about, “Am I going to lose my license?” “Do I need to change my livelihood?”

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Everything, the package that comes together with that. “Well, who is it that brought me before the board and really what is the charge?” That I hear all the time. My question is does it have to be so lengthy? I understand that an advertising charge or an overage charge – I had a surgeon call me just last week. He overcharged a patient $69 and turned around and refunded the money. He’s in the middle of this process now. He told me that looking back, “I don’t think I would ever – if my kids wanted to go into medicine I’d talk them out of going into medicine.” He said this has just been a horrible experience. So can you kind of enlighten me on that. Kalafut: Thank you Chairman Brown. I’m glad you brought that up. I know we’ve discussed this as well. It [inaudible 42:56] our physician licensees. First of all, everything we do has been mandated by the legislature. They’re the executive branch. So we follow the laws of the executive branch. We have time frames and time tables. I have them here if you want me to quote statutes as to how long the process takes. So this is a process that has been mandated to us by the legislature. Every – during a complaint that is registered, as I said earlier, 69% are dismissed immediately within 30 days. It’s the other 31% that we are talking about. We have to enforce in the Medical Practice Act every violation of the Medical Practice Act. I’m here to say that if you want us not to enforce certain minor violations, then so be it. Tell us which ones we should not enforce. We are just following the letter of the law. The question about why it takes so long and whether they should have an attorney, the decision for having an attorney is up to the respondent, up to the doctor. As you see, 69 I think I quoted, or 64 out of the 79 minor violations resulted in a waiver where they did not even come down to Austin and they were given an administrative penalty. That should not use up agency resources. The doctor during any investigation unless he uses temporary suspension the doctor is free to practice. Minor violations, not releasing medical records, not completing your required CME does not threaten the doctor’s livelihood or whether they can continue to practice medicine. Why it takes so long? The first process is the initial 30 day screen. Then we have 180 days by statute to get it from investigation through legal. There may be extenuating circumstances that we don’t know about that would drive that process. I think Mari Robinson can address this in more detail as to the minor violations. If you would like a more detailed answer she’s a wealth of knowledge on length of time if you would permit that. Chairman: Please.

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[Inaudible, off mic 45:20] Robinson: Again, I’m Mari Robinson, Director of Enforcement. Two quick things I just want to sort of point out, or actually three. The average time for a resolution in 2002 was actually 308 days. We have knocked 47 days off of that to 261 in 2006. So we are trending down on resolution. However, we are also trying to implement a couple of things to even make that more efficient. When Sunset did meet and we went through that process, they did give credence to a practice where we can offer for minimal violations, for what you’re talking about, what’s known as an administrative order. That allows the physician to say, “I know I didn’t get…” for example CME. “I know I did not get my CME. I know I’m five hours short.” So this will allow them to pay a $250 or $500 fine, whatever the board has directed is appropriate, and have that resolved very quickly without the necessity of an IFC, without the necessity of a hearing date and without the necessity of that physician having to take time off and coming to Austin and/or hire legal representation to attend that hearing. Additionally, we put that into place about a year and a half to two years ago. That I think is what you’re seeing reflecting in this trend down. Additionally, what I have done for these types of [inaudible 46:44] violations is I have assigned a different investigative way of processing them. We’re trying to get these down to being processed more like 30 to 60 days instead of 180 days. I’ve been meeting with Dr. Patrick on this new sort of streamlined idea that we have. It’s going to allow these types of cases to take up less board resources and be resolved much more quickly, be more like the traffic violation. Be more like when the police officer pulls you over and says, “You ran a red light. Here’s your ticket. Pay it and you’re resolved.” That’s what we’re trying to move towards. Then the board resources that we do save will go into these more [inaudible 47:25], these cases that pattern the standard of care problems. These cases with patterns of impairment problems or [statute ??] abuse. We actually have drafted this up and we are more than happy to provide the committee with this on a four-track system that allows us to route complaints due to their severity through different tracks within the medical board itself. We really are hopeful that it will allow for the very, much more rapid resolution of the types of complaints that you’re talking about. We do think we’re expending a very small percentage rough-estimate wise, way less than 10% on these all ready. But we would like to make it

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even quicker and even faster. We certainly do understand the concern that you’re putting forth which is why we’ve been working on this alternate system for the last couple of months. Chairman: Robinson: When do you think that’ll be implemented? We actually have a [rules group ??] meeting tomorrow with stakeholders. We’re going to start talking about the first sets of rules that would need to go into place to start that. So we’re really trying to fast track this and get it done. Don’t get me wrong, I think I’ve been unequivocally say for everybody up here that we want you to go after doctors that are putting – taking out wrong parts or that are killing people or that have drug or alcohol problems or abusing people. Sure. I mean that’s what you’re mandated. Sure. We just have to be sensitive to these doctors that are saying, “Give me some help.” Nine months because I made a mistake in advertising? Sure. Actually we kind of looked into how the bar is doing this a little bit. Their system is much more rapid. If it’s my birthday, I don’t have my CME I get a letter in the mail that says, “Here’s your fine. Pay it or appeal.” That’s really what we’re looking to do. We want to make this much more rapid. We want a quick resolution but we want it to be fair. We will still have time to allow for a physician to exercise their due process rights should they choose to believe that there has been no violation. [Inaudible 49:22] chair Menendez? Just a quick question on that CME issue. Paying a fine doesn’t exclude them from getting CME. It’s pay the fine and get your CME I’m assuming. Yes, that is correct. Okay, I just wanted to make sure.

Chairman:

Robinson: Chairman: Robinson: Chairman:

Robinson:

Chairman: Menendez:

Robinson: Menendez:

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Robinson:

Yes. We actually just did our CME project and we did it in 60 days, the entire project. And every order that came out of that does say, “Pay this fine and complete the outstanding CME.” Okay, thank you. We’re the only agency that audits and we do a periodic audit. Like the bar association does it automatic for every licensee. Most other agencies track their licensees and every single person they track who doesn’t get the CME gets fined. We only do a small audit every year. Congressman Felton, I mean Representative Felton? Thank you Chairman Brown. While I’ve got both of you on, I don’t know which one of y’all want to answer this, but I guess my question is, and I don’t remember which one brought it up, but it has to do with the anonymous complaints. I believe it was Dr. Katafoot that talked about it that you don’t do anything that’s not in statute and that y’all started doing the anonymous complaints in 2006. Am I accurate? No, we’ve been doing anonymous complaints since the inception, since 1986, not 2006. Okay, okay. I’m sorry if I said 2006. Yeah, okay. Maybe I misunderstood. Be that as it may though, I’m just wondering what the statutory authority is for the anonymous complaints. I have it here. There’s couple of things. One is Occupational Code 154.05 under “C”. A person, including a partnership, association, corporation or other entity, may file a complaint against a board license holder with a board. The board may file a complaint on its own. But the definition is, this one that you’re interested in is 22 Texas Administration Code 178.2 definition Complainant. I’m sorry, give me that code? Okay. 22 – I’m not an attorney so if I’m not… No, you’re fine. You’re fine. Go ahead.

Menendez: Female:

Robinson:

Chairman: Felton:

Robinson:

Felton: Katafoot: Felton:

Katafoot:

Felton: Katafoot: Felton:

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Katafoot:

22 Texas Administration Code 178.2. The definition of a Complainant is any person including an individual, partnership, association, corporation or other entity who initiates a complaint with a board against a licensee. The complainant may be a patient, a family member of a patient, a healthcare professional or any other person who has information regarding a possible violation of the Act. A complainant may be anonymous in which case the complaint will be investigated to the extent that the information is provided on which an investigation can be initiated. I need to do a correction. It’s 154-051 is the original Medical Practices Act citation on the complaint initiation. Then it’s 22 Administrative Code 176.2 that’s dealing with the anonymous. Okay. So the 22, the Administrative Code was enacted in relation to Section 154.051 Health and Safety Code. Is that correct? That’s what I believe at this time, but we can certainly go back and double check what happened in 1986 to make sure that that’s exactly right. This is a question for you, Miss Robinson. I’m just – on the anonymous complaint and I have a hard time when it comes to due process. As you know there’s procedure on [subsitive ??]. Sure. Procedurally we know that procedurally it has to do with notice and opportunity to be heard. Right. [Subsitive ??] though, don’t you think they ought to know who’s complaining about them? Actually I think it’s irrelevant. Why? The fact of the matter is… [Laughter] The fact of the matter is that either a violation of the Medical Practices Act occurred or not. And if the violation occurred, the physician needs to come and speak to the medical board at an informal settlement conference about what occurred. If no violation occurred, then it doesn’t matter. For example, the President of the United States could file a complaint against Dr. Smith. If what the President of the United States says is not true, we’re not going to bring Dr. Smith in for a hearing. But somebody

Robinson:

Felton:

Robinson:

Felton:

Robinson: Felton:

Robinson: Felton:

Robinson: Felton: Robinson:

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else who’s never liked Dr. Smith could have information that Dr. Smith is self-prescribing drugs to himself. Well, if Dr. Smith and the pharmacy records show that Dr. Smith is self-prescribing drugs to himself, the medical board wants to know about that. It doesn’t matter if the person who reported them likes them or not. No one is given any more credibility, credence or non-credibility or credence when it comes to investigating the facts that occurred in the case. That is all that we are interested in. Felton: I haven’t dealt a lot with doctors in compliance, but I have with police and fireman a lot under civil service because I litigated that quite frankly for a long time. One of the things that we always did was they knew who the complainant was. For the life of me, I don’t know why you say it’s irrelevant. So you’re telling me that you don’t believe in the substance of due process. No, I believe in substance of due process. I just don’t believe that it’s required as you’ve outlined in this specific instance. You’re drawing an analogy to criminal law which is very different. You’re right, there is a… No, civil service is not criminal law. It’s administrative. Well you’re referring it if you’re pointing out the beliefs. In criminal law obviously there’s a right to know your accuser. But as I’ve said, the fact of the matter is the board treats every complaint exactly the same. All they want to objectively know is whether the violation occurred or not. If the violation occurred, they need to come and address the medical board. If the violation did not occur, they do not. The public policy decision was made by the legislature many, many years ago that many people fear retribution from filing complaints. Honestly I have seen many cases where that would have occurred where a physician is very, very disruptive, is sexually harassing, is harassing patients. They’re in a high position in a hospital and the people who know it know that this physician is litigious or they fear for their job. The only way that they can report is anonymously. To take that protection away, that’s certainly within the purview. If it’s something that the legislature wants we will certainly do that. But that was the public policy reason behind it, to make sure that the public was protected from dangerous physicians regardless of how the board found out about it.

Robinson:

Felton: Robinson:

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Felton:

Mr. Chairman, if I may finish follow up just a second. So you’re telling me that you think that subsentive due process and procedural due process only deal with criminal law? No sir. That is not what I said. I said that there were differences… But you’re talking about that, isn’t that right? I said that there were different due process requirements for criminal law regarding knowing your accuser. Subsentively you know that the physicians within our system have due process. You can tell this by the fact that the complaints are dismissed yet they have a right to be heard. You’re right, that’s the normal. The other half, the subsentive half is that we are listening to their right to be heard. It is actually being acted upon. There is actually a right to having your side of the story considered by the board. That is in fact happening. You know this because the statistics that were given to you of the percentages that were released after the 30 day review, of the 40% that are released after the hearing is happening. These things are being done at the board. The hearings and the reviews that we have are meaningful and they eliminate the vast majority of the complaints that are seen before us.

Robinson: Felton: Robinson:

Chairman:

Are you finished, Robert? Senator Patrick, it’s good to have you over here on the poor side of the legislature. It’s good to see you today. [Inaudible.] We’re glad to have you up here. Senator Callegari? When somebody makes an anonymous report, how do you guard against somebody making an unfounded or an improper report and how do you do that in a way that’s least dangerous if you will or least damaging to the physician if in fact it is an improper or unfounded report? How do you wade through those without having that physician spend a lot of time and money trying to defend something that’s not proper? Sure. We do that the same we do every complaint. That is we have instituted an initial 30 day review that we do before we file the complaint. We expressly did this so that if somebody does have a complaint filed against them that turns out to be absolutely baseless, they can say that they have never been investigated by the medical board. So we do a 30 day review before we ever file a complaint so that when they do have to fill out those peer review applications and they are asked, “Have you ever had a complaint filed?” Their answer is no. In that 30 day

Patrick: Chairman: Callegari:

Robinson:

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process, the complainant is contacted if we know them. In this case we do not. Anonymous complaints we don’t know who they are. But we do contact the physician in almost every case unless we feel that there is a danger to the public in waiting that period, and we give them an opportunity to respond. It’s a short opportunity, it’s 14 days. But we only have statutorily 30 days to process the entire thing before it’s considered filed. The doctor at that time has the chance to respond and say to us, “Absolutely not,” or, “It’s nothing like that,” well before there is even an investigation filed. After that there is another full investigation time of 180 days maximum where they are given another full opportunity to respond. During this time period all of these complaints are confidential. They’re not discoverable by other peer review bodies. They’re not discoverable by the public. They’re not discoverable by anyone. Part of the reason for that is because we don’t know yet if there is a true violation here or not. That’s part of the reason why they were made confidential. You’ll hear the public say often that they don’t think it’s fair that the doctor part of this is confidential. There is another side to this too. The physicians don’t think it’s fair that the complainant is confidential. The public doesn’t think it’s fair that the complaint is confidential. The fact of the matter is if the legislature so chose, it would be the easiest for the board for everything to be public, every piece of information to be public to everyone. But we will do whatever the legislature chooses to do. Callegari: Yeah. And it’s an initial 30 day situation, what if you have a he-said shesaid situation? How do you really wade through that? Somebody makes an anonymous complaint, what kind of weight do you put to it – put on it? Well if it’s truly the only he-said she-said situations are ones in which there is no evidence one way or another. So if you’re talking about a sexual assault possibility or something to that effect what’s going to have to happen is there will have to be a hearing on that. The percentage on anonymous complaints was I think 1-2% a year of the overall complaints that we receive. So of the 6800 I believe it was 1-2%. Of those anonymous complaints, most of them do not go forward because there’s not petition information in there to identify the potential violation in the first place. But if there is sufficient information we will go forward and pursue it just as though it had a name on it.

Robinson:

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Callegari:

Once you go past the 30 days and you’ve determined that you think there may be an issue, is there any point at which the physician has an opportunity to know who the complainant is and specifically to confront that? No. The complaint is confidential by law and it remains confidential by law all the way through to the end of the process. That includes the state office of administrative hearings unless they are a testifying witness. Now I will tell you that in he-said she-said type situations if it’s something involving like inappropriate sexual allegations, something where truly the only evidence is the witness, if that witness will not waive their confidentiality, the board can’t go forward with that complaint because really the only evidence is their statement versus the physician’s statement. But if it’s an allegation that there is independent evidence on, if there are medical records available, that is what the board will look at and certainly Dr. Kalafut I did not mean to cut you off if you had anything to add to that.

Robinson:

Callegari:

The other thing I was told that is of concern is when a doctor has a situation and is brought before the board that he really has no opportunity to have somebody in there to help him or again to confront his accuser. That seems unfair. How do you – why could he not have somebody to help him – to confront the accuser, to defend his position? I’m not sure I understand exactly what you’re asking. The physicians are allowed to bring in attorneys and/or representatives to the IFC. Now if you’re saying at the period in time when a complainant is testifying who wishes to remain anonymous, is that what you’re saying? No, I’m talking about during the hearing. During the hearing? Yes. During the hearing they’re allowed to have their attorneys present during the whole thing and the doctors are allowed to be present in the whole thing. There are original – there are occasional cases where the complainant prefers to testify without the doctor looking at them, but whenever that occurs I believe that is done by audio, that the audio is piped in and it’s a two-way thing so the physician and his attorney do hear it and can respond to it and do have all of the due process rights to respond to whatever statement is made by that complainant.

Robinson:

Callegari: Robinson: Callegari: Robinson:

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Callegari:

What about if he doesn’t have an attorney but wants to have someone else, say it’s another doctor, his assistant or what have you. Is that allowed? Well, typically a physician can bring in and have speak on his behalf whoever he wants to have speak on his behalf. Now generally it’s not going to be that 20 witnesses are going to remain during the entire hearing. Sure. But if they want to present a witness they certainly have the opportunity to present any statements by anybody that they wish to present. Okay, thank you. Representative Lucio. Thank you Mr. Chairman. Good morning. I have a few questions. I hate to switch the subject. I’m going to kind of split back and forth. I had questions about FTE’s. I don’t know who’s best situated to answer those questions. Jane McFarland. Just overall FTE’s? Well, during this past session I sat on this committee and sat and listened to several of the agencies come and talk about their issue with turnovers. My understanding of that is every time there’s a turnover you have a certain period where you have to train those new FTE’s. Sure. Not only that, we were very concerned with the wait time for someone to get their license. So we went ahead and created six new FTE positions and appropriated money for those new FTE positions. I wanted to know what the turnover was like in terms within your agency, whether it’s with enforcement or with licensing, are we having employees stay there for a significant number of years so that we don’t have to train new people every so often and which creates wait time whether it’s to resolve complaints or to get new doctors their licenses. Can I – can we defer to Miss Jane McFarland? Sure. She’s Chief of Staff…

Robinson:

Callegari: Robinson:

Callegari: Chairman: Lucio:

Female: Robinson: Lucio:

Robinson: Lucio:

Female: Lucio: Female:

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Lucio:

Sure. And then I have a question when it comes to compliance though. I’m sure she’ll [inaudible 65:40].

[Inaudible conversation off mic.] McFarland: I’m Jane McFarland, Chief of Staff of the board. Representative Lucio, we have had some turnover issues when we look at our data. Like all smaller agencies we run slightly ahead of the state total or the state percentages. However, our turnover is pretty consistent over years. We went back to 2002 and turnover was the same pretty much over 2002, 2006, 2007. It does take a lot of time to train staff. And it’s particularly difficult in the areas of licensure. We ask people to know so much for so little in those positions because they are administrative assistant level positions most of them. There is a career ladder there though. And people do get promoted up within those positions which creates a constant then movement and creates more vacancies because we have a lot of internal promotions within that department. So now we just leave those positions posted pretty much all the time because we know that we’re going to need additional people. Lucio: McFarland: Has that caused a significant delay in physicians receiving their licenses? [Inaudible discussion off mic 67:06.] I’m going to let Jaime, the licensure person, speak to that. And also, have all six FTE positions been filled and are we at capacity right now? We have filled all six of the new positions. We have new turnovers. Some of those positions were filled internally and created new ones. We’ve hired – we’ve had a retirement in the last month. I’m going to let you speak to that Jaime. [Inaudible discussion off mic 67:30.] My name is Jaime Garanflo. I’m the Director of Licensure and Customer Affairs with the board. Representative Lucio, you asked first if turnover had an effect on the time to issue licenses. My answer to that is I don’t believe so, no. It has had the greatest effect on the increase in time to license – physician licensure applicants has been the huge increase that we had beginning in FY ’06 because the turnover has been about the same. At the end of FY ’07 we had not filled all of the positions. We were advertising and in the process. As of now we filled those six FTE positions. But because of

Lucio:

McFarland:

Garanflo:

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other turnover, some internal promotions and internal transfers, I’m still down at five FTE’s overall in the [inaudible 68:25]. Lucio: Garanflo: Lucio: Garanflo: Lucio: We’re only up one let’s say. Yeah. And the ones that were filled are new, new people. So we’re going to have to train them. It does take a long time to train people how to complete… What about in enforcement and investigations? How’s the turnover there? Is it adding to the length of time that some of these investigations are going on? Well investigations is a pretty large [inaudible 68:50]. There’s 26 of them. So it’s very hard to keep 26 people fully staffed at all times. We have a lot of retirements more than anything else in investigations. We normally do not have a problem with it because we try to fill as quickly as we anticipate knowing the retirement – for example we’re all ready posting for somebody who we know is retiring. But there was a point in time where we did have a hiring freeze. So when that happened and those FTE’s were opened, that did hurt us because we couldn’t rapidly fill. Could you say – could it be said that some of the reason for the amount of time – and maybe no, but some of the reasons or contributing factors to the amount of time it takes to resolve a case is because of lack of staff? I think it could certainly be said that if we were ever fully staffed we would do it faster than we are now. We also had a period of time – was it last fiscal year or the year before? Where we had a number of people who were still employed but they were out on FMLA. Those are the things that really hurt. Or you have someone who is leaving and they’re running out time and you’re not able to fill that position yet. We’ve had some vacancies there that way. We’re working very hard to get it filled as quickly as possible. We are. But we – as soon as – if we ever do maintain full staff obviously it will be more – done more quickly than it is now. We’re making some efficiencies by changing processes, but obviously if we ever do maintain full staff we will be even faster at it.

Robinson:

Lucio:

Robinson:

Female:

Robinson: Female: Robinson:

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Lucio:

That’s the only questions I had for FTEs. The other one I had was I’m looking at a chart that was handed to me by my staff that has a breakdown of how complaints are originated by patients, by family and friends of patients and then by the TMB. Then I am looking up at the top of this handout and it lists several ways the TMB can bring up complaints. One is [product ??] of continuing education. That’s pretty straight forward. Reports of multiple malpractice suits. That seems to give some room for discretion. Media reports and malpractice reviews also seems to give a lot of discretion. Newspaper items, that seems to give a huge amount of discretion. And board discovered violations. My question I guess is kind of several questions in one. How much discretion in that 15% that originated within the agency, how much discretion is given to the definition of what constitutes as a violation? Is it something – I’m sure you’re familiar with the federal [inaudible 71:38] guidelines that you just look up and there’s a definition of how you handle that? Or is it on a case by case basis.

Robinson:

Well, okay. They’re all different is sort of the answer. The CME audit is discretionary. We have been doing the same percentage now forever. Jaime, I think it’s 1%? It is 1% and our plan is to increase it to 2%. So that’s what we do every year on that. Newspaper articles, what that really is is when the newspaper finds out about a crime way before we do. So like a headline comes up, “Doctor arrested for child abuse.” “Doctor’s office raided.” We will use that and will open that up and find hundreds of [TMB ??] because that’s how we found out about it through our clipping service that we use to monitor all of the physicians. So that is discretionary to a certain degree, but if there is a crime indicated we’re going to open that up. That’s what the newspaper clippings really is, is reportings of crimes. The medical malpractice is statutorily laid out.

Garanflo: Robinson:

Lucio: Robinson:

Okay. It requires – it’s in Section 164 of the Occupation’s Code. It requires that we review any physician that meets certain criteria. Three of a certain type of report within five years, we have to look at that. Then we open investigations on the ones that seem like they might really have some sort of validity to the claim.

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Fortunately that number has been going down. It used to be that we had to look at every claim, malpractice claim that came in. They’ve eliminated that. Now it’s a payout and settlement and actual lawsuits filed. So that number is dramatically trending down. A lot of times we get compliance violations when they have an Agreed Order. They’ll get a compliance violation out of the Agreed Order. They popped positive on a drug test or something like that. Then they also have to fill out their registration form. It asks them four questions that are really intended for the enforcement part which are, “Have you been arrested?” Essentially, “Are you suffering from any sort of addiction or impairment that makes you unable to practice?” That kind of thing. Those are all also opened up under TMB. Lucio: In your opinion, does that system lend itself to consistency with – I mean it is 15% of all complaints filed. It’s kind of an internal initiated system. Right. Well, the CME is pretty consistent. The malpractice is statutorily laid out so that is consistent. It’s consistently trending down right now, that’s the definition of change. The newspaper, that’s going to depend on what doctor gets arrested and what’s in the paper. So that [inaudible 74:32.] Then with the reporting on the registration, that we look at every single one. So that is consistent. Lastly, it’s going to depend on how many people violate their board orders. So if a lot of people violate their board orders, we’re going to have a lot of those. If nobody violates their board order which would be wonderful, we’re not going to have any. Okay. Thank you, Mr. Chairman. Representative Van Arsdale?

Robinson:

Lucio: Chairman:

Van Arsdale: Yeah we just got – we were handed a list of biographies of the medical board members. I noticed there were five or six that had been sort of like – I guess their terms, they’ve been reappointed during the session but it was sort of towards the end of the session. Then Dr. Kalafut, you were reappointed – unlike the others you were reappointed several months later, at least according to this sheet in September. What’s the – what’s the reasoning for that? Kalafut: Representative Arsdale, you’ll have to ask the governor’s office why.

Van Arsdale: You don’t know? Kalafut: No.

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Van Arsdale: Okay. Did you ask? Between May and September did you ask the governor’s office why you were being held up? Kalafut: I did. There was some question whether I wanted to stay on this board or not.

Van Arsdale: Oh, okay. When you asked them did they give you an answer or did they tell you anything, or just not return your calls? What was the – I mean… Kalafut: You know, I serve at the governor’s pleasure. At first there was a – whether there was a willingness to continue to serve. Then of course it’s the governor’s decision ultimately whether I stay on this board or any of us stay on this board. So there’s some delay.

Van Arsdale: Okay. I have some questions about – I downloaded this complaint form off of the website where you like – I believe that’s what was on the website where you file a complaint. Is this the form that people use when they… Kalafut: It looks like it. I mean I can only really see the first page, but yes. If you downloaded it off the website I would assume that it was. You can also fill that out online and send it straight in.

Van Arsdale: Okay. Is it – I noticed unless I’m missing a sheet or unless there’s some instructions, I didn’t really notice anything on here about confidentiality or anonymity. Kalafut: There is – as far as I’m – I want to make sure that I say this right. Because the form that we actually mail out to people has a FAQ section. It has like a Q&A. It talks about all that confidentiality. I think, I think that there is a FAQ on the website that also answers all of those questions. That is correct. It’s on the website as a separate document. Yeah. It tells them all about, you know, what the meanings of their complaints are, what they can expect from the process, things like that.

Female: Kalafut:

Van Arsdale: Do y’all have any idea of what percentage of your complaints, your forms that you – let me back up. Can someone make a complaint orally or does it have to be in writing? Robinson: We almost never take oral complaints because essentially we want it to be done in the words of the complainant. We have done it once or twice when someone was physically unable to make a complaint. We had one person who was blind so we did take theirs orally, but almost never.

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Van Arsdale: So I noticed in the statute that TMB, the medical board like employees or staff I guess can also make complaints, is that right? Robinson: Well, it’s allowable, yes.

Van Arsdale: If they make a complaint do they fill out one of these forms too? Robinson: They have a form that they fill out, yes.

Van Arsdale: Is it the same one everybody else fills out? Robinson: I don’t think it’s exactly the same because we have an additional form that they attach to the underlying information that they have found out about it.

Van Arsdale: The form – so am I hearing that the – if you’re – let’s say you’re on the board of TMB or you’re an employee of TMB and you file a complaint. Robinson: Okay, the board members, yes. They fill out a form. The staff…

Van Arsdale: The same form as everybody else? Robinson: Okay, let me make sure I understand because what I was thinking you were talking about were field investigators. Because what will happen is we’ll have compliance officers for example in Orange County. When we were out trying to deal with some of the situations in Orange they would wind up meeting with other law enforcement who would say, “There’s another problem doc here. Let’s go look at it.” He would come back and make a report and say, “This is what I found out in Orange. We really need to look into blah, blah, blah.” When that happens, no, they do not fill out this entire thing. It is written. It is maintained as part of the file but it is written more like an investigative report of, “Here’s what I found. Here’s what we need to look into.” That is categorized by TMB. However, if you are making – if I were making a personal complaint against my physician I would have to fill it out exactly like this and it would not be classified as TMB. It would be classified as Mari Robinson, patient. Van Arsdale: Okay. So, I guess what I’m trying to find out – I’m assuming that each case that’s started against a physician is started because someone filed a complaint. Robinson: Yes.

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Van Arsdale: Okay. And I’m assuming other than the rare exceptions where someone can’t write or someone physically can’t write, they have to fill out a complaint form. Robinson: Yes.

Van Arsdale: Is that true of people that are on the medical board, not talking about their personal physician, but let’s say someone on the medical board wants to file a complaint and start the complaint process against a physician – not their physician, but I noticed that you all said 15%, I think is what you said, of the complaints are filed by the TMB. Did I hear that right? Robinson: I don’t think that you’re – I’m sorry, I think that the statistics and Jane’s talking right now, are misleading. What we’re saying with the [T&G] are the ones that I had spoken to you about just now. They’re not board members. [Several talking at once off mic.]

Van Arsdale: Okay, let me back up. TMB Board, staff, employees – I thought I heard someone say that 15% of complaints are filed by somebody in the Texas Medical Board. I think that’s what I heard. Did I hear that right? Robinson: Fifteen percent are categorized as initiated by TMB which are the ones that representative Lucio were asking me about where they fill out a registration and indicate they have a problem or an arrest or they are getting a CME audit where they have violated their board order, where we have filed articles in the newspaper that indicate somebody has been arrested or something is wrong. Those are categorized as TMB complaints. Enforcement.

Female:

Van Arsdale: So TMB initiated the complaint? Robinson: Right, after we received it. The agency does it.

Van Arsdale: When they do it, do they fill out a complaint form? Robinson: No.

Van Arsdale: Why not? Robinson: Because we take – for example if it’s, well first of all it would be inefficient. If we have the newspaper article what we do is we scan in the newspaper article and that is the documentation for the complaint. Just like if I were Citizen A and I wrote a letter to the TMB, it doesn’t

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necessarily have to be on this piece of paper. You can just write a letter saying whatever the problem is. Van Arsdale: Let’s say I have a problem with my doctor. Do I have to fill out one of these? Robinson: Yes.

Van Arsdale: Okay. Robinson: Or you have to send something in in writing.

Van Arsdale: So it doesn’t have to be on the form? Robinson: No.

Van Arsdale: You’ll take this form but it can just be a letter. Robinson: That’s right.

Van Arsdale: If someone writes a letter and submits it to y’all, y’all may sort of launch that case or whatever. You don’t necessarily need this form. Robinson: No.

Van Arsdale: So let’s say an insurance company wants to start one. Robinson: Sure.

Van Arsdale: They want to file a claim. Do they fill out one of these forms or just send in a letter? Robinson: They are treated exactly the same as anybody else.

Van Arsdale: They have to be in writing? Robinson: It has to be in writing.

Van Arsdale: Okay. One of the stats that y’all gave was that 15% of the complaints were initiated within the TMB and that 7% were initiated by healthcare professionals. Robinson: Sure.

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Van Arsdale: If a person – let’s say a person is on the board of TMB and they are a healthcare professional. They’re both. In other words they’re on the board. Robinson: Sure.

Van Arsdale: And they initiate a complaint. How do y’all characterize that? Robinson: It would depend on what they were complaining about.

Van Arsdale: What if it’s not about their doctor, what their doctor did to them. It was just… Robinson: The category healthcare professional is used, and this would include any healthcare professional on the board, when a healthcare professional complains about another provider, not their own. They are not the patient in that scenario. But they – for example say that they are a treating physician and they have five people referred to them in a row after receiving extremely poor treatment by Dr. Jones. They can make a complaint to the board and we will investigate what occurred with those five patients with Dr. Jones. The same as with a pharmacist. It’s very common for a pharmacist to realize that the doctor has an addiction problem before anyone else because they’re the one that the doctor keeps going and getting their drugs filled with. So a pharmacist falls under that. A nurse might be aware of the fact that a doctor is committing fraud against Medicaid. She’s the one who files that complaint. Those are healthcare professional complaints. Van Arsdale: Do y’all – so it almost sounds like when you mention the newspaper articles and other things, it’s almost like the TMB is sort of like a proxy – maybe they got their information from somewhere else and it’s all up to TMB how the complaint – that they got the information from somebody else. Robinson: Only part of the time. The CME audit is done by the TMB itself. The registration form is the registration form that is colleted at a TMB. The things that come out of board orders are because we are monitoring somebody who’s on a board order to see if they’re complying with the terms. A newspaper, yes, that is definitely a proxy. The same thing is true of law enforcement. They can file complaints and we will take those in, things like that.

Van Arsdale: So if – I think I heard y’all say that the anonymous piece of this – it’s on the FAQ part of the website and maybe did you say it’s in some sort of form that you mail out?

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Robinson:

The form that we mail out does not look like this. The form that we mail out has an FAQ included with it about confidentiality and all of that type of thing and to tell people what to expect as a complainant. This is what they fill out if they want to submit it on the website. Then there’s a place for them to go to find that same information.

Van Arsdale: So if they’re doing it on the website and all they do is fill this out, they don’t really know that it can be filed anonymously because this is all they… Robinson: Well, there is a space that gives them the information, but they may not realize that, no. They may not read it. I mean they may not read the information we give them when we mail it out to them anyway.

Female: Robinson:

Van Arsdale: How do you decide how to mail it – like when you say, “Mail out a complaint form” does someone request it? Robinson: Yes. People call in. We have an 800 number and this is actually under customer service. But people call in and say, “Hey, I’m having a problem with my doctor.” Then we say, “Okay, let us get your address. You can either go on the website and file a complaint and we’ll look at it, or if you don’t have access to a computer we are happy to mail you out a complaint form.” I think we do hundreds of those a month. I think we do 400-600 probably a month that the calls come into the customer information center. In return they receive a complaint form.

Female:

Van Arsdale: So what happens is – what percentage would you say of your complaint forms are the result of a phone call – if someone makes a phone call and then you send them… Robinson: We have no idea. We don’t track the 400 phone calls or 600 phone calls…

Van Arsdale: Do you send a form to everyone that calls? Robinson: Right but basically that’s just taking a letter…

Van Arsdale: Doesn’t that cost money? Robinson: Yes.

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Van Arsdale: Why wouldn’t you track that? Female: Robinson: Female: I do have – I do have… We track how many. I have a number every month that are sent out as a result of an inquiry to the call center. Most of them would be by telephone. Some of them could be in writing. The call center gets a lot of the written documentation coming into the agency. So I do know that. I have never put the numbers together to see what percentage that constitutes of the total complaints. And we couldn’t. We don’t keep track of who all we sent a complaint form to. If the legislature thought that would be important we could certainly dedicate a full to a half-time FTE, take that off of licensure and enforcement and do that.

Robinson:

Van Arsdale: I’m just curious because – do y’all track what percent – like let’s say you send out 600 forms. Do you track how many of them actually never get sent back in? Robinson: Female: Robinson: No. No. We would have to write down the name of 400-600 people a month and then do a – I guess weekly scan of the system to see if they ever turned their complaint form in. And if that’s something that y’all believe to be important, we could certainly take resources off of something else to do it. The other issue is that somebody might call in on behalf of the person who sends it, so you really wouldn’t have a good way to track if the one you sent out was the same complaint that came in. I get calls sometimes from legislative staff asking me to send a complaint form to someone. I mean it could be someone else who calls and asks that we send a form. They will say, “We’ve got a constituent who wants to know how to file a complaint.” I’ll usually direct them to just call into the 800 number, but they may say, “Well, can you just send them a form?”

Female:

Female:

Van Arsdale: Well when the person’s been harmed by the doctor or think they’ve been harmed, if they go through them, the person can’t remain anonymous. They have to identify themselves. If the suit is frivolous there are sanctions in place. The judge can sanction someone who sues somebody

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frivolously. My question is with the TMB is let’s say, what provisions do y’all have for sanctioning complainants if it’s a frivolous complaint? Robinson: We don’t have jurisdiction over complainants, only physicians.

Van Arsdale: Okay. So if a complainant files a complaint against a physician, or let’s say files 20 complaints against a physician just to harass the physician, you’re saying you don’t have any penalties or sanctions or anything you can do? Robinson: Well first of all I would submit to you that I have never, ever seen that happen that 20 complaints are filed – that 20 complaints have been filed by one person against a physician.

Van Arsdale: Okay, let me – Robinson: That simply does not occur.

Van Arsdale: If we’re going to play that game let me ask you this. Let’s say someone files one complaint against a physician to harass a physician to force – I know y’all don’t think they have to hire a lawyer but if you’re going to lose your license a lot of doctors are going to hire a lawyer and spend some money. Let’s say that the complainant knows that. Let’s say that the purpose is harassment. Are you saying that y’all don’t have any jurisdiction or any provisions to penalize or sanction someone to keep them from doing that? Robinson: That’s exactly right. We only have jurisdiction over licensed physicians, not the general population.

Van Arsdale: So let’s say I’m the physician’s competitor physician. Robinson: Sure.

Van Arsdale: And I file complaints against my competitor anonymously. Robinson: Are they valid complaints?

Van Arsdale: I’m not getting to the point of validity. I’m just saying that just like today if I’m mad at some doctor today that’s here, can I get on the website this afternoon, fill out a complaint form and fill it out anonymously with y’all and trigger a case? Robinson: Absolutely. People can behave badly in any aspect of their life and that includes filing complaints with the medical board. That’s why we do an initial 30 day chance for the physician to respond and that’s why we have

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180 day investigation. That’s why we have an [IFC ??]. If we thought every complaint that came in was 100% valid we could issue a penalty upon receipt of the complaint and we would have no need to ask the physician to respond or have a hearing or have the medical board consider it. Female: Representative Van Arsdale, I was the subject of a frivolous complaint recently. I got a complaint filed against me stating that I never went to John’s Hopkins’ Hospital University for my training in physical medicine and rehabilitation. My name was plastered across the internet stating that. Now that’s a frivolous complaint. There’s proof that I went to Hopkins. I was Chief Resident at John’s Hopkins. That is a frivolous complaint and it will be dismissed because I have proof of my certificates that I went there. I know what you’re talking about. I personally lived through that. But then again I’m the one who gets my name across the internet on websites saying that I am falsifying. Robinson: But in response we would not be doing anything disciplinary to the person who filed that complaint.

Van Arsdale: Which employee or members of TMB staff or board file complaints? Robinson: Well essentially if you’re talking about the type that I talked about that were investigative, really anybody in the enforcement group as they are in the course of investigating that complaint can fill out a report, basically documentation on what else we need to look into. That becomes a permanent part of the file. Now what also may happen is some of this information comes from the licensure [inaudible 91:46], for example the registration that I mentioned. When they send in their registration and they check if they’ve had any arrests, they refer that up to me. So that comes from the licensure division with the piece of paper that is the registration. So that would come on up. So really anybody who’s sort of involved in evaluating physician fitness at one time or another would be somebody who would submit something in writing for us to look into. Van Arsdale: So would that be like you, like in your position do you file a complaint? Robinson: I rarely do mainly because I am not actively investigating anybody. I’m not an investigator. I’m not a litigator for the board. I’m not a compliance officer. Basically how that happens is an employee will come to me and say, “Look, we found all of this out.”

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The most recent example that comes to mind that I mentioned earlier was the Orange situation where we had a compliance officer come back and say, “We found in working with the local sheriff there we found these other cases.” I said, “Great, we need to look into that. Let’s get that started.” Myself, I do not. I’m not involved at that level. So it’s extremely rare. I do not ever remember doing it, but I hate saying never because for all I know in 2004 I did. But generally that just does not happen. Van Arsdale: Do the board members file complaints? I’m not talking about complaints against their personal physicians. I’m talking about do the board members file complaints? Robinson: On a rare occasion I have had a board member provide me with documentation and say, “Hey, I don’t know if there’s anything to this but you might want to look at it.” Sometimes I’ll look into it and there’s nothing to it and we just don’t file it or sometimes I’ll look at it or have somebody who works for me look at it and realize, “Oh, there might be a problem here.” Then we’ll file it and investigate it.

Van Arsdale: Okay. So when that situation takes place who’s actually the complainant? Robinson: Oh gosh, that is so rare. I would have to try to go back and find you one. I honestly don’t know because it’s a very, very rare situation.

Van Arsdale: What if someone at TMB files a complaint anonymously? How would you know who filed it? Robinson: It could be Minnie Mouse for all I know. It’s anonymous. I don’t know who filed it.

Van Arsdale: Okay. So have you ever filed an anonymous complaint yourself? Robinson: No.

Van Arsdale: No? Do you know of any board members that have done that? Robinson: Not that I’m aware of.

Van Arsdale: Dr. Kalafut, have you ever filed – do you know of any board members that have filed complaints anonymously or… Kalafut: I do not.

Van Arsdale: Or any family members of board members that have filed…

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Robinson:

In all honesty I would like to point out that even if that were the case it would be statutorily confidential and she would not be able to say it orally in this hearing and we would have to get…

Van Arsdale: [Inaudible 94:38]. I’m not asking for who – I’m not asking you for who filed it. I’m asking you if someone’s aware. I don’t think that’s affected by confidentiality. Robinson: Sure. I’m just clarifying in case you were seeking out names.

Van Arsdale: Do you know of any – Dr. Kalafut, do you know of any board member or board member’s family member that’s filed an anonymous complaint against physicians? Kalafut: I do not.

Van Arsdale: Tell me about Mr. Miller, Dr. Miller I guess. When did he go off the board? Kalafut: Dr. Miller went off the board, don’t quote me exactly, but I think in August…

Van Arsdale: August, that’s enough. What was his position? Kalafut: He was a board member but he was also Chairman of Licensure at that time…

Van Arsdale: Okay. Kalafut: …of his resignation.

Van Arsdale: Remind me – he was – it sort of was a deal where he was involved in some – I guess being an expert witness or something. What was he doing that was a problem? Kalafut: It came to my attention in the spring that he was an – he was testifying as an expert witness in cases. That was his issue. I did not know that prior to that.

Van Arsdale: Did any of the members of the TMB staff know that? Kalafut: No. Then when it came to my attention I contacted him to ask him for more information. He told me about the case. I told him that I felt this was a conflict of interest and that I would not support it. Immediately we took action. Within a week I had a stakeholders’ group formed to look at

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this issue of board members because there wasn’t any in statute – board members testifying as expert witnesses. I felt very strongly that this was a conflict. So we reacted before the legislature did. And of course the stakeholders’ group said, “Yes, this is a conflict of interest.” In the April board meeting we drafted rules before the legislature before the legislature put it into the legislation. We drafted rules preventing a board member to testify as an expert. Then it had to be published in the Texas Register and get [inaudible 96:45] and then it was passed along with the legislation. [Inaudible conversation off of mic.] Chairman: Riddle: Representative Riddle, do you have a question? Yes. I’m a little bit concerned – and clarify this for me. Maybe I’m a little slow on the uptake here. Correct me if I’m wrong doctor, whichever one of you might want to respond to this, that a large percent of the anonymous complaints are dismissed. That’s accurate. Can you remind me what that percentage is? We do have it written here somewhere. If you look at a two year time period and I said there were about 11,000 complaints registered in a two-year time period, actually 10,980. But within that time period we got 427 anonymous complaints. I’m going into a little more detail for you than I gave in my initial comments. Thank you. So of those 427, 168 were non-jurisdictional meaning we have no control over – they’re not our licensees. So they were basically just dismissed [inaudible 98:09]. Of those, 116 were felt to be jurisdictional, they hold our licenses. The problem with an anonymous complaint is if you have to file up on it, we have no one to contact. A lot of them get dismissed because there’s no source to say, “What about this information?” So 38 – of 116, 38 were dismissed following the investigation. Out of all of those 427, 10 have resulted in disciplinary action. Disciplinary action consisted of seven administrative penalties… Eight administrative penalties. That was my math error on the thing that she’s holding. Seven instead of eight, yeah.

Robinson: Riddle: Robinson: Kalafut:

Riddle: Kalafut:

Robinson:

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Riddle:

So let me see so I don’t get lost here. There were 400 over a two-year period - out of 11,000 complaints 427 were anonymous. Basically the bottom line that we’ve worked down to, 158 were not within your jurisdiction. 115 were within your jurisdiction. You said 38 were dismissed but now you were down to 10. Four to five are still active. Okay, four to five are still active. Forty-eight of the 115, 38 were dismissed. Forty-five are still active and have yet to be resolved and 10 resulted in disciplinary action so far – and only 10 in disciplinary. Now since you have such a small percentage that resulted in a disciplinary action, do you have any idea or have you kept any kind of record as to how many of these complaints that were generated through anonymous – anonymously, wanting to maintain their anonymity where the physician needed to or felt that they might need to hire an attorney which takes a way a great deal of time for them, finances, and resulted in a net loss of money for the physician? Well we can tell you of the 168, they were never notified. I’m sorry? The 168, they were never notified. Okay, 168 not notified. But of the rest, those that were within your jurisdiction which you said was 116. One hundred sixteen because 143 were non-jurisdictional and… No, you said 168 were not jurisdictional. One hundred sixty-eight were non-jurisdictional. One hundred forty-three were eliminated in that 30-day evaluation period leaving you 116 that were jurisdictional. Okay. Of that 116, no, we did not – we don’t track what percentage of the respondents, the licensees, hire attorneys or don’t because we basically tell them that that’s their choice. They can do that and have representation or they can represent themselves. Well I can understand it if their license and their ability to practice medicine is on the line they probably would. Do you think – and I’m just curious about this because you are in your positions of authority and we as

Robinson: Riddle:

Robinson: Riddle: Robinson: Riddle:

Robinson: Female: Robinson:

Riddle: Robinson:

Riddle:

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legislators, we need to try to work together here because obviously you said that your job, what you’re trying to do as a member of this board is basically keep bad doctors from doing bad things to good people. Is that not correct? Robinson: Riddle: Yes. Okay, do you think there is a reverse of that coin where we should have something in place, maybe we need to consider this legislatively, to keep bad people from doing good things – bad things to good doctors and keeping good doctors from having access to their position. [Applause.] And I would say to you that is why we instituted all of the levels of ability to respond and hearings that we do have so that the doctor can present their side of the story and we can try to eliminate everybody who does not have a violation from the board’s processes as soon as humanly possible. Would you recommend to legislators sitting before you that we look at some type of legislation for reimbursement, lose their pay if you will, for physicians who are out time, expense and taken away from their practices and their patients for frivolous accusations? I mean we’re all the way down here to – you’re up to four to five that are still active. Ten there has been disciplinary action. In over a two-year period of time, that’s out of 427. That’s pretty lopsided I would think, even taking into account that there was 168 that were not even within your jurisdiction. It seems like it’s really lopsided. Is there something I’m missing? Honestly I cannot recommend legislation as I work for a state agency as you’re well aware. The fact that there was a voluntary surrender – what got cut off was that there were eight administrative penalties, one restriction and one voluntary surrender. That says to me that there was at least one physician that shouldn’t have been practicing out of the 10 that were restricted. I can tell you the effective legislation, as a state employee, the effective legislation that allows a physician to sue someone or retain damaged from them who may be somebody with not a very high education level, who may be somebody with not a lot of resources, who may be a hospital who’s afraid of suit anyway. They simply will not tell us regardless of whether the complaint is valid or not. So that is simply something the legislature will have to weigh. In the past when they were weighing that they decided that it was more important to make sure that as much information that could possibly indicate a bad physician should come in. It may be that the legislature has decided that it is more important for doctors to not have to spend time out of their office

Robinson:

Riddle:

Robinson:

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to respond to complaints and just accept the fact that many complaints will never be filed that are valid due to fear. It’s certainly whatever the legislature decides is the appropriate balance this agency will enforce. Riddle: I think what the legislature is looking for is indeed balance. Right now with these numbers, somehow with me looking at it there seems to not be balance. I find that of great concern. But I do thank you for your answers. Members, we also want to welcome Chairman McClendon. It’s good to have you here Madam Chair. Members, any other questions? Yes sir, Robert? I’ve got one more based on Representative Riddle’s question. Did I understand that on some of the anonymous complaints that you may not even know who it is? Is that correct? All of the anonymous complaints we don’t know who it is. You don’t have a clue who it is? That is correct. Do you take them in writing, or do you get them by the internet or all they oral? I’m sorry to – I apologize to repeat this part of my testimony. Actually we require complaints to be in writing. They can come in over the internet. It’s a very, very, very rare occasion where we take a complaint over the phone. It’s usually somebody who does not have the ability to write on their own. The last one we did was somebody who could not see. Almost all of them are required to be in writing – 99.99%. So do you know who they are when they put it in writing? At least the agency knows because you can’t even reveal it to us, can you? No, we do not know. That’s why they’re called anonymous. Thank you. That’s why they’re hard to follow up is you don’t have someone to contact to say, “You know you made this allegation against the doctor. We need records or we need more information.” We can’t follow up. Well, and it’s very difficult for the doctors to do it too when they don’t even know where it’s coming from.

Chairman:

Felton:

Robinson: Felton: Robinson: Felton:

Robinson:

Felton:

Robinson: Felton: Kalafut:

Felton:

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Kalafut:

Mr. Chairman? Let me – can I clarify that? If all complaints are essentially anonymous and if we don’t reveal who the complainant is, we’re talking about that very small percentage of complaints that come in unidentified with no name attached. Those are the anonymous complaints to us. We hear a lot of confusion about people talking about anonymous complaints, but it’s just that we don’t release that information under statute. And that would be about 2%. Yes. You just said something Dr. Kalafut, that makes me think about the issue of anonymity being a double-edged sword with neither edge being good. That if someone as you said with lack of education or lack of understanding or lack of funds chooses to make an anonymous complaint, but as Dr. Kalafut said that if they indeed are anonymous they are very difficult to follow up on and you have an obligation and a concern regarding the safety of the public and the safety and the welfare of the public regarding physicians that may not be doing what is proper or giving good patient care, would you not then say that anonymous complaints could be dangerous to the public? I think the anonymous complaints, I mean the complaints in general. No I’m talking about – not in general. I’m talking about anonymous complaints. I thought that I understood you to say that it was very difficult to follow up on a complaint when the complainant chose to maintain their anonymity. Those weren’t the words that you used, but I believe that you said something similar to that. Did you not just say that? Correct. Okay. Now follow my reasoning here and tell me where I’m wrong. If there is a need to follow up an anonymous complaint is probably going to wind up in file 13, and from the numbers you gave me it does appear that the numbers are low. Then would you not then be concerned that being able to file anonymous complaints should be discouraged and maybe the legislature needs to look at that? Anonymous complaints are not producing maybe what they need to produce. Our concern, the Texas Medical Board’s concern – and again, I’m going to answer your question but I’m going to go about it just a little bit, just to protect the public. We get a complaint in, let’s say anonymous. No name, just wrote in, “This doctor blah, blah, blah.”

Robinson: Kalafut: Female:

Kalafut: Female:

Kalafut: Female:

Kalafut:

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If the evidence provided in a statement is enough that we question whether there is a violation in the standard of care or perhaps it is this doctor is drunk or there may be an article that they clipped with it saying, “This one was picked up for a DUI.” There’s enough information there we can investigate then we do because our concern is standard of care or impairment of a doctor or what have you. That that doctor is safe to practice and treat our citizens. If there’s not enough information there, it’s spotty, we cannot connect the dots, it doesn’t look like there’s enough there, it gets dismissed. Female: So it looks like the vast majority of them would get dismissed because of lack of ability to follow up and so if there are bad doctors doing bad things to good people then those bad things are going to continue because of lack of ability to follow up. I again ask you, would you not agree that the anonymity would be something that would not be in the best welfare of the public. I can tell you because we take so many calls in the information center… What is your name again? My name is Jaime Garanflo. I’m the Director of Licensure and Customer Affairs. Okay. I am the director of the division that handles the customer information center, the first point of contact at the agency, almost all of the calls that come in. We do take a lot of calls that are about complaints about physicians. When the caller – we often explain the process, the investigative process. Even though it’s on the website, there is sometimes questions. Our representatives answer those to the best that they can. But I will tell you that when the complainant is asking questions they do ask sometimes about, “Can I remain anonymous?” Although we tell them that it is possible to do that, we also explain the problems that can happen with anonymity, such that things can’t be followed up on and we would not be able to do certain things. We wouldn’t be able to contact you if we had another question. So we do do our best to let the complainant know over the telephone why an anonymous complaint would not be best. Female: Okay, so this is only done verbally over the phone. This is not done in writing when the form, wherever it is here. When this form is filled out and it is anonymous, is that same type of information given to the complainant?

Garanflo: Female: Garanflo:

Female: Garanflo:

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Garanflo: Female: Garanflo: Female: Robinson:

I don’t know. Why don’t you know? I’m sorry, I just don’t know. Does anyone know? My rough answer would be that it does address confidentiality on the website. It is not going to tell them whether to file an anonymous complaint or not. It is going to explain to them the complaint process, that they retain the confidentiality and that type of thing. The other part is up to them. We certainly can update materials if the legislature feels that that would be appropriate, but currently we do not tell people what to do one way or another. I would like to say one other thing very quickly. Sometimes these anonymous complaints are dismissed not only because it’s difficult to follow up, but because there’s sufficient information there for the board to determine there’s no violation, just like every other complaint. In the initial 30 days a very large portion are dismissed because we’re able to determine no violation has occurred.

Chairman: Darvy:

Representative Darvy? Thank you Mr. Chairman. My – so much discussion this morning has been on the complaint process. I’d like to go into a little more detail about that. I’m looking at the overview provided by the TMB on page 24. There’s a flow chart which is associated with that. Step one, the complainant – the complaint is received and processed by complaint analysts. Yes. Who are those people and how many are there? That very first part, they’re just administrative. It’s that very front part. All they’re doing is eliminating those cases that are non-jurisdictional. Then they’re moved on to nurses. Once we’ve weeded out everything that’s non-jurisdictional like for example we get a lot of complaints about podiatrists or psychologists, things that belong to other boards, we refer those along. That’s their job. But then everything that’s physicians goes on to nurses.

Robinson: Darvy: Robinson:

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Darvy: Robinson: Darvy: Robinson: Darvy:

But complaint analysts are staff personnel… Yes. …with TMB. Yes. Then according to your process then you are paying the lack of these disciplinary medical malpractice history from your records, [inaudible 114:42] and presumably you’d receive a copy from the national’s practitioner database. Right. That was done by the legislature. Okay. The statute requires us to get that. Then that is sent on to the central nurse investigator. Right. Now what kind of qualifications does this central nurse investigator have? They’re RN’s and a few of them have backgrounds in investigative medicine with other state agencies. But they’re RN’s and then they’re trained to go through the investigative training with the board. Those are their qualifications. At this point in time what they’re doing is looking at whatever evidence is brought in, formulating any questions that maybe need to be asked of the complainant to make sure that we have the sufficient information, and then sending a notice letter to the physician if required. Sometimes after just talking to the complainant it’s sufficient to close the complaint. But if it’s required, sending something to the physician saying, “We received a complaint about your care of patient AB in June of 2007. Would you like to respond? If so, here’s your deadline.” When that physician response comes in that nurse will evaluate all of the materials provided by the physicians. Often times it’s the medical records. They will take out everything that indicates no violation occurred. A very large group of complaints are eliminated at that point in time, about a third.

Robinson: Darvy: Robinson: Darvy: Robinson: Darvy: Robinson:

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The remaining third of complaints go on to the field investigators who are also nurses or PA’s and they gather all of the requisite evidence – medical records, witness statements, any other evidence that’s required. If it’s standard of care case they submit that to two board certified physicians. Those physicians make an opinion on the standard of care. The case comes back, a final report is written and it’s either referred to the board’s DPRC committee – Disciplinary Process Review Committee – for dismissal or it’s referred to the litigation department for prosecution. Darvy: I guess my question relates to at what point the complaint is filed. According to this flow chart that would be in step two, after the central nurse investigator has assembled that information, presumably received the letter back from the doctor in response to the complaint, talked to the complainant and then according to your statement here says if the complaint is filed, who examines all that body of information to determine whether or not the complaint should be filed? Is it simply the nurse practitioner? Yes. The RN makes this decision whether to go forward at that point? Yes. A doctor doesn’t make that, nobody from staff is involved in that process? Simply that simple – the central nurse practitioner is doing it? Sure, that staff member is the one who pulls out all the ones who should not go forward. It used to be that everything that was jurisdictional in any way went forward for the full investigation. All we took out were the nonjurisdictional. We put in the 30-day review by the nurse to eliminate everything additionally that shouldn’t be there. So that’s why the case is there. In order to address some of the concerns expressed this morning, should that part of the process be expanded to give more attention to whether or not it should go forward? I mean in your opinion? Well, it would basically just be transferring what’s done at the investigation to an earlier period. That’s certainly up to the legislature. It would require a statutory change because right now we are limited to 30 days. But… But if you had more time could a lot of these issues be disposed of before we have to go hire lawyers or doctors have to hire lawyers?

Robinson: Darvy: Robinson: Darvy:

Robinson:

Darvy:

Robinson:

Darvy:

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Robinson:

I honestly don’t know that it would make that much difference because the fact of the matter is if we had more time we would do exactly what we do in the 180-day process which is to go and gather all the medical records and submit it to a panel, an expert panel for review. During the 30-days it’s not that we have a lack of time to review those two pieces of evidence because there’s enough time in the 30-days to review those two pieces of evidence. At the end of the 30-days it’s not closed it’s because we can’t determine without a full investigation whether a violation occurred or not. We think one probably has. So that’s why it then goes on to the full investigation, to get all of the medical records and to have two board-certified physicians look at it.

Darvy:

But in your opinion, simply by expanding the time, this 30-day period to bring more involvement, fresh – other eyes looking at this would not be an effective tool to deal with this concern that these – that have been expressed today? I honestly do not know that it would simply because that’s something that’s all ready – that piece takes a long time. Either expert review takes a long time and getting medical records takes a long time. I mean it just does. That is all ready being done in the full investigative process. But I think that’s something – I mean we can talk about that and see if between now and the session if we can look at that process and see any way. Off the top of our heads that’s not something we see but it’s certainly something [inaudible 120:29] talk about and speak… I think everybody would like the approach to try to resolve these, certainly the anonymous complaints and other complaints, as quickly as possible without the involvement of a lot of time and money by the physicians and other staff. If we could resolve this early in the process and talk about some of these issues quickly then perhaps it won’t extend into a full-blown investigation requiring… We have worked so hard to refine this process. We put in this 30-day initial review to avoid opening complaints when we don’t have to when we can avoid that. We look at it and think, “Gosh, this is so much better than it used to be.” But maybe there’s a way it can be better. We can certainly… Certainly I am a little concerned that we have a nurse practitioner making such a critical decision in this short of time frame. So from my perspective I’d like to see an examination of that particular phase and perhaps we can divert some of these actions without going through a fullfledged investigation.

Robinson:

Kalafut:

Male:

Kalafut:

Male:

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Kalafut:

The other piece of this is also that dismissals are reviewed by the disciplinary review committee, correct? They’re audited. They’re audited. They’re audited. Once they’re dismissed after 30 days they’re audited by the disciplinary review committee of the board. I will say that other thoughts – I mean we’re certainly open to talk about that. Other thoughts that come up about maybe trying to interject a physician review it’s just – we just can’t afford it. To hire four full-time physicians which is what it would take, you can imagine cost and a lot more money than hiring four full-time nurses. We can lay it out and see. But we’re more than happy to talk about that possibility. It’s certainly nothing that we have any sort of philosophical problem with. It’s been said there’s no shortcuts, only costly detours. Maybe that would be a way we could look at efficiencies to avert expenses on down the line. Thank you for your testimony. Members, we have some camera issues so we’re not live right now, or one of the cameras is stuck momentary. So they’ve asked us to recess for 15 minutes and give them the opportunity to fix that. When we come back if it’s okay with you all, we have a lady that would like to testify that’s pregnant and isn’t feeling good. We’d like to let her come up. Then we’ll go right back, okay? We stand in recess for 15 minutes.

Robinson: Kalafut: Robinson:

Kalafut: Robinson:

Male:

Chairman:

[Audio goes silent for a few minutes.] Chairman: The subcommittee on regulatory will now reconvene. Will the clerk please call the roll? Brown? Here Menendez? Taylor? Here. Darby and Lucio?

Clerk: Chairman: Clerk: Taylor: Clerk:

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Male: Clerk: Chairman:

Here. A quorum is present. A quorum is present. If we could have everyone please come in and take a seat we’ll get started again.

[Conversation off mic 124:00.] Chairman: The chair calls Sharon Fuentes. Thank you for coming. I’m sorry you had to wait. We’ll try to get you in and out of here as quickly as possible. If you’ll give your name for the record please. My name is Sharon Marie Fuentes. You can go right on into your testimony please. Thank you Chairman Brown. Representative Brown and other legislative members, thank you for allowing me to come before you to share my extensive… [Comment off mic 124:53] Is that better? Yes. Sorry. I’ve never been accused of not being heard before, so that’s kind of surprising. I would like to thank the members of the board for allowing me to come before you today to share my experiences that I’ve had with the Texas Medical Board. I would like to begin with the acknowledgement that I come before this committee with no physician in training permits, no Texas Medical license and knowing that I may never receive either of these as a result of my testimony today. I also know that everything that I say will be public record and that it can be made available to anybody who requests it. However, I’m a person of principle and strongly believe that individuals should take a stand against injustice and discrimination. If my testimony today will result in the greater good of improving processes and changing the culture of discrimination at the Texas Medical Board I’m more than willing to take this risk. You’re talking about issues of appropriation. In my case I believe that this is an example of how money is not best used judiciously at the Texas Medical Board when investigating and allowing physicians to get a permit. I was born in Texas, began in medical school in 1998, continued with pathology residency here in 2003. I had a one-time incident with law

Fuentes: Chairman: Fuentes:

Male: Fuentes:

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enforcement with an arrest for an unpaid speeding ticket in 1989. I applied for and received a physician in training permit or PIT in June 2003 where the Texas Medical Board did not realize that I had not reported that speeding ticket arrest. There was a question about major depression. I answered yes. It said, “Have you ever been diagnosed with major depression?” I said, “Yes.” It was due to a B-12 deficiency that I had. I provided letters from my psychiatrist and treating physician and records from my neurologist, but no psychotherapy notes were sent. I was granted the PIT in a timely manner. In 2005 I had a relapse and saw my doctor five times over eight months. She diagnosed me with hypothyroidism. I went for two psychotherapy sessions and three med checks. Later I saw an endocrinologist to switch the medication and try to figure out what was causing the hypothyroidism. He was never informed of the depression. The short episode of depression never interfered with my work or my professional life - my personal life, excuse me. I met all of my clinical obligations with the same level of enthusiasm and energy that I did when I did not have depression. During the time that I was “depressed” I received an award from my faculty in my department for excellence in patient care. In December 2006 I applied for a Change of Institution PIT for my fellowship training in Houston. When answering the questions on the application I noted the question about arrest and replied, “Yes.” I believe that this was a new question and did not remember seeing it in 2003. I contacted the Texas Medical Board, Beaumont Police Department and DPS all on December 20th about this arrest. Neither Beaumont nor DPS could find the arrest in their computers. I provided them with my original driver’s license. I filled in two forms, put them in an envelope, sent it via regular mail to the Texas Medical Board along with the original documents for another speeding ticket and sent it to the Texas Medical Board without the certified return receipt. I also noted a question that was worded within the past year, have you ever been diagnosed or treated for the following. Included in the following was manic depression - excuse me, major depression and it went on to state that did it ever significantly impair your ability to function in school, work or other important life activities. This was worded differently than the 2003 question and I answered it, “No.” In late April I contacted the TMB to see if my application was complete. I was not aware that it was incomplete until May 25th. I resent the information for the arrest overnight on June 5th and it was signed for on

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June 6th. I contacted my analyst on the 15th and she said she had to go hunt it down. She stated that the arrest information was not present and wanted to know why I had omitted it. I called her and caught her at her desk. I asked her to please look for it, that I know that both of them were there and that it probably got misplaced. I also contacted the Beaumont Police Department, spoke to an investigator who was able to find the information and he e-mailed her that information. I resent the information to them and faxed them along with letters and phone records showing that I had made those calls in December. On June 28th, this is the last time I ever had discussed this issue with the Board. On June 26th I was informed that I would be required to supply information about my depression in 2003, even though I specifically said no to the question on the PIT Application. I was made to fill in forms, write a letter related to the question about depression, had to have my physician send letters, medical records and psychotherapy notes, the pre-med check notes and my labs showing the low value. I began my fellowship as an unpaid observer on July 2nd. I was told that I would not get a salary or benefits. I could not be engaged in my clinical activities or responsibilities until I received the PIT. On July 5th I contacted Senator Janick’s office and was referred to Rebecca. I told her I did not want her office to call if it was going to result in an adverse effect of my obtaining a PIT. She assured me that it would not and contacted the Texas Medical Board on my behalf. In the follow-up conversation with her I was informed that Senator Janick would not be able to assist because it was considered an ethics violation and that the TMB could and would file a complaint for this type of interference. After I contacted Senator Janick it became apparent that this Board was doing as much as possible to delay my application and make it as costly as possible for me. The internal subcommittee made up of Dr. Donald Patrick, Director of Customer Affairs, Jaime Garanflo, a General Counsel, Assistant General Counsel and a Manager of Licensure and Permits were sitting on my internal subcommittee. And they met on July 10th where they determined that they would need more information from my endocrinologist about my hypothyroidism and that my file could not go forward without it.

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However, on the 17th, without the second letter, it was determined that my file would be sent to a consultant psychiatrist to review at the cost of $100 per hour. Notes from my five visits to the psychiatrist, three letters from the treating physicians and lab values were sent to this board appointed psychiatrist, whom to this day I still don’t know, who took four hours and 55 minutes to review them. Any time over five hours in this review process requires that the applicant be notified to put down a deposit. On the 31st my program director and I submitted a temporary PIT request to Dr. Patrick so that I could start my training and begin getting paid. On the 7th of August I was informed that my request was being denied, no explanation as to why was offered. On the 3rd I was informed that the consultant had provided a report. On the 10th I was told that my file was to be reviewed on August 14th. I was not made aware of their decision until August 20th and I was required to see a forensic psychiatrist. I spoke with a forensic psychiatrist to schedule my appointment. During the conversation, which I had never met this individual, he was uncertain as to why the board was sending me to see him. He said his physicians are psychotic, they are not depressed from a medical illness. I saw him on September 20th and at the end of our one hour and ten minute session, he shook his head. He said, “You’re fine to have a PIT and I still don’t know why the members of the board sent you to see me.” The whole process, which included an extensive file review, a comprehensive psychiatric evaluation, dictation and correction of the final report, took a little over three hours and ten minutes and cost $800.00, two hours less than the other person who reviewed my file. The report was submitted to the above mentioned internal subcommittee who met on October 2nd. On that day I received the following e-mail: Your file was reviewed today and the consultant review was approved. However, you’ve been asked to withdraw and reapply due to falsification regarding your arrest. So what has the board done in my case? They have used the medical diagnosis depression that had no effect on my ability to practice medicine in medical school or during residency as an avenue to discriminate against me. They required me to give them information about my condition even when I answered the application truthfully, that it had not affected my ability to practice medicine.

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They have used this diagnosis as a way to stall my application, maximize monetary damages, keep me from my training and punish me all under the umbrella of protecting the citizens of Texas from doctors such as myself. The internal subcommittee either did not believe me and their Texas License Board Certified Physicians regarding the fact that my depression was due to hypothyroidism or they were simply making a point that I should not have contacted Senator Janick. Now that I have spent $1,300.00 on their specialists, I do not have a psychiatric condition that impedes my ability to practice medicine. I have been instructed to admit to falsifying my application, withdraw and reapply. I refuse to do this. I am a physician who will not accept anything from industry because it adds to the cost of healthcare for my patients and it is unethical. I did not falsify any application. I also resent that fact that an internal subcommittee headed by Dr. Patrick, with not one appointed board member sitting on it, is trying to force me to admit to lying on this application. I have not lied or falsified any documents. If the form on the question was the same in 2003 when previously asked this question, any failure to disclose an arrest for failure to appear before the court that arose from an unpaid speeding ticket 20 years ago has a combination of oversight on my behalf and the incompetence of the board staff who lost the explanatory documents twice. Throughout this whole process I have not been afforded due process. My attorney advised me that the only recourse I have is to go to the District Court and file a Petition to the Board to force them to follow their procedures. I have been kept in the dark about these procedures. I have been kept in the dark about the independent consultant results and my file has never been submitted to or reviewed by one member of the Board, the Licensure Committee, or the Full Board. The Licensure Committee or the Full Board should be the group result requesting that I see the psychiatrist and that it should not be mandated by the Executive Director and his small yet omnipotent internal subcommittee, made up of himself, the General Counsel, Assistant General Counsel, Analyst Supervisor and a Director of Customer Affairs. If the falsification of my application was a problem then it should have been addressed in June, not October. The Texas Medical Board is aware that I’m not getting any salary, that I’m pregnant, I have to pay my own insurance, I cannot start my program until I have this PIT.

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To date I have spent out of my own pocket, $17,500 to pay my own living expenses, medical insurance, their consultant, their forensic psychiatrist and my attorney. They have not given my attorney all of the documents which she has requested over five weeks ago. By the next Full Board meeting which is on November 29th I will have had my application before this body for almost 12 months for not a full license, but a permit to study and learn my pathology as a fellow. I doubt that after today they will be compelled to put my application forth on that date as my attorney and I have requested. Many may contemplate why I’m here today. It is not that I think or believe that this committee will be able to do anything to help me to obtain my permit, but hopefully to change the process to help those in the future with issues similar to mine. I’ve been informed by a psychiatrist program director that many program directors across the state have been trying for years to get the medical board to change how they process applications of doctors with depression and how the question is worded about this condition. However, not one program director or anyone else is willing to come forward for fear of retaliation against them or their program. But more importantly, physicians such as myself with mild depression caused by a medical illness and it never affected their ability to practice medicine, should not be afraid of risking their licenses if they are to seek help. We should not ever be made to feel that we should not seek help because of a punitive medical board. The underlying message that the board sends by discriminating against physicians with depression is that we should suffer in silence, never seek help for fear of a diagnosis and hope that no one ever takes their own lives because they cannot go seek out the help of their colleges. I know three people who have committed suicide in my profession, personally. We should also not be forced to turn over our psychotherapy notes to a committee of five to six individuals who are not sworn to protect our privacy, five of whom are not doctors and the one who is, is not a psychiatrist. I resent the fact that a staff attorney and other state employees are allowed to see my information that I have proved to my psychiatrist and who have no business knowing the painful experiences from my past. Several reports from our treating physicians, minus the minute details of our life should be sufficient. That was the case in 2003 when they allowed me to have my permit.

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In my case my depression, thank God, was caused by a treatable condition. Most adequately licensed physicians are aware that B-12 deficiency and hypothyroidism causes depression and that it resolves with treatment. However, this was either missed or ignored by this committee and those who simply demanded that I spend $1,300 on their additional psychiatric evaluation. All physicians should have clear procedures and due process alternatives available when they feel that their applications are not being processed properly. There should be no secret anonymous expert reviewers who get paid to pad their pockets by dallying five hours over ten documents and submitting reports that we should never be able to review. There should be no internal committees which are not authorized by statute, as in this case, headed by the Executive Director and non-physician employees that he controls through the hiring and firing process. This creates an opportunity for intimidation and abuse of power, which I believe is in my case. I was told by Dr. Patrick to go here, go there, do this, do that, pay for this evaluation and then a forensic exam. Now that I’ve done that and been stunned by his own psychiatrist who says that he can’t believe that I was even referred to him I’ve been told that I have to withdraw my application and reapply simply because of an overlooked question in 2003. This is something that they knew of five months ago. They could’ve caught it in 2003, but now it has become an issue. So, here I am today hoping this committee can do something to change how the current Board operates and at the very least have them follow their own rules and statutes, which they have not done in my case. I sit before you knowing of my own personal and professional vulnerability and that with the thought that the nail that sticks up the highest is the one that will get hit. But I will not be censured through intimidation by the Texas Medical Board. If I am retaliated against because of my testimony, then so be it. But, I will sleep at night knowing that I have done what is right for those who have suffered the same as I and hopefully this will result in changes that will improve the process for all with depression in the future. Thank you. [Applause.] Chairman: Representative Riddle.

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Riddle:

First of all I want to thank you for your courage. Sam Houston once said, and I had this hanging up in my house while my children were growing up, he said, “Do right and risk the consequences.” Yes ma’am. And, I hope the consequences for you are going to be not serious. I hope that good things come to you and I appreciate your courage. I apologize, I did not hear your name to start with. Sharon Marie Fuentes Sharon… Fuentes. F-U-E-N-T-E-S. Okay, I really appreciate that doctor. Would you please stay in touch with my office and let me know how things are going as it progresses? We need good physicians and we need people of courage. I think sometimes in our world we have an abundance of cowardice and a lack of courage and I see courage in you today. I thank you. Thank you Chairman Brown. Representative Lucio. Thank you Mr. Chairman. Ms. Fuentes I would just like to also thank you for your testimony today. I have a loved one that suffers from the same condition that you do, so I know a lot about that. She too has received great remarks at work. It has never interfered with her ability to perform her job, but you know, because of a medical condition, hypothyroid B-12 deficiency, she has certain things that she needs to do to keep from being depressed, not because of a mental condition that she can’t recover from, but because of a medical deficiency. So it’s hard. I understand what you’re going through. I haven’t been through it personally, like I said, my loved one. So, keep fighting the good fight and, you know, like Representative Riddle said, in the end good things will come to you. We look forward to you being a great doctor of Texas. So thank you for being here.

Fuentes: Riddle:

Fuentes: Riddle: Fuentes: Riddle:

Chairman: Lucio:

Fuentes: Chairman: [Applause]

Thank you. Representative Riddle.

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Riddle:

Mr. Chairman, there was a question that I needed to ask the doctor. It seems like this whole thing seemed to be triggered by a traffic ticket that she got, maybe she was speeding or something, what was it, like a speeding ticket? It was 20 years ago. …twenty year old speeding ticket. I’m just curious, in the past 20 years has anybody in this committee hearing room ever not had a ticket?

Fuentes: Riddle:

[Comments off mic.] Riddle: I mean if you’ve not had a ticket in 20 years would you raise your hand? Okay, well it looks like we’ve got a few.

[Several comments off mic.] Riddle: Fuentes: I don’t know, I think it… In the defense of the board, which is going to be ironic but, in their defense it was an arrest that resulted from a speeding ticket and not just the speeding ticket. My daughter had a similar situation when she was in law school. Right, well I gave it to my father. It got put on the kitchen table and when it disappeared he thought I paid it and I thought he paid it. One of those things that happens, I was just curious. No problem. Any other questions, members? I just want to say to Representative Riddle, that this goes to show you we do have some perfect employees.

Riddle: Fuentes:

Riddle: Fuentes: Chairman: Female:

[Laughter.] Chairman: Members, down to my left here is the new Chairman of Sunset and I just want you to know that I didn’t think it was very Christian what your school did to Texas A&M two weeks ago.

[Laughter.] Male: I beg to differ. That was the most Christian thing we could do.

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[Laughter.] Female: Chairman: Chairman Brown? You’re welcome. We’re glad to have you here. We’d like to spread proselytize [inaudible 145:10] UT down here in a few weeks.

[Laughter] Isett: Ms. Fuentes, thank you for your testimony and your time today. I just want to confirm one thing. You never in your testimony did you state any of the actions taken against you in regard to this matter had anything to do with your education or the quality of care you gave your patients. Absolutely never. In fact, in 2006 when I was depressed I got the award as resident. I continued my care, nobody knew what was going on. I helped my patients. I mean I’m a pathologist, so my patient care is limited contact, but on clinical rotations such as [thydal ??] pathology where we do fine needle [lasperats ??] or blood banking where we do have a lot of interaction with clinical care I was on both of those rotations at the time and it never would. I’m the type of person that if I ever felt like something was going on that would affect my patients adversely, I would be the first person to walk away, hang up my coat and leave the profession. I would not jeopardize patient care under any circumstances. Isett: Did the board bring up patient care either in a positive plight or a negative plight at any time during this? No, sir. Their wording is not that specific. Okay, thank you. Members, any other questions? Ms. Fuentes, we’re proud of you for coming today, Thank you. …it takes a lot of courage and we will ask the Board to keep us apprised of your future situation. Yes, sir. …and hopefully it can be resolved soon.

Fuentes:

Fuentes: Isett: Chairman:

Fuentes: Chairman:

Fuentes: Chairman:

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Fuentes: Chairman: Fuentes: Chairman:

Thank you. Thank you so much. I appreciate your compassion in accommodating me too, thank you. Thank you ma’am. We have one more, members we have one more doctor that has to catch an early flight. [Inaudible off mic 147:06] Dr. John Paine. Doctor, if you’ll just give your name for the record and then go right into your testimony please. Yes, my name is John Paine. The great British philosopher Edmund Burke said when bad men combine the good must associate or else they fail one by one an unpitied sacrifice in a contemptible struggle. I hope that when I am finished you will question those cherished beliefs in the [unsalable??] honesty, integrity and equanimity of this war. The only good thing that we could fastidiously take of the stark revolutions is that this medical board be reduced to a few individual doctors, saving much money and consternation, that has for all intents and purposes been functioning by permitting a self righteous cabal of individuals to frequently decide which doctor in Texas must be punished. They unfortunately have to resort to biased, unfair and dishonorable tactics perverting the professionalism of the process and employing inaccurate facts and testimony, calmly delivered by prejudicial reviewers. It appears the more judicious members of the board have not been sullied or shamed by this repetitive injustice, provided in the words of Edmond Burk. My case perfectly reflects the above proposition. And, further reveals a board that can, at times, be vindictive and target certain physicians. I lost my license based on one malpractice case. At the time the board went after me, I had only one case in my record as a result of practicing in Texas for approximately 12 years, a settlement for a spine case. Of course, as any other busy neurosurgeon in the state, I had at any one time a number of cases filed against me, many of which would fall by the wayside. The fact that a lawyer in this day and time files a malpractice case against a doctor is hardly vindictive of medical malfesis. I had been Chief of Neurosurgery at John P. Smith Hospital, a large community hospital in Peterian County and a major trauma center. I had been listed in the Forbes Magazine as one of the top Neurosurgeons in the area based and poled by area doctors. I was the first D.O. to ever do an M.D. neurosurgical residency and achieve MD board certification.

John Paine:

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The board was aware of me for several reasons. I had staunchly supported and testified for a D.O. Neurosurgeon, Roland Chalifoux, at his hearing and had testified before the Sunset Committee in which several of us could hear the whispered sentiments and snickers of a couple of board personnel sitting behind me relishing their smugness by saying that they had me, implying that my days were numbered as Dr. Shalaco. The main reason for my apparent notoriety is that I had been involved in two peer view actions in which the board had completely exonerated me. As a result of these two unjustified and anticompetitive, peer view actions I filed lawsuits. Criminal lawsuits involve a very powerful and influential group of neurosurgeons known to be friendly with the past President of the Board, Dr. Anderson. The board never went after the hospital for failing to submit any reasonable explanation of the complaints justifying the peer view action. The Medical Center had the audacity to merely send four inpatient charts down to Austin. This is a gross violation of due process and the board meekly acquiesced and did not demand the information of facts from that institution to justify their action. One must keep in mind that the prevailing opinion among most doctors throughout the country, many experts, is that a peer view is in the majority of cases political and economic. One of the members of this group had, at the time, eight major malpractice cases either lost or settled for large sums of money, involving paralysis and death. This individual had also exhibited a drinking problem leading to at least one DUI involving an accident. Yet, he was sitting on a surgical QA committee. The Board remained unperturbed by his record and went blatantly after me. So, it should not surprise anyone when the board goes into this malpractice case it wasted no time in initiating an investigation against me. These are the same neurosurgeons who initially reviewed the case as they had two prior times. Apparently, the Texas Medical Board was unable to find one or two neurosurgeons in the state who did not know me and had not indicated a most malevolent predisposition and previously shown a propensity to make unprofessional, wildly incorrect and awardance grievance about the cases reviewed. I was first confronted by this neurosurgeon when he was a State Consultant in my second peer view case. As a result of his remarks and like the other expert for the first peer view I had to proceed to an informal hearing. The two doctors cleared me after reading the numerous reports

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from my experts and one of the physicians apologized to me, Buddy Sebalis, M.D., about the quality and character of the state’s expert who was full of inexact facts and littered with such pronouncements as, “Dr. John D. Paine’s behavior is unprofessional, dishonorable, and that he all ready over treated these patients and is very likely in the future to deceive the public. He has in these cases plainly over treated these patients.” The second time I went down for an informal hearing was again due to the same doctor’s rank misrepresentations in referring to my surgical comments as lies. Here again, a comprehensive and thoughtful review of my expert and my explanation clarified any questions of poor care on the individual case being examined. The patient, shortly after that trip down to Austin, dropped her frivolous law suit. Interestingly, the esteemed Dr. Donald Patrick showed up to observe my informal hearing. He voluntarily admitted that he knew the neurosurgeon and stated that he thought his analysis was over the top and excessive. Without difference to probity and rectitude, the board eagerly relied on that neurosurgeon to review this malpractice case. In question and true to form his outrageous and inflammatory diatribe resulted in my appearing before another informal hearing. His analysis included such statements and I quote, “I believe that Dr. Paine’s behavior is unprofessional and dishonorable. Dr. Paine has a history of marginal indications for surgery. This represents a complete disregard to patients’ wellbeing and this is another example of the deception of the public and flagrant over treatment of patients. He will persist in this abominable fashion. I believe that Dr. Paine is a menace to this community.” The civilian panel member, David Bockan, confessed that he had never read such a malicious and spiteful review before. The informal hearing was a mockery. The doctor, an elderly internal medical physician, and totally unequipped to comprehensively analyze all the facts can only tediously repeat that I should have gotten a second opinion by a neurologist before proceeding with surgery, totally failing to mention that a competent neurosurgeon proved it to the Workers’ Compensation System. They decided to recommend four years probation and 50% of my cases be reviewed by an outside neurosurgeon yearly. There is no mention of my experts. The civilian member could only reluctantly say that he had to accept the opinion of the State Consultant. So of course, no reasonable doctor could accept that when the facts clearly indicated I had not done anything wrong. If I had accepted such a harsh penalty, my practice would have been destroyed. I eventually had an administrative hearing before an administrative judge who suspiciously replaced the original one designated. The state picked their second expert

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who was an orthopedic spine doctor that had been the expert for the initial malpractice filing. On an earlier deposition by Dr. Tray Folt betrayed at TBI, he [inaudible 155:33] stated that the doctor expressed a dislike for me. The state had out did themselves in obtaining another biased expert. The most shocking thing was that the doctor during the hearing testified that he accepted nearly $10,000 from a malpractice lawyer and wrote a report without ever looking at the facts of the case. He admitted to violating his code of ethics on the transcript. This devastating admission never phased the administrative judge or the Board of Medical Examiners. Additional fact, the charges had been brought against a neurosurgeon by a member of his Dallas County Medical Society for making false charges only exalted this individual in the eyes of Dr. Patrick and the board’s attorney. My hearing was foreordained, I now know how a black man may have felt before an all white jury and white judge. Whatever you do or say there is a sickening realization of the horrible inevitability of your predicament. To add insult to injury, one of the more vocal members of the board contacted the neurosurgeon in Laredo intimidating him to the point he would not testify for me, verifying that I had secured coverage prior to coming down to cover for him. I had some professionals of neurosurgery, one chief of spine section at Stanford stating unequivocally that I did not violate any standards of care. A pathologist hired by the family to do the autopsy stated that this poor unfortunate patient, fatal stroke and multisystem organ failure was not due to my surgery or post-operative care. Though the attorney for the state implied that the nurses may have actually overdosed the patient, something that I had no control over, the judge agreed with that possibility and unbelievably still ruled that my postoperative pain medication regimen was a reason to remove my license. They never acknowledged that the amount of medication was significantly reduced during post-operative day number three in his distorted findings of fact. The state was very deceptive and clever in that they never accused me of causing the patient’s death, but merely reiterated the malpractice complaints which were weak and contrary to the information, clinical history and hospital course. They made an end run and got away with it because this board is not accountable to anyone. If you sent this case to any neurosurgeon in the country with the accompanying testimony and expert opinions and told them that the license of the operative surgeon was subsequently terminated, most would

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assuredly be aghast and downright incredulous particularly, after analyzing the administrative judges and accurate findings of fact. The very relevant and inconceivable fact seems incongruous, knowing the outcome is that the two state experts openly did not completely agree with the state’s allegations to the extent that the accused physician should have lost his license. I don’t say this as a bitter and broken man who had his license and years of hard work and sacrifice ripped from his being, but that administrative judge had to be in the back pocket of the board to supported my termination. He manipulated his findings of facts, which had multiple errors and conveniently downplayed important aspects of the patient’s treatment favorable to me. He never explained why he preferred the state witnesses over mine, unless it was because they were on video due to shortage of money. The judge’s most egregious transgression to bolster his decision was that he used my malpractice history and peer review cases as contributing factors without ever asking me or my lawyer to explain things to him. That is why he had numerous, erroneous and misleading statements about those important subjects on his findings of fact. I truly doubt that the leadership on the board that was so dedicated in terminating my license ever thoroughly studied the judges’ findings and reports by my experts and ultimately it wouldn’t have mattered since the board was single mindedly committed to removing my license. My final statement is this: You should be concerned and exceedingly worried that a board that would so blatantly, unabashedly abuse its power could be trusted to not show favoritism to other doctors whose records are worrisome and represent a serious risk to the citizens of Texas. I have never accepted the premise of unethical behavior can be easily rationalized and compartmentalized. I thank you for your time. I just have one other statement. I went in with a slight alteration to the quote by Edmond Burk, “Bad laws are the worst sort of tyranny,” to a corrupt insular government, committee or board is truly the worst sort of tyranny. I thank you very much for your time. Chairman: [Applause.] Chairman: We’ll go back on our agenda now, members. Dr. Kalafut, are you finished with yours? You are, okay. The Chair calls Ms. Melinda Fredericks. Members are there any questions? Thank you doctor.

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Female: Chairman:

Wait a second. We still have more questions about… Oh, you do? Dr. Kalafut, they have - some members have more questions for you, so would you come back up? Representative Van Arsdale.

Van Arsdale: Yeah, I was noticing in the statutes and occupation’s code about some sort of annual report that has to be filed with the governor, speaker and lieutenant governor, I believe, by the TMB detailing I guess, basically funds received and disbursed and apparently also is suppose to include any investigations that remain pending after a year. Is that, is there like a set time that y’all submit that every - when do y’all submit that? Kalafut: Can I defer to staff on that one, do you mind?

Van Arsdale: No, not at all. McFarland: Again, I’m Jane McFarland, Chief of Staff for the Board. Oddly that report is required to be submitted with our annual financial report. Now that we have the early - and that’s always been in November. Now that we have an option for an early submission of the AFR we submitted the financial part that our addendum will be submitted. The addendums are not yet due so they’ll be, they’ll probably be submitted within the next month.

Van Arsdale: And that list… McFarland: I will be happy to provide you with it. Does that also list the cases that are pending for

Van Arsdale: Okay, thanks. investigation? McFarland:

Yes, it lists - it’s really, I believe Mari could speak more specifically to this, but it’s a snap shot of cases that are over a year old in the agency and cases that have exceeded that time.

Van Arsdale: What is, I noticed also that board members, it says here in the statute that they get per diem for each day that they engage in board business. McFarland: Um-hm.

Van Arsdale: Board members, what kinds of things, I mean do you submit per diem, what kinds of things do board members get per diem for? McFarland: We get $30.00 a day reimbursement for our time away from our practices and we get, if we use hotels, they give us state government rates and we get $36.00 for meals.

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Van Arsdale: I’m not so - I wasn’t really meaning the dollars. I was meaning more like what kinds of activities… McFarland: Oh, okay.

Van Arsdale: …do the board members do that you know… McFarland: Coming down for board meetings and for hearings.

Van Arsdale: When you say hearings are you talking about like stellar hearings and IFC’s and… McFarland: Informal settlement conferences, mediations. participate at the stellar level. We typically don’t

Van Arsdale: Okay. Are those - would you say that the involvement of board members is sort of equally distributed on terms of how much each board member’s spending time at the IFC’s or is it - are certain board member spends more time doing the IFC’s than others? McFarland: It’s based on schedules. You know some physicians, depending upon their call schedule, sometimes can’t get away. It may be a bad quarter, they’re taking a lot of calls. It’s a rotation kind of thing where, and we have to have a public member on each one, and so we only have seven public members. So they have to rotate. So, we use ourselves as well as the DRC Committee Disciplinary - the District Review Committee that helps us out and so it’s actually who’s available.

Van Arsdale: I was also noticing the statutes that when you - it talks about initiating a charge and a formal complaint. It says, and I’m reading out of Occupation Code 164.005 where it says that a charge must be in the form of a written affidavit. I’m curious as to how you can have an oral charge if the statute - am I confusing something? I don’t want to get that wrong. McFarland: Ms. Robinson?

Van Arsdale: How am I getting that wrong? [Inaudible conversation off mic.] Chairman: Robinson: Mari give your name. Again, this is Mari Robinson, for the Director of Enforcement. I believe that what you’re looking at and I’ll double check is the formal complaint

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to SOAH and that does have to be filed as an affidavit. 164.005, is that what you’re looking at? Van Arsdale: Yeah. Robinson: Yeah, that’s a formal complaint. I’m sorry I know that’s confusing. But a formal complaint is the petition that the board files at the State Office of Administrative Hearings. That is not a complaint that walks in the door. So they’re saying that if we file formal charges, public charges, at the State Office of Administrative Hearings, they have to be sworn to and we do that on every filing.

Van Arsdale: So, when it says that it may be instituted by an authorized representative of the board, who would be, who are the people that are authorized representatives of the board? Robinson: Well, it’s going to be whoever the board designates. But right now the staff attorney is the one who drafts it up but it has to be signed and authorized, it has to be warranted by Dr. Patrick.

Van Arsdale: Okay, who is the ED right? Robinson: Yes.

Van Arsdale: You know I’ve heard some - there’s something interesting. You know when I go to church sometimes the pastor will say something and you kind of see everybody kind of nod their head, you know like in the audience so that it kind of resonates the people. One of the things that doctor, is it Fuentes said, I saw a bunch of heads nod was this idea that there is - we spoke earlier of fear of intimidation on behalf of the patients, and that’s sort of the basis for having anonymity. But when the doctor testified about fear and intimidation by the board, I saw a bunch of people’s heads nod. I’m wondering if you think that they’re, you know, if they’re delusional, or are these people, is there something to this? Robinson: I don’t think they’re delusional. I think that the board has not done a very good job getting out into the community and communicating our processes and talking to people about how the procedure works and letting them know how everything goes and what the laws are and what they can expect. We actually have been putting together a plan to try to improve that. So, I think that there is a lot of mystery right now surrounding the board. They don’t, the physicians may not know what to expect because, you know, and surprisingly they don’t read the Medical Practices Act for fun, even I don’t do that. And I think that it’s just there’s a lot of

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misinformation. But, the fact of the matter is, and I’m sure this will elicit a response, we do not retaliate against anyone. [Inaudible – several talking off mic.] Robinson: There’s the response. But the fact of the matter is we do not. And, honestly I don’t even know how we would given the work loads that we have.

[Inaudible, several talking off mic.] Robinson: …but, the fact of the matter is we do not. But, we really do need to do a better job of getting our information out there and explaining to people how things work and what they can expect.

Van Arsdale: Well, you know, I mean we’re all Americans here, right? We’re all together. We each have things we do. I mean you’re a state agency. You know, we’re legislators. There’s doctors in here. There’s various other types of representatives in here. Each of us make some mistakes in what we’re trying to do. I mean, I recognize that. Robinson: True.

Van Arsdale: I also know that when this whole government was set up back in, you know when the founders founded this country, you know one of the things that they instituted that was very important was checks and balances. And, that’s what we’re doing here today is we have the legislative branch and the executive branch having checks and balances and sort of getting information out. And it seems to me, just from things I’ve heard and from things I’m hearing today, there is some sort of credibility problem. Would you agree? Robinson: I agree. That’s why I say I don’t think that we’ve done a very good job communicating with people about the board, what the board does and what the board processes are. The truth of the matter is the board gets into a very difficult situation because what you are going to hear is a bunch of physicians today state their side of the case. We cannot publicly respond to that. I cannot publicly respond to Dr. Paine’s alleged complaints with the board that weren’t publicly filed. I can’t say to you, “This is exactly what happened and this is exactly what we did and here is exactly how we followed the process,” in a public forum. Now, I certainly, if you sign a waiver, I can give it to you as legislative oversight and the board has no problem with legislative oversight. We

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welcome it. We are happy to give you any materials that you wish to see. But that becomes a problem because I have never heard a physician, in all the years I’ve been there, and even if you think that we over discipline, you have to think at least one of the person’s we disciplined in five years actually did it. I’ve never heard one person say, “Well the board actually caught me. I did that.” Every single one of them says, “I was rail-roaded. It’s not the truth,” for the most part. So, the fact of the matter is we have a hard time responding to that. It’s difficult for us to explain and show how we followed our process and it’s not just for the physician’s it’s for the complainants too. They don’t understand what happened with their case and we’re not able to tell them. And, that is a problem. Van Arsdale: Well, and you know, most of the people that we represent as legislators, we don’t hear from the people that think things are going good… Robinson: Sure.

Van Arsdale: …things that are going well, okay. We hear from the people that think things are going wrong. Robinson: Sure.

Van Arsdale: And so, even though I think this is a slice of what you do, nevertheless, there is an obligation on all of us to try to fix the areas where there are problems and I just as appropriator, you know, we go home and everyone back home knows we are on the appropriations committee. So we talked about government spending and spending tax dollars, I mean, it’s a concern to the legislators when we’re spending money on an agency that has - where there are credibility problems. Female: I’d like to make a comment on this. As you know as a legislator there are two sides to everything and you knew in our meeting…

Van Arsdale: There are more than two if you haven’t figured that out. [Laughter.] Female: Okay, but when we had our confidential meeting in the governor’s office there were cases brought up and there’s another side to it. I think that since we were in a confidential meeting I was able to discuss and I think if, you know, if you’re going to hear all these complaints from your constituents, then perhaps to hear also or if you sign the confidentiality waiver they’ll bring the chart over to your office so that you can see and read what we have in our investigative file.

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Van Arsdale: Yeah. Female: And I would just like to say that, to the concern that was voiced about, you know, retaliation if you go to your legislator, we hear from five, six, seven, legislators a day with constituent issues and we’re glad to respond to those. You know, usually they’re licensure matters. They just want information. They want to explain the process. But we will gladly provide you with a confidentiality agreement and share with you any information that you need to, you know, to confirm for yourself whether or not we are following our statutes. Please, we invite you to do that.

Van Arsdale: Janie, if five or six legislators call you a day, who has to field all those calls? Janie: Lisa and I usually.

Van Arsdale: Jane [inaudible 172:34], you’ve got to get a raise. [Laughter] Janie: [Laughter] Janie: We can’t afford it. Thank you.

Van Arsdale: All right, now Mr. Chairman, I also wanted to ask on the IFC conferences, how do they - how do y’all assign the panel members? Is that done randomly, or how do y’all… Robinson: The way that that is done as Dr. Kalafut was saying, doctors sign up for specific hearing dates based on their schedules. So what happens is when the determinate - we consider cases in a group twice a week rather than every single minute that one comes in. And once one is accepted into the litigation department we look at what the next four or five hearing dates are available and we’ll just plug in those cases into those next four or five days. So, we try to use about four or five days because, for example, if we have Dr. Price coming in for a cardiology, and he has cardiology experience, we’ll try to put in the cardiology case. If we have Dr. Orandue coming in who’s a psychiatrist, we’ll try to put that psychiatric case in. But, it’s really based on the days that they’ve signed up for and we have to set X amount of days out to make sure the doctor gets sufficient notice. But,

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that’s how that’s done and we have drafted up a fairly detailed response we will be happy to provide you with as well. Van Arsdale: And, do y’all keep records of how many different IFC panels and various members sit - do you keep records of how many? Robinson: I’m sorry, do you mean, how many they sit on per year, or are you saying…?

Van Arsdale: Yeah. Robinson: I would not be the one responsible for that. I’m not aware of whether they do that or not. I’m guessing since everyone is looking around the answer is probably not.

Van Arsdale; So y’all don’t keep records of that? Robinson: Well we have, we have records on who has sat on IFC panels.

Van Arsdale: You could go get the information, you just don’t have it… Robinson: We could go get it.

Van Arsdale: …it’s just not at your fingertips. Robinson: Sure, yeah.

Van Arsdale: On the experts, how are those, how are the experts chosen? Robinson: It’s been done a variety of different ways. The most - the two biggest pushes that we had is we - they’re required to be board certified. So we sent out letters to all the certifying groups, the boards of the specialties and asked them to nominate physicians who they thought would be appropriate to do this kind of work. And then we took those nominations back, ran them through our system to make sure that they didn’t have a public board action, that they were in fact in active practice and then all of those names were approved by the board, the active physician panelists. Then we did another really big push, more than a year ago where what we did is we ran a very large board report of all the physicians who reported themselves as board certified, who had no disciplinary history, who were in active practice and we cut that list down by specialty and we sent that list to the physicians who were on the panel all ready and asked them to, you know, circle the names of people they thought would be good. So like all of the otolaryngologists who were all ready on the panel got a list saying, “Here are all the other laryngologists who we believe to be board

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certified who have no disciplinary history with the board. Please let us know if you think any of these people would be great panelists.” And, again those all went through the board for approval. Recently we had - we’ve got a fairly good pool right now. So right now what I’m doing is if we have a shortage at the disciplinary review committee, the DPRC, which is the one who oversees enforcement, I will tell the board we have a shortage in, for example we had a shortage in radiologists who specialized in mammography, and I said we have a shortage in this. We’re looking for people who might be interested in applying for that so it was one or two applications came in that way. Van Arsdale: Do y’all maintain lists of the experts and… Robinson: Yes.

Van Arsdale: …and how often they participate. Robinson: We have a list. We have a public list of all of the experts.

Van Arsdale: On the - you know when a settlement hearing takes place and the ALJ makes a recommendation, how often does the board disregard or, you got a big smile on your face. How often does the board overrule the or just disregard the ALJ. Robinson: Female: Robinson : Female: I believe, well… I had… I believe it’s two times in the past five years. I have the statistics and from January of 2003 we had 21 discipline orders, disciplinary orders of the board that had been subject of a judicial appeal to a district court, having gone past SOAH, what we’ve gone to SOAH, eight temporary suspensions or automatic orders have been appealed from SOAH. Two were dismissed for lack of prosecution or non-suited, three were settled by agreed order, three are pending in district court, none have been reversed, board reversed. So 13 final orders after a SOAH hearing have been appealed, three board affirmed by district court and the court of appeals, one appeal to the supreme court was denied, three board affirmed by district court appeal is pending, one board affirmed by district court no appeal filed, one was nonsuited, five pending in district court and zero were board reversed. Van Arsdale: I think I’m kind of confused, how many…

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Female:

That’s what the higher court did, I’m sorry.

Van Arsdale: Right. How many times, how often does the Texas Medical Board overrule or disregard the ALJ’s . Robinson: [Laughter.] Robinson: [Laughter] Van Arsdale: Can you give me some numbers? Robinson: Yes. I believe it was two to three in the past five years and Robert is our general counsel so you could certainly correct me on this if I was wrong. But what we’re talking about here is finding, changing findings of facts and conclusions of law. Which is all SOAH is suppose to be doing. The penalty part has never been SOAH’s purview. It’s 100% the discretion of the board. So, that’s not an oversight. SOAH doesn’t have the authority to make that recommendation. I believe, again… The answer is, rarely.

Van Arsdale: Are you talking about the board changing the penalty? Robinson: The board…

Van Arsdale: …or changing the findings of fact? Robinson: Let me say this. SOAH only has the authority to make findings of facts and conclusions of law. That is all the authority they have to do period. To change those, there are very specific guidelines on when an agency is allowed to change those. The board has only changed those, to my knowledge, twice in the past five years out of all of the PFE’s that have come from SOAH. Now, SOAH may make a recommendation on the penalty, but that’s really - they don’t have the authority to do that. That authority is completely left to the board and there’s a reason for that. Van Arsdale: But, they have the, do they not have the authority to make a recommendation or they don’t have the authority to… Robinson: Technically, no. Because the fact, and there’s a reason for that and I’m going to tell you why. The board cannot appeal a SOAH decision. So the

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foot to that is, because the board cannot appeal, they get the final say on what the discipline is, based on what SOAH said the facts are of what occurred and what laws were violated. Van Arsdale: But, if I’m a lawyer, I mean I’m a lawyer, I would rather have… [Laughter.] Van Arsdale: I’d rather have the ability to overturn the judge’s findings and facts as long as I had the ability to appeal. Robinson: Well, this is what the legislature set up. This is not…

Van Arsdale: But, you’re saying that the board does not have the authority to appeal. Robinson: No.

Van Arsdale: I mean why would you want it if you can change the findings of fact and conclusions of law? Robinson: You can’t, except in very slim circumstances, which is why we’ve only done it two times in the last five years.

Van Arsdale: Regardless of the - even if you can’t change the findings of fact, that you get to, the board sets the penalty. Robinson: If there is a violation found, yes. If there’s no violation found you can’t really set a penalty if there’s no violation found.

Van Arsdale: Oh yeah, yeah. Robinson: Unless you change the findings of fact or conclusions of law.

Van Arsdale: What kind of… Robinson: All state agencies are - I’ll just say this very quickly. All state agencies, or almost every state administrative agency is under that exact same scheme. That is not unique to the medical board. That is how the SOAH system works. There are few people who are exempted out of that, and they have even more authority to change things than the rest of the agencies.

Van Arsdale: But what you’re saying is, I think, is that the ALJ, which I’m assuming is a lawyer… Robinson: I, most of the time I would assume that they are.

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Van Arsdale: …makes the findings of fact and conclusions of law and then there are certain incidences where the board, Texas Medical Board, can, under specified statutory incidences, can change… Robinson: Yes.

Van Arsdale: …the findings of facts and conclusions of law. Robinson: Yes.

Van Arsdale: And, are you saying those two incidences, is that what happened in those two incidences that you mentioned? Robinson: Well, that’s what the board asserted, yes. And one - the last - the most recent one, yes, that is exactly what happened and we will have to see whether the court affirms that or not.

Van Arsdale: What, I mean just off the top, I mean I can go read it, but what are the types of things you can change a judge’s findings of facts and conclusions of law? Robinson: [Laughter.] Van Arsdale: Well we are lawyers. Robinson: Yes, I know. Well, in all honesty this is really more the general counsel’s purview. Okay, well I feel like I’m taking the bar exam.

Van Arsdale: Well, maybe he can come up here and ask. Robinson: But, the basic things are, if they’ve gotten the law exact - if they’ve gotten the law wrong and they’ve misinterpreted it to a degree that, I’m going to turn this over to Bob. Yeah, basically the only grounds for which… Sir, if you could… I’m sorry my name is Robert Simpson. I’m general counsel for the board. Has he filled out a witness information form? No, I have not.

Simpson: Chairman: Simpson: Male: Simpson:

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Male: Simpson:

Okay, I was just asking. But, I’ll be glad to. I didn’t anticipate this. The basic grounds for changing the findings of facts and conclusions of law are that the ALJ has misapplied a statute or rule or decision of the board. And if they have done any of those things then the board can change the findings of fact. One of the, the first case Mari is talking about, I believe… Could you repeat that? He asked you to repeat it. …how this came about to change the statement of facts. How do you change them? When the ALJ does what?

Male: Robinson: Male: Simpson: Male:

[Inaudible 182:32.] Male: When the ALJ takes what action, you make a change in the findings and facts. If the ALJ has misapplied a statute, a rule of the board or a previous decision of the board. What if the ALJ thought you were wrong? If the ALJ what? Thought your ruling or rule was wrong. Well, certainly they think it was law. If we believe that they are mistaken in the way they have applied the law, then the board can change that finding of fact or conclusions of law. So the - I’m sorry Mr. Chairman, may I? Yes. So, the due process that we have in statute that allows them relief of an administrative law judge, you then can overrule? Basically, it is… What process - then what due process do we have for them?

Simpson:

Male: Simpson: Male: Simpson:

Male: Chairman: Male:

Simpson: Male:

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Simpson: [Applause.] Simpson: [Applause] Robinson:

Well, the due process is an appeal of the board’s decision…

…to the district court.

This is the - just to clarify, this is the process that is for every regulatory agency, unless they are exempted out and the agency is given more control. It’s exactly the same process for every regulatory agency that uses SOAH. The exceptions are extremely narrow. They are extremely narrow, which is why the board has only applied it two out of five years. If the board does make those changes because they think the SOAH judge has misapplied the law and the doctor wishes to appeal that, they appeal to district court. If they don’t - if they disagree with the district court they appeal to the third court of appeals. If they disagree with the third court of appeals they seek [inaudible 184:22] at the supreme court. Exactly the same way every other appeal of every court system, or court decision works in the state of Texas.

Male:

Mr. Chairman.

Van Arsdale: I think I, I mean I get what you’re saying when you say, you know based on how the ALJ applied a statute, or a decision or a ruling. I get what you’re saying about conclusions of law, even though I’m going to say that maybe we need to change it for the other agencies, and I know that’s not really to be decided here today. But what I don’t understand though is on findings of facts. Why - how is it that you can change a findings of fact under those specific things, those specific things that you mentioned have nothing to do with facts. Simpson: Now usually it would come into play that you would add findings of facts, based on the record because the ALJ had determined some facts not to be relevant under their application of the law. Whereas, to have a complete finding, complete set of findings of facts under our interpretation of the law or the conclusions of law, we may need to add some facts. But, they would still have to be in the record.

Van Arsdale: Okay, one other question. The last month board, did y’all have a board meeting that was canceled or something like that last month? Robinson: Yes.

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Van Arsdale: What was that all about? Why was that? Robinson: Well, I’m going to let Jane answer but it was essentially canceled to make way for the November board meeting. We had had an unusual situation where our August board meeting was very light, our November board meeting, or what was normally a December board meeting was being held in the last week of November because of a scheduling problems getting a building, room in the building. So we were going to be holding three board meetings very close together and the amount of time for staff to prepare for a board meeting, to recover from a board meeting, to handle all of the paperwork in time for the board, it just made sense to not hold the October meeting since we just had one in August and were going to have another one in November. We used to have more control over when we could schedule meetings but not building and procurement schedules all of those conference rooms and we just don’t get to have them exactly when we would like to. Van Arsdale: So y’all don’t have kind of set dates, you just sort of pick them each month. Jane: Every, generally - we’re only required, the board is required to meet four times a year. They usually hold six meetings. We’ve had one other year when we’ve cancelled, I believe it was an August board meeting and we only held five that year.

Jane:

Van Arsdale: So, you all ready had the space for it, it was… Jane: It was on an odd day. I mean it was crowding three meetings very close together. We’d of had a large agenda in August because it’s the year end, you’re trying to move all the licenses through that you can, get everybody covered. We would have been meeting again in just five weeks.

Van Arsdale: How far in advance did y’all cancel it? Jane: Oh…

Van Arsdale: June? Jane: Oh, we canceled it, I don’t know…

[Inaudible off mic 187:29.] Female: It was at least four weeks because I was, I’m sorry I was out of town at the time that those proceedings were being moved.

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Jane: Chairman:

Yeah, it was several weeks. Representative Riddle do you?

Van Arsdale: I’ve got one more, before Debbie gets a hold of it. Yeah, I was kind of interested in the confidentiality piece of this. Like when somebody files a complaint and it gets into the process and there is all of this confidentiality, how much does that protect or avail communications within TMB? In other words do board members talk amongst themselves about cases, or do staff and board members - who, what does the confidentiality – confidential with who? What is the scope of the confidentiality? Robinson: If you’re talking about confidentiality of complaints as to who complained…

Van Arsdale: No, not the complainant, more about the nature of the complaint, the substance of the complaint. Robinson: Every staff member has access and every board member who inquiries has access to any of the complaint information.

Van Arsdale: So, everybody within TMB can see what the complaint is and what it’s about. Robinson: Yes.

Van Arsdale: Okay. Robinson: Well actually that’s not true. I’m sorry let me caveat that. The customer information group that Jaime is over does not have access to that. It’s really enforcement staff because the fact of the matter is it can’t be released to the public and they would rather not have access to it and that way they can absolutely say, “We never released it, because we don’t even have access to it.”

Van Arsdale: Okay. Robinson: So it’s the enforcement group has access to the enforcement information. And of course Jane and her staff do as well to be able to answer legislative inquires and things like that.

Van Arsdale: So is there any communication between the TMB sort or directors or officers? Do they communicate within the IFC panelists about…

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Robinson:

No.

Van Arsdale: No. Is there any communication between TMB folks and like the SOAH, ALJ or… Robinson: No ex parte communications.

Van Arsdale: Yeah, see I didn’t know what the rules were. Robinson: Well, no we cannot give the IFC panel, the litigating attorneys cannot speak to the IFC panels without saying the exact same thing to the defense counsel. We have a hearings counsel who is separate from the litigation staff who is under the general counsel and Bob may want to speak on this. But they are there to give the board any sort of legal advice they need but they are not part of the litigation staff that is actually presenting the case.

Van Arsdale: Okay, and do - does anyone at TMB have discussions with carriers or insurance companies about specific physicians? Robinson: No. We can’t discuss a complaint with anyone outside of the agency unless there’s a specific statutory exemption for it, for example, legislators. We can’t even discuss it with the wife of the physician, much less, anything else.

Van Arsdale: Okay. Robinson: Chairman: Riddle: Unless there’s an exemption. Representative Riddle. Thank you Mr. Chairman. To any of you here in front of me, I have a question and I’m not clear on this and I really want to make clear not only in my mind, but I think for those of us here on the [dive ??]. Is the nature of the complaint fully disclosed to the physician who is the subject of an anonymous complaint? Well, the nature of a complaint is disclosed exactly the same regardless of whether it’s anonymous or not. Okay, so the physician, there is absolutely no part of the complaint that is in any way, shape, form or fashion, veiled, changed, withheld - is that complaint given to the physician… No. …word for word as the complaint is given?

Robinson:

Riddle:

Robinson: Riddle:

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Robinson:

No, absolutely not because that would identify the complainant in most cases. I’m not talking about identifying the complainant. I’m talking about the nature of the complaint. I understand, but if you gave them the complaint word for word most of it says, “My doctor did this,” so… Okay. …we don’t give them a copy of the complaint. What we do when we receive the complaint is in the initial 30 days, we give them - we try to give them… Kind of a vague outline? We try to give them, well at that point all we have is the complaint, okay. So what we try to do is we tell them what the allegations are, what statutes we believe come into play here. So it could be you know, practice inconsistent with public health and welfare. And we try to give them the detail of the patient who we’re discussing if it does involve a patient and the time period that we’re discussing it and if it relates to billing or care and treatment and all that. We try to give them the most information we can in that initial 30 day period, but that is not going to be as much information because we just at the very beginning have a single complaint.

Riddle:

Robinson:

Riddle: Robinson:

Riddle: Robinson:

Riddle:

Well, I guess I’m really confused because I heard you say earlier in your testimony that you felt like that when someone makes and anonymous complaint that whoever the complainant is is completely irrelevant. It is irrelevant. So you concur that you said that. Well, how can you say then that that is irrelevant because the full nature of the complaint, if someone is going to complain about you, yet part, some part or some percentage of that is veiled. We tell the physician everything… How can he respond to that?

Robinson: Riddle:

Robinson: Riddle:

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Robinson:

…we tell them everything, every allegation that we believe they may have violated and we tell them the facts surrounding what we think they may have violated. In the initial 30 days it’s a single letter. After the complaint is filed and we gather more medical records… But you cannot give the full scope of the nature of the complaint. I don’t understand exactly what you mean by that. We do the - we give all the information to allow the physician to respond that we have, short of releasing the complaint itself. And before the IFC they get a copy of every piece of evidence that we have. So, that is, I mean we give them that’s even statutory. So now what you’re saying is that under statute you must give the physician everything regarding the nature of the complaint, saving except who the complainant is, if it is an anonymous complaint. What the statute says is 30 days prior to the informal settlement conference we must provide the physician with a copy of all of the documentation and evidence that we intend to use at the hearing. That is the formal settlement. That is not the initial when the physician would have an opportunity to respond within the first 30 days, is that accurate? Within the first 30 days we give them the allegations that we believe they may have violated. Fully and completely? Every allegation that we believe they may have violated and the details that we have available to give them regarding the nature of the complaint. So, for example a physician might get a letter that says: Dear Doctor, we have received a complaint. We are giving you an opportunity to respond before we file it. This complaint concerns your care, treatment and diagnosis of patient John Q. Public at Herman Smith Memorial Hospital of June of 2007. We believe that you may have committed practice inconsistent with public health and welfare. If you would like to respond to these allegations, please do so by this date. Sounds pretty vague.

Riddle: Robinson:

Riddle:

Robinson:

Riddle:

Robinson:

Riddle: Robinson:

Riddle:

[Inaudible conversation off mic. 195:33] Robinson: Well…

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Riddle: Robinson: Riddle:

I mean, how do you respond to that? Well, they are… I mean, I, I, I don’t understand. Well, okay. I think I’ve got the answer. I’m pretty shocked at the answer. There is sufficient responses that occur that 2,000 of them get dismissed every year. So, it, it, at least 2,000 physicians are getting sufficient information to respond to where those are closed at the end of 30 days. Well, I would think that one would need to have as much information as possible to respond. Let me go ahead on with my questioning, I want to be respectful of time. I’ve got two more things that I need to address. Dr. Kalafut, are you familiar with Dr. Christine Canterbury? Yes ma’am. Are you aware that she sent out a - or sent a letter, I’m in receipt of a letter saying that she served until 2006 and I quote, “When I resigned early – I resigned early for a variety of reasons. One of those reasons was that I could no longer justify the actions of the TMB to my peers back home. I felt like a hypocrite and I submitted my resignation letter. Since leaving the TMB I have actually had the unfortunate experience of going through the process on the other side.” She goes into a little bit more detail but then later on down at the bottom of the first page, she says, “When we received our statistics, the message from the board was that we were dismissing too many cases. We were told that by the time the physician reached the IFC there was a presumption of guilt because the physician had all ready gone through the investigation process. The board had all ready decided that a violation of the Medical Practice Act had occurred. Our job at the IFC was to essentially decide punishment.” She goes on regarding this. Is this accurate?

Robinson:

Riddle:

Kalafut: Riddle:

Kalafut:

Let me address some of your questions that you brought up and when reading the letter. I mean this is disturbing, would you not… Let me - thank you for allowing me to explain this. First of all, that’s kind of shocking because the conversation I had with her when she resigned was that she was having problems with a pregnancy and she had worked very hard to get pregnant and wanted to concentrate on that. I knew

Riddle: Kalafut:

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nothing of the other reason. So that’s new to me with you letter and I did not receive that letter. The second about people being, or physicians being assumed guilty, now, please excuse me. I’m only a physician so I’m going to try to explain our process and I may have to ask for some legal help here. But our process in an IFC is based on a prime fascia case, which I am told, and this is how the board’s attorneys have educated us non-legal people on the board, that it’s common in law and since an IFC, an informal settlement conference, is not a contested hearing, the standard of proof, they say, doesn’t apply. And, I’m going to get to your answer. So the board’s attorney presents what they call a prime fascia case, meaning that with all the evidence they have accumulated in their investigative process the case can stand on its own merits to go forward with litigation. An example of this would be say, failure to release medical records. We get the accusation that, you have failed to release medical records in a timely fashion and the evidence that the board has may be there’s repeated patient requests, there is no evidence that the doctor’s released the records so we’ve got the evidence there. The informal settlement conference is another form of due process for the doctor. It’s the doctor’s opportunity to show compliance with the Medical Practice Act. So, using that example that I just gave you, the former example, let’s say the physician comes in and says, “Here, look at this. Here is the signed green receipt. This patient is lying, this patient got it.” I’m just giving a very simplistic example. So that would be dismissed and this process works because 39% of cases that get to the IFC hearing get dismissed after the doctor shows compliance with the Medical Practice Act. Riddle: Well, in her paragraph here, and I just find this quite disturbing and especially for a physician to put something on paper. It’s one thing to have a casual conversation but it’s really serious when they’re willing to put in on paper and sign their name to it. She continues saying, “I initially received a letter from the TMB,” I’m skipping down here a few paragraphs to conserve time, “stating that a complainant about my care of patient X had been filed with the board, at this point you have no idea who the complainant is, or what the allegation is, but they ask you to respond within 30 days. If the response answers their questions, although you have no idea what the questions are, the complaint may be dismissed without opening an official investigation. However, if you answer and an official investigation is opened your answer may be used against you in later proceedings.”

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I just wanted some kind of response to that, because I found the letter quite disturbing in its nature. To finish up, I kind of had three facts here, they’re things that I wanted to go to and notes that I’ve been taking. Dr. Kalafut, have you ever filed an anonymous complaint? Kalafut: Riddle: No ma’am. Have you ever had your physician husband file an anonymous complaint for you? (pause) Yes. Not for me, but he has filed one on his own. He has filed an anonymous complaint… Yes. …on his own. Were you aware of it? Yes. And it was dismissed. And it was dismissed in the 30 days. But I don’t have the right I’m told to disclose that.

Kalafut: Riddle: Kalafut: Riddle: Kalafut:

[Inaudible discussion off mic 202:17] Riddle: Have you asked your husband or any other person to file an anonymous complaint against Dr. Dan Munton, your former partner? I don’t have the right to, I don’t - have the right to disclose that. You cannot disclose that? Yes, I’m told now …. No, she - we cannot disclose the name of anyone who complains. The complaint identity is confidential. We certainly can if we get a legislative form, actually, that isn’t even part of the form.

Kalafut: Riddle: Kalafut: Robinson:

[Inaudible discussion off mic 202:51.] Riddle: Okay, did you doctor, file an anonymous complaint against or have you filed an anonymous complaint against any physicians or staff at Hendricks Medical Hospital in Avaline? I’m not asking for specifics… I have not. You have not?

Kalafut: Riddle:

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Kalafut: Riddle:

I have not. Have you asked your husband or any other person to file an anonymous complaint against any physician or staff at Hendricks Medical Hospital in Avaline? I have not, nor do I need to - my right to disclose that. Have you ever, doctor, discussed physician cases which were before the TMB with any members of your staff or with your employees? Only after it has become public. Representative Riddle, I think we need to move on. Okay We’ve got a lot of people to testify. Okay, thank you very much, doctor. I appreciate your answers. Representative Lucio. Thank you Mr. Chairman. I have a question. During Dr. Fuentes’ testimony she said that she had contacted Senator Janick’s office, you know just to clarify what was going on with her case, to see if he could help, which many of us, you know get those legislative inquiries. People come into our office. They elect us, you know some of them work on our campaigns and when they have an issue dealing with state government, they come to us. She said that she initially went to Senator Janick’s office, Senator Janick’s staff called you and that the Texas Medical Board told Senator Janick’s staff that if she continued to inquire into this case it’s considered an ethical violation and we will file an ethical violation complaint against you. Is that practice? So if I were to call next week to the Texas Medical Board and say I have a doctor in my district, just want to know what’s going on, could I possibly…

Kalafut: Riddle:

Kalafut: Chairman: Riddle: Chairman: Riddle: Chairman: Lucio:

Garanflo:

This is Jaime Garanflo, I’m the Director of Licensure and Customer Affairs. I have never heard of that happening. I have never instructed anybody to say anything like that. We do our best to accommodate inquiries from legislators and that is just so out of this world I can’t even imagine it happening. I can’t.

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Lucio:

Okay, so well I mean, because that’s pretty serious. It’s a pretty - when we have someone testify and say that she called a Senator and that the Senator’s office was told don’t ask and if you do ask we’re going to file an ethical complaint against you. I can provide you a list of all the numbers of legislative requests that I’ve had on licensure issues or any other and, you know, our response to that is to do everything we can to, you know, if you say you need to expedite this person because, you know, they are going to an underserved area or whatever, I probably talked to staff for some of you who know that our response has been, you know, completely constructive to that, to try to help you help your constituents. Okay. So, that is something that is not practiced. It is not. …has not been done, to your knowledge. No, to my knowledge and I would also like to reiterate something that Mari Robinson said earlier. We do not retaliate against anyone. I’m speaking for licensure now. If there were ever an inquiry made by a legislator on behalf of an applicant, we would never retaliate against the applicant for doing so. And, I agree with Jane that I would like for you to see the list of legislative contacts we’ve had and I invite you to call each one of them and find out what has happened in each of those cases. You will not find that. Thank you Mr. Chairman. Representative Taylor. There is a difference when one of our offices follows up on someone’s license. That would be different from one of our offices following up on somebody that is going through the disciplinary process. So, that would be and ex parte. If you sign the confidentiality agreement we can share with you the facts of the case. We cannot share, under statute, the statute specifically addresses that we cannot reveal even to a legislator the name of the complainant. But we can give you all the other information if you sign, under the Public Information Act, you have the access as a legislator to information that is otherwise confidential. And when you sign an agreement that says it’s for legislative purposes then we’re going to tell you everything we know about that, everything you want to know.

Garanflo:

Lucio: Garanflo: Lucio: Garanflo:

Lucio: Chairman: Taylor:

Garanflo:

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Taylor: Chairman:

All right, thank you. Representative Van Arsdale.

Van Arsdale: Okay, I’ve got two really quick ones. Does the TMB allow notes to be taken in IFC’s? Female: Yes.

Van Arsdale: Yes? So they don’t prohibit notes from being taken at IFC’s? Simpson: The rules of the board specifically allow notes to be taken at IFC’s.

Van Arsdale: So that was pretty fast. Hang on I got one more question. We’ll say a complaint is filed and then the complainant wants to withdraw the complaint. Is there a provision for them to withdraw their complaint? Robinson: No, the complainant actually isn’t a party to the matter. Once they file the complaint we investigate it, because the fact of the matter is, as I said before, either a violation has occurred or it hasn’t. If the information comes to the board, regardless of the source, we’re going to investigate it. And at some point in time if no violation has occurred, it’s going to be dismissed. And if a violation has occurred and it’s going to go to a hearing, an appropriate disciplinary action will be taken.

Van Arsdale: Let’s say the complainant accidentally put the wrong doctor’s name on there. Wouldn’t it be more efficient for them to allow them to withdraw the complaint rather than go through an investigation and go through your process? Robinson: If they put the wrong doctor’s name on there, we’re going to call that nonjuris – we’re going to close that out. That’s going to be immediately dismissed and then we’ll ask them if they want to file a different complaint about the corrected name of the physician. But that’s one of the things that we put in as non-jurisdictional or that we close very, very quickly. If the physician - if it was opened in error.

Van Arsdale: But if a complainant files a complaint and, what would, if they can do it anonymously why would they not be, what’s your objection or your fear of them being able to withdraw it? Robinson: I’m sorry?

Van Arsdale: It seems like it would be a more efficient use of the tax, of money, if the complainants that no longer wish to pursue their complaints could withdraw them.

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Robinson:

The fact of the matter is, like I’m saying, if a violation occurred the medical board wants to know about it. The medical board wants to address it…

Van Arsdale: Yeah, but you can only investigate something that someone has complained about, right? Robinson: Once we know about it we can investigate it.

Van Arsdale: Is that right? Robinson: No. For example it goes back to the if we see something in the paper. Nobody filed a complaint that, you know, Dr. Jones was arrested for child molestation. We saw that in the paper and we opened that complaint because we want to know what happened there and if Dr. Jones was convicted of that or what the thing was but the Board needs to take action on that. And, that thing rarely ever occurs but usually it occurs when the doctor has made a conclusion that he knows who the complainant is and he’s called and threatened them. Which happens all the time – in those types of situations it does – when they want to withdraw. Chairman Callegari? Ah, just a follow-up on that. You mentioned that if the wrong doctor…let’s say they made a complaint and happened to be the wrong doctor…how would you know it’s the wrong doctor because it doesn’t seem like the process really lets you find that out. Well, we contact the complainant first before we contact anything else and we try to verify all the information. So we catch the majority of that kind of thing at that very first time before the doctor is even notified. Occasionally if it slips through, the doctor sends us the letter and says ‘I’ve never seen this patient, I did not work at that thing’…and if we can verify that that’s right, we will write back and say your absolutely correct… How do you verify that it’s right? Well we’re able to see where, if they say, “This is where I’ve worked,” we are able to contact the hospital and see, yes indeed, even though they live in Houston, they never did have privileges at Herman Memorial and that’s where this occurred. But it could be two doctors in the same office.

Chairman: Callegari:

Robinson:

Chairman: Robinson:

Callegari:

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Robinson:

If, well if, we have to have the name of the physician to open the complaint. We don’t open complaints on… But, if they name a particular doctor and find out later that it’s the wrong doctor… Sure. …how are you going to, now I want to understand how you allocate that. Okay, if we receive a complaint, first we’re going to contact the complainant and confirm that it is the doctor they think it is. Right, but if you contact the doctor, the doctor doesn’t really know who’s made the complaint and what the complaint is all about. How are you really going to find, even find out that they named the wrong doctor? Okay, but they are notified what the complaint is about. They are notified as to what patient it involves. They are notified as to when it occurred. So they could easily write back and say, “I’m sorry I have never seen this patient. This is not my patient. I’ve checked the records. I believe it’s my partner who treated this patient.” But, but if the, I’m trying, if you don’t - the complainant can’t go back and tell you, “Yes, I agree I went to the wrong doctor.” It’s kind of a he said she said thing again, right? When the doctor says, “I don’t know, you know, I’ve never visited, met with this patient,” how do you verify that? Well, typically they say the other person who’s treated, if it’s their partner, typically they say, “This is not me, this was my partner,” and so we then ask. We open a complaint on the partner and get the medical records and we know that it was the partner who treated them. If it’s not a partner, if it’s something of a close name, John Smith, who both live in Houston, who both are oncologists and they say, “This is not my patient. I never practiced at that hospital.” We will call and verify whether they ever actually practiced in that hospital and if it was a case of mistaken identity, we will tell them, “You are exactly right. We’re taking this off your record.” What about if it’s anonymous, how do you check it then? The exact same way. If… But, you don’t know who the patient is.

Callegari:

Robinson: Callegari: Robinson:

Callegari:

Robinson:

Callegari:

Robinson:

Callegari: Robinson: Callegari:

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Robinson:

…no, we absolutely do not open complaints, to open a complaint about standard of care we have to have the name of the physician and the name of the patient. If we do not have the name of the patient we cannot open a complaint. Those are… Okay …all considered non-juris… The other question is, if there’s a complaint, did you want to say something? I think there’s confusion. The complainant may not be the patient. It may be a family member, or someone else who treated them. So, that’s where I think the confusion comes in. If there is a complaint, I think you said that the response of the doctor does not indicate the specific complaint, just that there’s been a violation of the Medical Practice Act. No, we give them a specific description of the complaint. We do not release the complaint itself. But that’s how they know to respond to it, that’s how they know what to say. So you would tell the doctor that somebody complained that gave them you prescribed such and so and it was the wrong prescription for whatever the malady was. It would say something to the effect, “We have received a complaint regarding your prescribing practices of Julie Smith in June of 2007 and if it’s too much…” So it would name the patient? Yes, it names the patient. Okay, all right. Okay thank you very much. Mari, let me ask you one real quick question. Sure. I heard this earlier today, before we broke, and you know I think all of us are very concerned about the fact. I over bill the patient $65.00, whatever, and I get this packet and this whole process takes me 180 days or longer. The cost is $15,000 to $20,000 for legal fees, plus all the misery that goes

Callegari: Robinson: Callegari:

Female:

Callegari:

Robinson:

Callegari:

Robinson:

Callegari: Robinson: Callegari: Chairman: Robinson: Chairman:

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along with that. Now, what I heard you say earlier was that you all are in the process of coming out with a fast track program, for lack of a better example. Is that correct? Robinson: Chairman: Yes sir. And, that’s good. How long do you think it’s going to be before that is actually in operation? Like I said, that we are putting the rule up to the stakeholder group, which is required by statute tomorrow. So we’re hoping to have that up, I’m thinking, for the November board to consider and to publish it, hopefully, at that time. Then it would be adopted at the next board meeting. So, it would be essentially the same thing as getting a speeding ticket? Yes, that is exactly what we are trying to institute. Additionally with that, we’re trying to just make it as administrative as possible. So, so no longer would doctors have to worry about minor infractions taking this nine month period of time? That’s correct. And, what are you thinking that this is going to be boiled down to as far as time? I’m hoping that it can be, now this is you know, I’m hoping that it can be boiled down to 30 to 60 days. It will save tremendous resources for you all, for the state, and especially for the docs. I agree. I mean, if a person has a real busy practice, things happens, right? Sure. I mean, we all understand that. But, we don’t want to run doctors off and I think that’s what we’re concerned about as legislatures. Because we invest a lot of money in our doctors, you know, as we raise them up through school and we bring them in and so, I mean, it’s in all of our best interest to show some flexibility. So I like that. I think everybody else does too. Thank you. Oh, Chairman Isett?

Robinson:

Chairman: Robinson:

Chairman:

Robinson: Chairman:

Robinson:

Chairman:

Robinson: Chairman: Robinson: Chairman:

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Isett:

Thank you, Mr. Chairman. You know, with regard to your line of questioning, it might be that your committee wants to look at the performance measures on the time [inaudible 8:23]. When I look through the – and that you have your performance measures and the [LBB ??] document, but when you look through there there isn’t - there is a measure for the number of days and it’s been going on over time down to about 260-ish and I think the budget is for 240, 240 days. It might be a bit as we go through this process that in one of the things, I think, we all agreed to on the appropriations list, was to review the performance measures this cycle with [LBB ??]. But, it is disconcerting when you have performance measures, and I don’t quite understand them, but the percent of complaints resulting in disciplinary action is 18%. So, one in five of the complaints roughly is resulting in disciplinary complaints. I’m hoping that that’s not being translated by the board as a…

Robinson: Isett: Robinson: Isett: Robinson:

Sir, I’m sorry, it’s 14% for 2007. Okay, I’m looking at the budget. Yes. …for ’08 – ’09. It’s 18% of the jurisdictional complaints. It’s not 18% of the overall complaints. Percent? It’s 18% of the jurisdictional complaints, that’s within the definition. It’s not of all the complaints received. So all those ones that were, the 6,800 it’s not the 6,800. It’s 18% of the ones that actually went on to investigation. Okay, then we need that better specified in the way that we present it then in the budget. But what it - when you have a measure, let me ask this then. When you have an outcome percent of licensees with no recent violation, how recent is recent? I believe it’s the last three years. So, 99% - if the goal is to have 99%, that means then that the last one percent are committing a significant number of complaints, 200 and some odd...

Isett: Robinson:

Isett:

Robinson: Isett:

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Robinson: Isett: Robinson:

Yeah… …they go to… It’s that they don’t have a - it’s that those do not have a order taken against them. So, there are going to be physicians who are investigated whose complaints are dismissed within the 30 day process and they’re not considered to have had a disciplinary action. Okay. So, I think it’s something we need to talk about. Members, any other questions? Dr. Kalafut do you have anything else? No sir. Okay, thank y’all. The Chair calls Melinda Fredericks. Go right ahead Ms. Fredericks. Chairman Brown and representatives, I appreciate the opportunity to appear before you to give a perspective. If you could just give your name please for the record. Oh, okay. Since you called me I didn’t realize I needed to say it again. Melinda Fredericks, Medical Board Member. Thank you. I appreciate the opportunity to appear before you to give a perspective of a public member on the board who oversees physicians. The Texas Medical Practice Act says specifically that we public members represent the public and the Act requires that neither ourself nor we, may be involved in the healthcare filed actively or financially. One of the things I have learned from being on this board is how dedicated and hardworking our doctors are here in Texas. Through my experience on the board I have seen some terrible situations and in some cases the underbelly of the medical profession. However, I know this represents less than 1% of physicians in Texas. I’ve become a great admirer of the doctors in the state of Texas. Dr. Kalafut read the board’s Mission Statement to you earlier, but, I would like to read it to you again because that statement belongs to the public members of the board as well as the physician members. The Texas Medical Board’s mission is to protect and enhance the public’s health, safety and welfare by establishing and maintaining standards of excellent

Isett: Chairman: Kalafut: Chairman:

Fredericks:

Chairman: Fredericks:

Chairman: Fredericks:

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use in regulating the practice of medicine and ensuring quality healthcare for the citizens of Texas through licensure, discipline and education. The Texas Medical Board is not here to protect the doctors, it is here to protect the public. The public members are called the conscience of the board by the previous board President, Dr. Lee Anderson. I believe it’s very important to always strive to be fair to the doctors, but at the end of the day, every time I have to make a tough decision on the board in regard to physician discipline, I ask myself, if after work I will be able to look my neighbor in the face and tell him the decision I made and why I made it, because that’s who I represent on the board. My neighbor, your neighbor, your wife, your children, every Texan. I always keep in mind, I have a sacred duty to my fellow citizens to do the right thing. I believe all of my public, of my fellow public members feel the same way I do. But, I also believe that the doctors on this board feel the same way and I tell you they are remarkable. They care about the people of Texas as well as upholding the high standards of their profession. I work with these doctors and I can tell you that they have the public first and foremost in mind and not covering for their fellow doctors. They are willing to take the heat and [bonification ??] that sometimes comes from other physicians. And I think it speaks volumes that all the doctors on the board are here today. Board members donate six weeks of our time every year, and I realize we get the 30-day per deim, but, it’s basically a donation, donate six weeks of our time every year in order to serve the people of Texas. This is time away from home, family and work. Plus, the homework time we spend preparing for our bi-monthly meetings and monthly informal settlement conferences amounts to another week worth of work. Dr. Kalafut mentioned the newspaper articles that came out in 2002 about the board and how those articles acted as a catalyst to reform. Board members and staff took those articles to heart in realizing they were not fulfilling their responsibility of protecting the public. This was before my time on the board. Governor Perry appointed me in September of 2003, just after torte reform, actually the torte reform election. Dr. Kalafut remembers what it was like, as she mentioned, when the board was not fulfilling its responsibility to the public and that is part of what motivates her to assure that the board carries out its responsibilities today. I want to show a few what motivates me. I campaigned hard to convince fellow Texans to vote for torte reform, as did many of us in this room, and I’m glad I did. We have all seen the great benefits that torte reform has

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brought to our state. In fact, I think torte reform has brought greater gain than any of us dared to imagine it would. The non-economic damage med mal cap not only dramatically lowered insurance rates for doctors, but, also is dramatically increasing patient access to doctors. Dr. Kalafut outlined for you earlier, as Dr. Kalafut outlined for you earlier, the medical board has been flooded with applications for license to practice in Texas and the flood is not letting up, but in fact is increasing. But, there could be a down side to torte reform if the medical board is not kept strong and motivated to do the right thing. And I’ll be honest with you here, I believe that some of our detractors want nothing more than for the board to be undermined and to be weakened so that torte reform will be pushed, removed, or weakened. How many of us in this room has read the stories of patients who have had terrible medical outcomes and because attorneys say there is not enough money in suing doctors anymore, no attorney will take their case? The wronged patient’s recourse is the medical board. Through the medical board they will at least get the satisfaction of knowing something was done about the wrong that was done to them and that measures are being taken to see that it doesn’t happen again to someone else. If people don’t have a strong responsive medical board, then where can they go? Doctors are human beings. They suffer the same frailties as the public, such as mental illness and substance abuse. These frailties could affect can affect, their ability to provide safe medical care unless they’re controlled. Doctors’ mistakes typically are not deliberate, I realize, but nonetheless, mistakes happen. In other cases the doctor might want to practice medicine only if he or she fits, only if he or she sees fit, regardless of the current standard of care. And, I have even dealt with doctors, personally I’ve dealt with doctors, who wanted to refuse the accountability and overwhelming evidence and solid scientific proof. On rare occasions doctors, and I want to say I did say on rare occasions and these are my words I’ve written all of this, on rare occasions doctors are sloppy or careless or distracted. In most professions, a lack of attention to detail might not be critical, but with doctors, we are talking about people’s welfare and even their very lives. Doctors must be held accountable for their actions. It’s just human nature to work harder and better when you have someone you will have to answer to if you don’t. A strong medical board holds doctors accountable and we’ve seen what happens when a medical board is weak.

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Ironically, I received an e-mail last week which complained that the medical board was interfering with the doctor/patient relationship. What the person that wrote this e-mail doesn’t realize is, it’s the medical board’s job to intervene and take action when the doctor isn’t practicing in an appropriate manner. Our processes are carried out according to statutes [inaudible 19:11] by the Sunset Commission two years ago. The recommendations and requirements that came out of Sunset have been fully implemented. The public counts on the medical board to ensure that doctors are providing good care. As a board member whose responsibility is to represent the public, I can look each and every person, each and every - I can look each and every one of you public citizens in the eye and tell you that the public can have confidence that the board is doing its job. Finally, I would like to say something about the Texas Medical Board staff, and I believe again I can speak for this entire board when I say that the TMB staff is exceptional. Their dedication is boundless. Their focus on their mission is clear and their commitment to excellence is inspiring. Texas is well served by the Texas Medical Board staff. Thank you. Chairman: Isett: Members, are there any questions for Ms. Fredericks? Chairman Isett. Thank you. Ms. Fredericks, thank you for your service to the State of Texas in this capacity. I just want to ask you a quick question about torte reform and… Yes sir. …and it was a hard fought battle in the legislature and a hard fought battle to win the constitutional… Yes sir. …election. And I appreciate your help with that. I guess the question that we have, and I think that there will be some questions or perhaps some testimony from other advocates of torte reform here later, is that what fear do you have, if any, that the actions of the board are more aggressive than necessary to protect the safety of Texans that it will undo some of the good that we did and that these findings when they end up on the agency’s website that a doctor performed poorly, whether it was in relation to an administrative matter or quality of care matter that it will then become [fauter ??] or evidence trying to justify or give credibility to bad behavior of a doctor?

Fredericks: Isett:

Fredericks: Isett:

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Fredericks:

Let me make sure I understand your question, if I might. You’re saying that my concern, or what concerns do I have that if the medical board is over-enforcing, that it still might undo torte reform. Is that the question you have? Yes ma’am. Okay. I do want to say that we have had some issues, and I think that is definitely something to be concerned about. I’m not saying we’re doing it but it’s something to be aware of. We do - previously when our orders were written, in order to get a doctor to agree to sign an informal settlement conference agreed order, our attorneys would debate back and forth with their attorneys, or dicker back and forth with their attorneys, in order to get the doctor to… Is that a legal term Mr. Chairman, dicker? …sign an order. I don’t know, dicker. I’m sorry, I’m not an attorney. If there’s a better term for it please tell me, but… [inaudible 22:44] don’t worry about it. Okay, thank you I appreciate that.

Isett: Fredericks:

Male: Fredericks:

Chairman: Fredericks: [Laughter.] Male: Fredericks: Chairman: [Laughter.] Male: [Laughter.] Fredericks:

Mr. Chairman Inside joke? No, he’s not.

I’m an outside joke.

…and in doing so, part of the agreement would be, often times they would soften the findings of facts. We would not put in the findings, you know sometimes some of the findings of facts were pretty bad and so it was part of the bickering to reduce some of those findings of fact in order to get the doctor to enter an order in order to get the public protected and to also save in the finances. But largely, typically if it’s egregious it’s to get the doctor under an order.

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Since then we did come to see what a problem that was because it was becoming [fauter ??]. We had, we were hearing countless stories to tell you the truth, of doctors who were under an order but they’re saying, “Look, all I did was this and look what they did to me. They hugely restricted me but all I did was this.” And so, we came to see the credibility problem with that, because it is a credibility. So since then I think you will if you compare orders previously, I’m not sure how long it’s been. It’s been about a year, maybe six months that we’ve stopped agreeing to reducing those findings of fact. I mean, they’ll still do some dickering, but largely we’ve made it very deliberate to make sure that the findings of fact are spelled out so that they match up with the agreed order and what the discipline is. Isett: Do you have any information - I have read and heard testimony now that insurance companies are making anonymous filings against doctors? No sir, I don’t have any information on that other than what our enforcement department put together the statistics on that. I have them, would you like me to… What statistics do you have? How many of the complaints that have been filed have been filed by insurance companies. Is that the questions you’re asking me? I wanted to know if they were anonymous. Oh. You know that I don’t know. Okay. Again, I want to… Let me ask the staff. Let me - that’s a good question, I don’t know. I’m sorry, this is Mari Robinson again, Director of Enforcement. Very quickly, and I just want to clarify this one more time, when the board is talking about an anonymous complaint, what they mean is there is no identifying information on it. Oh, so anonymous as to… We do not know who it is at all. Now, all complaints are confidential okay, so there’s a distinction there. The physicians probably see every complaint as anonymous, but they’re not. Only about 1%, 1-2% of complaints are truly anonymous with no identifying information.

Fredericks:

Isett: Fredericks:

Isett: Fredericks: Isett: Fredericks: Robinson:

Isett: Robinson:

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Now, of insurance companies they file less, either at a percent or slightly less than an eighth of a percent depending on which fiscal year you’re looking at, of the complaints that we receive, a very small portion. And to date, no disciplinary action has resulted from a complaint filed by an insurance company. Isett: Fredericks: Okay, thank you. So, I guess to answer your question, if an insurance company has truly filed a complaint anonymously we don’t know because it was truly anonymous. Okay, again I just want to thank you for your time and appreciate your service on the board. And let me just say that, for me, and probably the rest of us here and probably the doctors of Texas, if a doctor acts badly shame on him and we expect you to do your job. And we’re not advocating that you not pursue those who do badly. I guess the concern is that there, the concern we’re hearing is that there is over-enforcement, and each one of these cases differently, and we would just encourage you to just do the right thing and again I thank you. I certainly do want to do the right thing. I appreciate that. Thank you Mr. Chairman. Chairman Callegari. Ms. Fredericks there is a question from

Isett:

Fredericks: Chairman:

Callegari:

I again thank you as well for your service to the board. And you may not be able to answer this question but something just occurred to me based on an earlier question, what happens if a physician refuses to sign the IFC order? If they refuse to sign the agreed order? Yes. Than we file it SOAH. Okay, thank you. I think Ms. Fredericks that probably, I think I can speak for most of us that we all appreciate the commitment to our state and your service to the state on this board and your honest feeling of giving back to the state through your service and we want to thank you for that. And I think if you, the feeling I get is that there seems to be some, a breakdown in the process and maybe we can fix the process through better communication through both the physicians and maybe some education with the physicians and the

Fredericks: Callegari: Fredericks: Callegari: Chairman:

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community at large. I think that we could work on that process in everything that I’ve read. So, I want to thank you for your testimony today. Fredericks: I think there is always room for improvement on anything and I think that positive communication is the way to solve it, I agree. Thank you. Members, are there any other questions? Next on the agenda we have scheduled Dr. Donald Patrick, Executive Director for the Texas Medical Board. Dr. Patrick, please state for the record, just state your name and who you represent and then continue. Dr. Patrick: Chairman: Dr. Patrick: Donald Patrick, Texas Medical Board. Thank you. Welcome and please go ahead. I had just had some summary remarks to make which I don’t really need to make. There’s been lots of dialogue back and forth and I’m here to answer any questions that you might have. Members, are there any questions of Dr. Patrick at this time? Chairman, Representative Van Arsdale.

Chairman:

Chairman:

Van Arsdale: Yeah, how, in terms of the process of like the ISC’s, what is your involvement as a complaint goes through the process? Dr. Patrick: Me personally?

Van Arsdale: Yeah, you. Dr. Patrick: The complaint comes in, goes through the same sort of evaluation that Ms. Robinson told you about. When the case has been referred by an investigator to the central nurse investigator or a hearing and such nurse investigator agrees that there is enough evidence to do so, it goes to a panel of three of us - the head of litigation, the head of enforcement and me to look at all the cases to go in front of us. We make a decision about which ones go to informal settlement conference at that time and we assign, to the degree that we can, the cases to the board members. I believe Mari told you what that process was. And at that point my involvement in the informal settlement conference and what happens after that is minimal. I do not discuss the case with the board member who is going to hear the case and I don’t involve myself in the case at all in any way except that I

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hire and fire and put people in place that run the machinery of all that working. And I don’t make decisions. The decisions are made by the board. And once I’ve made the decision that the case should go to informal settlement conference then I don’t make an actual decision following that. That’s my involvement in it, but I do set the machinery in place that has the case come to the informal settlement conference. And I am involved in the machinery afterwards with, because I supervise the directors who then manage the things that we do. And the board at a public meeting then either approves the orders, approves the dismissals, etcetera. Van Arsdale: So, for example the experts that are chosen, do you have any involvement in that? Dr. Patrick: I did in 2003 in that we had to have experts and so the first thing I did was pick 40 guys that I knew in various specialties. My criterion was, can they take care of my family. Then I asked them to be experts. Well, it didn’t take but a couple of weeks before we were out of experts and so we had to then find other ways. So, what we did was we sent out a letter, like Mari said, to all of the specialty societies in the state and got back 100, 150 recommendations and about half of them agreed to serve as experts. And we’ve done that now three times. We get referrals from various other entities like board members will refer people they think are good and the members who are all ready on the panel will refer other experts to us.

Van Arsdale: Have you personally ever, and I’m not talking about your own physician, do you ever file complaints against physicians? Dr. Patrick: No.

Van Arsdale: Do you have any personal knowledge of any board members filing complaints against physicians? Dr. Patrick: I don’t.

Van Arsdale: Or board members’ family members filing complaints against physicians? Dr. Patrick: No.

Van Arsdale: How does TMB handle a complaint that’s filed against an existing TMB board member? Dr. Patrick: What happens?

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Van Arsdale: Like if someone files a complaint against a member of the Texas Medical Board, how does that… Dr. Patrick: Well we, this has happened so I can tell you how we’ve done it. The case comes in as a complaint. It’s run through the usual sort of mechanisms that are done. I recuse myself from the case because all of the board members are my employers in a way so that my place has to be taken by another member of the board. If it comes to a point where the case is considered jurisdictional and is filed and it’s investigated and the nurse investigator and the central nurse investigator both believe that the case should go to an informal settlement conference, or at least should go to have the lawyer look at it, I don’t sit on that quality assurance team at the time that it’s sent to an ISC. That’s done by a board member. I recuse myself from anything that has to do with the case. And so, if it goes to an ISC and the board says you violated the Medical Practice Act and you need an order and the individual agrees to that and signs it, then it’s a public order like anybody else. If the individual does not agree to sign that order then it is filed at SOAH. Van Arsdale: At the time those discussions are going on about whether to sign an order, are there ever conversations about the license being revoked? Dr. Patrick: About an individual board member?

Van Arsdale: Of the physician. In other words, let’s say you have an ISC and now you’re talking about whether or not to have basically an order signed, an agreed order. Dr. Patrick: You’re talking about a typical ISC, not…

Van Arsdale: Not specific to the board. Dr. Patrick: …we’ve gone past that, right?

Van Arsdale: Well it would include obviously them, but anybody, any physician at all, board or non-board. At the point of ISC when you start talking about the possibility of signing an agreed order, is there any communications about revocation of the license? Dr. Patrick: Well, I mean if it’s someone that the board thinks ought to have their license revoked, I think that would be part of the discussion between our attorney and theirs, or our attorney and the individual. It’s not routine,

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because we don’t believe very many of them need to be revoked, but those that do, I’m sure there’s a conversation in the negotiation phase. Van Arsdale: About revoking the license? Dr. Patrick: Yes.

Van Arsdale: As part of the negotiation? Dr. Patrick: Yes.

Van Arsdale: Thank you. What are the penalties, what are the maximum penalties, let’s say a complaint filed against a physician three or four months down the road, what’s the worst possible thing that can happen to that physician? What’s the list of things that can happen to him? Dr. Patrick: Well the…

Van Arsdale: …or to her. Dr. Patrick: …the options are, the case would be dismissed, or…

Van Arsdale: That’s not bad. I mean I would think that the physician would think that’s a good thing. Dr. Patrick: Okay,

Van Arsdale: I’m talking about the bad stuff. Dr. Patrick: Then the case goes to an informal settlement conference and the board makes the decision about what - whether the individual should have an order or not and if they believe that the individual should have an order, they will then recommend an order to that individual.

Van Arsdale: Maybe I didn’t ask it right. Let’s say that a person files a complaint against this doctor and we go through all the stuff. We go through the ISCs and the hearings and the blah, blah, blah. Let’s say the worst possible thing happens to the physician in terms of punishment and penalties. What are the things that that physician is subject to if he gets the harshest punishment? Dr. Patrick: Revocation.

Van Arsdale: Is that it? Dr. Patrick: Yes, that’s the harshest.

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Van Arsdale: He gets fined or…? Dr. Patrick: Well, they might be fined too, but any, virtually any fine…

Van Arsdale: That’s what I’m trying to elicit, that’s what I’m trying to get at. What are all the things that can happen to him? Dr. Patrick: Okay, all of the things?

Van Arsdale: Yeah, all of the things! Dr. Patrick: Okay, so…

Van Arsdale: Revocation of license is number one? Dr. Patrick: Fine.

Van Arsdale: How big of a fine? Dr. Patrick: It can be anywhere from $250.00 to $750,000. Dr. Sheffey got hit for $750, he didn’t pay a penny of it, but…

Van Arsdale: So there was a doctor that was fined three quarters of a million dollars? Dr. Patrick: Excuse me?

Van Arsdale: There was a doctor that was fined three quarters of a million dollars, is that what you’re saying? Dr. Patrick: Yes.

Van Arsdale: Okay. So revocation of license, fines, what else? Dr. Patrick: Mari has corrected me, once it goes to informal settlement conference it’s $5,000 for violation is the fine.

Van Arsdale: Is there a cap or a max on how much total? Dr. Patrick: That’s a…

Van Arsdale: I understand there’s a per occurrence… Dr. Patrick: Oh, occurrence…

Van Arsdale: …occurrence or something cap.

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Dr. Patrick:

Right. Right.

Van Arsdale: …but if there’s like 200 occurrences I guess they could – yeah. Okay, so revocation of license, fines and what else? Dr. Patrick: Well, if it’s a standard of care case a monitor of their charts, 30 charts every quarter would be reviewed by an expert from the board and reports be given back to the compliance officer. Courses in…

Van Arsdale: Now would that only apply, would a monitoring situation I’m assuming would only apply if the license wasn’t revoked? Dr. Patrick: Correct.

Van Arsdale: All right, well I’m not talking about that kind. I’m talking about the worst punishment. In other words, if you have your license revoked you’re not in a monitoring situation. Dr. Patrick: Yeah, well we just, they don’t…

Van Arsdale: I’m not talking about the worst thing… Dr. Patrick: Well, that’s a mild measure.

Van Arsdale: I’m talking about the… Dr. Patrick: That’s the worst we can do is revocation.

Van Arsdale: Right. And, you can do revocation and fines. Dr. Patrick: You can.

Van Arsdale: And I’m assuming, is there any kind of criminal? Dr. Patrick: We don’t do criminal.

Van Arsdale: Y’all just refer it over to…. Robinson: There could be. It’s very, very rare. But there are criminal statutes relating to a physician’s performance. I’m sorry, this is Mari Robinson Director of Enforcement again. There are criminal statutes relating to anybody who tries to perform surgery while intoxicated. But obviously we don’t take that action, we refer that to the district attorney. So, the same thing, if we had subpoenaed somebody and then they practiced medicine without a license or we had tried to revoke somebody and they

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practiced medicine without a license, again that’s a felony and while we couldn’t criminally go after that we refer that to the district attorney. Van Arsdale: In terms of which board members sit on which cases, do you have any involvement with that? Dr. Patrick: Yes.

Van Arsdale: You do? Dr. Patrick: I have an employee that works for me that calls up the members of the board and the members of the district view committee and there are 47 of them all together and works their schedule around to where we can have one public member and one board member on every single informal settlement conference case. And there are 400 some odd cases a year and over 100 appearances between all of these people. And so those are set out months in advance. And so when it comes time to assign the case that’s been referred to legal, to the quality assurance team that I’m on, then we have about a two week period that we can assign that case because of the timing that we must have statutorily and within the agency. And so usually that will be a group of five or six board members and DRC members, a pair, so either 10 or 12, and then typically we pick by what the specialty of the doctor involved is in that case. Because if it’s a case of OB/GYN for example we would want our OB/GYN doctor there. If it’s cardiology we want a cardiology doctor there. Some specialties for which we don’t have board members in which case they would be assigned to what we think is the best match. Van Arsdale: How long have you been Executive Director? Dr. Patrick: A little over six years.

Van Arsdale: And what were you doing before that? Dr. Patrick: Practicing neurosurgeon.

Van Arsdale: Okay. Have you ever served in any capacity for TMB or the medical board before this? Dr. Patrick: None, I didn’t even know where they were.

Van Arsdale: Had you ever been on the board? Dr. Patrick: No.

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Van Arsdale: This situation that occurred with doctor, I think his name was Keith Miller, is that his name? Dr. Patrick: Yeah.

Van Arsdale: When did you first have personal knowledge of this sort of, the notion that he was serving as expert witnesses in malpractice cases? Dr. Patrick: It was some time in April or May. I’m not, it could have been June, I’m not exactly positive.

Van Arsdale: How did you find out about it? Who told you? Dr. Patrick: I don’t remember who told me, but I know I found out.

Van Arsdale: Once you did find out, what did you do? Dr. Patrick: Well, he’s a board member. I work for him. I don’t go confront him.

Van Arsdale: You did or did not? Dr. Patrick: I did not confront him.

Van Arsdale: Why not? Dr. Patrick: Because that’s, that devolves on the President of the Board, and so the President of the Board dealt with him.

Van Arsdale: Did you carry this to the President of the Board? Dr. Patrick: She knew at the same time I did or roughly the same time.

Van Arsdale: So, whoever told you, but you don’t remember who it was? Dr. Patrick: I don’t.

Van Arsdale: …you think told her at the same time? Dr. Patrick: Or there about.

Van Arsdale: How did, did she communicate to you about it? How did you know she knew? Dr. Patrick: Yes, I knew that she knew. She told me, yeah.

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Van Arsdale: So, did you communicate to any other member of the board about it? Dr. Patrick: I wouldn’t say it was impossible that I did, but I don’t recall specifically doing so. I think the board all knew by the time I knew.

Van Arsdale: As the head of the agency, I mean running the agency, would that concern you that a board member was doing that? Dr. Patrick: Well, it depends on the degree and the situation involved. The facts that I was told at the time was that there was an open case in which he was serving as a plaintiff’s witness and it was in the context of the dental board having dentists who were routinely acting as defense witnesses for dentists having malpractice cases filed against them. And so, the context that all of this sort of came out of started with the Dental Board and then we found out that Dr. Miller was involved in this case and the board immediately kept to having a rule that says that you should not act as an expert witness in a case that involves a licensee of the board.

And at about the same time, I think triggered by the Dental Board, the legislature took this up and came up with a law that was passed in May and effective June 1st [inaudible 45:38]. And so, I wouldn’t say that we tagged on to what the board. I think the discussion was going on in the legislature at the time that we had a board meeting and made this decision, but the dates I’m a little vague about. Van Arsdale: So it sounds like that Dr. Miller’s involvement in some of these cases as an expert witness had been going on for a while before you knew about it? Dr. Patrick: Dr. Kalafut: Well yes, I subsequently found out that yes, quite some time. Representative Van Arsdale, may I comment? Dr. Kalafut, President of the Board. I found out in the spring. I found out between, I’m the one who told Dr. Patrick. I got a call from the TMA, from a representative of the TMA and this was between our February and our April board meeting. And the conversation was such that, “I think one of your board members is testifying as an expert witness.” And I said, “Whom?” I’ll get the information for you. So, it took a little while but the information was given. I immediately contacted Dr. Miller said, “What’s going on here?” He told me he was involved in one case, and one case only, asked me to support him on it and I said, “No, I cannot,” that I thought it was a conflict of interest. And, then the next board meeting - and then I said initially right after that within a week, I talked to Dr. Patrick immediately and then within a week

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we had a stakeholders group formalized to look at this because we have to have stakeholder input. I was wanting to propose a rule. We had nothing in our board rules that said whether you could testify or not as an expert. Before we generate a new board rule you have to have stakeholder input. So we formulated that, or got that formed in a rush fashion within a week. And so, by the April board meeting we had proposed rules and we had to kind of tweak them a little bit before they were published in the Texas Register. So, as I stated earlier in my testimony, we took action on that before the legislature did. I support what the legislature did as well. I think that’s the right thing to do. And then, in the summertime we found out there were more cases and I think Dr. Miller, after passing that rule, after the board passed that rule, resigned after that. Van Arsdale: So, he actually, basically, in between the time of the April meeting and the time of the actual resignation there was basically other cases that had become known that had not been previously known. Dr. Kalafut: No, he informed me there was only one, but, in July I found out there was a lot more.

Van Arsdale: Okay, one other thing, Dr. Patrick, that you said was, when I asked you if you mentioned it to Dr. Miller you sort of said no and then your first words were something about him being your employer. Why did you, what were you meaning by that? Dr. Patrick: Well, the board, I serve at the pleasure of the board. He was on the executive committee of the board and they specifically are tasked with hiring and firing of the executive director. I thought it was probably a mistake for me to confront him about that and so I thought it was a matter for the board, not for the executive director and they thought so too and they handled it.

Van Arsdale: Well, I would submit to you and to the board having sat through a session on a select committee for the Texas Youth Commission, I would encourage you if you are a board member or you are the executive director of an agency, if you see something you think is wrong that you go talk to the person about it. Because, what I hear you say is that this is my employer and I hear, I’ve heard a lot of fear today, a lot about fear. I’ve heard about fear of the patient, the people that are complaining against the doctors. I’ve heard about the fear of the doctors being sort of retaliated against by the board. A fear of the ED of the board, you know we’re going to run into a lot of problem in governmental agencies.

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I’ll tell you the agency that I worked on, I’m not trying to compare y'all to the Texas Youth Committee by any stretch of the imagination, but, there were a couple of staff people doing some really bad stuff in that agency. A lot of people were doing their jobs great. The problem was for years nobody was saying anything and everyone was scared to - I’m scared of this person and we’re scared of that person, and then the board wasn’t proactively getting to the bottom of what was going on. Because of that, the State of Texas, the people of Texas lost confidence in the board. What ultimately ended up happening was even though the board technically didn’t do anything wrong, they ended up having to step down because the credibility had reached a point where it was lost. And so, what I’m – I’m just saying to you, I don’t think that’s the stage things are at right now, but I do think that it is, possibly could get there if there’s not some more active behavior in terms of getting to the bottom of things. That’s just my gut feeling. Dr. Patrick: Well, I don’t think there’s any relationship between the other agency that you mentioned and this incident. Dr. Kalafut did remind me that she’s the one that told me and was all ready in control of what was happening. So, I think your concerns are not, are not, I don’t think I’d be concerned if I were you.

Van Arsdale: Well, I am concerned and I think you’re wrong. Dr. Patrick: In what way am I wrong?

Van Arsdale: I think you need to be concerned when you get some information that one of your either employees or employers is doing something that’s wrong or that affects the credibility and the morale of your employees and your agency. I’m a little bit surprised that someone that’s charged with an executive director position that you are is making a statement like that. Dr. Patrick: Thank you, I’ll avoid it in the future.

Van Arsdale: Well, if that’s what you believe, I can’t change your belief. This is a real cavalier attitude to take to people, I’d rather be home with my kids right now. It’s like you’d probably rather be doing something else too. So, here I am, we’re dealing with this. Why are we dealing with this? We’re dealing with this because people have come to us. There aren’t a whole lot of other agencies we’re dealing with today. We’re dealing with the Texas Medical Board. And so you’ve got a credibility problem. One of your own staffers sat up here and testified you have a credibility problem and I think it’s hard to say all is lost. I mean we can work on this and try to fix this. But, that attitude you are displaying right now, I don’t think it’s going to get it done.

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Dr. Patrick: Chairman: Lucio: Chairman: Lucio:

Yes, sir. Members, any other questions for Dr. Patrick? Just a quick question. Representative Lucio. What was the time table once it was revealed that this particular board member was testifying as an expert witness from the time that was revealed to the decision makers at the board to the time that he was removed? Was that before the next board meeting? It was, there were two board meetings that passed and he removed himself. So, how often does the board meet? We meet typically every two months. Okay, thank you. Representative Talton. Thank you, Chairman. Sir, you sit in on the informal settlement conferences is that correct? No sir, I don’t. You, do not? When I first came to the agency in 2001 I sat in on about five just to know what they were like, but, I’ve not sat in on one since. Okay so you know, and to your knowledge have they changed any since then? Well, it’s changed dramatically since then because of the location and the individuals that sit on the board, but it hasn’t changed in terms of our, the procedures that we follow. So, the procedure is the same? Correct.

Dr. Patrick:

Lucio: Dr. Patrick: Lucio: Chairman: Talton:

Dr. Patrick: Talton: Dr. Patrick:

Talton:

Dr. Patrick:

Talton: Dr. Patrick:

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Talton:

Is there any record made at all by the informal settlement conference by y’all? My understanding is that there’s not. So, there’s no notes, there’s no tape recordings there’s not anything, is that correct? I’ll defer to Ms. Robinson, but I believe that’s correct. I’m sorry, I need to just clarify very slightly. There are no tape recordings because it is a confidential proceeding. But the decision of the board, the decision of the ISC panel where they make their recommendation as to what they want the agreed order to be is recorded and it is signed by the two panel members so that we have the accurate information whenever we’re going back and drafting up that legal documentation to present to the physician. So, is it audio? No, I’m sorry there are no recordings of the hearing. It’s only written? Yes, its written and it’s presented, what happens is the, whenever they break to deliberate and then they’ll call the physician back in and the staff attorney back in. They will announce their decision and the staff authority will record that and they will give that to the panel members to look at and to sign to make sure that it is accurate to what the panel believes the appropriate offered resolution is. And so, if a physician wanted to take notes what would y’all do? The physician is allowed to take notes of the proceeding. As Mr. Simpson previously said, it is expressly allowed within the board rules. But, he can’t get anybody else who may be in there assisting him to take notes? I’m not exactly sure… Anyone can take notes. It can’t be recorded because it’s a closed session, it’s not an open meeting. But, the people can take notes for their own notes of what happened, sure. I mean I would expect that the attorney or the physician himself would be writing down whatever the decision of the board was for their own records.

Dr. Patrick: Talton:

Dr. Patrick: Robinson:

Talton: Robinson: Talton: Robinson:

Talton: Robinson:

Talton:

Robinson:

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Talton:

Right, but do you know of any instances in the past where that assistance to physicians, that their notes by their assistants were confiscated? I do not, sir. I was not involved in anything like that at all. I do know that you cannot, let me explain, you cannot record an ISC nor can you transcribe it as though you were a court reporter, but you can certainly take notes. So, if anyone attempted to record it, and we have had people try to smuggle in recording devices, or if anyone attempted to transcribe word for word that might become an issue because it’s not an open record and it is not allow to be recorded. It’s an executive session, confidential ISC. So, if the assistant was a shorthand person and could take shorthand you would take their notes, is that what you’re saying? If someone was attempting to transcribe the hearing, to make a transcription of the hearing word for word, and Mr. Simpson you can feel free to come up here with me as you’re the general counsel on this thing, but if anybody was trying to record something word for word, either via audio or typing, that is not allowed. You cannot transcribe a confidential hearing. Okay, and while I’m talking to you by the way, we discussed about the complaints and stuff so I was just curious at the break and so I called the state bar of Texas, and I was curious what they do. Bar complaints have to be in writing and signed. They don’t have anonymous. They know who the complainant is in the state bar. Well we, every other health licensing agency except for massage therapists has anonymous complaints. I’m not… I understand that. …sure about the bar, but the podiatrist and the psychologist and the OT/PT and every other health licensing agency except for massage therapy accepts anonymous complaints. No, I understand, but I’m just saying it seems to me like the doctors and lawyers are the two highest professions as such. It just seems odd to me that the lawyers aren’t afraid to do complaints and then y’all are. What’s the difference? It’s going to hurt a lawyer’s profession too, as it would to a doctor. What difference does it make whether it’s anonymous or you know who the complainant is? Let me respond.

Robinson:

Talton:

Robinson:

Talton:

Robinson:

Talton: Robinson:

Talton:

Simpson:

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Talton: Chairman: Simpson: Talton: Simpson:

And you are? Give your name again. I’m sorry, I’m Bob Simpson, I’m general counsel. Thank you. I beg your pardon. I don’t think our agency is here to defend anonymous complaints. That has been the policy of the agency long before any of us were around and we’re simply continuing that. If in the legislature’s wisdom they want to change that, I think we would certainly go along with that. The point is however, that that has been the policy through the time that the Medical Practice Act was recodified in 1999. It was the same policy that was in effect when Senate Bill 104 was adopted in 2003. It was the same policy when we went through Sunset review in 2005. So, it’s been the policy for a long time and we believe that that is, that it was done originally set as the policy because that’s what the legislature wanted is for us to get all of the information we could get. If you want us to change that, we’ll be glad to change it. Mr. Simpson, while you’re talking about that, is there any part of the procedure in the complaint system, whether it’s anonymous or otherwise, where the physician at any stage knows who the complainant is? No. Out of 11,000 or however many there are complaints? We do not tell them who the complainant is in any case. Right, that’s what I understood. Secondly, or lastly I guess, and I was a little concerned, the gentleman to your right, I don’t remember his name I came in late I’m sorry. Dr. Patrick. Dr. Patrick, Representative Van Arsdale was asking you questions and I guess what bothered me and I just made the note, is that if you see somebody doing something wrong within your agency and whether he’s your superior or your underling are you telling this committee that you’re not concerned whether it’s right or wrong? It’s just not your concern? You don’t believe in there’s a rightness and a wrongness? I was very concerned and I contacted the President of the Board.

Talton:

Robinson: Talton: Simpson: Talton:

Male: Talton:

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Talton:

Well, you didn’t seem that way. You wanted to argue with Representative Van Arsdale about the rightness and wrongness of things and it just kind of concerned me that you took that type of an attitude. I think he called it cavalier. But it was very bothersome to me to sit there and say well that’s why and exactly what he’s telling you. He sat on the panel. I read a lot of the stuff from the Texas Youth Commission. That’s exactly why we had the scandals that we did in the youth commission. Very simple, because nobody would, they would see something done, they would go report it and nobody would do anything about it and it went on for several years. And then, we have scandals all over and kids getting raped and whatever else was going on to them and that’s what you get when you take those type of attitudes and so I’m concerned about that. That’s one of the concerns that I’ve got.

Simpson:

May I make a comment about that? The fact is that the President of the Board did know about it. The President of the Board immediately took action to direct that rules be drafted to specifically state that that was a violation of the board rule or that board members should not do that. That board rule was presented to the April meeting, regular April meeting of the board and it was published in the Texas Register following that meeting with the contemplation that it would be finally adopted at the June meeting. During that period after the April meeting and before the June meeting the legislature acted and because the legislative enactment was slightly different than the rule we had drafted, we conformed the rule to what the legislature has done. At the June meeting instead of adopting it, we republished the rule so that we would have exactly the correct rule published. It was then adopted at the August meeting. So, I believe it was, I believe that this board acted very responsibly in acting quickly, as quickly as we could to address the problem.

Talton:

Thank you Mr. Chairman. Representative Van Arsdale.

Van Arsdale: Yeah, I think the board did a good job on that. I’m not sure how that got lost in translation. I just think that if the State of Texas is going to pay an individual over $100,000 to run an agency he has some personal obligations regardless of who the board is. I think you agree with that. Simpson: And, I think he agrees with that also and I think the fact that he knew that the President of the Board was taking care of it was what meant that he did not have to go confront the member that was involved with it, that it was being taken care of.

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Van Arsdale: Yeah, you understand though that when he first answered the question he didn’t mention that. He mentioned the fact that it was his employer. In the future, if some board member, and for all you know there could be something okay, so all that Miller stuff was going on and none of you guys knew anything about it. There could be something going on right now with a board member. I’m saying that if he finds out about it, he’s getting paid one hundred and some-thousand dollars from the State of Texas, he has an obligation to do something about it. Simpson: Chairman: Male: I agree. Any other questions members? Dr. Patrick let me ask you two quick questions. I heard a nasty rumor that the board adopted a rule that instead of going through the higher education coordinating board who gives accreditation to medical schools, that it’s now taken on by your agency, is that, is there any truth to that? Do you mind if a person from licensure who does that. I sure hope not. Go ahead. Jaime Garanflo, Director of Licensure and Customer Affairs. And, I think I am going to punt to Bob because it’s a very complicated situations that have to do with determining substantial equivalence of international medical schools and we believe that our expertise in that is worth something and we also believe we’re exempt from that particular statute. Yes, the Higher Education Coordinating Board has a specific exemption for professional licensing agencies. And it authorizes, first of all, it gives the Higher Education Board the authority to designate a substandard school. And it says that no one with a substandard education can participate or can use that degree in the State of Texas. We have doctors that come from some foreign medical schools and some of those are not very good and we recognize they are not very good, others however, have proved, at least to our agency, that they have a pretty good curriculum and we have licensed doctors from that agency. The Higher Education Board did put on their website a list of schools that they had not been through any kind of a hearing process but that they had determined in some way might be not substantially equivalent, might be substandard schools. A couple of those schools are schools that we had licensed from and so we did adopt a rule which specifically addressed the

Robinson: Dr. Patrick: Male: Garanflo:

Simpson:

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exemption that the legislature provided in the higher education code so that those doctors who we had licensed from those schools, which the Higher Education Board may have indicated on their website might be substandard, that they were licensed by us and they could continue to use their degree and their license to practice medicine. Chairman: Okay. And the last question doctor is this express minor infraction program that Mari Robinson and I have had a couple of conversations about, are you committed to that, do you like it? Well I thought it was my idea.

Dr. Patrick: [Laughter.] Chairman: [Laughter.] Chairman: Dr. Patrick: Chairman:

Well, okay, it may have been, good for you.

But you are committed to it? Absolutely. Because I think it serves everybody justly on that. Okay. Members any other questions for Dr. Patrick so we can move on here? Thank you. The Chair calls Mary Elizabeth Herring, JD Texas Main and Health Science Center. Honorable Chairman… Hi. Members of the committee, good afternoon. Please state your name for the record. I’m going to sit in the middle in case I need assistance. Mary Elizabeth Herring. I’m an Associate Professor at Texas A&M College of Medicine. I’ve been teaching in the medical school for 16 years and I have been recently doing a research project involving the Texas Medical Board. I was approached, I got a call about a week ago asking me if I would be available for this hearing. I did not know that I was going to be asked to present, but as a lawyer and aggie and a professor I am always prepared to speak.

Dr. Patrick: Chairman:

Herring: Chairman: Herring: Chairman: Herring:

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[Laughter.] Herring: First of all I need to tell you that I work as an instructor in the medical school. I have many, many colleagues who are physicians, hundreds literally and they are clinical affiliates. And my department head, dean, president and chancellor are all physicians. I do not speak for the Health Science Center or the College of Medicine or Texas A&M University system. My testimony is based on my observations and experience during the research for a project based on reviewing disciplinary actions that the board has taken over the last, almost 20 years. I went, I’m going back as far as I can looking at board disciplinary orders. Most of these orders are public orders that are on the website. You can find the same information that I relied on. I was permitted, the board voted to permit me to do this research and I am under a confidentiality agreement. I was permitted to sit in on some informal settlement conferences. I cannot tell you precisely how many I sat in on. I kept no records. I didn’t even record the number of conferences that I sat in on. Chairman: Herring: Okay. The only ones that I remember are the ones that involved colleagues or friends of mine. Excuse me one minute. Representative Lucio. I just have a quick question. Was this a research project that you initiated on your own will or were you asked to do this by… No, I came up with this idea. Dr. Patrick, every year for, since I’ve been with A&M, we’ve had the executive director come and speak to the fourth year medical students. And over the past six years I’ve gotten to know Dr. Patrick and I wanted to do this to see if there were predictors in, from the time that we started keeping records on physicians. So, that if you looked at an entire physician’s licensure record were there things that predicted bad behavior or indicated that a doctor would be disposed. This made a difference in how I took that information, thank you. Did you get a grade on this by any chance? I haven’t yet. Okay.

Chairman: Lucio:

Herring:

Lucio: Chairman: Herring: Chairman:

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Herring:

Actually, I’m still in the preliminary. I did a split six month research project and I’ve only completed three months and we’re inputting that data right now and then I’ll go back for three months with the board to complete my research project and hopefully publish some articles and have some reports that will be useful to the board. And my hope is to impact medical education. I think, we’ve talked about the board has a role in educating physicians. Certainly medical schools have statutory requirements to teach jurisprudence, but I think we need to go beyond that and perhaps in our residency programs where we’re, we know that we’ve got physicians who are going to train and stay in Texas. They need to have a requirement for jurisprudence and Medical Practice Act education so that doctors who are coming to Texas newly trained will know that, the specifics of the Medical Practice Act, because it is very, there are a lot of small rules that can trip you up if you’re not familiar. And, you cannot rely on common sense. You need to know how many days you have to turn over a patient’s medical records. You need to make sure that you understand that you’re responsible if your staff doesn’t do that, or if your staff who is signing your signature on your billing certificate, stamps your signature, you’re the one who’s responsible. And I think physicians, or at least in the medical schools, physicians in training are overwhelmed by gaining the knowledge to take care of people and they don’t have a business background or a business attitude. So, for my current position I coordinate the first year medical ethics course. I teach a legal medicine elective second year and I teach the catch stone course for fourth year students and coordinate that. It involves pain management, practice management, risk management, medical jurisprudence, ethics and a talk by the executive director on how the board works both from a licensure standpoint and a disciplinary standpoint. I have some preliminary impression that I have shared with the medical board that I would like to share with you. The first is education. I think it’s an important component and that’s the part that I hope to develop and basically have an educational module that I can export to any medical school or residency program in the state that would sort of cover the things that need to be covered for a practicing physician. Certainly, there are some opportunities, you know I’ve seen the process, and Dr. Patrick welcomed me to and the board to give them any feedback and I certainly applaud the fast track program.

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Sitting in the ISC’s I saw faces that I thought should not have been dismissed and I saw faces that I thought should have had higher penalties than there were and I saw faces where I saw and felt that maybe the physician should not have been forced to come down and even appear because of the nature. So, I think the fast track option where minor infractions can be dealt with expeditiously is going to be a tremendous, positive improvement for the board and its processes. I have encouraged the board, based on my research, because typically if you go to the website you can see the board orders and that history on the physician, but you can’t tell everything that’s come up about that physician. And I think you need to have, the board at least, the licensure board at least, needs to have a complete picture of the physician from the time they are licensed to the time that they either retire or die or lose their license, so that you can tell if you have a pattern of violations. Some of the cases that I saw or read about were very disturbing. Egregious violations and I felt like the fines were not always sufficient to get the physician’s attention to be deterrent or to punish them for what they had done. In other cases I felt like it was a minor infraction involving staff that cost the physician a lot of money to come and defend themselves at the board. On the whole, I was, I have had experience with other state agencies and I felt like the board staff was in fact exceptional. I think they had extremely, an extreme wealth of experience in the agency that enables them to work well. They don’t have to rely on brand new, out of school individuals to teach them the system. They have good systems and processes and I was very impressed with the board members and the amount of time that they devote preparing for these hearings and preparing for the board meetings, coming in asking decisive questions, understanding the case before it came, or as it came before them and then expediting the results and the resolution. I’d be happy to answer any questions. opportunity to work with the board. Chairman: Herring: Chairman: Herring: Chairman: I’ve had kind of an unusual

Well yesterday Dr. Nancy Dickey gave you a glowing report. Well, thank you. So… I hope this is being recorded. She’s hard to impress, so congratulations. Representative Lucio.

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Lucio:

Thank you Mr. Chairman. This is kind of a general question. Do you feel that the policies and procedures that have been mandated by the legislature lend themselves to being consistently applied during the review and investigation process with the Texas Medical Board? You know I have struggled with that, because I’m in the business. I’m certainly someone who is for physicians. I train physicians. I try to teach them to be ethical, to stay out of trouble with the medical board. But, I have had friends and colleagues who were brought before the board and uniformly they feel that it was unfair or that they have been unfairly accused and it’s a difficult position for me to defend the board because of the time length, the length of time and the amount of money they have to spend to clear their name from an allegation. And that’s not your responsibility today to defend the board or not defend the board. No, but… …just to give your opinion. …but I do tell, I do tell, one of the things that everyone I talk to now is interested in talking to me about the board, whether they’ve been for the board, or almost every physician has someone they know who’s gone before the board. And, I really feel like the board’s mission, which is to protect the public, and the mission of physicians, which is to protect the health of the public, is aligned. I think we’re all on the same side. And so in that respect, I would echo what Mari Robinson said and that the board has an issue of explaining its process and its credibility so that physicians understand why it works. Certainly no one wants to punish a physician by making them spend $14,000 or $15,000 in a matter that’s ultimately dismissed and yet we have to have a fact finding process so that the facts can be brought out.

Herring:

Lucio:

Herring: Lucio: Herring:

Lucio: Herring:

It’s a tough situation. I did see, in several cases physicians brought expensive lawyers with them and in many cases those lawyers were an impediment because we like to talk too much and we tend to take over. And, really the purpose of the settlement, the informal settlement conference was for the physician to tell their story and their side and why this matter arose. And in a lot of cases I felt like good litigators came in and tried to litigate the matter rather than letting the physician tell their own story. So, I did see some physicians who appeared pro se and they did very well for themselves.

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Lucio:

Now, other than lack of knowledge of the process from the physician’s standpoint, is there anything other, anything else, anything other than that that you can say the legislature could work with the Texas Medical Board and adopt policies and procedures for next session to bring about more consistency, more - I mean I don’t know that there is ever going to be satisfaction with the system, because it’s a system that is policing the medical profession. So all in all in any policed or judicial type process, no one’s going to be satisfied with the system. But just to say that we can understand what the mission is that’s being applied consistently. I mean is there anything that you see in terms of lack? I was impressed with the amount of consistency. Okay, well good. …in the way that things were laid out. And, I’m not here, you know I didn’t have to come and speak. I’m going to go and finish my project regardless of what I say here today. But I’m genuine when I compliment the board and it’s process and it’s staff. I do think that there needs to be some resources devoted to education and public interaction with the board so that they see that the board are advocates of good medical practice. And, you know, I’ve had physician friends say that, “Do they have some kind of a quota system? I feel like I got caught up on a quota system.” And that’s not true. It’s a complaint driven agency and so long as that is true there are going to be complaints that are misplaced or frivolous or emotional complaints.

Herring: Lucio: Herring:

Lucio:

Right. You know I’m comparing apples to oranges. This is an extreme very, very far fetched comparison but I am an a attorney and I have worked with other attorneys doing some criminal law work. And one thing that I’ve found that is very different from the situation at hand is that by the end of the, of whatever the system mandated, whether we went to trial, whether we worked with the DA’s office, the people being accused were understanding of the situation – of the policies and procedures, understanding of the process. And at the end regardless of the sentence they kind of understood, “Well there was a violation that took place. I was found guilty. I understand that.” And they pay their debt whether that be a fine, whether that be jail time or whatever, and at the end of it there’s not as much resentment. But, I don’t see that, by any stretch of the imagination in the particular circumstance. It seems like, and I think the staff of the Texas Medical Board explained that earlier, that in pretty much every case the doctors that are being investigated and go through the process feel like they were railroaded, feel

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like they were targeted, that there was a witch hunt. It just seems that there is very little information being shared that this is, and you know you’re at the education level and maybe that’s where it needs to come. And, it seems like there is efforts all ready in place, but, “If this happens to you when you practice medicine expect this,” and if they know that during their education years there would be some, I think at least acceptance of the process. Not necessarily… Herring: Lucio: Herring: There is a great deal… …approval. …of animosity towards the board generally among physicians who have been disciplined, which I have not seen at the bar either. That’s not been my experience with attorneys. But, there are a lot of cases that come before the board that are clearly violations, I mean things that you would be applauded by the volitional, willful violation of the Medical Practice Act and those people are unapologetic as well, which makes it difficult to react to every person who is incensed by the treatment that they got from the board, because some of them I saw were completely justified. You didn’t have to weigh the risk and benefits at all. Yes, ma’am. All I can say is that I love doctors. They’ve always taken great care of my family. I’ve never or no one close to me has ever experienced any bad behavior or bad practice from a doctor and I can understand both sides here. It’s very hard to sit up here in this circumstance and feel that there’s not justification on both sides. As an attorney who has a license I would be very concerned if I felt or my profession as a whole felt that the policing mechanisms in place were unfair. And that’s what we have here. The profession as a whole seems to feel that way. But, at the same time the Texas Medical Board does have a very, very hard task in front of it to protect people from being hurt by bad doctors. So, there’s a lot of information that we need to share, open lines of communication from both sides and you’re a great mutual third party. Herring: To stay with your analogy, lawyers are much more used to process and adversarial arguments and then walking away from it. Doctors, and it’s been my privilege a great opportunity of my life to be involved in medical education, and I like doctors. I really enjoy the opportunity. But, they are collegial. They earn the right to make independent decisions and to be respected for the level of education and expertise that they have. And I think it’s very humiliating and offensive to them to be called and questioned by staff or by people who are following a manual, a list of statutes or rules. And so, I think there is a natural distrust and dislike of that, a chaffing at that process.

Lucio:

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Lucio: Herring: Lucio: Chairman:

Yes ma’am. Well thank you for your testimony today. Certainly. Thank you Mr. Chairman. Members, any other questions? Thank you so much for being here with us today. Thank you. We appreciate it and have a safe trip home. Thank you. Members, next we have public testimony and we would like to ask anyone that’s testifying as we call your name, if you could try to hold your testimony to seven minutes. We have a lot of people that are going to testify. So you get bonus points if you hold it to seven minutes. The Chair calls Dr. Eric Solomana. Give you name please for the record. I’m Dr. Eric Solomana. You can call me Dr. Eric because no one can remember my last name anyways. I’ve, there’s so much I would like to say and I know there is really not enough time to do that, so I’ll try and keep it as brief as possible. I do have a statement that was submitted and I covered some of this. Just so you know a little bit about me, I’m a country doctor, simple ENT doctor practicing down on the boarder in Laredo. I’ve been here for ten years and I really wish I could have a little anonymity right now because I have pending cases in front of the board and I really do feel like there’s going to be retribution for my testimony here. Intimidation and retribution has always been part of my experience with the board going back ten years when I first applied for medicine. I don’t have anything personally against the board. I don’t disagree with the need to punish physicians and to change the process and make it better. I applaud the changes that the board has made. I’m one of the doctors that ten years ago took over six months to get a license. In fact, I was told I had to get a license in another state before I could get a license here and I’m glad you’ve shortened that process. I’ve, the specifics, there are so many things that I’ve heard here that I have strong disagreement with and I can’t talk about the generalities of what

Herring: Chairman: Herring: Chairman:

Dr. Eric:

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has happened with the board in other cases. I can only talk about the specifics of my case to explain what’s happened. To start off with, I’ve had only one investigation that’s been timely resolved and it took three years to do so. I have another investigation, which is going into its second year in which nothing is happening because it’s a - I think the board is waiting for a frivolous law suit to be dismissed or to decide one way or another. I have, I felt I was intimidated and forced to finally accept the agreements of the first case and I did so only to try and end the process, only to find to have a very generalized investigation started on me in terms of what happened with peer review. I have really strong hope that out of this process there can be some due process for the doctors so that we can defend ourselves. I have no problem discussing my cases and discussing what’s happened with patients as long as I have a fair chance to do so. The, in the first case, I, there were two cases that were brought together. My first conflict with the board was that they had a very brief, vague letter in terms of what they were looking for, patient’s name, explaining my case. And, it sounded more like they were bating me than anything else. They were trying to get as many facts, they were trying to get me to incriminate myself rather than discussing any specific details or options about the case. One of them involved a surgical complication that actually had gone to court in which the family hadn’t gotten the outcome that they desired and at the prompting of a competing physician in town, decided to take it to the state board. Another case was a patient in which I made a mistake and I was the one who told the family I had made a mistake. It was a patient I had concerns about pain management after surgery. I had asked the anesthesiologist about using a medication. They advocated a recommendation for me. Turns out that medication wasn’t approved for post-op pain management. I didn’t know. I made a mistake. I admitted that. There was no harm done to the patient. In either cases, in both cases the - it took, there were several times in which I was brought up in front of the board in which the board members hadn’t even been given the details of my case. They brought me all the way up from Laredo to tell me that, “We don’t have the details here. You’re going to have to reschedule and come back another time.” I was never told exactly who had made the accusations until the final meeting in which I was told that there were going to be witnesses, family

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members of the first case were going to be testifying. I could not cross examine them. I could not question their testimony. I was not told what they were going to say. I had no way of preparing any information whatsoever to defend myself on that. When my case finally met for adjudication at the IC meeting, I presented my testimony as I had done in the peer review process, as I had done several times before for the [inaudible 89:09] that I had in given years ago and I felt I had defended myself on every point that was brought up by their special witness, by their only special witness that had reviewed my case. I didn’t have two. At the end of the process they didn’t dispute my arguments for the details of the case. They decided that instead I was a racist and it was a brand new charge that had not been brought up at anything at all. It really horrified me, surprised my attorney and I was told also surprised the prosecuting attorney because it wasn’t part of the issues at all. Now, I am a white doctor and I’m practicing in a 90% Hispanic community. I’ve been there for ten years. All of my staff is Hispanic and they are paid better than the average for staff in that area. Ninety percent of my patients speak Spanish, so Spanish translation for every single one of my documents. It has always been that way for 10 years, a Spanish translation for every interaction with patients. My daughter is not having a Sweet 16 party. She's doing a [Cincenara ??]. I've had more than fair opportunity in the last 10 years to move out of Laredo if you don't like Hispanics. One-quarter of my family is Hispanic. One-quarter of my family is black. One-quarter of my family is Korean. So I'm really a mixture. I don't know who I'm supposed to be hating if I'm a bigot, because I'm related to everybody. [Laughter.] Dr. Eric: When I told them I could not accept that, you know I defended my case and defended the charges against me, I couldn't come up with that one. That's just one question I could never explain. There's no way I'm ever going to be a Hispanic. I mean I'm a victim of my race. I'm just not going to take a pill, never going to change that. They decided to change the facts. They changed the facts to say, "Well, you should have given antibiotics." Well in my case, the patient in question had been treated by another physician who had referred it to another ENT doctor. The ENT doctor had managed it. The radiologist made this, the finding on an x-ray and then I was brought in to do surgery based on the recommendation of the ENT.

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I concurred with the care that was given up to that case in the patient. The patient had a surgical outcome. It was unforeseen. It was something that had been decided previously. It was not something that was done on a malicious basis. It was something that just happened. In fact the hospital had made several areas and had made payment to this family as a result of the lawsuit. I was faced with a situation in which the board said, "Look, if you don't agree to sign this agreement and taking 10 hours of classes and paying a fine, then we’re going to take you - we'll let you have your hearing in front of the entire board, but your punishment is going to be much more severe." I was left with the Herculean task of trying to find who these original doctors were seven years ago in other cities from a family who had an animosity towards me to try and document this whole backtrack in order to prove that in fact more than one course of antibiotics were given. Male: Mr. Chairman. I'm sorry, but if I could, Mr. Chairman just ask one quick question before he goes on. Who communicated to you the punishment would be worse and how did they communicate it to you? My lawyer was in discussion with, and I think anyone who goes to these meetings without a lawyer is crazy. My lawyer was in discussion… Is that a medical diagnosis? Yes, I'm willing to make that. My lawyer was in discussion with their lawyer. We talked about our options in terms of what we would need to do. It became fairly apparent that it didn't matter what the facts were. It didn't matter what I came up with for justification. Right, but who communicated it and how did they communicate it? My lawyer was in contact with their lawyer, with the prosecuting attorney. They communicated through your attorney. The attorneys talked. My lawyer was talking with the board in terms of this, in terms of the charges. Talking with the lawyer, the prosecuting lawyer. They specific said, “If your client doesn't accept this outcome, it will be far worse from him if he comes before the whole board?”

Dr. Eric:

Male: Dr. Eric:

Male: Dr. Eric: Male: Dr. Eric:

Male:

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Dr. Eric:

That's what my lawyer told me. I don't know if anything was written to him directly. I don't know if this is something that's done on the side. Because it was all done in an informal manner, there's nothing recorded. There's nothing I can prove to document. If you could perhaps ask your attorney how that was communicated, I'd be interested to know that. I'd be happy to. No sooner than I finally signed off on this to just end it, then a new investigation was started, a very vague one. It started with a letter saying, “We know that you have peer review cases at the hospital. We don't know what the names of the patients are. We don't know when the incidents are. We don't have any specific incidents. But we want to know what those cases are.” I proceeded, and we have 14 days to respond. I responded by saying, “I've never had a peer review at that hospital.” When my office called and said, "We want to comply with your orders. We know there's a time limit. But you have to tell us who it is that you want files on because we have no idea what you're talking about." My staff was told, “Just stop dicking around and give us the information. Don't mess with us.” When it finally became clear that they had the wrong hospital, they then started a – they then called for the peer review files at the opposite hospital. I then got a letter stating that, "You have 14 days to subscribe five specific cases that happened over the course of 10 years." I'm pulling together things of minor cases that never went anywhere. There were never any lawsuits involved with this. There were never any complaints at the hospital made. There was nothing that really came out as being anything egregious in terms of what was going on. That was six months ago. I haven't heard from them since. I certainly welcome a fast track method, but this thing could go on forever. There just doesn't seem to be any end to it. I really feel that it doesn't really matter what the charges are. The fact that you're accused is enough. The fact that you can't cross-examine the people who are accusing you, the fact that you never know who it is. I have people in my life who have claimed to have contacted the board to create trouble. I have an ex-wife who is mentally unstable. She said specifically in the divorce when it didn't go her way, when the judge wouldn't grant her custody because of her mental disease, that she contacted the board and

Male:

Dr. Eric:

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actively tried to tell them that I had been killing patients, that I had been leaving sponges in patients, that I'd been making all sorts of things. She knew some patients that I had problems with in terms of peer review, but that had all been resolved. I have a physician in town who has a vendetta against. He's abused the peer review process in terms of cases. He's contacted patients to ask them to sue me. He has used his position as a hospital staff to go around the peer review process and go directly to limiting and restricting my cases. He's protected under the way the peer review process works, but he's also made accusations and charges. Male: Doctor, let me jump in here real quick. Can you just hit the high points? Because you're way over your seven minutes. I'm sorry. If you wouldn't mind. We have a lot of people to testify. I know. I really do feel that intimidation has been a long process, long part of this process. It goes way back beyond the people who are here. There's a filter of it there. They have a heavy hammer and they should have a heavy hammer in cases when things are off. But there's no balance. There's no fairness. There's no way the physicians really can be able to defend themselves in a fair way. The world of evidence and due process just don't comply. Please try and introduce that into the system so that we can defend ourselves in a fair way. That's pretty much all I have to say. Members, do you have any questions for Dr. Eric? This is not really a question. I was just wondering if it would be okay, there's a lot of people here. The TMB, the doctors, whatever that have more they want to say than they can say in this time period. If they could submit to the Chairman and then you can distribute them. Absolutely. Doctor, do you have written testimony? I have part of it that was all ready compiled I believe, but I will have to submit it again. That way we can keep in the seven minutes and still get all the information that you want us to have. Good, thank you. Thank you doctor. We appreciate you coming all the way up here.

Dr. Eric: Male: Dr. Eric:

Chairman: Male:

Chairman: Dr. Eric:

Male:

Dr. Eric: Chairman:

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Dr. Eric: [Applause.] Chairman:

Thank you.

The Chair calls Blakely Long. [Period of silence.] You're testifying against the Medical Board? Yes. Yes ma’am. Just give your name for the record if you will and go right into your testimony please. Okay. My name is Blakely Long. I just state my name, is that it? Okay. I'd like to thank the legislators for the opportunity to address you today. I've never done anything like this, so please forgive me for being a little nervous. It's been a long day. I have come here I hope to represent a different view point on one as a patient who would like to point out a serious flaw in the way the Texas Medical Board carries out its investigations. A little over two years ago, a resident physician who was treating me filed a complaint against another of my physicians regarding my care, only my care. I therefore became the center of an investigation by the Texas Medical Board. The Texas Medical Board investigators then proceeded to obtain my medical records from all of my physicians, including my personal therapist's records by subpoena. The investigator did all of this without my knowledge. Obviously he did not need it. They also did this without my consent. I consider this a gross invasion of my privacy. In addition, at no time during their investigation did the Texas Medical Board investigator or board ever attempt to contact me to interview me to get my feelings on the case which of course was about my medical care. I consider this indifference alone on their part shocking and unforgiving. Ask yourself right now how would you feel if the Board was investigating a complaint, perhaps even an anonymous complaint and had obtained a copy of yours or even your spouse's medical records without your knowledge? Perhaps there is a roomful of people debating the care your physician has given you and reading your records and you don't even know about it.

Long: Chairman:

Long:

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Maybe this has all ready happened. Perhaps you will only find out the nest time you or your spouse go to your doctor's office and somebody at the doctor's office casually mentions, "Oh, we received a subpoena a while back for your records from the Texas Medical Board." Not only was my privacy violated, but my medical care has been harmed. After the Board had obtained my records, I found the physicians and their staff did not treat me the same way they treated me before the complaint. I therefore had to find new physicians to assist me with my care. My case is complex and I will forever be inconvenienced by the Board's actions. Both my state representative and I contacted the Texas Medical Board with these grievances. All they care about is to inform me that they did not violate HIPPA and therefore see nothing wrong with their actions. Just because HIPPA gives the Texas Medical Board free rein to invade the individual privacy of Texans, it does not mean that Texas State Law has to allow it. An organization must be held accountable by some system of checks and balances and not have free rein to do anything they want in the course of an investigation. Currently, there is nothing stopping the Texas Medical Board when they are investigating a complaint. The Texas Medical Board has more freedom with its investigations than law enforcement. Please consider requiring the following. The Texas Medical Board to require the patient's permission to obtain patient medical records to investigate individual medical complaints. Should the patient not consent and the Texas Medical Board feels that the patient is part of conspiracy to commit a crime or that there is some overriding reason to obtain the medical records, then the patient should have the right to go before a judge and have the judge determine if the records are required to protect other members of the public. In fiscal year 2007, the Texas Medical Board, well, we know how many complaints they received, they've covered it. They opened about 2500 investigations. What was not published on their website was who originated the complaints. But I found out here today out of these 2500 or so investigations, 1-2% were filed anonymously they say. As the president of the Board herself stated this morning, almost 70% are filed by the patients or their family. What I'm proposing would only apply where the Board is investigating an individual patient complaint initiated either anonymously or by a thirdparty. Since most complaints to the Board are patient initiated, I do not think this would come up in very many cases.

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I have been in contact with my representative, Beverly Wooly, and there was some uncertainty regarding the jurisdiction of the legislature in regards to this issue. It is clear that the Federal HIPPA rules do not require what I'm proposing, but it is also true that there is no reason why the state cannot impose these rules on their Medical Board. In summary, because of the Texas Medical Board's actions, I have been harmed. My care will be forever compromised. Furthermore, I will probably never again be able to completely be honest with any medical person ever again, since I know I have no right to privacy of my records from the Texas Medical Board. I ask that you change the rules under which the Texas Medical Board operates so no one else has to suffer from their actions like I have had to suffer. Thank you for the opportunity to address you. I'd be happy to take your questions. Chairman: Thank you Blakely. Do you have - can we have a copy of that statement from you? Sure I've written on the back page. Can I keep that? Oh yes, yes. But I think all of us would like to have a copy of that so we can just follow it up. Mark will give you his card with an email address, if you'd just like to email it to us. Sure. Members, do you have any questions for Blakely? Yes sir. Robert? It's Miss Long, is that correct? Yes. You talk, said that they got your records. Do you know, did they do it by subpoena power? Did you sign a complaint? Or did the doctors? They did it by subpoena. By subpoena. They never notified me that there was even a complaint. Nobody ever contacted me from the Texas Medical Board. Thank you.

Long: Chairman:

Long: Chairman: Felton ??: Long: Felton:

Long: Felton: Long:

Felton:

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Chairman:

Any other questions members? Thank you so much for coming and testifying before us today. Have a good trip back.

[Applause.] [Period of silence.] Chairman: The Chair calls Dr. Roland Chalifoux to speak against Medical Board.

[Period of silence, inaudible off mic 17:42.] Chairman: Okay, we'll come back to him in a minute then. The Chair calls Dr. Joel Hoffman. I'm sorry?

[Period of silence.] Chairman: Hoffman: Okay, Doctor, if you'll just give us your name for the record. Thank you representative Brown. I greatly appreciate the opportunity to testify. I have to beg your forgiveness. I lost my hearing aid driving up here when I got out to fill the gas up in my car, so if you have questions, you'll have to speak up. Okay, thank you Doctor. I'm wearing a couple of hats here today. One I'm the executive director of the National Foundation for the Treatment of Pain. That organization's purpose is ten years old now, it has about 5000 participating members from every state in the Union and 19 foreign countries and principalities. The objective of that foundation is to make sure that no legitimate pain patient is denied effective medical care. We also are dedicated to protecting the right of physicians, legitimate physicians, to provide that care. The availability of pain management for intractable pain patients is a crisis in the United States, which the American Medical Association, the World Health Organization, the Food and Drug, everyone acknowledges, even the DEA acknowledges. I can tell you now that that is a crisis that I have patients from all over the United States, I saw patients at 8:15 yesterday morning before I drove up here who has to fly to see me from Alaska because no physician there is willing to treat intractable pain for several reasons. The two reasons mainly are number one, [opiaphobia ??] that a huge majority of physicians

Chairman: Hoffman:

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are very ignorant on the subject of effective pain management that I believe that any patient who receive opiates is going to became an addict over night. The other main reason that they refuse to treat pain patients is they're scared to death of regulatory sanction. That of course segways into the subject of our Medical Board. I can tell you that I've done everything in my power to relieve and reduce both of those problems. I even served on the ad hoc committee recently for our Texas Medical Board to rewrite and revise the regulations and requirements of pain management. So I'm a native Texan, a native Houstonian. I received my education in the public schools of Houston, Wright's University, Baylor College of Medicine. I completed my residency training in psychiatry at UCLA, been a physician privileged to practice medicine under this Board for 41 years. I practiced psychiatry for 37 years. I further specialize in treatment of intractable pain since 1990. I have taken care of more than 3000 intractable pain patients the last 17 years. I've spent more than 30,000 professional hours doing so. I've mentioned to you in my role with the National Foundation. I urge you to go to their website, www.paincare.org and read the patient letters. You can even read some of my executive director's messages. If you read those patient letters, it will provide you a profound education into what it's like to be an intractable pain patient in this society. I can tell you there is nobody in this room who's more than once stepped on a banana peel away from becoming an intractable pain patient. I suspect that the lady who testified just before me may have been one of the intractable pain patients. My guess is that her case involved her physicians providing pain medication to her. Felton: Doctor, I would think that anybody sitting through this hearing would be one of those patients.

[Laughter.] Hoffman: Felton: I'm sorry to say. I would think that anybody sitting through this hearing would be one of those patients. I will certainly agree with that. So I publish professional articles, conducted long-term research, served as an expert witness in dozens of

Hoffman:

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forensic cases and Medical Board cases, serve on the professional advisory boards of many national pharmaceutical corporations who provide pain medications, Al Pharma, Seflon, Endo, Pardue Pharma. I am considered nationally, internationally to be an expert in the treatment of intractable pain. In all these years and all these patients, no patient under my care has ever suffered an overdose. As long as they take the medications as prescribed, they never have a problem. No patient has ever developed an addiction. They have physiological dependency like a cardiac patient on his digitalis or a thyroid patient on their [thyroid ??]. No patient's ever engaged in any criminal diversion. No patient has ever abused their medications on my trust by seeing multiple physicians. Those few that did were fired from our practice and were reported to the appropriate authorities. Working closely with my patients, we've been able to consistently succeed in controlling their pain, allowing them a reasonable quality of life. Because patients have a horrendously difficult time finding doctors willing to treat them, as I mentioned, I have patients from all over. So having risked immodesty in reciting these things, let me get to the point. In May of 2006, I was notified that I had 15 complaints in one letter about my medical care. Subsequently another two complaints were directed at me. Recently about three months ago, I [inaudible 113:24]. I cannot tell you who initiated these complaints, that is the complainants are guaranteed complete anonymity under the current rules of the board. I can tell you that having extended over 100 hours of my time responding to these accusations, 11 of them were dismissed immediately, three more were dismissed at an informal conference and on the 29th of this month, I will deal with the remaining three. I trust it will be successfully. The last one I have no doubt at all. It was filed in July of 2007, I'm quite sure, I can't prove it of course, it was filed by a Workman's Compensation insurance company who wants to get rid of the cost to them of an injured patient under my care. I'm told by the principle investigator, recently retired from the board, that the majority of complaints filed against doctors are by disgruntled exemployees, by disgruntled ex-spouses, as you've just heard, professional competitors, insurance companies seeking to deter physicians from costing them too much money as an alternative to filing malpractice lawsuits since torte reform, and by patients who do have a legitimate complaint about how doctors have abused them. If you read the website letters from patients, you will be horrified at how much abuse intractable pain patients suffer from ignorance from the

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community, from the family, and from their physicians most importantly. I would like to see the Board more active in pursuing doctors who abuse patients, who don't deserve that. It's enough to suffer endless pain without having to be treated like a criminal. In my case, as with doctors in all specialties, despite all my experience, expertise and success in pain treatment, I'm totally vulnerable to anyone who wishes to make trouble for me. I have absolutely no means of obtaining any form of redress against these people. Simply stated, unlike every other area of the law, there are no checks and balances in the current system of administering medical licenses in the state of Texas. I want to join in with all the others that you'll hear today and whom you've heard in noting and asking that the number one that the privilege of practicing medicine be respected. That the relationship of doctors to their patients be protected from people outside that relationship who are acting out of personal vindictiveness, of selfish financial interest, ideological fanaticism and other motives having nothing at all to do with the practice of medicine or the quality care or even human kindness. That no person except the patient or their designated legal representative be permitted to file complaints to the Board of Medicine with several important exceptions of course. If a pharmacist thinks that there's some reasonable grounds to file a complaint, then he should be allowed to do so, but not anonymously. Because how would we abuse them and what retribution did I have against a pharmacist or an insurance company who was trying to do harm to me or one of my colleagues? I also think that peer organizations should be permitted to file complaints if a doctor has behaved inappropriately as determined by a professional peer review and a review that is legitimate and ethical and has integrity and could be defended in a court of law. If the law provides for complete transparency of charges and proceedings, that the members of the Board of Medicine be subject to the highest standards of personal integrity themselves and accountability and professionalism. You've heard about Dr. Miller's story. And that complete disclosure be required of them of all their activities so that even the appearance of impropriety of a conflict of interest could be avoided. Integrity of this Board is very important. I believe in it. One of the hats I'm wearing here ironically is that I'm a human example of the success of this Board of Medicine. This Board reviewed 142 cases that I sent them in 1997 from my practice at that time in New Mexico and found that they could find no violation of the Texas Medical Act in those cases. That

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saved my career given that allowed me to be sitting where I am today as a successfully practicing physician. So also I can attest to the board's efficacy in these 14 cases to date, three remaining on the 29th and one some time after that. I believe that justice will be done for me. I know that I have done the right thing. I know that I'm a competent physician. I know that my care has saved lives. My patients tell me every single day. I trust that the process will go through a successful conclusion in the next several months as it has to date under the legions of this board. So at the least, the law I believe should provide that only a patient or if the patient is incapacitated, their spouse or legal guardian should have the right to file a complaint against their doctor with the exceptions I've noted. The only exception to that should be that if the doctor is found by review of his peers to have breeched the standards of our profession, the reviewing entity should have the right to file a complaint. But in no case should anyone have the right or any organization or entity have the right to file a complaint against a physician, a baseless complaint without suffering serious consequences. That's checks and balances in our legal system. Finally in the United States of America, every person should have the right to face their accuser. I think that anonymity for those who file a complaint is simply morally and legally unacceptable regardless of what traditions have justified of the past. This whole argument, well doctors, there may be a retribution if you know that your patient has filed a complaint. First of all if your patient has filed a complaint, the communication is lousy to start with. Why couldn't they tell you? If you've got that kind of communication with a patient you shouldn't be treating them anyway. If you're not treating them anyway, what retribution could you have? So the retribution area of anonymity doesn't strike me as holding water or being very rational. I think it's the cause of a huge amount of suffering. Chairman: Hoffman: Thank you Doctor. It isn't the doctors that suffer in this process. In my own practice, when I shared with my patients that, who continue, all these 15, 18 patients are still my patients. When I shared with them that I had to disclose their files, every single one of them wrote letters in support, explaining how the treatment had made an enormous positive difference in their life, etcetera, etcetera. They suffer enormous anxiety for my well being and for their own well being.

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So if we're going to protect the patients of, the people of the state of Texas who are patients in medical care, we have to also take proper care of their physician. Because so much weight is on our shoulders on their behalf. So everyone involved has to be, we have to do the right thing by them, for everyone involved, including our Board. Thank you very much. Chairman: Thank you Doctor. Members, any questions? If you have written testimony… I do. If you'd like to supply it. I would be glad to. We'd really appreciate it. Thank you Doctor. Thank you.

Hoffman: Chairman: Hoffman: Chairman: Hoffman: [Applause.] Chairman:

The Chair calls Dr. Nolan Shipman. [Inaudible, off mic.] He did? Okay. He was testifying against the medical board. The Chair calls Reba [Ickleberger ??] testifying against the medical board. Actually… Did I mess up that… [Inaudible, off mic 121:53]. I have some tight suggestions, and I’m going to cut my testimony in half… God bless you. …by opting… Would you give your name first for the record? Oh. I'm sorry. Thank you.

Ickleberger: Chairman: Ickleberger:

Male: Ickleberger: Chairman: Ickleberger: Chairman:

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Ickleberger:

I'm Reba Ickleberger and I'm a victim advocate for people who have an unknown complaint filed against their doctor and so they’re dragged into that, and they have no due process, no constitutional rights, no rights, privileges of privacy. The record is supposedly open to this - or who is going to interview and review a record of, perhaps, 30 years. My records, my medical records. I filed no complaint. I’m not complaining about any care. In fact, I've had a fight with my care, and I adopt the statements made by Ms. Long and Ms. Fuentes. When you go through a doctor, you tell them some things that are so personal, and to think that this can just be - someone can file a complaint. You know in the report? And there’s your whole life laid out in front of you. I am an attorney. And my medical records - if it became public knowledge, a lot of things would harm me because I’ve had a little grandson that I held while he died in my arms. My husband, who is [inaudible 123:24] Ickleberger, and I am not going to speak about him because he was - reached an agreement with the board because of this process. And here’s my thought. In this investigation, why not talk to the patients? You know, you get their medical records, but why don’t you just notify them, and say, “Hey, I, you know, I want to talk to you about this.” And the experts, let them examine them. You wouldn’t have to read all those medical records. You could find out if what that doctor ordered was therapeutic or not. Now I happen to be a high school dropout. Never completed anything until I was diagnosed I had ADD. I then went to our in-school, graduated in 1969. First person to go through an RN program without a high school diploma. I graduated with a 4.0 average. Then I became a nursing director, got a Master’s, and then went to law school. So you see I wanted to show that my whole life is laid out in those records. And I don’t think I should - it should have been - or strike that. Let’s [inaudible 124:45] that. The other thing is my [inaudible 124:47]. My advice is who’s the expert? Just let them examine the patient, and then make a decision. I heard someone say this. So it was nothing about - in the strategic plan about how many physicians are going to be disciplined. But I believe in their strategic plan they list how many of the doctors who have had complaints against them are going to be disciplined. It was after the Sunset Review, and they did this strategic plan. And my last thing was when this Dr. Miller’s information became known in April, I believe Dr. Kalafut’s term had expired April 13th, 2007. So

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when Mr. - Dr. Patrick was talking about how they took care of the Miller situation, I just wanted to [inaudible 125:41] before the Board. I thank you very much for hearing me. Male: Ma’am, I want you to know that - that I took two Ritalins today just to make it through the day.

[Laughter.] Ickleberger: Male: Ickleberger: Oh. I - I… We’re - we’re kind of slinkies, you know? I’ll - I’ll tell you - let me just say this. My husband has been my doctor. There is no rule that says you can't treat your family member as long as you document it. Well since he can't treat me now. I’ve had cataract surgery, so I’ve been to the ophthalmologist. I broke my finger, so I've been to the orthopod. I have sleep disturbance - you know about the Ritalin? So I now wear a little mask at night. And I've been to the cardiovascular doctor. And it’s all because I can't have my primary care physician. Thank you very much. Thank you for coming and testifying. Members do you have any questions? Oh. I forgot to mention. Yes ma’am? Talking to Boards that do very well, to take up about our epidemic of [inaudible 126:44]. You know, their policy is to protect the public and educate us. We have an epidemic of [neprocillin resistance ??] staphylococcus aurous, and I think every single person must become knowledgeable about it. Yes ma’am. Thank you. Thank you so much.

Chairman:

Ickleberger: Chairman: Ickleberger:

Chairman: Ickleberger: Chairman: [Applause.] Chairman:

The chair calls Dr. Roland Chalifoux. He’s against the Texas Medical Board. Did I mess up your last name, doctor?

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Dr. Chalifoux: Chairman: Dr. Chalifoux:

That’s pretty close. Okay. Good. Hey what do you expect from an Aggie? Well I appreciate you having this hearing. I actually flew down here from West Virginia, where I now practice. Doctor, if you’ll just give your name for the record? Yes. My name is Roland Chalifoux, Jr., DO, neurosurgeon. The dear members of the hearing panel, despite the efforts of the Texas State Medical Board, I’m still Dr. Chalifoux [inaudible 127:49], board certified neurosurgeon. Despite Dr. Kalafut’s tirade to the press - and I’ll - if I can actually quote her, her discussion, or her statement. “According to our standards in Texas, he is a continuing threat. It would endanger the public. And we did not feel that he would be able to safely practice medicine again.” Said Dr. Roberta Kalafut, the Texas Medical Board’s President. She said that obviously, and, and as a result of the statement actually, two things. One is, it was said after I'd received my medical license in West Virginia. But more importantly, it shows callousness on her part as well as cowardly information, cowardly response. And nonetheless, she’s obviously wrong because since she made that comment, I believe back in 2005, I'm actually in West Virginia. I've been practicing there for 2-1/2, for about 2-1/2 years now. I've returned to practice medicine, treating many patients in West Virginia, which I'm very, very happy to do. I’ve been asked to give lectures by medical societies, interns, residents, and other professionals who know about my situation in Texas. Therefore I have a difficult time understanding how a statement like that could actually be said. But nonetheless it was said. Essentially, my history is not, not, not too difficult, and I’ll be as - I’ll be as quick as possible on that. I moved to Fort Worth in 1995 after finishing ten grueling years in medical training, which involves four years of medical school, six years of neurosurgical residency. Within two years, I was then able to complete enough proficiency to receive my board certification in neurosurgery. Do you want to [inaudible 129:34] residencies them out? I practiced until July 19th, 2002, when the TSBME - and I - forgive that I'm used to the TSBME terminology back then because it was - it changed the TBM or TMB after I left the state. When they suspended my medical license following a three-minute meeting, and the Board’s hearing panel when I suddenly was given a list

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of 15 allegations, which had occurred three to six years earlier. And in that meeting, actually Dr. Patrick was there. I—I know it for a fact, for practicing below the standard of care. Three months later, in front of an independent SOAH judge, five of these allegations were completely thrown out. During the hearing the SOAH judge heard testimony from 25 experts in my defense, colleagues that I had gone out to find to review my charts, including hospital administrators, department chairmen, as well as patients that I've actually treated, who were very happy to discuss that they were happy with the care that they received by me. I was - that was against the TME’s three questionable experts. And we’ll talk about expert after I'm done with this as far as what I would recommend that you folks look at in terms of trying to save Texans some good hard earned money that they’re spending for this Board. Essentially one of them was later found to have purgered himself, and eventually lost his hospital privileges in Colorado. One who admitted he didn’t have experience in performing these kinds of cases that we, that I had done and on the record even said that my license should not be revoked. And the third physician who [inaudible 131:07] himself had been the target of numerous lawsuits in the Houston area. One in particular accusing him of being what’s called a ghost surgeon. That’s when a surgeon actually works with an older surgeon that finds patients, and he operates and not, not the initial patient - not the initial doctor, but the ghost surgeon, they call him. Anyways, what had happened with that was that he had failed to obtain an interoperative x-ray because he had never really examined the patient. He was just told go operate this level. And then he was later found to have operated the wrong level by that person. Again, this was—this was a TSBME expert. Following this case, the - this individual actually left Houston and moved to Waco, Texas. Just quick. During my hearing, which lasted about two weeks because we had a lot of information to go over, the judges tossed out numerous charges at the Board’s complaint, saying basically they were hearsay, lacking any evidence, and/or not following the rules of evidence. Final findings after months of investigation, they recommended that my – that my license should not be revoked. In spite of these findings, however, the mandates by SOAH, excuse me. The Board blatantly disregarded their recommendation. And it - and arrogantly you stripped, your authority to proceed to revoke my license in July of 2004.

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The three things that I want to show that you - and I'd be more again, I believe in transparency would love you to look at the website regarding the TSB and things like that review on my case. But to be real quick, number one that it’s actually part of the Board’s record. And that’s the thing. You need to look at what the Board writes, and what they do. Because this is where I think a lot of the doctors are going to have a problem with, and the public needs to know this also. Number one, that the period in practice, or in question, 1995 to 2002, my meaning my surgical post surgical complication rate fell below the National average despite the fact that many of these patients were highrisk patients. Below the National average. Number two, had no improper motives with respect to the treatment of this patient, and was motivated to provide appropriated treatment. And number three, had to deal with some post surgical complication caused by the hospital staff errors. As the result of the TMBs action - and this is where we’ll discuss the last part, I left Texas with my wife, two children. We basically had no choice. We were being kicked out of Dodge, so to speak. And went to West Virginia, where under the guidance of one my expert witnesses, Dr. Julian Dales, they very knowledgeable and fine chairman of neurosurgery, invited me up after I had to prove to the West Virginia licensing board that I was actually competent. And they actually reviewed the charts that they had here. Anyways, after reviewing that, I was I took a refresher course. And within six months, I was offered a position as professor at WD Department of neurosurgery in June of 2005. The Medical Board’s criteria again, for issuing my license included full disclosure of what had happened at the TSBME, as well as a complete review of the action. Despite the fact that TMB had revoked my license and my family had left state, Dr. Kalafut, on - I forget what day it was. I think it was back in July of ’05, had the audacity to essentially, I guess, currently got wind of my new venture and essentially, acted to try to continue my case, this time through the media. She essentially made these claims to the newspaper. I'm sorry. Anyways, having stripped me of my medical license in Texas now the Board, through its present action, attempted to go outside of this jurisdiction in an effort in the last word is what you guys to my career as evidence to my licensure in West Virginia and also my re-licensure in Michigan because they had ultimately held on to my held my license initially. The Board must have been feeling somewhat vulnerable since their actions were now essentially over turned by two other state medical boards, the West Virginia Board and the Michigan Board, both with equal authority in the United States.

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As usual, the Board resorted, in the end, to the one tool they’ve never failed in their efforts to scare the public. And that is using the press, the media. The Fort Worth Star Telegram, Dallas Morning News, were repleat with stories in and around 2002 of Dr. Patrick’s crusade to use vigilante justice to out out the bad doctors. My branding by the TSMBE was saved on the unfortunate death of a, one patient that had a giant aneurysm, who had a poor prognosis to begin with, with or without surgery. The patient had a large AVM, whose condition improved dramatically after I performed a delicate brain surgery. And who later testified on my behalf during the Board’s proceedings. And unfortunately, the reason why there was an issue is that she was, apparently, was not given her medication by a nurse, who [inaudible 136:05] the orders, which were clearly identified in the chart. And so the patient, unfortunately, had a seizure. Lastly, a patient with [inaudible 136:14]. Being given the three minutes at the time of my initial hearing, again, I don’t find this to be essentially a due process. None of the allegations had occurred in or around July 19th, 2002, and therefore once again, I do not understand the definition of clear and present danger. These were all cases that were old. There was nothing - since that time I had done over 500 cases of patients. So again, I don’t understand the immediacy of the stripping a guy of his license. They know that that’s basically where eventually you’re going to defend yourself. Again, it seems very obvious, and they may obviously deny it. But the TMB, under the direction of Donald Patrick and Dr. Kalafut were determined to rid themselves of me despite the fact that neither they nor their experts were ever able to prove that I was a serious threat to the public. Dr. Kalafut’s actions demonstrate that they were willing to cross state and jurisdictional lines and resort to using the press, once again, to continue trying their case in the court of public opinion. Since their case against me essentially [inaudible 137:20] at SOAH, which we all thought was supposed to be the deciding factor in this case since they're supposed to be objective, independent, etcetera. Essentially, what needs to occur - just a very quick list here? Define clear, continuing threat to the public’s welfare. Again, that obviously if a doctor is - is inebriated, taking drugs, and having poor outcomes during the - during that week, that would make sense. But we’re talking about things that have occurred years ago. And essentially, like I said, out of 18 cases, at best they could find is three things wrong with me. I - I dare them and any other agency to show me any neurosurgeon who has - has only had three problems, and still has lost their license. That to me is a [inaudible 138:04] proposition.

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Enforce the accountability. None from the TMB should be able to be immune, and/or not held accountable for any of their action. The burden according to the [inaudible 138:13] committee, as far as I understand, because I worked very hard with the [inaudible 138:17] individuals was to encourage accountability. What I'm hearing right now, several years after is that that’s not entirely happening. Male: Doctor? I don’t know if you picked up earlier, but assume we’re not here, the guy that represents Texas Tech, is - is the new chairmen of Sunset… Oh. Okay. …and - and I think the remarkable thing today about all the members that have - that have shown up here, and been a part of this hearing today… Yeah. …that they come from all different committees. We have chairmen from a number of different committees besides our sub committee… Okay. …on regulatory and appropriation. So yeah, we have - we have a lot of members that are - that are very serious about… Well I appreciate that. …the fact that all of you are here today. Okay. Even though I'm currently living in - in West Virginia, I'm more than happy to help. You know, do my best to try to make things better for the doctors here in Texas. And we appreciate that very much. And I'm just sad that we lost you to to Virginia… Well. I can say… …here in Texas. One of the things I would - I would just like you to folks to think about is we need to have some kind of a scoring floor chart because I'm also hearing that when it comes to penalties, I don’t quite understand the penalty practice here in terms of what to find, what is - you know what’s considered to be a 30-day probation or whether - I think somebody needs

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to write that down as far as - almost like a cookbook, where you do this, you get that. You do this, you do that. It’s almost like what they do in the civil system. In terms of the - one thing I would like to bring up, and again, this is not probably not the right area for it. But hearing what I'm hearing today also, why not offer, ask the TMB to review or reopen some of these cases? Where like, doctor’s licenses were revoked. Especially if SOAH did not want them revoked. Male: Dr. Chalifoux: Yes sir. Maybe we need to take a better look at this because why is it that independent body, and in my case we had three judges looking at this. Why is that they were all of a sudden overruled by one state agency? So it sounds like we had a - we were having a problem with state agencies, that there would be some kind of middle portion there I think to help that out. Yes sir.

Male:

Dr. Chalifoux: Lastly, I guess in terms of the ISC, as in [inaudible140:18] about the ISC, and I unfortunately went to the - to an ISC obviously. You know when the experts - and I love experts. I think there should be experts in there. That when an expert reviews somebody’s chart, and lets say they're not quite appreciative, or they don’t agree with that doctor, they are never there to the ISC. They may have written a report that the two board members are reading. But then, as a physician, we have to explain it to the board member. I would rather be able - and I would think most people would be rather, again, see - know your accuser, see your accuser. If that other person, that other expert has a problem, why is that you can't have a debate in front of the board member to see exactly what’s going on? That to me would make more sense. I mean we’re - we’re supposed to be cordial, not antagonistic. And that’s exactly what, unfortunately, what I went through was antagonist. And lastly, regarding Dr. Miller again - I wasn’t here for that, but are we going to be reviewing all of Dr. Miller’s cases where he was an expert? [Period of silence.] I mean, I would be a little concerned about that. I mean again, you know, if all you're supposed to - if given when you revoke someone’s license, it is akin to a death sentence. Okay? Our prisoners are going through death row with appeals. Why aren't we doing something about our physicians who are currently are not, you know, not supposed to be villains.

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So that’s pretty much what I have to say. I'm sorry I - I think it was worth my time coming down here because like I said, I was in San Francisco giving a lecture, and I made sure that I came down here for these hearings. Chairman: We—we appreciate it very much. And - and again, I'm just sorry that we lost you to another state. If you will, would you - would you give us copy of your testimony? I… And before you leave, I think Representative Riddle has something that she’d like to… Hi. Just to - I again, want to reiterate that I'm sorry that we lost you to West Virginia. I think that your comments are very well taken. And the fact that we - I think we do need to review those that Dr. Miller was on. But to make you feel a little bit better, I don’t know how much, and I'm going to - I’m going to share this after all of the testimony has [inaudible 142:25]. But the National Foundation for Women Legislatures in Kentucky on October the 13th passed a resolution that I think you’ll be quite pleased with. And I would like the clerk to go again and give it to you so you can review it. Thank you Mr. Chairman.

Dr. Chalifoux: Chairman:

Riddle:

[Inaudible of mic 142:45.] Chairman: Can you hit the highlights of that resolution? Maybe on the back page there. And that is a 50 state resolution, is it not? Yes. This is a 50 state resolution. And various legislatures, women legislatures, have - and by the way men legislatures were there from the various 50 states. On the back page - I won’t read the whole thing, but it says, “Be it resolved, the National Foundation of Women Legislatures, healthcare, and empowerment committee admonishes the elimination of the practices listed above and advocates their replacement with the following: A commitment to the sacredness of the patient-doctor relationship. Two, increase transparency of charges and proceedings. Three, the increased accountability of board members and their actions. Four, the increased integrity on behalf of board members in carrying out their responsibilities. Five, the acceptance of and giving equal weight to the evaluations of a physician’s care by physicians and others can - chosen as expert witnesses by the Board. Be it further therefore resolved that the National Foundation for Women Legislators has hereby recommends for the creation of an independent and public medical board oversight committee in each state appointed by the legislature and charged with a range of duties and authorities that will ensure the enactment and enforcement of such general policies in as advocated above, including the

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ability to receive and evaluate complaints from patients and medical professionals against the boards and their members. If anyone would like a copy of this, you’re welcome to it. [Applause.] Chairman: Doctor, thank you again for coming out. Now the Chair calls Thomas Smartwell for [expunsion ??] of medical board files. Mr. Chairmen, members of the committee, my name is Tom Smartwell. I’m a lawyer from Houston. I practiced law for 40 years. I've defended doctors, hospitals, nurses. I even defend lawyers in malpractice cases. But I come to you now because during 13 of that 40 years, I've represented the doctor by the name of Jim Johnston. Jim Johnston is a double-board certified neurologist, who has a valid Texas license. Doctor Jim Johnston, however, has not practiced medicine in Texas since 1995. Did he commit a crime? No. Did he violate a board rule? No. Was he found guilty of some violation of professional conduct? No. Was he brought up before the board on charges? Yes he was. But here’s what the board has found. And in summary, this is what I ask this committee to be aware of. The board found that this doctor was innocent of all charges. They found there was no evidence that the doctor committed any act of misconduct. They found that the doctor did not violate any part of the Medical Practice Act, and that what he did is that he should not be disciplined. And the board refuses to expunge the record. He has asked the board many times to expunge the record, expunge the discipline orders that went on during the five years that this continued to avoid the data bank entries and to expunge the staff complaint that is still in there. There is no expungement even today. If you Mr. Chairman happen to be arrested, you went to trial and you were found innocent, as Dr. Johnston was, you could have those criminal records expunged. There would be absolutely no way to tell that you had ever been arrested. And the code of criminal procedure also allows you to answer any question if you’re ever asked, have you been arrested? You can say no. That’s not true at the Texas Medical Board. All of the documents are available to insurance carriers, hospitals, insurance companies, and that’s why Jim Johnston hadn't practiced since 1995. Well what was he accused of? Jim Johnston was accused by the Medical Board lawyers of sexual assault. Sexual assaults of eight patients in his medical office, by force, flaccid intimidation and the use of needles. It was alleged that in 1994, Jim Johnston sexually assaulted eight of his

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patients in his [inaudible 148:06] medical office. He was indicted in June of 1994 and we tried his criminal case in December of 1994. The jury was 12 to nothing for acquittal on all felony counts. And by the way, I recommended to him that we go to the jury without even putting on any evidence. The medical board lawyer’s w weren't satisfied with that and they continued the case to the administrative law judge. We tried, in December of 1997, for a week, all of the same evidence that was presented in the criminal case. This time presented to Barbara Marquardt who was then the - one of the administrative law judges. This time, Jim Johnston also presented all of his evidence. I have to say that in the 13 years I've represented Jim, I haven't been paid much beyond the criminal trial, but neither was the witnesses who came to testify in Austin in 1995 before Judge Maquardt, I’m sorry 1997. In September of 1998, Judge Marquardt filed an opinion with the medical board, 125 pages in length. She analyzed all of the evidence, found him innocent. In December of 1998, 18-member board presided over by Dr. Bill Fleming, also heard Dr. Marquardt’s testimony. They decided he was innocent, and they filed their own fact-finding. How innocent was Jim Johnston? Let me read to you from just a little bit of it, of the findings by these two bodies. First, from Judge Marquardt. “In 21 years of practicing law, this administrative law judge has never seen a clearer case of pure fiction brought against an individual. He did not commit assault or any illegal action any of his patients, and should not be disciplined. There is no credible evidence of misconduct by Dr. Johnston. No complaints have ever been made by any patient against Dr. Johnston except for these cross-complaints and these false allegations. From the Spring of 1994, up until the date of this trial, Dr. Johnston has submitted to examination and testing by every expert in forensics, psychiatry, and psychology recommended by the Board, law enforcement, and his advisors, 12 experts, two polygraphs, one [inaudible 150:36]. Each of the experts determined that he is telling the truth that he did not commit the alleged offenses and he did not have any psychiatric diagnosis. There was nothing credible about the testimony of the complainants. They fit the classic profile of the type of persons who file false accusations of sexual abuse.” And from the medical board itself, Dr. Flemming presiding. “Based on all of the findings, no disciplinary action should be taken against Dr. Johnston’s medical license. Dr. Johnston’s examinations, treatments and all of the - against all - with all of the complaints in this case were well within the standard of care. False allegations of sexual misconduct do occur and these complainants demonstrated classic features of it. Dr.

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Johnston submitted to an examination and testing by numerous experts, and he is not a sexual offender, and has never been diagnosed as such. Because there is no credible evidence of misconduct by Dr. Johnston, placing restrictions on his license would be improper.” Innocent? Extremely so. And despite all of these people acknowledging in the Jim Johnston did nothing wrong. The executive director, who at the time was Dr. Bruce Leavy, made sure that Jim Johnston was punished anyway. Male: Mr. Chairman? Yes sir, chairman I - thank you. The offenses that they cited were in ’94? Yes. When the - what you just read, when was that? When was the case? After [inaudible 152:16] doctor. Judge Marquardt made her findings September 1998. The Medical Board made their findings of fact and conclusions of law in December of 1998. Okay. Thank you. So since that time. Dr. Leavy decided that he didn’t agree with any of that. So he let stand, in Dr. Johnston’s records, in his public records that anyone could access, all of the original records that were filed with respect of these charges in this case. Anyone could get the complaint that the board’s lawyers had filed, and find in graphic detail the alleged sexual assaults, the alleged detail repeated eight times. Let me give you an example. “On February 9, 1994, Dr. Johnston held the patients hand against his erect penis. Then he rubbed his penis through his clothing against the patient’s buttock. Then he placed his mouth on her breast, pulled down his pants, exposed his penis, and attempted to climb upon the examining table.” Now if you read that even though all of these findings of innocence were made, would you hire him and give him a medical job as a neurologist? Well I can tell you that throughout the United States, the answer is no. We were able to secure a license for him in New Zealand. Dr. Johnston would be here today, but for the fact that he left Sunday for one month of duty in New Zealand where he relieves a neurologist there in a clinic and is able to practice medicine there in New Zealand.

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And if you don’t get the exact details from that, all you have to do is look what is on the Board’s files today. And that is license suspended, license restricted due to unprofessional conduct, formal complaint filed, a formal complaint dismissed, and so on. So there’s no question that anyone who looks to see in this file, will get the idea that Jim Johnston was disciplined by this Board. Have we asked him to expunge it? Dozens of times. Dozens of letters. The Board personnel lose most of the letters. They will not do anything. They will no expunge anything. I've made an appearance before the Board Committee on discipline review in August of 2000, saying the exact same things I've said to you here, giving the exact same evidence that I have here. We’ve appealed directly to the executive director on several occasions. No action. Ironically the medical boards in other states have wiped out everything related to the reciprocal discipline that they had to impose on Dr. Johnston. Their records have been expunged. There’s no record, whatsoever, of this in Idaho, Arizona, or Utah. We only ask for what’s fair. That’s all. Just what’s fair. And it seems to me that if you’re innocent, you deserve a false allegations to be expunged. Thank you, Mr. Chairman. I’ll take questions if… [Applause.] Chairman: Members, any questions? Will you - will you leave us a copy of that? Do you mind? I wouldn’t. May I send one to you? Yes sir. Yes sir. That would be fine. But I’ll be happy to do that. Okay. Thank you so much. Thank you very much. The Chair calls Dr. Esedro Viner. Good afternoon. I'm Esedro Viner. I'm a general surgeon, and I've been in practice in Houston for 25 years. I had an original complaint against me to the Texas Medical Board on May 10th, 2004. After the Board investigated, the case was closed on October 15, 2004 with no action against me. It was about this same case, was a civil small practice lawsuit. And this was decided in my favor, by a jury, in February 21, 2007.

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The family of the patient had a personal grudge against me, and had the Texas Medical Board reopen the case with a second complaint, which was the same as the first complaint which, in my opinion, this amount to double jeopardy. There were two allegations against me. The first one was on a surgical technique that should have been used out of re-exploration surgery. The second one was about the timing of the re-exploration. They had an anonymous expert who based his opinion on the expert witness used by the plaintiff in a civil lawsuit. And this is unfair because he used the same language almost verbatim as their expert witness. The type of surgical technique advocated by the expert had very poor logic and was wrought with insurmountable complications. The timing of the re-exploration, which was 13 hours difference in - as when the exploration was done, he based on the postoperative findings, which at the time that the decision was made, they were not available to me. And I had planned the procedure in this patient based on the - and the patient was improving. So this is a patient that’s improving. I based the re-exploration on a hint based on my experience to rule out a potential - a potential infection. I had an informal settlement conference. And the panel consisted of three lawyers, one lay person, one internist, and the third panel member was an ENT surgeon who recused himself form the case because he knew me personally. They found that the process was unfair. It is the internist and the layperson did not have the surgical proficiency to render a decision on the - on the subtle surgical matter. I tried to explain to them the rationale for the decision, but it was obvious that they lay more weight on their opinion of their expert witness, who was not present at the ISC. I feel that - that if a panel was composed by surgeons, or at least one surgeon, he would have understood the rationale for the - for the surgical plan. I was sanctioned by the Texas Medical Board, with 10 CME credits, and I - if I signed that I agree with this, I couldn’t appeal the - to apply this verbally. I felt that this was a poor settlement, and an appeal would have cost me a tremendous amount of money, time and litigation. I think that Texas Medical Board needs to eliminate their illegal double jeopardy trials. I think that their ISC panel needs to have at least one member of same specialty for pertinence of the judgment. And I am for a strong medical board that is fair, and not feared. Thank you. Chairman: Yes sir. Thank you, doctor.

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[Applause.] Chairman: If you have a copy of your testimony, would you - would you leave it for us? I’ll send you one. Okay. Thank you, doctor. The Chair calls Dr. Howard Lang. [Brief period of silence.] And Dr. Lang I can't tell - you don’t have it checked here. Are you appearing before this body to testify against the Medical Board? Somewhat. Just to clarify some ideas for change and improvement. Okay. … and problems on the Board. Okay. I’m Howard Lang, DO. I practice in the greater Fort Worth area in [Collinsdale ??] actually. I've been there for about 30 years. And I didn’t really come because of the compliant against me, personally. I have no complaint against me. Rather, I know various individuals, some of which have spoken all ready, that have experienced gross and absurd injustices, harassment, unfairness, complaint - things that have been don’t that have no merit and honest complaint problems. Anyway, I felt compelled to come and speak because of the severity of the difficulties that are present. And that’s why this meeting is being held. I'm thankful, very thankful that all of you are here today, and the Board also is here today to rectify and correct things that are not good. Anyway, one of the doctors that is being - has been - had complaints brought against him is internationally famous. There are thousands of patients all over the world that have benefited form his work over the past 40 years probably. He has international respect. Last night I stayed at a hotel in a non-smoking room. The reason why the room was a non-smoking room is because this physician has done all kinds of work for years, and years, and years, focused on the toxicity of tobacco and tobacco smoke and what it does, and how it does it. And that’s why all of us are able to go to places where - that are - that have non-smoking facilities.

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When you put gas in your car, there’s a device that draws off the fumes that would - that we would be exposed to if we just stood there and put gas in our cars. And so the environmental protection agency has mandated that various type devices be used to suck the fumes off of the process of gassing your car so that we’re not exposed to those compounds, octane, hexane, various compounds present in gasoline, which are a problem for humans and our environment. These are just two illustrations and this physician who will be speaking today possibly, he is one of the individuals that is responsible for this benefits to our environment and to us as human beings. Anyway, he’s under attack by the Board. This is - he’s - to me this is like an Einstein person. And for whatever reason, for whatever - whatever design is occurring, and whatever the process is, for whatever reason he’s attempting to be - there’s an attempt being made to remove him from the practice of medicine. He’s an Einstein person that - it’s not desirable to just go to Princeton University and tell Albert Einstein that you need to go away because you’re smart and you’re really good, and you help people. It’s - this is unconscionable to me. And that’s why I'm here right now. One of the things as I began to study what goes on - and there are a lot of good things that go on, and we - we do need to remove physicians that are on drugs and that have sexual problems - whatever. The Board has to – has the responsibility of giving licenses to the right people, and not the wrong people. There’s so many good things that are done that today most of - a lot of the things that I've wanted to bring up, were covered all ready. And one of those things is the expert witness, the peer review idea. Now, just - this is a report that all of - all of you probably have seen. It’s a joint select committee to study the [inaudible 165:45] peer review process. This was a report to the legislature, the 80th legislature that you guys received in January ’07. There’s discussion in this report about how peer review should happen. Peer review means that the review should be done by a peer. Now we’ve used the word expert witness. There’s various words that have been used to focus in on this. But really the review of what a physician has done needs to be done by a peer. That’s actually what that means is that the reviewing physician needs to be - needs to be in the same exact field that the physician is in, or a very same or similar field. So it’s got to be close, very, very close in order to be able to evaluate the complaint process properly.

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Well that’s not being done. There - many times that’ve been expressed that I know of that are – we’ve got a psychiatrist evaluating an OB/GYN person. We’ve got a dermatologist evaluating a neurologist. Sometimes what needs to be done isn’t done, or there are errors that are made just like what was expressed just a few minutes ago. Anyway, that area of due process needs to be improved upon, for sure. To me, there’s an abuse of funds. There’s - if the Board isn't going to hire a person to be an expert witness, the person needs to be an expert in that area. If they're not an expert, they shouldn’t really be doing the - they shouldn’t be doing peer review if they're not a peer. And to hire them to do something that when they’re not a peer, that doesn’t - that really isn't right. Anyway, I would like - I would like to appeal to you as legislators, and other people have all ready, but - and that’s special, and to the Board also. But I would like to appeal to the – there are changes that need to be made. One of those is the fact that the physician needs to be innocent until proven guilty. In other realms of law, the person is innocent until they’re proven guilty. For a physician, he’s guilty up front. Why should the physician be guilty up front? The issue of anonymous complaints, that should be done away with. We’ve discussed that earlier today. If it doesn’t work, do away with it. We don’t need to do it. If it doesn’t work, hey let’s get rid of that. It’s void. There’re problems with this anonymity problem. Anyway the - my thoughts are to just expose some things, and part of them have been exposed all ready and I don’t have to now. But nevertheless, you can change the process. You can make if fair. There’s unfairness. Physicians fear the Board. I’d rather have more reverence than fear. I’d like to – revere the board, and not fear them. I’d like them to be for me, and not against me. When there’s some question or something, they - why be - the other individual is - if it’s a fictitious - a fallacious problem. If it’s an untrue problem, if it’s false, why should the board be for the person that's expressing [inaudible 169:12] and not for the physician per say. There needs to be more weight of that. The weight of that principle is important. We’ve all ready - the issues of intimidation and fairness, and patient’s confidentiality breached without consent, without knowledge. The checks and balances issue. The transparency of the process. All these things have been discussed all ready, and I don’t need to restate that. But nevertheless, I've seen some things that are not right. And you guys can make them right. And I know you can. And thank you so much.

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[Applause.] Male: Female: Doctor? Doctor, if you’ll wait just one minutes please? Hi, Mr. Chairman. Thank you. And I thank you for taking the time to be here. I just want to share with you. I don’t know who the physician is who’s the Einstein person you’re referring to? I can express his name if you want me to. Would - do you mind telling me? Yeah. His name is Bill Ray. I thought that’s who it was. Let me share something with you. And Mr. Chairman, I’d like to share with you and the committee, and those here. Recently, I've been on the plane more than I've been on the ground. And I had to be in Atlanta. I was in Israel for a period of time, and then I have gotten back from Kentucky. I was flying back on one of those trips with a physician. She was sitting next to me. And she was sharing with me the problems that are going on here in Texas with our Texas Medical Board. She has extraordinarily high regards for Dr. Ray. She said that he is nationally and internationally respected, and that physicians who would not normally come and testify for him out of fear of retribution, are willing to do so. They’re willing to put their license on the line. She herself said that she would be willing to do so, but she was a bit relieved that she was not going to have to do that because it was going to create a financial hardship for her, and she herself was fearful of the retribution. So sitting on an airplane next to a physician, coming back home from out of the state, I want you to know that I was hearing about the reputation of Dr. Ray, and how physicians from all over Texas, all over the nation, and indeed all over the world would stand up for him. So I did know you were talking about, but I just thought that might be him, and I wanted to share with you what that doctor had to say. Lang: Yeah. Well thank you. I hope there’s no retribution. I hope there’s a process that you’re protecting, like myself, from retribution.

Female: Female: Lang: Female:

[Laughter.]

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Lang: Male: Lang: [Laughter.] Male: Chairman:

I mean really. I’m just speaking truth. All it is is truth, and that’s it. I… I guess in the coming weeks, we’ll sure find out, huh? Yeah.

Thank you. Thank you doctor. Hey I want to thank every doctor that’s here because I know it took [inaudible 172:38] to Lang to be here because I had - you know, we’ve all had so many doctors call us and said they’d like to be here, but they didn’t want the end results, or what they thought the end results would be. So to all of you, our hats are off to you, and we thank you for making this trip. And then, of course, sitting here all day long through these hearings. But thank you so much for coming today. The Chair calls Tim Wheats, speaking neutrally. How are you doing?

Whites: Chairman: Whites:

Tim Whites. Whites, okay. Mr. Chairman, members of the committee, I am a defense attorney by choice. I am a government regulator. I'm with the law firm of McDonald, Mackey, and Whites. I speak on behalf of my firm and on behalf of myself today. I bring you sort of a unique perspective because I worked for the Medical Board for six years. I was elected General Counsel for three of those years back in the early ‘90s. It was not my original intent to testify today. It was really - I was really here to see the philosophy of the legislature, listen to what the board members had to say, try to have an understanding of the staff perspective. I can tell you right now, I empathize with the staff in many respects. And I empathize with the board members, many of whom account among my friends, old board members and current board members alike. And I can tell you that I've often argued before the Board that the perfection standard should not apply to physicians. And that at times we have disagreed about what that means. But I would also submit that the perfection standard should not apply to a state agency, like the Medical Board. These are growing pains that you're seeing. And these are things that can be fixed. And the problems that you have heard have been emotionally charged. Some of the solutions that

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have been proposed have been poorly thought out, but certainly well intended. What I would like to bring to the table today is not throwing stones in glass houses because I can tell you I'm as vulnerable as anybody to having criticisms thrown at me. And what I truly intend here is some constructive criticism, perhaps, to somehow find a way to weave between some of the rocks that we’re facing, and come up with a system that works, one that works better. I've always heard the saying over at the Medical Board, first make it work, then make it work right, then make it look pretty. I'm not sure what stage we’re in right now. But I can clear there’re some things that I would like to see as a defense attorney that would not overly slant the table one way or the other. In the regulatory arena, the pendulum swings to the right or to the left depending on who’s running the legislature, who’s in the executive branch, and who’s in the judicial branch. And those checks and balances that you’ve spoken of can get out of whack. And I believe what you're seeing right now is a result of those checks and balances being out of whack. And to some degree, it’s the fault of the media. At some degree it’s the fault of the legislature. And some degree it is the results of what the consumer has expected unrealistically, of not only the physician community, but also the board that regulates them. So keeping those things in mind, and please try to take my comments as truly constructive criticism. I plan to practice in front of the Medical Board for the next 20 years if I'm lucky. And maybe when I’m a much older man, I’ll be a public member of that Board, and be able to help it along to the next stage. But to come here before you, and tell you these things is something I do out of a public service, a belief in what I do. Because I truly believe this is my calling. I’d rather be dipped in molasses and thrown in an ant bed than to have to come and testify with the members of the Board sitting behind me, and with my defense bar colleagues somewhere out there wondering what I'm going to say next. So with those things in mind, let me just suggest what I believe are novel ideas that you might want to explore. Maybe one of them will work. Maybe a few of them will work. Maybe a hybrid combination of it will work. But what we’ve seen right now is really an evolution, or perhaps a mutation, of the regulatory process in this state. And it’s not unique to Texas. It’s going across the entire country. It begins to focus on do we let the marketplace control? Do we let the plaintiff’s lawyers regulate the

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professions? Or do we let the people who are appointed by our government try and control how this is handled? And what I would submit to you is this, a lot of what your focus is primarily today is on fiscal matters. And if could address some of the fiscal matters, you can improve the efficiency. By improving the efficiency, you can also preserve the due process with many of these physicians [break in audio 176:51] complaint is of the same time. One of the things I would suggest you probably going to be very unpopular with the Board, and probably unpopular with the staff. And with the time that I was with the Board, I would have repelled just like they might. But I would like to see stakeholders look at it very closely. And that is the idea of let the administrative law judges make the final decision in contested cases with the Board. And I suggest that for a number of reasons. Board members are indeed uniquely qualified to regulate the profession. Let them sit in informal settlement conferences and truly realize that this is a great opportunity for them to come up with a fair agreement, one that everyone can accept, what will protect the public. And if the physician isn’t willing to accept it, let those Board members go to that hearing at the state office of administrative hearings. Let them sit next to that rookie attorney who’s just trying to find their way into the administrative process. Let them be the consultant who can sit there and be a true champion of the public and truly advocate for what’s right in the particular contested case. One of the things that young attorneys experience is an inability to get a handle on some of the difficult medical issues. And the administrative law judges have a wealth of experience in this area. We have panels that are specialized in dealing with medical board cases, banking cases, and you name it. They’re as good of judges as any of you are going to find or elected. And what I would suggest is let the administrative law judge make the final decision. Let the board appeal that to district court if they’d like. That’s how the system should work. Take out that extra step, that extra costly step of sending it to administrative law judge, the staff attorney, the respondent’s attorney and the respondent back in front of the full board many, many months later to present and perhaps, only have it overturned or modified in such a way that they're going to have to appeal it. Take that step out. It saves money. And if you rely on the district courts to do what district courts do best, which is look at the administrative process to see whether if was fair. Let the board members or some of the best possible consultants sit next to

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those attorneys and help them along the way. Help them be behind the scenes, doing what they should do, which is advocate to the public and be a champion for the public in a way that is unique if you have that situation. And I know the board staff talked about how across the entire regulatory front that in most instances the administrative law judges are not the final decision makers. Contact the general counsel for the state office of administrative hearings, Kathleen Farsley, and ask her what agencies allow the administrative law to make the final decision. Only one comes to mind for me right now and it's Child Protective Services. I would submit to you that if it's appropriate for Child Protective Services, for the ALJ to be the final decision makers for our children's safety when it's some of the most vulnerable people in our society, it should be fair enough for physicians as well. That's what expert witnesses are about too. It's not like the Administrative Law Judge is going to have nothing to work off of. They have experts that are testifying in great detail about these cases. So I would suggest to you that if you went that direction, you would save money. You would basically make the system where the public feels like we have a true advocate in the members of the Board that are selected by the Governor and confirmed by the Senate. It's a novel approach, I agree. But it's one that's worth considering giving everything I've heard today. The other thing I would suggest to you is this. Experts cost a ton of money. You get what you pay for frankly. If you want to take some of the money that's saved from the Administrative Law Judge making the final decision and channel it over to experts, great. Because that's where that money should be spent. The experts that they're using right now, some of them are very nervous. We talked about fear of retribution and fear of negative influence on folks. I think some of the experts that are working for the Board are afraid of being shunned by their own colleagues because they're doing the Board's bidding. So because of that, they remain confidential at the very early stages. So going into an informal settlement conference, the ISC that we talked about, the experts that have been hired by the board are basically cloaked in secrecy. They stay in the shadows. As an attorney representing doctors, I don't know whether that person has a bias against my client because they went to school together, they were in opposing fraternities. Somebody was dating somebody else's wife before they got married. I have no idea. I know their basic credentials. But I can tell you it would help me as an attorney to know whether or not there's a bias there. It would make my client feel much more comfortable about the

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end results if they knew that there was no potential bias there other than the bias that comes from different educations, different experience and background. The other thing that you'll notice is those experts that are used at the informal conference settlement level on behalf of the Board are not the same experts that testify at a contested hearing. That allows some folks to believe that those experts that stay in the shadows can very easily wield the poison pen, knowing that they never have to back it up in a court of law, take an oath and look the doctor in the eye and say, "This is what I truly belief." I think it's impractical to suggest that we can have full blown debates in front of an ISC panel where we bring in those experts that have been helping out the board. But I do believe that you'll save money if you require those experts that sit back there before the ISC are the same experts that testify at the contested hearing. There'll be times when they're not available. But what you're doing right now is you have a situation where those experts basically do the reviews, they get familiar with literally hundreds and hundreds of pages of documents and then they provide the report. If it doesn't get resolved by agreement, it goes to a contested case. The Medical Board then is required to go out and get new experts, educate them in the case, have them review all those documents and pay them good tax payer's money to basically do the same thing that's all ready been done by the folks many, many months ago. So to me it's duplicating the process unnecessarily. Frankly I think that would be a fix that could go a long way. Let these people go into court and back up what they're saying at the early stages. That would raise the comfort level of many doctors that were facing those expert reviews if it went into ISCs. A lot of what you're seeing from the physician community is that lack of transparency. That things are cloaked and they're worried about if they're cloaked am I really getting a fair shake. My experience as a member of the staff is that when the physicians thought they had been heard out, if the physicians thought that things were open, they were more inclined to take a proposed agreed order that was reasonable and fair and to reject something that was in nobody's best interest. I think right now what has happened is not a result of bad intention. It's not some kind of overriding conspiracy. It is a result of the zeal that is generated by an over-indulged media and a consumer public that just doesn't quite understand that doctors aren't perfect either.

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What is happening is you're pushing the Board at one side and you're pulling on the doctors on the other. You end up in a situation where we're all going different directions because frankly the fear has taken hold of everything. With respect to other ways to go on this, one of the things that works and works very well that has been discarded for some reason which I don't understand is pre-filing mediation. Between the informal settlement conference and the contested hearing, there's a lag time. What you can do and what has been done successfully by this Board, if you had a pre-filing mediation before you go public with the complaint, let the Administrative Law Judges at the state office of Administrative Hearings have a mediation that takes eight hours instead of the hour that you have for an informal settlement conference. But eight hours, six hours or whatever the case might be, without going public, without putting a physician in the corner, having to fight tooth and nail to clear his record. But letting folks sit down where they have a luxury of time to go through the case with an Administrative Law Judge who knows what it's like to sit into a contested hearing and try to unravel things. Those folks can be very compelling when they come to you and say, "Mr. Whites, your client is going to go down in flames." Or "Board member, the rookie staff attorney just doesn't have the forces to make this case stick." Where is the middle ground? That process works well and it doesn't stigmatize the doctor because it hasn't gone public yet. It saves money because you don't have those filings, you don't have the initial discovery. You essentially have an exchange of documentation prior to that. I've seen it work successfully. Why the Board has backed off, I don't know. I've never got a satisfactory explanation. Frankly that's one that I would love to see explored. I'd love to serve on the stakeholders group to look at that particular mechanism. Another aspect of this is the confidentiality of the file I understand. It's important to protect folks. Their files need to be protected from the general public. I understand protecting complainants. I think that's an important part of the process. But I believe in the licensure arena and the disciplinary arena, the respondent or the applicant should have a special right of access, not just to part of the file, not just to the portions that the staff thinks is relevant, but the entire investigative file. If you need to black out identifying information of the patient or the complainant, great. But let us decide at the defense bar, let us decide as the respondent, is this exculpatory? By the way, this little piece of information that doesn't seem to be much to the staff means a lot to me

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because I'm able to find other pieces that if I had that piece of the puzzle suddenly you have that ah-ha experience. You can come up with a defense that's meaningful to everybody and take us off the road to hell and get us to a rest stop where we can get it worked out. But if I don’t have the file, I'm walking around in the dark trying to convince my client of what we should do without having all the pieces of the puzzle. If it were a criminal forum and we were prosecuting, you would have access to the entire file. There's a middle ground there of special right of access for the respondent and for the applicant. I would encourage the Board and I would encourage this body to look at that possibly as a way to get the transparency that we need while still protecting the confidentiality of the complainant, while still being able to give the Board some comfort level that their work product is not necessarily going to get disclosed. But open the file some what. We really need it. It makes the process go faster if it's a licensure arena as well as a disciplinary process. With respect to the vagueness issue, this has been brought up before. That initial letter that comes out is indeed vague. It'll often times say, "We have problems that you might have engaged in inappropriate behavior with patient XYZ. That's a violation of provision of the law, unprofessional dishonorable conduct, likely to harm the public in some way." I have found that if I pick up the phone and call the investigator, in a world where everybody is communicating at the Board and with a philosophy such of look, we're not trying to “get doctors,” we're trying to protect the public. I found in that context, with that philosophy, the investigators will tell me. "Mr. Whites, the allegation is essentially this." I go back to my client and say, "Doctor, here's the bottom line." No we don’t have it writing, but generally speaking, I can rely on good faith that the information that I'm getting either from that investigator or later down the road from a staff attorney is generally accurate. They're not trying to hide the ball from me. The system is moving so quickly at such a rapid pace in order to meet the demands of a legislature, the expectations of the media, and the demands of the consumer, that we're not getting the detail that we need to address it early on in the process. So frankly I think it's more of a cultural shift inside the agency and out in order to get that vagueness addressed without having to go into infinite detail in the correspondence. It can be done. I've talked to doctors after the fact who said they've done that on their own and found that the investigators were extremely cooperative, extremely professional and very

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sympathetic. Some of them however have been reluctant because they're afraid they're going to get in trouble. Others have been saying, "Look, this is the right thing to do. We're a state agency. I'm here truly with the government to help." Of course you get a mix and match, but the philosophical change that the legislature can drive home to the medical board and raise their comfort level, give the staff that latitude to do those things. There's been a time when that latitude existed. It was clearly the marching order. I think in the zeal to make the numbers, to make up for the change in torte reform, those kinds of things and those philosophical touch tones have been lost. Not just with the Board itself, but down in the lower levels and the trenches when the investigators have to basically make it work. Along those lines, the identity of the panel and expert reviewers really shouldn't be withheld. We encourage that to be dealt with in some way. The standard of care. The standard of care is a moving target. I heard someone testify that I would never wish my child to be a physician. I wouldn't want them to be an attorney either. Frankly trying to determine the standard of care is like me trying to find a way to grab it out of thin air. If we're dealing with a case in 1994, I will often get an expert that's talking in terms of 2006. Being able to identify the standard of care needs to be a little bit more precise than what we've got right now. That means peer review literature. That means experts that are specifically speaking in terms of what was going on in 1994. The problem with dealing with that is there's no statute of limitations either. At some point the Board staff has got to deal with cases that are very, very old that simply jam up the system. But they don't have an ability to make those go away because frankly they've got jurisdiction. The public expects them to do something with it. Somebody's had a memory breakthrough. Now we’re trying to go back to 1994 to figure out is this a bad records keeping case? Or is this truly a violation of the Medical Practice Act in some subsidize area that really makes a difference about public safety? So looking at a statute of limitations. I'm not saying we want to have a statute of limitations that says two years or forget it. Perhaps seven years or ten years, something realistically based so that the Medical Board is not chasing their tail on something that's very, very old and I don’t have physician clients that are looking back and trying to figure out what the standard of care for record keeping was in 1994. I cite 1994 just because I had a case recently and that was really the situation.

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So considering a standard of care I think is something worthy of consideration by this panel as well as the Board and looking at a statute of limitations to go into that would be a big help for everyone. The other thing that you've heard from folks today is the filing of formal public complaints can be stigmatizing in and of itself. You're left trying to dig yourself out of a hole that's been created simply by the stigma of a formal public complaint. There will be complaints filed in an effort I think to placate the consumer, the public, the media, the legislature and perhaps even the Governor's office. There have been complaints filed without a testifying expert listed. When discovery’s initiated and we asked the identity of the testifying expert who is going to support these allegations, the response is none is available at this time. It will be supplemented. Folks, that's a defense attorney's response. A defense that is Garanfloed in trying to react. Without knowing who their testifying expert is, I can't react to pick an expert to go against them. Go to a public forum with a complaint without having a testifying expert identified is fundamentally flawed. I think we need to see a change in the law and a change in the circumstances if you could in fact demand that before you go public with a complaint, you have a physician in the community, in that specialty area, going to step up and testify as an expert. I don’t necessarily mean they have 20 years of experience. I know folks that have had five years of experience that are superb experts and I know folks that have 20 years of experience that's really nothing more than five years times four. So frankly, looking at that area to try to find somebody that's going to step up so we know how to respond and so you're not stigmatizing physicians by just basically [inaudible 191:56] weapon with nothing to back it up, if a testifying expert is identified early on. I know I've gone long and I apologize. I would suggest you some other things too. There's an undue emphasis on some of the lower level complaints. I've often argued and I've heard it argued to me when I was at the Board and yes I was a young attorney and I turned a deaf ear to it. But not every violation merits disciplinary action. This is not a criminal forum. This is not supposed to be punitive in nature. This is regulatory. Regulation does not necessarily mean punishment. It means deterrents. It means education. It means protection. What I would suggest to you is that at the informal settlement conference level, you can do the same job without stigmatizing a physician with what you might consider a low level hit, an administrative penalty or a public reprimand by simply running them through the ringer.

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Believe me, they pay punitive attorney fee. I’m not cheap, but I'm cheaper than many. I know what it costs to get there. I know the opportunity costs and I know the cost in stomach lining when physicians have a complaint that might seem very, very low level to the Board members that have seen the most extremely gross violations. That to them, yes this is low level. But to me, I've never been to the principal's office before, it's a big deal. So if you can find a way to dismiss those cases and let them go preach the gospel to their colleagues. The Board is indeed firm, but they're fair. Yes, they ran me through the ringer. I had to pay Mr. Whites some big dollars. I lost time from my practice. The Board members really ran me over the coals a few times. But they let me go on this one. If they come back, they have history there. They know that you've been through the ringer before. But not every case demands disciplinary action. I'm talking about the unintentional advertising violations, the unintentional screw ups with whatever you want to call it on record keeping or I forgot to get this or I forgot to do that. The perfection standard should not apply. It's unfair to impose on physicians just like it's unfair to impose it on you, the Medical Board or anybody else. With respect to dealing with advertising, as we get into this world of electronics, the websites are coming up all over the place. The rules are very precise in many respects. But like the rest of you and I think Miss Robinson testified to this, we don't read the Medical Practice Act for fun. Frankly, I don't read it unless I really have to to get back up to speed on something. The rules, the administrative code is really, really lengthy. It's longer than the King James Bible, okay. It's big. The stuff in there gets missed. It gets missed by public relations officers at clinics. It gets missed by physicians. It gets missed by attorneys. Violations that are unintentional should not merit disciplinary action. Frankly if you take the position that the State Bar takes of, "Look, you guys are attorneys. We don't necessarily teach you everything you need to know. Some of it is by the School of Hard Knocks. If you want to advertise, you get pre-approval first. You submit your advertisement to the State Bar, they run it through their folks, and they tell you [eh ??], no good or yes this is fine, go with it." If you could do that same mechanism with physicians, with the public relations firms that they hire, with the administrators that work for them, you're going to eliminate a lot of low level advertising violations that do nothing more than jam up the system. It's the equivalent of asking an

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orthopedic surgeon to look at a low level ankle sprain and jamming his office with nothing but low level ankle sprains every day. Chairman: Whites: [Laughter.] Male: [Applause.] Male: Male: Male: Male: Thank you. Would you, oh. I have a question. You’re not? You can. No, I just want to say this guy is a real gem. I'll be honest with you, most people come in here and complain, complain, complain, don't have any solutions. The other side of the people that come in here and defend, defend, defend and don't do anything wrong. You're actually in here using your brain and thinking of solutions. You have no idea how hopeful that is to legislatures. So I want to thank you for that. Absolutely. Thank you, Tim. Mr. Chairman? Tango-langa, yes. Tim? Yes sir, I know I've gone long. I apologize.

Male: Male: [Applause.] Chairman: Taylor:

Representative Taylor? I did have a question. I also have a comment. I'm a little concerned. So you're telling me all those lawyer ads I’ve seen on TV have actually been approved by somebody?

[Laughter.] Whites: Taylor: [Laughter.] I don't say they always get it right sir. That's scary.

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Taylor:

I did really have a question though. When you talked about the expert witnesses, some of them being worried about retribution from their colleagues. Yes sir. What if we have the expert witnesses looking at these cases blind as far as who the doctor was as well as keeping the expert witness? That takes out some of this whose girlfriend was who back before, med school, fraternities. Why don't we redact the name of the physician when the expert is looking through these cases? It might be done. I don't know if that's done or not because we're not privy to how that's handled. But you've been on both sides. I mean wouldn't that be a workable thing? At the time that I was there, I think we were letting them know who the physician was so that they wouldn't have a conflict of interest of reviewing a colleague or reviewing a rival. So I think we provided that name to them at that point. What if you gave them a list of people and said do you have a conflict with any of these people, like a multiple choice and then you would redact the name? I think that's a pretty good idea. I think it could be applied. It takes more time and effort but I think in the long run it would save time at the end. It's a lot of putting time in the front end to save time and expense at the back end. Mr. Chairman, I'm actually making a list of questions for TMB here at the end, so. Somewhere in there before dark maybe, I don't know. Okay. Tim thank you so much, can we get you to write that legislation for us? Yes sir. I've done some in my time. Can I finish on one comment? Yes, go ahead. One area that I did work on is the rehabilitation order, the confidential rehabilitation order for physicians who turn themselves in for impairment. That over the years has mutated and evolved. It's time that we look at it again. One of the things you might want to consider is the diversion program. Take those initial folks out of the Medical Board system so the

Whites: Taylor:

Whites:

Taylor: Whites:

Taylor:

Whites:

Taylor:

Male:

Whites: Male: Whites:

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Medical Board is not jammed up with trying to deal with people who are trying to get the help they need. The nurses have a program called T-Pap and it's very, very effective. I believe that a lot of the medical societies, physician health and rehabilitation committees are looking at that right now. It's been considered before. But it'll take a great weight off the Board. Frankly what I've seen lately is because of the fear factor that we've all been dealing with is that good physicians who have tried to get the help that they needed have been reluctant to turn themselves into the Board, self report, in order to enjoy the benefits of the rehabilitation environment that the Medical Board can create in a confidential setting because they look at it as an addiction, it's a disease and you should be protected. I think what you're going to see if you look at statistics that there used to be about 20% of the compliance program was made up of physicians who were impaired that came looking for help or some that were reported of course that didn't realize they were at rock bottom. I think you'll see that that number has slid below 10%. Either that is a function of what has happened in this environment right now. They're afraid that they're going to be over regulated and heavily disciplined rather than actually helped along the way. If you could look at a possibility of diversion programs, there are a lot of good people out there, a lot of experts and a lot of models to look at. That'll take some weight off the Board staff, the compliance program. What will end up in the compliance program are those people that still haven't done rock bottom that really need a club rather than a carrot to get them along the way. So I just suggest that to you as an option. Chairman: Whites: Chairman: Whites: Chairman: Do you have a copy of your comments? I was not prepared to testify today. Okay. This was off the cuff kind of thing. We have a copy of your recommendations and we're going to pass them out to all our members. But we appreciate very much you being here. Well, I'm available to talk and I'd love to sit in on a stakeholders meeting and I love to put pen to paper if it's necessary. Thank you so much, we appreciate it.

Whites:

Chairman:

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[Applause.] Chairman: I've got really good news for everybody. Because of us, you're going to miss Austin rush hour traffic.

[Laughter.] Chairman: The Chair calls Dr. Francisco Pena.

[Period of silence.] Chairman: Pena: Speaking neutrally. Okay. Listen, thanks for calling me. If I'd waited any longer, I might just reach the age of retirement.

[Laughter.] Pena: I really feel compelled really to call the Vatican and talk to the Pope and really, really feel compelled to recommend the Board and their helpers, their staff for sainthood for all the good things they've done over the past few years. I can just see frankly, [inaudible 200:20] you know? [Santa Kalafut ??], that would be something. Anyway, my name is [Francisco Indo les Pena ??]. I'm a licensed Texas physician in Laredo. My story is very simple. Actually in going through it I realize that all the things that happened to me have been talked about, have been discussed. If nothing else, I've learned a lot by being here. I've learned how foolish I was. I've learned that lawyers can be pretty tricky. I’ve learned that it takes a lot of money to defend yourself. And ultimately, you just give in. My story begins in August of 2002. I was summoned by Texas Medical Board to what they called an informal settlement conference in relation to a failed V-back. A failed V-back, for those who don't know what that is, is a vaginal delivery after a C-section. I was doing a bunch of steps at that time. I delivered something like 20, even as many as 30 babies a month. In the Laredo area there was not enough obstetricians. I'm a family practitioner, I had to do it. On this occasion I was covering for somebody else. It turned out that the lady in question ruptured. This occurs in one in 100, two in 200 cases. It just happens. I attended that meeting and do believe I was exonerated. They heard the case in full. I was exonerated. So I went home very happy.

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Four months later, not 30 days later. Four months later, I inquired to my lawyer about of the status of my exoneration. Well, I was advised that the case was going to be reopened again. So I came back, went through the whole procedure, and I was offered what was described as a simple reprimand. I didn't know what it meant. But I was told that a simple reprimand would have nothing to do with my career. Okay, so accept it. Okay, so they gave me nine to ten days. On the ninth day I said, "Well, okay I'll accept it, whatever that means." Well, the order read number one, they described two allegations of misconduct. First allegation read that I had not evaluated the patient when ordering pitocin. The second allegation was that I had failed to personally consult with an obstetrician to be sure that a physician was readily available to perform the necessary procedure. Interestingly, both these allegations are false. An obstetrician was called immediately following the patient's admission because it is part of a standing hospital order. It is part of a standing hospital protocol. Records will show and I have them with me, that I actually asked for the consultant to assist. So that's a lie. Then the second thing about not following the pitocin protocol. We have, this was in 1999 by the way. We had even then standing orders to follow on a pitocin protocol. I followed those to a T. Nonetheless, I accepted the sanction. Now in retrospect, I realize there was a fee. I paid with a proverbial pound of flesh. But that was not nothing because even though I had accepted that so-called simple reprimand, when I came back, they said, “No, that's not enough. Now I want you to quit doing obstetrics. You're 67 years old, what business do you have doing obstetrics?” There is something to that anyway. But at the time, there was nobody else to do it. I delivered some in my time some 5000 babies. Some of which bear my name, Francisco. Anyway, so naturally I refused to accept any proposal. I stood firm and my case was sent naturally to SOAH. Or no, actually it was sent for mediation first. The mediation people just simply look at it and said, "Well, really we have no recourse." I asked them, “What would you see wrong with my management of the Vback? What did you see wrong? Wasn't I there two or three minutes after the disaster occurred?” “Yes.” “Didn't I call an obstetrician?” “Yes.” “Didn't I follow the routine pitocin orders?” “Yes.” “Wasn't the lady advised about the possibility of this disaster?” “Yes.”

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Anyway, the mediation was a total fiasco. The case was forwarded to SOAH. I was advised by my lawyers that listen, SOAH is not going to do anything for you. They're going to make a recommendation to the Board wants to suspend your privileges. I'll do them anyway. They might even revoke your license. So what do you do? On or about that time, I was advised that I was going to need by-pass surgery. With all this happening, you can imagine the impact. Well, to make a long story short, I ultimately accepted. During the course of the two years, by the way, two plus years my case was handled, at least three lawyers were involved. One of the staff lawyers, Steven White who thoroughly acknowledged the weakness position of the Board’s position in my case, started to dig up as much dirt as he could. His attitude from the very beginning was vengeful, coupled with obsessive-compulsive tenacity clearly aimed at intimidation and outright threats. In fact, what Mr. White did was add two more allegations of misconduct to my case. First, he alleged that I advertised that I was Board certified, that I was not Board certified and that I did so. Secondly he introduced a case in which I had allowed a patient to a prolonged second stage of labor contrary to established standards. Who fed this information to Mr. White I'll never know. Mr. White went as far as to erase pertinent that information from my 2003 licensure application. He erased it. When confronted about this felonious action, and it's a felony to mess around with your documents, the informal settlement which appeared about May of 2004, Mr. White simply stated, well he thought a $6.00 an hour clerk had put the information about my Board certification on my application and that that information didn't belong there anyway, since my Board was not recognized by the state. The Board members present in the hearing made no comments. They just took no action. They just simply said, “Well, we'll just add this to the case. Let SOAH settle it.” I knew that SOAH was not going to settle anything. I accepted, in short I accepted the sanction and I've learned to live with it. I'm still practicing, but I'm not doing obstetrics. In September 15, 2006, I requested review of my case through still another informal settlement conference pursuant to Board rule 187-43. At that time, I brought up the following pertinent facts to the attending Board members. First of all, number one, my Board certification does and should be recognized under Board rule 164.4-B. Based on this statute, the allegation of false advertisement against it cannot be leveled. It cannot be substantiated. I am Board certified. It's a different Board, but I am Board

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certified. According to statutes 164-4-B, I'm entitled to it. My Board may not be a member of the Osteopathic Board or the other Board, but what is this, a club? What is this, a club? I am Board certified and I have been. In fact, I have been informing the Board since 1996 of my Board certification. What I do is I put it on the licensure application. What White did was erase that so it would look like I was saying I am Board certified, then it goes on to say by the Osteopathic, and that would be a lie. That would be false advertisement. Isn't that cute? Isn't that clever? Certainly if there was something improper about this Board of mine, you would think that since 1996 the State Board would have advised me. They never did. They never did. Now the interesting thing is that you have two obstetrical misconduct violations were not even substantiated by either expert testimony or by [inaudible 311:09] literature. V-back disasters simply happen. It just happened to me while covering for somebody else. The obstetrician who had the surgery privileges didn't show up in time. That's not my problem. That is the hospital’s problem. In fact, the expert witness by the State Board clearly said that. Dr. Pena had nothing to do with it. But the Board's position was that I did. The interesting thing is that I had been exonerated in my first informal conference. How many times should a case be reviewed? The answer is, according to the Board, as many times as it takes to establish the fault. However tenuous or self-serving. Now, imposing a ten year restriction to my obstetrical privilege, charging me with false advertising and sending this information to the practitioner’s national data bank, in my opinion is felonious, irresponsible and a clear abuse of administrative power. The information on the data bank still says that I am not to advertise that I’m board certified, but I am. In fact, one of the things I wanted to do once this thing’s cleared up is get a billboard here in Austin and put it up Francisco I. Pena, M.D., Board Certified. [Laughter and applause.] Pena: [Laughter.] Pena: [Laughter.] I married a rather rich lady. And the other thing is that I can afford it.

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Pena:

Another flaw is the agreement itself. The board’s order dated December 10th list [Albeta Pasquale Limb ??] and then she called a defiance to the facts and allegations. Dr. Chinow, however, was not even a member of the board at that time. She was no longer a member of the board. How can she be an affiant? That is to me a flawed order, a very flawed order. Something’s wrong when somebody testifies to the fact that you’ve done something wrong and yet the interesting thing with her was Dr. Chinow actually recommended a simple reprimand. How this thing escalated to a ten year suspension and then a false advertisement thing, I’ll never know. But, that is the kind of attitude that we see in the board. Doctor? Yes? I’m sorry but you’re almost on double sacral probation here because you’ve gone double on your time length. Okay, just let me finish by saying that I stand before this committee in defeat, there is no question about it, but I’ve learned to live with it. I’m so disappointed with the system which is supposed to guarantee justice and due process. I am [inaudible 4:05] however, by the moral courage. What brought me and my parents to this country in pursuit of the American dream - yes, yes, I’m an immigrant. I served in the US Army in the post Korean Conflict, you know [inaudible 4:35] one time men in Cuba are guaranteed due process in protection from mental and in physical abuse at the Geneva Convention. Why was I not afforded the same? And interestingly, I do have proof of what I’m saying, documents from people who support me, hospital records. It all began with a simple acceptance of a simple reprimand which I thought was [innocuous ??] and from there – and 40 days by the way, 40 days, because those two accusations that are labeled in the order are not true I had to accept. And yet, from there they escalated into the sanction that I finally had to finally accept. Any questions?

Chairman: Pena: Chairman:

Pena:

[Applause.] Chairman: Members, doctor we appreciate you traveling all the way up here. We’d like to have a copy of your… You have it. …thank you so much. Thank you.

Pena: Chairman: Pena:

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Chairman:

And I hope after all the testimony tonight, I see Dr. Patrick over there. Either he’s writing his wife a love letter or he’s taking notes on all these individual cases, which I hope that’s what it is. So, if some of these change, Dr. Patrick I hope you’ll let us as a board know. Thank you, doctor. The Chair calls Ms. Dee [Travenio ??].

Travenio: Chairman: Travenio:

Thank you. And… I’m Dee Travenio and Dr. Stewart and I are coming together because we are really dealing with the same case. Okay, let me ask you, you didn’t check either for or against or neutrally on these so can you tell us. Well, I don’t know whether what I’m going to say is for or against, but it is certainly part of the whole picture today. Okay. Okay? Go right ahead. We as health professionals, I think, all have the same charge that the state board does, to protect and enhance the health and safety and welfare of the people of Texas. We have lived the past three years, my husband, myself and Dr. Stewart, in a special form of hell because we chose to report the presence of a pedophile. He was working for us when we chose to have the investigation done and we got the report of his pedophilia. Then Dr. Stewart, and he will tell you his process in writing up the complaint. My husband and Dr. Stewart sought the help of the Texas Medical Association in knowing what their legal mandate was. They chose to follow that even though several local attorneys said, put it in a drawer and bury it. They did not. Within less than a month after the complaint was filed on September 21, 2004 I got the first phone call telling me that if I did not force the two physicians to withdraw the complaint in the first 30 days we would all be ruined. Since that time, we have been investigated by every official agency there is.

Chairman:

Travenio:

Chairman: Travenio: Chairman: Travenio:

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For two years we have endured an open Medicaid fraud and abuse case, still hasn’t been closed and they have not been able to find anything in our charts. The form of the practice changed to a partnership and we had to get a new provider number. We could not get a Medicaid provider number until Medicare, who had also done their investigation, let the state know that the OIG said we had no violation so that finally got us a provider number. But, we have dealt with every one of the agencies and continued. We’ve had charges filed at the sheriff’s department against us that have no validity. The charges have all been filed against me personally. The FBI now has a record on me saying that I went across the river, as you know we all can do to get gifts, and paid $35,000 in cash and another $15,000 to come after the person who is now facing 57 charges of pedophilia in [Adalgo ??] County. That I had gone and hired a member of the [desas ??] to kill him and that was enough to actually bring in the Secret Service as well. It sounds like fiction. Unfortunately this is true because the state board, even though Senate Bill 104 says that they can temporarily suspend people for things like pedophilia, that was not the only thing that was reported but Dr. Stewart will deal with that, he had been reported first in the summer of 1999 for pedophilia in a case that had medical documentation. The report though was not made by the physician who had examined the child or the physician for whom he worked who was the husband of the physician who had examined him, or the other physician from whom he worked. Instead they involved in a cover up and made an agreement that even when I called them to get a reference, and those are the only two names I was given to call to get references from when he moved from Hail County to Adalgo County, all the way across the state. That complaint was filed by a mother who I suppose did it as most mothers would do it. “My son was violated by this person.” And, she just got a letter back that said it had been reviewed and nothing had been done. So, we basically filed the same thing again in September of 2004. The state board went through all the things they did and their investigation pulled up the old medical records and several other things but he was going to get all of his due process and it was going to go to SOAH and all of that. Well, after I was shot at five times on the 17th day of July of 2006 and my husband and Dr. Stewart decided at least I needed some protection and if the local police department got involved in it, the Mission Police Department, on the 25th of October 2006, that’s all ready well over two years folks, charged - arrested him and charged him with six counts of pedophilia. By the time the Adalgo County District Attorney had gone

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through the grand jury thing he now has 69 counts facing him, not six as they went in. The state board finally, in December of 2006, suspended his right to practice medicine. He was allowed, with that kind of evidence against him to continue to practice and abuse boys in Adalgo County. We know of six specific young men whose lives have been permanently changed. We also now know from having gone back and investigated that Adalgo County is the fifth place this occurred. We know that before us it occurred in Hail County and I know that it occurred in [Newaces ??] County and in where ever Brian College Station is. Chairman: Travenio: Chairman: Travenio: Brasos County Brasos County. Yes ma’am. …and one more in the hill country. But, when we chose to finally stand up to him, we have paid the price. Dr. Stewart will tell you the other charges and the financial impact and all of that. But, I also want to tell you all that the three physicians in Hail County that knew it, whose medical records were used by the state board and posted on their public thing, who did not report it to CPS or to the State Board of Medicine they suffered no retribution from him. They, on the 13th of October 1999 after the medical record from August of 1999, they and their attorneys came to an agreement with him. He was paid off. They agreed on what he would say to anyone who called for a reference and they then helped with the cover up and sent him on to victimize other children. Now, Dr. Stewart.

[Background Noise.] Dr. Stewart: Hi, I’m Dr. Stewart from Macalon Texas thank you very much for staying this late. Doctor, one minute please. I’m just trying to get the whole story as best I can. This physician previously… Can I summarize a bit? I think it might answer your question. This is not a physician. This is a physician assistant. He was our employee. Dee’s husband, George Travenio and I are partners. We employed him. He was known to us. He actually did his training in the valley and then he left to Hail County. When he came back, when we hired him back he had, we had a good relationship with him to begin with. He was productive. His

Male:

Dr. Stewart:

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patients seemed happy with him. He seemed to do everything that a PA should do. We were happy with him. Male: He’s a physician assistant under the jurisdiction of the Texas Medical Board? Yeah. The issue cropped up about a month or so before we actually filed our complaint to the Texas Medical Board. Because we were anticipating having him become our partner in a non-profit corporation that we were considering forming, we wanted to do a background check on him before we did that because he seemed to have little boys around him all the time and that worried us somewhat. So, we paid a good bit of money to have a private investigation done in some of the other places he had been and we had a huge amount of information. We had testimony from boys. We had lie detectors. We had all sorts of information regarding his behavior at another place. In addition to that, at the same time, I started a very thorough study of some charts going back about, I think I picked two years, and I looked at some 4,000 records. It took me about 200 hours to do all of this. But, I compared what was actually written in the records with some pharmacy records that I had obtained from the next door pharmacy which is where most of our patients go to get their drugs. And, I found out that the drugs being dispensed to people were absolutely no relationship to the record in the chart. The records in the chart were stand alone records. If you read it from beginning to end it would look like perfect PA documentation. But then you’d see all of these drugs coming out of the blue, mostly controlled substances, prescribed to the same patient on the same day and so I looked at this very thoroughly and made an enormous spread sheet, with graphs and formulas and everything that I sent to the state board and they just totally ignored that. The point being that we had several hundred thousand dollars invested in this all ready and gave the information to the board basically gift wrapped and bow tied and nothing happened with it for years. And when I sat through all the long hours that you all have endured as well today, I kept hearing the board talk about it’s all because they are under funded and understaffed, they don’t know what to do with information when you give it to them ready to go. Male: If I may Mr. Chairman. During this time when you, after you sent them the information, was the physician assistant under your employment?

Dr. Stewart:

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Dr. Stewart: Male: Dr. Stewart: Male: Dr. Stewart; Male: Dr. Stewart: Male: Dr. Stewart: Male: Dr. Stewart:

No. He was terminated. We terminated him when we found the initial information from the…. The initial information. And, did he continue to practice.. Yes, he did. …in the Adalgo County area? Okay, please continue. He practiced for another two years. Okay, and since that time what has happened? Has his… Ultimately the board did… …privileges… …suspend his license two and a half years, two and a quarter years after the initial complaint after he was arrested. Was there any action taken against the business or any of the doctors that were supervised? I mean, after you gave them this information did they question the business or you individually or… I worked very closely with the investigators. I thought the investigators from the board were excellent. Okay. I think when they handed it off to legal, legal had no idea of how to analyze the data and what to do with it. And, what I’m saying is, I’ve heard a little bit about the case and please correct me if I’m wrong, but, was any action taken against your husband or you by the Texas Medical Board based on this physician assistant’s actions? This physician assistant actually filed a complaint alleging that we failed to supervise him and yes, we were investigated by the board for that. We were ultimately cleared of that, but… [Inaudible 20:16]

Male:

Dr. Stewart;

Male: Dr. Stewart:

Male:

Dr. Stewart:

Female:

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Male: Dr. Stewart: Male: Dr. Stewart: Male: Dr. Stewart: Male: Dr. Stewart: Male: Dr. Stewart: Male:

How did that investigation go, if you don’t mind me asking? With… Was it dismissed within the… …the personal complaint against …first 30 days? Did you have to go to… Oh, no, no… …any… …they just sat on it throughout the time of the investigation of the PA. Of the PA, now what I’m saying is how was that case against you… They just sat on it. …I understand that, but what I’m saying once they, how was it dismissed eventually? Was it dismissed? I think it was part of the… …was that … …agreement that the physician assistant finally signed with the board. That is the first of the two complaints that were filed against the two physicians. The other one was that we had improper management of the records in our office and that one was resolved when, all of a sudden, one Thursday investigators from the State Board of Medicine showed up at the office, asked questions, saw it, went back to… They did a random audit of the records. …yeah, random audit and cleared that one up themselves. I think this was a very complicated and convoluted case and I don’t personally hold anything against the board for the complaints against my partner and me. I think that they had a lot of things they had to sort out with this. The problem I have is the number of years it took for them to take action when we, as a physician community, were actually giving them the information and policing ourselves. This should have stood out like a sore thumb as not being competitive people who are back biting

Dr. Stewart: Male: Dr. Stewart: Travenio:

Dr. Stewart: Travenio: Dr. Stewart:

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each other. This was a very considered and very detailed complaint with reams of information. Male: Were you given any justification why it was taking so long during the investigation process? No, that’s secret.

Dr. Stewart: [Laughter.] Dr. Stewart:

That’s another point I’d like to make. I had no problem with them telling this gentleman that I was the complainant. In fact, I thought their secrecy to him was impeding his ability to defend himself, however much ability he may have in a situation like this. But I encouraged them to give him the information. I don’t believe in all this cloak and dagger stuff. If you’re going to complain about somebody you should stand up and take what comes with it, which we did in fact. We did. We took it and we’ve suffered all of the consequences of it. Now, you mentioned that you were investigated by the FBI the Secret Service, all.. These were complaints that were filed by the PA… …by the physician assistant. …by this person himself. Okay. But we had everybody from Wage and Hour to OSHA to x-ray… So he just went on a rampage. Yeah. …and just… Yes. See that concerns, see I don’t have a problem with the complaint that you failed to manage someone in your office. I mean that’s a legitimate complaint, but made by the actual person who’s claiming you failed to manage.

Travenio: Male:

Dr. Stewart: Male: Travenio: Male: Dr. Stewart: Male: Dr. Stewart: Male: Travenio: Male:

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[Background noise.] Dr. Stewart: Male: Dr. Stewart: Well, and moreover the evidence… That’s, that’s you know… …the evidence I presented in the spread sheet showed that he was unmanageable. To manage a physician assistant they have to be willing to be managed. Right. If they’re going to lie on three quarters of the charting they do, you cannot manage them because you do not know what they’re doing. And, here’s and additional thing that I actually thought Dr. Stewart was going to explain and I am going to give him a chance to explain now. The legal action, yes Mission PD arrested him for the charges of the pedophilia… Yeah, I forgot that. …but they couldn’t find him because he was all ready in jail that day because… Because when the board failed to take any action on the prescribing habit of this particular PA, we actually presented the same information to the DPS about a month before his arrest and they analyzed it and saw he was continuing that pattern of behavior and, they’d actually pulled his license to prescribe. He continued to prescribe anyway, so they arrested him. So, DPS took the same spread sheet and within less than two months had taken action and arrested him. So he also has to face a trial on the drug charges. And my position in the whole incident was that the prescribing was so out of line that that was probably more dangerous than his other proclivities to the public, at lease to the public at large. You know, because of the confidentiality issues that we’re dealing with it’s hard for us as a group in a public forum to get justification for it. You know, I’m sure in other cases there’s adequate justification. I would sign a confidentiality agreement and figure out what happened in this particular case as a legislator because this is in my backyard. I have family members that live in the county, first cousins and my wife and I hopefully will have a family one day and live in the valley and that’s just outrageous.

Male: Dr. Stewart:

Travenio:

Dr. Stewart: Travenio:

Dr. Stewart:

Travenio:

Dr. Stewart:

Male:

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Travenio: Male: Travenio: Male:

And your father probably has as his constituents, some of the families… Absolutely. …whose children have been harmed. You’re absolutely right. Well, time will tell. Thank you very much for your testimony. We want to thank y’all for coming. We really appreciate it.

Chairman: [Applause.] Chairman: Dr. Garcia: Chairman: Dr. Garcia:

The Chair calls Dr. Tom Garcia. Good afternoon. Go right ahead doctor give us… Thanks very much, Mr. Chairman. I’m Dr. Tom Garcia from Houston, Texas. Mr. Chairman, members of the committee, I’m Dr. Tom Garcia. I’m a cardiologist from Houston. I’m President Elect of the Harris County Medical Society and I also serve as member of the Texas Board of Trustees of the Texas Medical Association. I’m testifying today as a representative of both groups. I have three points and a conclusion. In the interest of full disclosure I want you to know that in 2005 I was involved in a disciplinary proceeding with the Texas Medical Board. The reason was for failure to adequately document in the medical chart a conversation I had with a patient who left the hospital against medical advice. I would like to say at the outset that the physicians of Texas, our medical associations and all Texans need a strong Texas Medical Board, one that does its job effectively and fairly. The board is charged with licensing physicians, protecting patient’s safety and maintaining high standards for the practice of medicine in the state. It is a charge we support without question. A strong and adequately funded medical board is important for Texas patients and physicians. In the spirit of maintaining a strong board we present several suggestions for process improvement. Point one, a focus of Texas Medical Board disciplinary actions on directive of Senate Bill 104, giving priority to quality of care, sexual misconduct and impairment issues. We believe all Texans should have confidence they are receiving the highest quality of care and that their

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physicians are qualified and competent. We support a well funded Texas Medical Board to carry out this critical function. To this end, we urge the Texas Medical Board to refocus its disciplinary efforts and to give priority to allegations of sexual misconduct, quality of care and impaired physicians as mandated by Senate Bill 104, which the Texas Legislature passed in 2003 with our strong support. Point two, many of our physicians have criticized the manner in with which the Texas Medical Board processes complaints, notifies physicians of those complaints and conducts hearings on them. Some of our member physicians believe that they’ve been treated unfairly in the process. The Texas Medical Association would like to recommend several process improvements for the Texas Medical Board to consider. The board should provide more complete information to the physician about the nature of the complaint. In a recent survey that was conducted by the County Medical Society in Harris, members who had been investigated by the TMB found that 63% felt that they were not given enough information about the complaint to explain their side of the issue. The board should report aggregate minor administrative violations by failure to provide a copy of medical records in a timely manner, for example, in its new letter, rather than reporting them in the same manner of physicians that are sanctioned for quality of care or more serious issues. We do note that the medical board has recently proposed a rule to do just that while maintaining the orders as public record. We applaud their action. We also support a more substantial effort by the board to educate our physicians about the board’s investigative and settlement process. In the same county medical society study 66% of those respondents who have gone to a board investigation did not feel fully informed about the process. Third, we appreciate the increased funding from the 80th Texas Legislature to allow the board to explain its ability to process the increasing number of licenses for our physicians coming into the state of Texas. We know that in fiscal years 2005 and 2006 the board issued 2,500 new licenses each year. In 2007 the number of new licenses granted increased to more than 3,300. However, more than 4,000 new applications for each year and it’s very important for the board to improve its process related to that licensure. With a growing population, Texas needs these additional physicians to alleviate access problems for our Texas patients. We support the legislative directive to the board to improve its systems of licensure to an average of 51 days from time of application to granting of

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license. In addition, we strongly support a more robust electronic website application process to streamline this process. While the legislature voted a modest increase for the board to hire additional staff to process applications, we would support additional technology investments to more quickly achieve efficiency in this largely paper driven process. We believe that the return on a small investment would benefit the entire state. In conclusion Mr. Chairman, the Texas Medical Association, at the request of the Harris County Medical Society, conducted a review of the Texas Medical Board disciplinary activities. The study was completed this past spring. Its findings and recommendations have been adopted by the Texas Medical Association. The report has been shared with the Texas Medical Board and we are happy to share it for your review as well. Once again I want to reiterate our unquestioned support for a strong and fair medical board. The physicians and patients benefit when the board provides certain fair and principal leadership. I want to thank you for the opportunity to present this report and participate in these discussions and I have this review. I was going to give it to the clerk. Do you want me to just give it to you right here. Chairman: Riddle: Dr. Garcia: Doctor, Representative Riddle has a question please. That’s okay. That’s all right. And there’s more if you want them. Just call Mr. Dan Finch at the Texas Medical Association. He’s right back there. Dr. Garcia, I want to thank you for being here today and as a representative for North Harris County and coming from Harris County I think that your suggestions and those of the Harris County Medical Society are well taken. Just for the record, I want you to know that I too support a strong board, but I think that the strength as you said needs to also be fair. And as someone said earlier, we need a fair board, not a feared board. I think that in large part we would agree. You’re very kind and I thank you very much for your comments. Thank you for those comments. Doctor, do you like the idea of this dean express that we talked about earlier? You mean at the golf course or being here?

Riddle:

Dr. Garcia:

Brown:

Dr. Garcia: [Laughter.]

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Dr. Garcia: Brown:

You made that comment at the beginning. Well, yeah I’m talking about on these minor infractions about an express lane, so to speak, that you can get into that wouldn’t put doctors in this nine month torture from hell. Representative Brown, I’m just a cardiologist. You know I’m tempted to say yes, go ahead and get on an express lane but when you hear the report that you all just heard just a few minutes ago, you need a strong state board to really look into that, have processes that are fair and really investigate really tough issues. And confidentiality is important. And I noticed you were willing to sign that. And if I had family living in - and I’m originally from [Jim Willis ??] County, you have to have some confidentiality to it. But, I’m not an expert in that but my temptation is to say it seems like a good idea if it’s just minor infractions. Yes sir. Members any other questions? Doctor thank you so much for coming.

Dr. Garcia:

Brown: Chairman: [Applause.] Dr. Garcia: Chairman:

Thank you very much. And Mr. Finch has a copy of this if you need it. Thank you. The Chair calls Andrew Schlafly. I didn’t notice until just now that you’re from New York, New York. You’ve got a long commute home, don’t you? I avoided the commute there, too. Yes, sir. Thank you, I’m Andrew Schlafly, general counsel for the Association of American Physicians and Surgeons or AAPS, which is an independent national physician’s group founded in 1943. We thank Mr. Chairman and other committee members for holding this very important hearing today. We hear from our members all around the country about medical boards, but by far, the most complaints and the most examples of injustices come from the Texas Medical Board. This room today is just the tip of the iceberg. Please allow me to give another example that is not in this room. We heard from a victim of the abuse of power by the TMB from a doctor who was serving uninsured patients. He charged only $40.00 for an office visit. After hurricane Katrina displaced many citizens this doctor was the only one that many poor patients could afford and they were minorities.

Schlafly: Chairman: Schlafly:

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The doctor prescribed cough syrup to some of these patients for what became known as Katrina cough. A pharmacy however, did not like having these poor patients come into his store to fill these prescriptions. Sometimes the patients would bring in the prescriptions and they didn’t have the money to pay for it. Sometimes a lot of the patients would come into the store and the store didn’t like having a lot of these poor minorities in their store. So apparently the pharmacy filed a complaint against this doctor with the TMB. And as we’ve seen in so many examples today, the TMB has a presumption of guilt against the doctor. The TMB never looked at it objectively, never wondered why a pharmacy was complaining about cough syrup. And instead the TMB repeatedly threatened this doctor with revocation of his license. They went to the ISC. The ISC was extremely abusive. The board member on the ISC repeatedly said that he was going to revoke his license and it was only, apparently because a public member on the ISC stood up for the doctor, that he was able to save his license but he did lose his ability to prescribe medication. And he got sanctions and the penalties and all that stuff texted into the data bank and texted into the insurance list and then he has to fight being delisted by insurance companies, etcetera. In addition, after the ISC panel had met and after the public member and the board member had agreed on a particular penalty, the board member then added a new requirement so that when the doctor had his final signature, there was a new requirement that he could no longer supervise a physician’s assistant. And, that was never brought up at the ISC hearing. I’d like to comment now on some of the testimony by the board members and officers earlier today. The board members talk in terms of one instance of testimony by Dr. Keith Miller. Our information is that Dr. Keith Miller has testified as a plaintiff’s expert in about 50 case, fifty, five – zero. Now do you really think that no one on the board knew that one of their key members testified in 50 malpractice cases as an expert for the plaintiff? With all the scheduling that they do with ISC hearings, with all the board meetings, do you really think that no one was aware of that until April, someone heard about one case? I find that implausible, with all due respect. I just find it implausible. If it is true, if the board members know so little about a fellow board member, how can they expect us to believe that they know so much about a doctor they are trying to discipline? Why hasn’t the cases that Dr. Miller worked on at the board been reopened and re-examined? When there is a rogue prosecutor at the Department of Justice and he’s discovered the Department of Justice will

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then go and look at the cases he handled. Why isn’t the TMB doing that? Why aren’t they looking at the cases Dr. Keith Miller sat on? He sat on quite a few. He was the driving force in high discipline on that board for a number of years. Why hasn’t the TMB initiated a complaint against Dr. Keith Miller? Now earlier today the TMB officers used statistics to downplay the misuse of the complaint process as in the case of insurance companies and competitors. An insurance company is not going to stamp insurance company all over its complaint. The TMB really has no idea how many of those complaints are being initiated by insurance companies. Complaints are typically filed by an individual. The TMB has no way of knowing what the relationship between that individual is with a competitor or with an insurance company. There is no way the insurance - the TMB can say with any credibility, the insurance companies are responsible for only one percent of the complaint. They have no idea. In fact we heard testimony earlier today that one of the key board members of the TMB apparently initiated a complaint by having her husband file it against a former partner and yet the fellow TMB members didn’t know that. If they don’t know what their own board member is doing, how could they possibly know what these insurance companies are doing in manipulating the process? You heard earlier today repeated references that somehow anonymous complaints are required by the legislature. How? There’s no statute that requires allowing these anonymous complaints in this abusive process. Apparently there is an administrative code that’s cited, but that’s not a statute that was passed by this legislature. One helpful reform would be to require that when someone files a complaint that person has to disclose his status, his connection with the competitor or the person he is complaining about. Is he the spouse of a competitor of the physician? Does he work for an insurance company? We have all of these campaign finance laws that when you give $100.00 to a candidate you have to disclose who you work for and that goes into public records and public disclosure. Well if that’s required for something as inconsequential as a $100.00 donation to a candidate, why isn’t that required for a complaint that may end the career of a doctor? We should know what the status is of the person who is complaining. Is it someone who works in the office of a competitor? I mean that should be right there. There is no reason not to require that. It should be under penalty of perjury. It doesn’t accomplish anything to hide that information. The ISC panels, we’ve learned a lot today, but we did not learn how those ISC panels are manipulated and who sits on them. We got all of this data today from the TMB but they withheld one key piece of data and that is who is sitting on these ISC panels and with what frequency. Now, what

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I’ve heard at AAPS is that in virtually every important case I’ve heard about is either Dr. Kalafut or Dr. Miller who has sat on the ISC panel that urged discipline for the doctor. I am confident that it is not an even or random distribution of board members sitting on the ISC panels. Why isn’t that data disclosed? It is simply a matter of going through those ISC panels, it would take a clerk a half a day’s effort and you will find, I’m confident, that those ISC panels are manipulated and that there are just two or three people who sit on the vast majority of those ISC panels that are urging discipline to key doctors. The confidentiality of the ISC panels is misused to conceal the abuse that occurs in them. The confidentiality is supposed to protect the doctor. Well if it protects the doctor the doctor should be able to waive it and there should be some scrutiny by a judge of what’s really happening at these ISC conferences or hearings. So that would be a good reform, to allow the doctor of waive the confidentiality, to have a reporter there. If there is any patient names they can be taken out and have a judge review and see what really goes on there and those ISC panels would change overnight. The abuse would immediately stop. Finally, the patients are the real losers when a medical board abuses its power. When a doctor is eliminated from the medical profession 1,000 patients are hurt. Please curb the abuse of power by the Texas Medical Board. Thank you. [Applause.] Chairman: Members are there any questions? testimony if you have that? I’ll have to type it up. Okay, thank you so much. The Chair calls Dr. James Mahoney. Could we have a copy of that

Schlafly: Chairman:

Dr. Mahoney: Good evening. I will keep it ultra brief. Thank you very much for staying so late. I am James Mahoney, I am an osteopathic physician from Southlake, Texas. In March of 2006 the board sent me a note and said, “Dr. Mahoney, you have prescribed Vodka drops to a patient with a homeopathic compound in Everglade, [Rio Gravo ??], lots of foreign countries.” And I thought, “Wow that’s unusual. I can’t really remember doing that and I think I might if I had.”

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So, I retained a lawyer because my colleague said the board will not behave responsibly. They will act very strangely. So, in response to that I did and $3,600.00 later and a note that said I really don’t do that, I don’t prescribe Vodka drops and 30 days later they’re suppose to say, “Well since you didn’t do it you’re done.” No, not exactly how it happens. They say, you know that’s really not enough information for us. Even though you didn’t do that you probably did something. Let’s see all the records on the patient. So, subsequently I gave them all the records on the patient and a couple of expert reviewers later they looked at my cases and they said - the reviewer, one reviewer said, “I’ve practiced five years in a city clinic,” no name and the other reviewer who was undefined has to be my peer, said, “The fact that you use intravenous medications on a patient with a chronic problem is not the standard of care.” Okay, I can understand we have a difference of opinion and I think the board has a very hard job to decide what is the standard of care, but I was willing to provide them with the textbook that I wrote for the board. [Laughter] Dr. Mahoney: And I did. I wrote the textbook which is very explanatory, which helped them to understand it. Because of that, at my ISC, the attorney for the board, Mr. Mark Martin, handed me a sheet of paper that said, “Dr. Mahoney, you have met the standard of care, a piece of paper in my lap, which I have.” Dropped all of the charges at the ISC, except for one thing. “We don’t think your records are satisfactory to have established the standard of care.” How can that be, you just said that my records were adequate to establish the standard of care, I passed the standard of care, can I go home now? “No, I’m afraid you’ll have to come upstairs.” This collegial environment that we have is not typical of the ISC at all. They are not nearly as collegial, pleasant, kind and they dismissed my charges. They said I was a good guy. I described my care for about an hour, which they were happy to say, “Yeah, this is good. This is good care and your textbook that you wrote for us is correct. That’s good. You’re a good doctor, you do good competent work.” Then I left the ISC and the attorney for the board, Mark Martin, said, “We’re going to review a maximum of 30 charts every quarter on you from now on, unlimited amount of money for the next year because your records are poor.” I’m thinking, had they read them they would have been great. They would have figured them right out because they said once they looked at them that I passed the standard of care. But, now there’s this new charge for the records so for another year we want to give you a pretty thorough examination every quarter and take a

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look at what you are doing so that we can have the same reviewers who missed it the first time and caused you to have to go through all of this $15,000 to $18,000 worth of legal to come here, we’re going to have them review your charts now for the next year. I’m thinking, this doesn’t sound like a good deal to me. I’m going to reject their agreed order. So, I rejected their agreed order. When I did they sent me a new set of charges. You know those standard of care things that we dismissed you on? We changed our minds. You really are a bad guy. That textbook, we’re rejecting the textbook. That’s not a recognized author. We don’t like you. We don’t like your standard of care. Here’s some new charges. Here’s some new problems. So call your lawyer, lawyer up and get ready for the next round. So, I had the SOAH hearing that’s set up. The thing with all of this is it’s frivolous. It’s silly. I didn’t prescribe Vodka drops for one thing. I may want them now. [Laughter.] Chairman: I think we all do.

Dr. Mahoney: And, I would be happy to share. Chairman: [Laughter.] Dr. Mahoney: But, my point is, and I think this is the most important thing, as frivolous as it seems, I’ve got a house that I’m making payments on. I’m working my tail off to make the practice work. I take care of some really sick people who need a doctor like me, who understands stuff that’s a little different. I’m a family doctor but I do pretty tough patients who are really sick. This little old lady in question had burning leg pain she couldn’t get rid of for five years. She saw 22 doctors. Nobody could help her do it. I came up with a good idea that helped her and it wasn’t Vodka drops, though if it would have helped her I may have used it, and I’m serious about that, I may have. But, I had her sign a disclosure and consent that said, you understand you’re going to do some unorthodox things, but they’re safe and effective and it makes sense. So I did those things. She got well. The board investigates me. They decided that this procedure I’m going through is not really adequate yet. I’m not thoroughly licensed and disciplined yet. I need more licensure and discipline activity. So, another day, here I am, it’s frivolous, silly, I can get a job in another state. I don’t want to go anywhere else. I’ve been in Texas for 2- plus Thank you.

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years, I’d like to retire here. But, people like me, doctors who are like me who are passionate about patient care, who are passionate about medicine, who are on the cutting edge, who are looking to do something different, something great for Texas aren’t going to stay. And, the board’s job is hard I know, but it would be a lot easier if they didn’t mess around with this frivolous nonsense, where, they said - they testified this morning that if you can say if what they said you’re doing wrong is not true, you go home. Not true, not true, not true, repeatedly not true. I proved I didn’t do it wrong. I didn’t prescribe Vodka drops. My standard of care was excellent. Yes, yes, yes, review the charge, review the charge, medical records. And that’s the one that they just wear the living tar out of doctors with. Everybody gets a records charge at the end of the day, everybody. You go to ISC they got to get their numbers up, you get a records charge. And here I am, I’ve got my records, I’ll show them to you, I’ve got my testimony. I’ve got all my paper it’s all good. I really tried to like dot the I cross the T, get it done and nonetheless, here we are tonight. So, anyway frivolous stuff might look frivolous, but in the big picture finally the appropriations committee has adopted a side, with the money you spend on state schools and the board that you spend a lot of money for, it’s a good board when it handles really tough stuff like rape and sexual assault and that stuff, you can’t treat a doctor who has medical records dot the I problem as if he’s a rapist, that’s silly. And the board does that. They’re condescending, they’re harassing, they’re abusive. They’re really hard on doctors and good guys. I’m an Eagle Scout, darn it. I don’t deserve that. [Laughter.] Mahoney: I’m a good guy, I’ve never been in a criminal court for any reason, but I got treated like that and I don’t think that that’s fair or right or appropriate. And, I’ll tell other doctors like me, “Please practice somewhere else, you don’t need the harassment.” But, patients in Texas need great doctors and great doctors will not stay in Texas if greatness is not appreciated. So, that’s all I’ve got to say.

[Applause.] Chairman: Riddle: Representative Riddle. Well first of all, I’ve just got to ask you this question because I know that those of us who are sitting over here wondering, what are Vodka drops? I don’t know, actually homeopathic doctors…

Mahoney:

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Male: [Laughter.] Mahoney:

Do they come in other flavors?

I think that all of this other stuff that it came in, I think they do Vodka because it is a preservative that doesn’t have toxin in it, you can drink it. So, homeopathic doctors use it. Oh, I was just curious about it. I know they preserve something, it’s like a cocktail, so there you go. Well I… …it’s like an illegal cocktail. Well, on a little bit more serious side, and I was curious about that, I do want to thank you for having the courage to step outside the paradigm and do what is necessary for your patients and not be so worried about staying within a very narrow border. I think that we do have to have protocol, but I think that what you say that you’re doing, we need that. And, by the way I have two sons and I have two Eagle Scouts. All right.

Riddle: Mahoney: Riddle: Mahoney: Riddle:

Mahoney:

[Applause and Laughter] Chairman: Bower: Chairman: Bower: Chairman: Bower: Mahoney: Bower: Chairman: Thank you doctor. Mr. Chairman. Yes sir. May I ask one question? Representative Bower still has a question for you. How much in all of that did you spend on legal fees? I think the total to date is about $18,000.00. Okay. Thank you doctor. The Chair calls Dr. Andrew W. Campbell, and doctor you didn’t check if you’re for, against, or neutrally in your testimony.

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Dr. Campbell: That’s correct. Chairman: Oh, you haven’t decided yet, or should we decide?

Dr. Campbell: I don’t know how to answer that. I’d love, I mean I’m in agreement for a strong board an effective one and, my name is Andrew Campbell. I’m going to prescribe Vodka drops for all of you for having the fortitude to be here… Chairman: [Laughter] Dr. Campbell: ….this long on this day and now that they’ve heard this I’ll probably get a letter soon. [Laughter.] Dr. Campbell: I’m a little bit like the gentleman that just spoke to you. I am very passionate about my patients and I take pride in that I listen to my patients. My average appointment is an hour. My average new patient appointment is four hours. Male: Wow. Thank you.

Dr. Campbell: Yes, and that’s why I don’t take insurance payments or assignments because I tend to spend a lot of time with my patients. They have usually been to see anywhere from 20 to 30 doctors before the end up in my office. I’m kind of like this previous doctor, I’m kind of a last resort for them. I’ve also had the privilege of seeing patients for the affirmative defense, better known as the Pentagon, Department of Labor, worked with the National Institutes of Health, National Institutes of Dental Research, consulting to the CDC and to various State Health Departments in other states that send patients from their state for me to see them. I average about three patients a week from the Mayo that they send to me because they haven’t been able to figure it out. I follow very standard methods known in the medical community and I have published over 40 papers and 40 studies in various medical journals and chapters in medical books, etcetera.

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So, I heard today here very emphatically about a lot of statistics. I will tell you that a gentleman known by the name of Mark Twain said that there is lies, then there’s damn lies and then there’s statistics. [Laughter and Applause.] Campbell: …and, the applause was for Mark Twain. I heard a person say here and I wish they’d been under oath, that not a single case has been whatevered by the Texas Medical Board that has been derived from a complaint for an insurance company. That is false and I have it right here. So, having said that the insurance companies don’t like me. Doctor, if they testified here today, they are under oath because they had to sign a witness affirmation form that says that they swear that what testimony that they give before this body will be true and accurate, so…

Chairman:

Dr. Campbell: Well, sir. Chairman: …if they signed one of these, they’re under oath.

Dr. Campbell: Okay, well I can share with the, with all of you ladies and gentlemen the documents from, that the insurance company sent the medical board that generated the complaint. I will also say that the patients in the complaints wrote the board saying, “Uh-uh. We don’t want Dr. Campbell to be punished. As a matter of fact we support him. We’re still going to go see him. We like Dr. Campbell. He’s helped us after all these other doctors tried. We’re going to continue seeing Dr. Campbell.” But, the board they used experts for the ISC. Then they used other experts and then other experts, they’ve changed the complaint a couple of times. etcetera. And, to be honest with you, everything, I don’t need to repeat to you everything you have heard at this hearing. I’ve heard about being anonymous and you’ve heard what everybody else says. I don’t see these doctors clapping or applauding anything. I can tell you that the medical board spent over $100,000 in my investigation, almost $150,000 in my investigation because the insurance companies don’t like me. I will also tell you that at the ALJ hearing the attorney, lead attorney representing one of the insurance companies was there for the whole process, making sure that he was going to get what he wanted. And, by the way my experts, Ralph Huntington, Chair of Medicine for 22 years from the University of Southern California School of Medicine, a former board member who practices in Dallas, that was my other expert, another expert was the Founder and Head of the Occupational Medicine Training Program and Residency Program at the University of Arizona School of

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Medicine and the last one was a Ph.D. who taught medical students at UCLA for 30 years, and basically these people were ignored. I was fined $210,000. My license was suspended for about six months is what I was told and I was told to do the following: “Respondent shall prepare a paper language to the standard of care for physicians to use newly available techniques or medications or to use existing techniques and medications in new ways. The paper shall meet the content and format requirement for publication in a scholarly medical journal. The paper must be submitted to the board no later than January 1, 2008 and shall be accompanied by documents transferring all rights to the paper to the board including all rights of intellectual property so that the board may publish the paper as deemed appropriate by the board.” [Laughter.] Male: Unbelievable.

Dr. Campbell: The gentleman sitting right here is the one who read this out. So, and incidentally, my attorney who’s been an attorney for 40 years looked up in every rule, law, statute in Texas and this has never been done before nor has this much money been spent on an investigation. So, why is this all happening? Well I’ve testified in both plaintiff and defense cases as an expert witness all over the United States in Federal and State courts and so I’ve been a target by attorneys working for insurance companies because a lot of the papers that I publish, things that I discuss at the National Institutes of Health, CDC etcetera, well they don’t always agree with the insurance industry. As a matter of fact, Canada, the country, has used some of my papers to adopt into their health system some of my studies that I’ve published to use in their health system. So, if Canada can use it, here I get punished for it. So, I wanted to share that with the panel here today and over the last five years, this started five years ago by the way and it’s still not quite over, it has cost me several hundred thousand dollars by now. I liked the fellow who just spoke who he’s at $18,000. I just keep my fingers crossed because it’s going to cost him a lot more. And, I can tell you it’s caused me stress, a huge amount of stress in my personal life and of course they have these complaints plastered throughout their - and the sanctions throughout their website so patients who want to look me up all of a sudden they call me and say, “Dr. Campbell you’re a bad guy. You’ve been naughty again. You’ve done all of these bad things.” Now, what’s interesting is that a district court judge said, “Uh-uh. Temporary injunction against them.” Well that’s grand except that they’re not supposed to - both, Dr. Patrick and the Medical Board are supposed to

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keep this information from the public until it’s settled. But, if you go to their website it still says under my name suspended and then it says active. Now is that misleading? Yeah, I think it is. My patients think it is and my patients come from all over the United States. And I have patients in [Agwodobi ??] and Hong Kong. So I’m getting calls. How and I supposed to answer these people? Now they put all, the allegations are still up there, fine and he did this and he did that and he did the other, but, none of the district court judge’s rulings are up there. I don’t think that’s transparency. I don’t think that’s balanced. I don’t think that’s fair. I think you all ought to know what these folks spend your money on. I think you ought to see, you ought to take into consideration what they say and I will be happy, really happy to show you the insurance company complaints to the board, copies of it of course, and the affidavits from these patients saying, “Please leave Dr. Campbell alone.” One of them was really angry because she is a woman from Austin, Texas and she did not like it that these bureaucratic employees are going to be going into her medical records. Now, you’ve heard that here before, but she was incensed because she had a private situation happen to her many years ago and she didn’t want anybody to know. She begged me not to send the records to the board, but they’re almighty and they don’t have to answer to anybody and they can do what they want. And, I challenge any of you to sit in an ISC with Dr. Roberta Kalafut, who just came in and sat down behind me who is rude, malicious, condescending and talks down to doctors. Now I know it’s nice to be important, but it’s also important to be nice. You don’t get this with this board. Now, maybe they’re under a lot of stress, God bless them, that’s stress, but we’re all under stress and its an adversarial type now. Let’s make it work for everybody because who is going to win in the end is the people of Texas and that’s what we’re here for, to treat people of all walks of life, Texans every day just like the previous doctor said and I’m passionate about what I do in medicine and I love my patients. Thank y’all. Chairman: [Applause.] Chairman: Roell: Members, any questions? The Chair calls Joseph C. Roell, Doctor. Good afternoon, I’m Dr. Roell [N.B.: pronounced “ROLE”], Beeville, Texas. Mr. Chairman. Thank you doctor.

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Chairman: Roell:

Doctor. When I found out that I only had seven minutes, I talked to Steve Holsey and he said, “Seven minutes, that’s what you have.” I said, “How Freudian.” I just watched a program last night and that’s how much time that the average person spends making love for the rest of their life, seven minutes, and he said, “Your job is not to make love to the State Board of Medical Examiners.” Would you call my wife and tell her she’s short changing me? I sure will. I saw her last night. You’d think it would be double for me tonight.

Male: Roell: Male: [Laughter.] Male.: Roell:

Thank you. Anyway, I don’t know why I’m here because if nobody has ever been disciplined because of a HMO complaint, if that’s the truth then I’m not here. I don’t have any excuse, but in reality the principal healthcare turned in something. I crossed words with him and one of their cronies and I got 129 complaints about mistreating patients. It was brought down to 30, down to 18, down to 12, finally down to 10 when it met the board. The board rejected four, the other four I was cleansed of. However, I met a guy named, I guess I’ve got two first, the other first was that there was a medical expert, Keith Miller, was his name and he claimed that one of my patients was supposedly being investigated, even though she died and stayed in her home for a week in 123 temperature and we scraped her off the floor, I killed her. The autopsy said she died of natural causes and that’s when it started. And then, so he took this on, he added this new case on. [Inaudible off mic 1:09:36] So anyway he brought this new case up, even though I was cleared of all the rest at the very last minute I am accused of killing one of my patients. Had no idea, nobody had any idea, he must have known something that the coroner didn’t know. And so we were stumbling through this one but the HMO by this time, seeing that their cases are a little bit light, there is a physician on their committee who was sort of adversary to me. He falsified hospital records. One of his patients came in that I had previously seen. She was having an acute heart attack. He changed the diagnosis to an acute overdose caused by Dr. Roell an then while she is having a heart attack, could not validate

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it, but while she is having the heart attack made the diagnosis, all the paperwork, sent her to a mental hospital under the care of the psychiatrist, while she is extending a heart attack. And, this is the sentinel event, right then they knew they had me. I didn’t even figure it out. I didn’t know what they were saying. The judge said, “Don’t you know that one of your patients almost died of an acute heart attack?” And I said, “Your honor, I had no idea.” And so for the first time I’d ever seen the record their lawyer is putting it up in their hands and saying, “Don’t you know? Don’t you know?” I didn’t know. I had never seen the record. And, it wasn’t until after the decision was made that I was going to be sanctioned that I ever had a chance to look at the record. Well, by the time I looked at the record I figured it out. This guy falsified the whole hospitalization, changed it, almost killed this woman, transferred the woman to a psych hospital under the direction of the assistant to the HMO president. The bottom line is, when I took this evidence back to the board, they told me basically to get out, that I could not present this information because it was influencing the judges. So they wouldn’t hear the information, so I ended up getting sanctioned. I have a brief here that will show you that there was a conspiracy, sham peer reviews, denial of the due process and everything that everybody has talked about. I’m the poster child on that one. This all happened from about 2000 to 2002. In 2001 I had my hearing, 2002 in September I got a fax with a complete house full of patients, a fax, “Quit practicing medicine now.” No 30 day warning, 6,000 patients without a physician. I’ve never had a patient complain to the best of my knowledge, nor have I ever done anything to cause the demise of a patient. Now, read the website. Two things come to mind and the newspapers. I’m doctor feel good. I’m incompetent. I’m not credible. I’m a gold digger. I’m a murderer now, a drug addict and I’m to old to practice medicine and I’m a menace to society. So, if I were you guys I’d probably clear out of here. I’ve been called a lot of things but I’ve never been called a liar, unlike select members of the board. I spent 20 years in the military, flown over 125 missions over the north, received about 50 some-odd medals of recommendation and so on. I’ve done volunteer work throughout the whole free world, spent over $2 million dollars in medical supplies, equipment support for the local international organizations but I’m still a blight on the medical practice. I’m inept. The last seven years I spent not only defending myself and trying to get back into the good graces of the Texas Board of Medical Examiners but

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fighting a lawsuit. A lawsuit that was generated by Keith Miller when he said, “You killed this patient.” Well I’m happy to say Thursday, two days from now I’ll be standing in district court and Judge Johnson has told me all ready this was a frivolous lawsuit, has been frivolous from the beginning and he is sanctioning the opposing attorney. Economically, I’ve lost a lot. Lost my ranch, my business, my 401, my savings but I don’t think I’ve ever lost my integrity as some people here have. I was sort of feeling special there for a while because Keith Miller told me I was going to lose my license to ever practice medicine again and have an administrative $500,000 fee and to hear that somebody else got $750,000 sort of really destroyed my ego. It was only the intersession of H. Ross Perot that that $500,000 administrative fee was decreased and just dropped. I reapplied to the board. The first two years they said, “You can’t even apply because we’re not going to listen to it.” The third year it was basically from my attorney to their attorney, “Giving Dr. Roell his license back is the equivalent of releasing Charles Manson from incarceration and just as likely.” So, I applied 2005 put the whole system through the harassment, you can’t imagine the harassment, the loops and the hoops and so on, until the buzzer went down on 12/31/06 at which they say, “You’ve taken too much time on your application. You’ve got to start over. We’ve disposed of your application.” So, I’m in the process of reapplying. As I’ve said, I’ve interrupted what I consider a very nice career in the military and I had places to go, but I’ve always wanted to be a physician and I did it to make a difference, not a dollar. All I can say is that the Texas Medical Board is an organization unchecked in its power and manner equated to that of the Third Reich or recent dictators. To quote Napoleon, “Who is going to guard the guards?” That’s all I have. [Applause.] Chairman: Representative Van Arsdale.

Van Arsdale: How much did you say you spent on legal fees? Roell: For the board it was about $60,000 if not more and for the actual legal fees of defending this case about wrongful death, $70,000.

Van Arsdale: And, you made some comment about intervention by Ross Perot? Roell: Yes.

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Van Arsdale; Tell me about that. Roell: I, being the fighter pilot I am sort of had an end road to H. Ross Perot serving pro military. And I called him and he asked me what was going on. He called me back and I explained it to him and he basically said there’s no, I can’t use his language, but there’s no organization going to fine one of my constituents $500,000.00 and he stopped it.

Van Arsdale: Do you know how that happened? Roell: Chairman: Lucio: I have no idea. Representative Lucio. Thank you, Mr. Chairman. Doctor, I just want to thank you for your service. You speak of your military career with honor and I thank you for your service. Being in a family that has military background myself, I know the sacrifice that comes with that and I appreciate what you’ve done and that you afterwards continued with your education and became a doctor and I wish you the best and I hope things get resolved and you are able to continue practicing. Thank you very much. Thank y’all very much. Thank you doctor.

Roell: Chairman: [Applause.] Chairman:

Doctor, would you leave testimony for us if you have it available please? Thank you. The Chair calls Dr. Billy Mills. Do you testify against the medical board?

Mills: Chairman: Mills: Chairman: Mills:

Yes sir, I’m against them. I used to practice in Texas. Doctor would you give your name first, just for the record. Billy Mills. Thank you. I practiced in Texas for 42 years in Mesquite, Texas. I’m sorry my voice is about to go. And I had two cases that the board picked up. One a lady who developed a uterine cancer - I’m a family practitioner by the way. She had the type insurance that allowed her to have a family practitioner and a gynecologist. Numerous times I asked her to go to her gynecologist,

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she said, “Okay, okay I will,” but she never did. Eventually she developed uterine cancer, came to me bleeding and I sent her to a gynecologist. She didn’t go. She went to an internist and it’s a long story what that internist went through with her. Anyhow, she eventually filed a lawsuit against me. The depositions were taken and the lawyers didn’t find any reason to go forward with it so they dropped it. And in ’02, I was notified by the insurance company that it had been dropped. Then I had a guy who was coming to me part time, I was not his family doctor. He lived out north of Dallas in Plano out that way and he had doctors there that saw him. But he worked out near Mesquite so he came to me for convenient stuff, like if he had a sore throat or a rash or different things, infrequently he came in. He came for several years and on different occasions I asked him if, I said, “Are you going to be coming here? Should we do a complete physical on you?” “Oh, no, no, no, my doctors out in Plano do that.” Okay. So, he developed a urinary tract symptom and he came in to me and I didn’t like the way it sounded so I did a PSA on him and checked his prostate and I didn’t like what I found. So I sent him immediately to a urologist who diagnosed him with prostate cancer and sent him to an oncologist. Well, this racked on for a year or so, he called me one day and he said, I don’t have anything against you, but, I’ve spent my money, my insurance company has quit paying me so I’m going to file against your insurance company to get the money.” So, I wanted to tell him that the insurance companies don’t roll over like that. Anyhow, he filed. About that time, the board invited me down to talk about those two cases. They had picked them up somewhere. So, I came down not knowing that it was an adversarial system down here, but when I was talking to their attorney I said, “Well, do I need a lawyer or anything?” He said, “Well, I would recommend that you bring one.” So, I got a guy here in town, McDonald was his name and went down to the board. But when I walked into the board there was two guys from this board on there. One of them was a Dr. Curtsy, he was a cardiologist, and the other guy was a radiologist, not peers at all. It was obvious when I walked in there from things they said at first that they were, they had their mind made up that they were going to nail me. And after a few minutes of talking this Dr. Curtsy said, “Well we’re just going to take your license.” I said, “What? I got people in the office I’m supposed to see in the morning. I’ve got an office. I’ve got people there. I’ve got a wife and kids and that’s my job.” Well, they were going to take it that day, I just go back and close my office.

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So, we talked about it. The attorney and I went outside and he said we might can get them to take a, take a voluntary surrender of your license. I said, “Well what does that mean?” Well, he said it means you if you do, they’re not going to take it today, but he said I might can get them to give you a little time. So anyhow, he went and talked to them and they said well if he’ll sign voluntary surrender we’ll give him until when we meet again which was three or four months later, April to make it active. So they gave me three months. So, this shows I was a pretty bad doctor. They allowed me to have three more months to go back and work and then they were going to nail me. Well, as it turns out, I didn’t realize that when you agreed to something like that they were going to plaster it all over the world. They sent it to my other boards where I had licenses and also put in on the national data bank. And the national data bank it sounds like I actually committed some bad crime on these two patients. And on the one they printed out, I didn’t deny it or what have you. So anyhow, I signed the thing, now I wish I hadn’t of course. But, since then both of my other state boards, Alabama and Missouri, decided that they were going to ask me to surrender my license there. Well, I’d learned my lesson on that so I denied. I had to go to those states, my wife and I drove to Alabama and I went before the full board by myself. I didn’t take a lawyer. They had all the same material that Texas had. They had reviewed it and then I went in there and they’d asked me questions. When they got through talking to me they said, “Is this all there is?” I said, “Yeah, that’s it. That’s the whole case.” They said, “Well we don’t see anything wrong with that and we’re not going to do anything.” So, then I had to go to Missouri, Jefferson City, Missouri. They had all the same information. I had to send them everything. So, when I got up there they went over the whole deal with me and they had the whole board, it wasn’t two people like I had here. They had the whole board there. They asked me questions and they said, “Are you sure this is all there is?” I said, “Yeah, you got the whole file.” They said, “Well we don’t see anything wrong with what you did. We’re not going to go against you.” So, they didn’t they let me keep my license in Missouri. So, then I came back to Texas and had a trial from this guy that had prostate cancer. Spent a week down in Dallas in the courtroom and they exonerated me. In fact, they said that the guy that sued me was going to have to pay court costs and my lawyer fee and everything. So, they totally exonerated me. So, here’s two state boards and a court of law that couldn’t find nothing wrong with what I had done, but the State Board of Texas took my license

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on account of this. I practiced 42 years and that’s the only two cases I had in 42 years. In fact they said in their little summary, they said that I had had no other complaints before the board at all. I spent 24 years in the United States Air Force Reserve in active duty, was a medical doctor flight surgeon. I got commendation medals from the Air Force. I’ve practiced in many of their hospitals including the Air Force Academy. I was the team doctor for the North Mesquite High School team for years. I was on the Board of Health there on the staff of the Presbyterian Hospital in Dallas, on the staff of Mesquite Community Hospital in Mesquite and like I said, never had anything against me from a hospital, a board an insurance company, anybody. Never had an arrest for speeding or anything and yet I got slapped in the face and treated like an axe murderer by my own state board. I feel like my license should be reinstated. They should give me an apology for it and expunge my - the crap they put on the national data bank. You don’t realize what this costs a doctor. When you go to apply for a job, right on the application they ask you, “Have you ever voluntarily surrendered or had a license surrendered or been sanctioned or blah, blah, blah?” And if you mark yes on there, chances are you’re not going to get the job. Luckily I found a - after they reinstated my Alabama license, I’m currently in Alabama working. I flew over here for this meeting. But, I’m working there five days a week, eight hours a day. My wife and kids are staying at home here and I’m living in a house trailer over there and all that just on account of abuse of power by a legislative body. I think they are out of control. You should take them down. Take the power away from them. Give them somebody to answer to. They have nobody to answer to. They answer to themselves. I was told at that time, they said, “Well you can appeal it. You can appeal it.” The lawyer I had said, “Well yeah, you can appeal it but it’s more of the same board.” I said, “What if we go outside of the board?” “Well,” he said, “the lawyers, the judges in town are leaning for the board.” He said, “Your chances of winning anything are slim and none.” So I took the deal and I’ve been screwed by it ever since, big time. Insurance companies won’t insure you. HMO, I mean you can’t get jobs with these companies that send you around to different places. They won’t even talk to you. But, I luckily found a spot over in Alabama and that’s where I’m working now. Thank you. Chairman: [Applause.] Thank you doctor, hold on one second.

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Chairman:

Doctor, thank you for coming all this way from Alabama to share your storey with us, it’s appreciated. Next we have, please forgive me this is the doctor’s handwriting so it’s hard to read. William Ray, is that correct? Is that correct? From Dallas, Texas. [Inaudible off mic1:34:40] Thank you doctor, please state your name for the record. I’m Dr. Bill Ray from [Barmill ??] Health Center, Dallas and I’ll be very brief. Thank you doctor. I certainly feel privileged to give this testimony because I’m quite concerned about the quality of care in the State of Texas as everybody in this room says they are. I would like to point out that the freedom of choice for the public to choose medical care has been put at risk by the Texas Medical Board in my opinion. Many of my friends and acquaintances have been damaged by their over reaching tactics and snap judgments, thus decreasing the quality of care for the public because many physicians are afraid to do what it takes in exceptional cases for the patient. My case is a prime example of this. Approximately two years ago I had an inquiry with the State Medical Board saying I had five anonymous complaints regarding the standard of care, or I had anonymous complaints regarding the standard of care of five patients. All patients, incidentally, were from New York and none of the patients were complaining of my care and two said that I had saved their lives. Yet there was one thing they had in common besides being from New York and that was they all had insurance through the same company. There is no doubt in my mind that the complaint against me came from an insurance company or their surrogate, who did not want to pay these patient claims. I don’t take insurance, so it is between the patient and the company. My rebuttal to these claims included letters of satisfaction to all five patients. Nonetheless, an anonymous reviewer not in my specialty, reviewed these cases without me getting to know who he or she was or more importantly his or her qualifications. My reply included a step by step analysis of over 100 patients with 100 accompanying documents. Apparently no one read this because I was told to appear at an ISC run by Dr. Keith Miller, who recently resigned from the board and you’ve heard about him all day. I introduced not only the letter in support of the five patients in question, but the reports of 17, unbiased peer reviewers who represented two medical societies accredited for continuing medical education for licensure

Ray:

Chairman: Ray:

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in the State of Texas. Many of my colleagues, as well as myself, have used these credits and have maintained our licensure in the State of Texas yearly for more than 20 years. Also, there is a recognized board of environmental medicine which performed a review in my case. This was also submitted for review by the state board and all found that I met the standard of care, or actually exceeded it. My professional background is that I’m a cardiovascular surgeon, a Chief of Cardiovascular Surgery at the Dallas Veterans Hospital at one time. I was the assistant professor of cardiovascular surgery at the University of Texas in Dallas, Chief of Surgery of Brookhaven Hospital Medical Center and I was the first appointed World Professor of Environmental Medicine at the Robins Institute, University of Surry in England, and this is a British toxicology unit. I have written over a 135 peer review scientific papers published in many medical journals and written chapters on cardiovascular disease in the environment and several textbooks. I have written the classic, full volume textbook personally on chemical sensitivity and lectured to learned medical societies and universities around the world. I currently teach the post graduate course for continuing medical education for physicians for licensure credit, not only in the United States but also in the State of Texas. This course includes the standard of care for this particular specialty of environmental medicine. By conclusion, I’m qualified to know what the standard of care is in my practice. Unfortunately for me, the reviewer and the staff did not even read my 200 page response and I continue to be subjected to this process as a result of an anonymous complaint which I believe was initiated by the insurance company and the board paying the patients’ claim. The Texas Medical Board needs to be reformed because the citizens in Texas have a right to medical care of their choice and physicians like me should not be subjected to anonymous complaints and it violates my due process right. Thank you very much. Chairman: [Applause.] Chairman: Riddle: Representative Riddle. Dr. Ray. First of all Dr. Ray, I think that from everything that I’ve heard about you and from everything that I know, quite honestly I think it’s a privilege to have you as a physician here in our state. But one of the things that is making me absolutely furious and I’m just going to say it Thank you, doctor.

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right here is the people behind you and the expressions on their faces of such arrogance while a man of your character and of your accomplishments and your dignity is sitting there testifying. You folks need to be ashamed. [Applause.] Dr. Ray: Chairman: Thank you. Thank you for your testimony doctor. I appreciate you being here today. Next we have Steven, is it Hotze? Katy, Texas. Testifying against. Dr. Steven Hotze, Houston, Texas. Thank you for being here. The Texas Medical Board is a poster child for a regulatory agency gone berserk. Like a mad dog, it’s wounding and destroying the lives of hundreds of capable and caring physicians, some of whom those stories you’ve heard today, as well as the lives of thousands, tens of thousands, hundreds of thousands of their patients. The corrupt leadership of the TMB is driving a wedge between patients and physicians. You’ve heard from patients today. Malicious, anonymous complaints are filed against physicians. Anonymous, socalled, so-called experts hired by the TMB for the sole purpose of discrediting those doctors in secretive meetings which are conducted without due process. The physicians, as you’ve heard today, are intimidated and forced to sign agreements under the threat of license revocation. You’re right, Representative Riddle. This board should be ashamed of itself. I’m ashamed of it. [Applause.] Hotze: The fact that these same tactics were used by the Gestapo in Nazi Germany. Communist regimes intimidate and silence individuals by using star-chamber tactics, cloaked in secrecy. No notes. No tapes, all confidentiality because they don’t want to expose treacherous behavior. I’ve seen it first hand. The accusers and witnesses are anonymous and the decisions of who determined. This is the way the TMB investigates and disciplines physicians. The Texas Medical Board is denying physicians of their Constitutional right of due process. People are talking about, “We give due process.” But you can go to an SOAH hearing and get exonerated and go back and have the Board overturn the whole thing. What is that? Is that legal due

Hotze: Chairman: Hotze:

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process? Is that having the right to talk to your accusers or question the accuser or question the witness? Is that due process? The hell with this administrative process. That’s what’s wrong with the thing. It’s the administrative process. They cloak it in due process. The TMB allows anonymous complaints by insurance companies. These anonymous complaints target physicians who oppose insurance companies like Dr. Ray, like Dr. Campbell, like many of the physicians here, Dr. Mahoney and myself. Their so-called standards of care which is what? Limit treatment options, deny claims, increase insurance company profits. The TMB then destroys the physicians whom the insurance companies have targeted. This makes a crucial lesson to any physician who would dare challenge the insurance company’s policies on patient care. It is unconscionable that the TMB would directly advance the insurance company’s agenda at the expense of the doctor-patient relationship. Most egregious is Dr. Ray’s case. You just heard about it. That is – the man should have a Noble Prize and they want to strip him of his license. I will fight them to the end. I promise you, Kalafut and Patrick and Mari Robinson and Bob Johnson and Nancy and the rest are going to be long gone before Dr. Ray’s license is going to be removed if I have anything to say about it. [Applause.] Hotze: I’ll be on the radio every day. I’ll write an editorial every week. I’ll talk to every legislator there possibly is. We will be victorious in stopping this and getting these folks removed from the board. I’m committed to doing that. When I set my mind to something it gets done. It always has and it will in this case. Now, what is the solution? Here’s our goals: Texans for Patients and Physician’s Rights recommends for consideration by the Texas Legislature the following goals for adopting legislature which will inform the Texas Medical Board. The elimination of anonymous complaints from insurance companies, hospitals, pharmaceutical companies, attorneys [inaudible 1:45:53] disgruntled employee, patients. If you’re going to file a complaint stand up and file the complaint. Put your name on the line. No more anonymous expert witnesses. No more star-chamber proceedings held in secret. No more prohibition of notes and recordings in hearings. Don’t tell me Dr. Kalafut that you can take notes. You were in my hearing when you intimidated my personal assistant and told her to shut off her computer. You stood up and made an

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ass out of yourself. It was horrible. If I hadn’t been in such a precarious situation I would have given you a good tongue lashing. You deserved it. Your momma needed to take you over her knee is what she needed to do. No more denial of due process. Eliminate that. Disseminate discipline from any trivial findings are going to be eliminated. Elimination of intimidation tactics. Elimination of manipulation of assignments. Elimination of forced settlements and conflict of interest. We want the sacredness of doctor-patient relationship, transparency of charges, accountability for TMB members, integrity of board members and acceptance of and giving equal right to the evaluations of physicians cared by physicians other than those chosen as so-called expert witnesses by the board. We’re also recommending that the Texas Legislature establish an independent public Texas Medical Oversight Committee, the members of which will be appointed by the Texas Legislature to ensure that the above legislative changes that we recommend are enacted by the board. This committee would report its findings to the Texas Legislature. This committee would also receive and evaluate complaints from patients and physicians who feel that the TMB has acted unjustly. As I said before, there can be no truer form or side of that process. It’s about people. It’s about leadership. There can be no truer form of the medical board without removing the current leadership. Don Patrick has got to go. Mari Robinson has got to go. Roberta Kalafut – we all ready got rid of Miller. He was part of the ball. You’ve got three more that have got to go. Let me say one last thing. It is wrong for a physician to use her power on the board to have her husband to file anonymous complaints against her competitors in her community. Chairman: Hotze: Chairman: Hotze: Chairman: Hotze: Dr. Hotze? Yes? We need to quit personalizing this please. It is personal. I understand, but we agreed we wouldn’t do that. I’ll have to ask you… When they’re getting ready to take away your license and destroy your life it gets pretty personal Representative Brown. I appreciate you holding this hearing. Thank you for the opportunity to testify. Yes sir.

Chairman:

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[Applause.] Chairman: Kuhne: The Chair calls Dr. Chris Kuhne. [Inaudible, off mic1:48:56.] My name is Dr. Chris Kuhne. I practice in Plano – in Frisco, Texas. I don’t think I can follow that. There’s no way. I did have written testimony. I can provide that to you however. I think I’ll just keep my testimony pretty clean and short. I’ve been in practice for approximately 17 years, private practice, solo practice of OB/GYN. I trained at Parkland Hospital in Dallas. I’ve had a fairly unblemished career. One incident however occurred in 2005 when an attorney who was a patient of mine requested her records. At the time my father was also an OB/GYN was getting ready to retire. He’d given me quite a few charts. Some of his older patients really wanted a doctor more like him so they requested quite a few charts. So I had quite a time copying charts. But nevertheless I scanned every chart I’ve ever had on every patient I’ve ever seen. They were made into .PDF files in computer hard drives. My charts were all in there. However, I was getting rather overwhelmed with the number of requests, excuse me. I looked for some way to cover the cost of my employees copying these records and so forth. So I found that the hospital had posted their charges for copying records. I looked at it and it was apparently based upon the Texas Health and Administrative Code. So I generated a form. This particular patient who had requested her records I sent her that form. It calculated the fee for the copy of chart. I don’t know how many pages it was. I sent her the letter. I didn’t hear anything back from her and it was our policy to just send the letter, put it in the chart and refile the chart so we don’t lose it. When we hear they paid the administrative fee we pull the chart back out and mail it off and document that we mailed it off. It seems like a few months went by and I didn’t hear anything from anybody. I actually had forgotten about the request. She wrote a letter back to me saying, “I hope you’re not holding my charts for the money I owe.” Not the money that she owed for copying the records, but the money that she owed that she didn’t pay on her bill.” So rather than mess with [inaudible 1:51:53] I quickly sent her her records. I didn’t think I would hear anything more from it. It seems like a few months after that I get a letter from the State Board saying that – very vague as you’ve all ready heard, very vague allegations of failure to – or violating Health and Practice Act. I explained myself.

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I didn’t want to go through all of the steps that I went through this. It’s essentially the same sequence that you heard earlier. They opened a preinvestigation and did an investigation. They asked me to come down for an Informal Settlement Conference. I couldn’t believe it, but I did it. Knowing that the board had – could be quite volatile, even unpredictable, I hired two attorneys. When I went for my Informal Settlement Conference it was presided by this fella named Dr. Keith Miller whom my attorneys tried to [inaudible 1:53:07] essential shut up, that they didn’t want to hear anything from him. I didn’t get to say much either. Three words and that was it. He was judge, jury and executioner, fining me $1000. Of course there was going to be an official posting on the website and so-forth [inaudible 1:53:30]. However the formalities of it is they send you an agreed order because this is an Informal Settlement Conference. When I got the Agreed Order I just [inaudible 1:53:45] and didn’t sign it. The next step of the usual course and referred it to administrative law judge at a SOAH hearing. The judge heard the whole case, was apparently shocked at how it occurred. He took an extraordinary step when it came time for the next step in the process which is to present the case before the full board. The administrative law judge found in my favor and ruled unequivocally to dismiss the case. She presented the case in person to the full board. The full board then met behind closed doors for quite a bit of time, came back and simply just overruled the judge and raised the fine to $2000 and required me to take a jurisprudence course and subsequently presented me a letter telling me I need to pay this fine in the next couple of months. It was really unbelievable that this is what happens. My case is [inaudible 1:54:56] but it has cost me $20,000 - $30,000 to defend. I don’t know what’ll happen next but I feel very strongly about standing up for yourself and not giving up when you’re doing the right thing. Whatever happens next, happens next. I just made an appeal to district court. I can’t imagine this has to happen. It seems like a huge waste of taxpayer dollars. But this is what happened. I don’t have anything further. Chairman: Riddle: Members, any questions? Yes, Mr. Chairman. Going back into what happened, he said somewhere around how much money in attorney fees? Somewhere between $20,000 - $30,000. Then that doesn’t include your lost time and…

Kuhne: Riddle:

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Kuhne:

Lost times. This is a pretty busy obstetrical practice. When you’re worried about your license being revoked, and especially when they publish it on their website or in a newsletter it doesn’t do much for your reputation. What about – didn’t all of this really start over about a $44 discrepancy? Yes ma’am. I had apparently according to the board’s rules they had written in 2004. How am I supposed to know that the board is responsible for legislative or being an authority on copying charges. Of course they’ve had some rules about transferring records and the time frame for the transfer, but they had no rule about how much a physician could charge for records. Those rules were all ready really comprised by that schedule I used. The board had their own schedule and I was supposed to know it. So according to the Board’s calculation I had overcharged her by $40. So you were kind of a menace to society over $40. Okay, thank you. Any other questions members? Thank you doctor. Thank you very much. We appreciate you being here.

Riddle: Kuhne:

Riddle: Chairman: Kuhne: Chairman: [Applause.] Chairman: Trompler:

The chair calls Dr. Vicky Trompler. My name is Vicky Trompler. I’m a board certified emergency physician. I’m a practicing attorney and now that I’m over 50 I’m a patient more than I would like to be. I come to you speaking with all of those hats. I do believe in a strong board and I also believe in a level playing field. I’ll be very short because Tim Whites took care of most of the points that I wanted to make. But I did want to refer you to the full board meeting which I attend quite often. The one particularly on June 7, 2007 there was some discussion regarding expert review. Two statements were made in this open meeting which were very concerning to me both as a patient and as a physician and an attorney. Mari Robinson whom you’ve heard from many, many times today all ready made the statement that we don’t encourage medical literature review by our experts. That comment was made in response to some questions by some of the board members who didn’t understand why the board experts didn’t have medical literature to back them up.

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At the same meeting Ms. Fredericks, which she must have stepped out. She’s hard working and I’ve been in front of her many times. She reads her records. She made the statement that she gives the heavier weight to the TMB expert opinion. Again, I want to say that she works very hard and she reads I think more than a lot of the folks why my physicians are in front of them. I represent both hospitals and physicians in administrative and civil law proceedings. As a patient I would hope and expect the medical board to judge my physicians based on science and the medical literature when evaluating the standard of care. I would be concerned that the TMB did not encourage literature review by the experts. As a physician I would like the standard of care and I would like my standard of care to be judged as based on evidence-based medicine and the medical literature. So I think that’s fairly important to look at that. As an attorney I would have great concern about a medical board that automatically gives greater work to the medical board expert opinion without analyzing the qualifications of both and the backup, the medical literature that they base their opinion on. I think that’s very important. I’m not – I think it’s an easy fix and I think it’s a fix that most of the physicians on the board would want to be judged by evidence-based medicine. So basically all I’m asking for today, and I think it’s an easy fix either internally by the medical board or by the legislature, I think that the experts, the TMB experts need to be – they need to be known first of all so that you know their qualifications, and you need to know their reasoning. All I’m asking for for my physicians that I represent is a level playing field. That’s all I had. [Applause.] Chairman: Any questions members? Dr. Patrick, I think in all fairness, I don’t know if you’d like to come up and talk about some of the testimony we’ve heard. There’s always two sides to every story. I want to be fair to you. Would you… There would be too much for me to cover fairly. Thank you. [Inaudible off mic 2:02:50] Dr. Patrick, would anybody else from the medical board want to come and…? [Inaudible off mic 2:02:00] Mari?

Dr. Patrick:

Chairman:

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[Inaudible.] Robinson: Chairman: Robinson: With regard to the comment about insurance companies. Yep. Mari, give your name again. I just want to – I’m sorry, Mari Robinson with the Medical Board, Director of Enforcement. The materials we submitted and what we said today, we never said that insurance companies did not file complaints. We said that it was 1% to an eighth of those complaints. We know that they’re there, it’s just a small percentage. The groups that we’ve been asked about, we’ve not been able to find evidence of a pharmaceutical company filing a complaint. I just wanted to make that clarification since it seemed to be misunderstood. Unless it’s anonymous, and then you say you don’t know. Obviously if it’s anonymous and there’s no identifying information we can’t tell you who filed that. A couple of other very quick things and then I’ll just turn this over to Doctor, excuse me, Mr. Turner. A few things that were mentioned I just wanted to let you know that we’re all ready working on like the diversion program that was mentioned by Mr. Whites. I actually meant with the TMA on Friday. We have been consecutively meeting with them. We had a conference with them to try to put together a potential diversion program to try to increase and address that problem. The other thing that I would just like to tell you is I believe that you got a part of the story. But what some of the physicians failed to mention to you, and that includes Dr. Campbell and Dr. Roell and Dr. Paine and Dr. Chalifoux is that the ALJ found violations in every single one of those cases. It wasn’t something that the board overturned. It wasn’t something that the board instituted different. The ALJ found those violations. Now the penalty may not have been the one the board instituted, but those violations were found by the ALJs. Not everything was dismissed. Not everything was recreated by the board. And finally with regards to the last physician I believe you heard testify, Dr. Kuhne? This is a good point in general. The board statutorily is required to report the orders on its website as well as the formal complaints as petitions that are filed. If the legislators does not want those petitions up there after a complaint has been dismissed, we can remove it if the law is changed. But currently the law requires us to post those things and the federal law requires us to report to the national practitioner database. That is not something that’s within our discretion. We have to follow the law on that.

Female: Robinson:

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Dr. Kuhne said he had an unblemished record. He had a prior agreed order with the board for inappropriate comments to patients regarding oral sex. So it is not – it was not a brand new order of a physician who had absolutely no history. I just wanted to make sure that you had all of the complete information. I’ll certainly turn this over to Mr. Turner. I know that we will be working very diligently on gathering all of this information for all of you on everything that you’ve heard today so that you can have all of the documents and you can see all of the information. Male: Chairman: Male: Mr. Chairman? Before she leaves I actually have a question. Mari, would you? I’m not sure whether or not it’s the appropriate procedure, I just want to know if it’s done, comparing it to other legal proceedings. Sure. Lesser sentences, lesser measures are taken against those that settle a case prior to going through the process. That’s exactly right. Is that also what happens at this level too? Yes. We’ll slap you on the hand if you don’t make us go through this entire process? Well, it’s like any other settlement process. When you go forward and say, “We will settle this matter with you,” which is what an informal settlement conference is. “We will settle this matter with you for an X thing.” For example let’s say we think 20 hours of CME and an admin penalty would be an appropriate settlement offer in this matter, once this settlement offer is rejected, that offer is no longer on the table, exactly the same way it would be in criminal law, exactly the same way it would be in a civil lawsuit. If you offered to settle for $20,000 and the person doesn’t take it, then that offer is no longer on the table. Then it is up to whatever happens at trial. The difference there though is when you’re talking about a civil matter you’re trying to settle with an opposing counsel who is not also the [trier ??] of fact or necessarily in the trier of facts realm of authority where here

Robinson: Male:

Robinson: Male: Robinson: Male:

Robinson:

Male:

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you’re the trier of fact and the opposing counsel, and the judge and the jury. It just might not lend itself to the same. I could understand if I was a doctor and I was going and I was meeting with counsel – I know you have a tough job. I’m just saying it may be something we look at. “We can settle with you now for $1000 or if you don’t we’re going to go after your license.” I can understand how that can certainly seem unjust. Robinson: I certainly understand that. But in small cases we do not seek the revocation of somebody’s license.

[Several talking off mic.] Robinson: For example on a case where it was over – for example if it was something very small like CME or something like that and it had not been resolved. We are not going to seek the revocation of somebody’s license. We can certainly give you copies of every single petition we have filed this year so you don’t have to take my word for it. You can see it for yourself. I am more than happy to provide all of this information to you… Yes ma’am. …about everything that you’ve asked for because I believe the documentation will support what we have told you. Thank you very much. I look forward to getting that information. Mari, before you run off… Has there been any discussion about reopening cases that Dr. Miller set on? No, because Dr. Miller doesn’t have the authority to decide a case on his own. I can explain to you why that is. At the end of an informal settlement conference, as I said, an offer may be given to settle a case, but it is an offer of settlement. If the doctor does not believe it is appropriate, it can go to the state office of administration and go through additional mediation. In every order and every dismissal has to be approved by the board in full. Excuse me, every agreed order has to be approved by the board in full and every dismissal has to go through the DRC committee. One doctor cannot make the final decision on any matter. That’s simply the truth. So the fact of the matter is all of those cases are still how they are but they’ve all been through board review. Every single board review has been reviewed by the entire board and voted on by the entire board. Okay. Senator Van Arsdale.

Male: Robinson:

Male: Male:

Robinson:

Male: Chairman:

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Van Arsdale: ISCs where they try to come up with an agreed order, you made some comment about revocation of license is not – and then I hear all of these groans back here. You mention a lot about the documents and what the documents are going to show. It seems to me that what I’ve heard today and what I’ve seen in correspondence is that a lot of times the revocation of license which Dr. Patrick said those conversations take place, is done orally, not necessarily in writing. Robinson: No.

Van Arsdale: My point is, my point is I’ve heard testimony, I’ve seen correspondence and I’ve heard where there are oral representations where it’s discussed about revoking a license. Robinson: I’m sorry, but I believe that was a miscommunication. I heard the exact same thing you were talking about. And what it – you were asking what’s the worst penalty?

Van Arsdale: No, I’m not talking the worst penalty. I’m talking about when you just made the statement, “No, revoking license is not…” I heard a bunch of people disagree with you. Robinson: Yes, I know.

Van Arsdale: Now are they lying? Robinson: No, I don’t think they’re lying. I think they’re misinformed.

Van Arsdale: Are they delusional? Robinson: They’re only – again, I don’t think they’re delusional.

Van Arsdale: Or do you think there’s maybe something to what they’re… Robinson: I think they only know about that particular case. That’s what I think. That’s why I said earlier that I think if we could get more communication out that that would be good. Hold on one minute, Mari. Everybody deserves their day to come up here and speak. We have listened quietly to everybody that’s got up and testified. I will stop this hearing right now if I hear anything else. We’ll let one person speak at a time. We’re trying to hear both sides of a story. We want to help effect change but we can’t do that when the audience keeps badgering one person. Does everyone understand? Those are the guidelines that we are going to operate or we will not operate. Go ahead.

Chairman:

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Robinson:

Yes sir. Okay. During the ISC they do have a conversation. The ISC panel discusses what the appropriate penalty would be. That was the conversation that was being referred to when you asked, “Is revocation discussed at ISC?” Yes, when the panel goes into deliberations they discuss what the appropriate penalty would be. That may be revocation. It may not be revocation. But that is when that discussion takes place. That is what Dr. Patrick was referring to. As for this idea that there are oral discussions about revocation I will say two things. In some of the SOAH complaints we do say, “Up to and seeking revocation.” I’m not going to be disingenuous about that. What I said before is in minor violations it is not something that we’re always seeking revocation for minor violations. Additionally, if we don’t see it in writing, we can’t seek it. That’s the way formal complaints work. You have to say what outcome you want, what thing you’re going to be looking for in your prayer for relief. If we don’t ask for revocation in that prayer for relief, if we only say we’re seeking a restriction or an administrative penalty, the judge cannot say, “I think revocation is appropriate.” Because they go on what the board asks. Now in cases of standard of care, yes, absolutely. In cases where people are dying, absolutely.

Chairman: Robinson: Chairman: Robinson: Chairman:

Do you personally attend every ISC? No, of course not. There are 480… Then how can you possibly know what’s said at them? We get a report actually. I understand about reports and documents. I’m a lawyer. I understand that. Sure. What I’m saying is if you’re not personally there, how do you know what is said? I cannot say what was said at every ISC. I agree with you. I have about three other random questions. One has to do with witnesses at these hearings. I’m reading the administrative code. It looks like it’s called Rule 187.18. It says that the board shall allow

Robinson: Chairman:

Robinson: Chairman:

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presentation of oral or written statements or testimony by witnesses at the ISC. Robinson: Chairman: Robinson: Right. Do y’all ever exclude witnesses from the ISCs? They’re always allowed to give their statement or make their oral presentation. They may not be able to be present for the entirety of the hearing. But they’re allowed to come in for the physician and… Sure. Yes. Another subject here had to do with – this is Rule 107.21 where it mentions several members of the board or the district review committee will conduct the ISC. Right. How many board members are there, 19? There are 19. How many district review committee members are there? I think there are 30, 29, 28? 28? And then the subsection beneath that says that board members and district review committee members are required to serve as representatives at the ISCs an equal number of times a year. Is that – can you get me or can someone at TMB get us, the committee, for the past year, show the distribution of ISC attendances by board members and district review committee by member? Yes, absolutely. Okay. And then one other thing, the last thing I would like to ask about has to do – something about the state law that we require y’all to put things on the web and that needs to be changed that we have to do that. Is note of disclosure given to the physician that that’s going to take place? Do y’all disclose to the physician that if you sign this or agree to this we’re going to put you on the web? Is that…? We tell them that it’s public and it’s reportable.

Chairman: Robinson: Chairman:

Robinson: Chairman: Robinson: Chairman: Robinson: Chairman:

Robinson: Chairman:

Robinson:

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Chairman: Robinson:

Does that tell them that it’s not reportable, but required to be reported? Again, I’m not a party to every one of those discussions. I know that when they try to discuss it they try to be as honest as possible because we essentially do not want somebody coming back and saying, “You told me this would not be reported to the National Practitioner’s Data Bank and it was.” Or, “You told me this wouldn’t be on the website and it was.” So we try to be as honest about that as possible. I don’t know if those exact words are said in every case because often times our staff attorney is dealing with attorneys that deal with the board every day. So those attorneys know. They know what is reportable. I just heard a couple of people testify that they wouldn’t have agreed to certain things if they knew that their name was going to – I didn’t know if that was like a miscommunication or… Well in all honesty if the defense counsel – if they did have a lawyer their lawyer should be informing them of that. If they ask us about that, we certainly will. But again, it’s something we could communicate if we can institute a program where we go out and give people more information about the board processes, about the effective rules, and even better, the rules in advance so that people don’t violate them to begin with. Thank you, Mari. Mr. Turner, do you have – would you like to? Thanks Mr. Chairman. My name is Tim Turner. I’m a public member on the board. I really don’t know where to start. I was under the impression that this hearing was going to be on appropriations and appropriation matters. If I knew that we were going to this level of discussion I think we would have invited a number of patient advocates to come and present before you today to give you their side of the story. The thank you letters we get from patients doing what we need to do to protect them from unscrupulous doctors that they have had relationships with in one form or fashion. Be that as it may, we have learned a lot today. There have been some very good suggestions made. There are still other areas where I think we can improve on. Given the testimony that you’ve heard today, Representative Lucio I commend you for your willingness to sign a confidentiality agreement. I will ask the board staff to send an agreement to every one of the members that have been presented here today so that you can get – as Paul Harvey says, “The rest of the story.” You’re not hearing all of the facts.

Chairman:

Robinson:

Chairman: Turner:

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You need to see the details in these cases so you understand what we look at when we make our determination. I encourage you to do that. Representative Riddle, you as well to do that. We’ve offered it to Representative Brown to do the same. Every one on this group that was here today I will assure you, I will personally deliver the document to you. I would like to have a similar hearing just like this, no doors closed, no cameras, with these files and a sample of other files that we have had where we have spent hours reading the medical records, listening to testimony, hearing from patients and then doing what we believe is the right thing to do. We’re talking about 19 volunteers and being berated like being told that your mother should spank you over her knee? What kind of response? I have never been to a hearing like this in my professional career. I’m amazed. We talk about opening the process. Several other states when a physician has a complaint filed against them, a board immediately posts it on their website to state that this physician has a complaint of this matter relating to that physician. If we’re going to open the process up then I’m going to see that that’s something we do. Do the physicians in this state want that? No. I can almost guarantee you that they don’t want it. Go through the due process and if you find a violation then let the public beware. I guarantee you’ll get Texas Watch, Citizens Watch, whatever these patient advocate groups are and they’d jump all over that and say, “Yes, we want to know that somebody filed a complaint. And it may take 180 days, three, four, six, ten, twelve months, two years, whatever. We want to know if there’s an issue with this particular physician.” Take that into consideration. Representative Brown, you and I have talked about in the past the idea of deferred adjudication if you will. Keep in mind, this is my personal opinion, not the board’s. But I like the idea of this fast track concept. Dr. Patrick came up with a wonderful idea. We fully support it, streamlining the administrative process. The other members here, what I mentioned in the past was the idea of having administrative penalties dealt with in a deferred adjudication process where they are told, “You finish your CMEs, you get your medical records transferred in a timely fashion. Do whatever you need to do and in lieu of us publishing your name and having you sign an order, you go do community service at the local [FQAC ??] or the CHS or you provide clinical services at your local office and show us results of no patient billing or someone signing off on that.” I believe that’s a win-win. Now

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that’s my personal opinion, not that of the board’s. I think that should be looked into as well. Finally, there is one last item. Mr. – Representative Van Arsdale, I would like to clear up. The questioning of Dr. Patrick concerning employees and/or employers. He did the right thing with Dr. Miller. He went to the person that we are responsible to and that is the board president. When employee matters come up and came up before the executive director of this agency he takes swift action. A year ago, a little over a year ago we had a financial matter where we found discrepancies by our deputy director where he’s juggling funds from one account to another trying to make the thing work. We took exception to that immediately. I don’t know whether he resigned or we fired him, but he’s gone and he was gone immediately. A staff attorney went over and above her superior directors at doing what she wanted to do, not what our management asked her to do. Our executive director took swift and immediate action and she was fired. She’s been hanging around this hearing all day and she’s been actively involved in some of the communications that you may have received. I want you to know that he takes swift action. He’s done a number of great changes to this board, taking applications – the application process that when he came on was as much as 49 pages long. He’s got it down to as many as 6. He streamlined that process. We’re very proud of what this individual has done. He brings an M.D., J.D. knowledge to this board that I don’t know of any other state that has that type of qualifications as an E.D. of a medical board. You rated him at our June meeting. The executive committee of this board rated him on a scale of one to five, he may not like me saying this, but I think it was like a 4.7 or a 4.8. He has some areas for improvement. No one’s perfect. But we stand behind him and we’re very pleased with the actions he’s taken. So I don’t want you to be confused as his role as an executive director in relation to board members because we report to the board president. The board president takes the action in coordination with the governor’s office. As far as with employees, he’s quick and very decisive. I’ll give one other comment about Dr. Patrick. In my four plus years of being on this board, I have never been asked by Dr. Patrick to change my views, slant my comments one way, add this to a board order or dismiss it because I’ve gotten pressure from a legislator or this or that. Never once have I ever been asked that. Never once have I ever been aware of any other board member that has been asked that by this executive director.

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I am proud of what he has done. If you have any questions about his actions, please let me know. I would like to look into them. When I have heard complaints about Dr. Patrick I brought them up immediately to him and to our board president to which they were dismissed. There was nothing there. They were unfounded. We view what we feel like we’re doing as the right thing. We are following the laws that you and the senate have put before us. That is what we’re doing. If they need to be changed, we’re all for it. We would love to work with you to change the process for the better. I am a strong advocate for six sigma business process improvement. I don’t know if you’re familiar with those processes. I would love – I wish Chairman Isaacs was still here because I would encourage Sunset to start looking into those types of principles for state agencies to become customer centric and getting the job done with zero defects. In other words, you don’t lose mail. You don’t lose correspondence. You get it done in a timely manner. Every state agency can improve. There’s not one board member here or staff person who doesn’t want to do the right thing and who doesn’t want to see an improvement in the process. To be verbally abused is not the way to get it done. So in summary I would like to ask that we have a follow up hearing to this where we ask each of y’all to sign confidentiality agreements and we will go through with you some of the facts in any number of the cases you so choose and talk about the process. “Here’s the letter that went to the physician. Here’s his response.” And give you a walk from start to finish of what it is. Because when I receive these packets before an ISC date, I travel to Austin and get my $30 for, I read these documents. I’m amazed what is in this stuff and sometimes what’s not in these files. I go, “Well this guy or lady is guilty as all get out. They ought to be hung.” We get to the process and the doctor has a thorough explanation for everything that he did or she did. A lot of it has to do with attitude. You come in and start ranting and raving about how wonderful you are and how egregious you are and whatnot, as I gave advice to Dr. Hotze as to what he needed to do when he was called up here, I said, “Be humble. Tell the truth. Don’t lie. Be sincere. Give the facts.” His case was dismissed. He had Dr. Kalafut as an ISC panelist. She doesn’t let cases go very easily. She didn’t know who he was. He may think otherwise. We’re doing what we feel is the right thing to do within the purviews of the statutes given to us. Can we improve? Sure. Do we want to improve? Absolutely. Do we like to have open discussion as to processes and

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procedures to improve it? Sure. I’d like to have the patients here so you could hear their sides of the stories too. I don’t know that we’ve had any patients here. If we have, I missed it. I’m sorry. I’m very wound up about this because we work very hard. I can’t tell you the volume of paper. I’m thrilled that I’ve helped effect change to get this from paper to a digital format because we get boxes and boxes of material to read for every ISC or board meeting. Because we review – we try to review every one of these board orders that are coming up that the board has to vote on. It’s a thankless job, I can promise you that. I’ve said enough. Chairman: One thing. I want to apologize that I wasn’t in here when the verbal abuse started earlier. I had to take a bathroom break. Those things happen. If I had been I would have stopped it immediately because that’s not proper. There are two different fronts I want to talk about. Number one, until I came in here today I had no idea that you had cut your time in half from the time it takes to license a doctor. You and I had that discussion during the appropriations, all of those hearings. We set 51 days is the target date down from 180. So I applaud you for that. That is amazing in that short period of time since session has been over, you’ve cut it that dramatically. Number two, Mari I applaud you and Dr. Patrick and everyone else that is on this fast track program because that’s what needs to happen. That is so much of what we have come to talk about today has been about. It’s this long period of time. I applaud you for coming out with that. I think that will make a big difference statewide because those are the complaints that I hear about. I think most of the members up here hear about. Male: I want to say Mr. Chairman, if you don’t mind, is I do stand ready to meet with you because I do want the complete picture. I feel that this is an issue that’s not going to go away and we’re going to address in some fashion in 2009 so I want every bit of information that I can have. I hope I’m honored to be back on your committee, Mr. Chairman. I don’t know if that’ll be the case. They may stick me on an Ag Committee somewhere in the basement of a basement, but if I’m back here I will be well informed because I’m dedicating my time to all parties that have interest today to sit down and know as much as I can when that decision making comes up. I think there’s common ground for both sides. And that’s why we need to sit down with y’all and go over that. I appreciate that Representative Lucio and Representative Brown. I would encourage, and I look forward to a follow up hearing where we can share

Chairman:

Male:

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with you the confidential federally regulated information that we cannot disclose in a public setting so you can get the full picture. Riddle: Chairman: Riddle: Mr. Chairman? Representative Riddle? I don’t think that anyone up here would disagree, or anyone that has been up on the [inaudible 2:32:39] time today, that we started off today saying that your very purpose, the TMB purpose is to keep bad doctors from doing bad things to good people. The frustration has come today, and not just today, but from phone calls and emails and as I shared just a private conversation on an airplane back to Texas with over and over and over and over being told by good, reputable doctors that they personally feel like and their experience is not good with the TMB. They feel like there’s intimidation, that it’s not fair, that they cannot trust the TMB. I think that we’ve got to fix that. None of us want to have- I’m a grandmother of nine grandchildren. Seven of them are five and under. I do not want any of my grandchildren, or my children, or any of my constituents or anyone in Texas being harmed by a bad doctor. But on the other hand, I don’t want a good doctor being chased out of Texas because of some dumb stuff going on. I think that respect all the way around has to – and the attitude. You spoke of attitude. I appreciate your attitude. I cannot say that for the facial expressions and body language and some of that for those back here while there has been testimony. I agree with you. I think there does need to be respect back and forth, all the way around. When the attitude of the TMB is interpreted as being arrogant then the reception is not well received, just as it is not well received when a doctor comes before you with the same attitude. So I think that if we can agree, and I thought we did when we walked in, as to what the very purpose and the scope of your job is, that we do not want to be in an adversarial position. but it appears that an adversarial position is what has been created and that’s what needs to get fixed in my opinion. Turner: I’d like to answer one comment if I may, Representative Riddle. I think one of the facts of the matter here is the expressions that you referenced is the fact that many of the board members know of the facts of these cases. When people are up here making comments that are not true and we know otherwise. That is why I invite you to share in these files and review these files so that you will see what we know to be facts.

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Riddle:

Let me tell you, I got up at 5:00 this morning. I drove here. I have spent time going through all of this. We have invested a great deal of time, energy and effort. I think we are going to continue doing what it takes as the cable guy says to git ‘er done. That’s exactly what we’re going to need to do. Look forward to it. That’s all I have to say Mr. Chairman, thank you. Representative Van Arsdale.

Turner: Riddle: Chairman:

Van Arsdale: Mr. Chairman, I just want to say that the board members on the Texas Medical Board, Mr. Turner, Tim, is the only one I personally know. I know Tim to be a straight up, impressive guy. I’ve known him for a long time. I take his word with a great deal of weight just from a personal knowledge of him and the kind of man he is. What board members are still here from the TMB, still here today? What are the names? [Inaudible, off mic 2:37:16] Van Arsdale: But I will also say that I agree with you Tim that these hearings don’t ever get called to talk about – we don’t ever have committee hearings to talk about all of the right things. Just like our constituents don’t call us and email us to tell us – I can’t remember the last time I got an email telling me 10 great things I did as a state rep. Male: Just ten?

Van Arsdale: We get the calls threatening physical threats and things like that for converting toll roads and all kinds of things. But anyway this hearing, this is not meant to be anything in the sense of things TMB is doing right. That’s not what hearings are about. I can understand why you want to talk about that. I can understand where we’re basically hearing one side of the story and we’re not hearing the other side of the story. To the extent that people have come up here and lied or misrepresented or distorted saying that will be found out and their credibility will be hurt if they have done that. But I will tell you that when I walked in today all I had was allegations. That’s all I had. I had allegations from people all over this state. I don’t know who they are. I’ve had allegations from people I know. I’ve allegations from the Texas Medical Board, what I would consider to be allegations. I can tell you that the allegations that I heard about some of

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the individuals involved with TMB at the end of this day are no longer allegations because they were confirmed for me. When I saw certain individuals where I’d been alleged to be arrogant, defiant, on down the line, what happened today confirmed that to me. I saw that exact demeanor here with legislators. I can only imagine what it might be with doctors. Because we’re actually appropriators. I mean this guy is the chairman of the subcommittee. I think you’re right, we do need to work together to fix this problem. I think everybody here, I know the people up here. We’re willing to work and be reasonable. I realize people’s tempers flare when it gets late and people say hostile things. But this is America. Even though I think people sometimes mistreat each other, I did, I’m guilty of it, at the end of the day we have a government where people can speak their minds. Even though people make mistakes, I’ve lived in a foreign country and I can tell you that this is the best way to do it. Even though people do the wrong things and make mistakes, ultimately when everything’s aired and there’s transparency, the end result is that we get some really good product. I’ve personally dealt with some of the staff at TMB. I’ve found them to be very responsive and very competent, the ones I’ve dealt with. I do think there are a couple of problems base don things I’ve seen and things I’ve heard here today. I’m hoping the board, I don’t want to be on the TMB board. I don’t want to do – when we’re on appropriations in the spring we have agency after agency after agency come into this room just like we’re sitting here and do this drill. I don’t want to be on any more of those agencies and boards. I know you probably don’t want us messing with your turf. But I do think that there are some things that are going to have to be addressed. I do have some bad vibes about some things that to me were confirmed today. I look forward to working with you and your board. If there are any hard feelings, I hope we can get past that and move towards something constructive because I know how good of a guy you are. Turner: I appreciate that. You’ve got my phone number. Please call me. Thank you. Thank you Mr. Turner. The Chair calls Kim Patterson. Kim Patterson. Left? Howard Marcus, M.D. Howard Marcus, M.D. Laura [Bramlive ??]. [Inaudible, off mic 2:41:39]. Yes ma’am, that’s fine. Yes ma’am. I think we all are. Yes ma’am. Peter J. Dewitt, M.D.?

Chairman:

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Dewitt:

Good evening. I’ll be very short. I just want to say that my case pales in comparison to what I’ve heard here today. I know a lot of the physicians that have testified here today. Some of them are some of the greatest physicians in Texas like Dr. Ray, Dr. Mahoney, Dr. Campbell and Dr. Hotze. These are extraordinary, honorable physicians that hold very, very high regard, not just in this state but around the world. Those are the kinds of physicians that I look up to and that I strive to be. I practice medicine that way too. I spend a lot of time with patients and don’t take insurance. I don’t work with pharmaceutical companies even though I still prescribe medications sometimes. I practice a form of medicine called [endovire 2:43:21] medicine. I see patients from around the world. But I’m very strongly considering leaving Texas too. As a matter of fact I have applied for my license in another state. I’m in the very final stages of getting my license. By the way, I forgot to introduce myself. I am Dr. Peter Dewitt. As you can hear, I’m not from Texas originally. I’m a Wilshire farmer. I came from South Africa recently. My mother was American. So I had an easy time coming to the States. But I came here because I had a dream. I came here because I wanted to study holistic medicine which I couldn’t study in my own country because of the suppression of that type of medicine in my country. There was not a freedom to practice that way. My father died at a young age because he tried – because he practiced a form of medicine that was not recognized called chiropractic. In South Africa that’s [inaudible 2:44:24]. I want to see the freedoms to practice medicine in the best way possible continue in Texas. Texas has always been a pioneer state. This has always been an extraordinary state. They even have a protection act for the practice of alternative medicine. But because of the way things work, you can be [inaudible 2:44:48] to death by colleagues and competitors who don’t like the way you practice. I was an associate of internal medicine for seven years at the University of Texas Health Center. I left the University because I wanted to practice medicine the way I just stated. After I did that I started getting complaints to the board. I’ve had at least three so far. It’s been nitpicky things. I’ve never had a patient sue me. I’ve never had any other complaints but these three things. Because I haven’t had the money to fight these cases I’ve just had to settle. Every time I settle I know that that’s another black mark on my name, another report to the national database. That’s one reason why I’m getting my license in another state now and why I’m ready to leave, because I know one of these days I will be unable to get my license in this

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state. I basically, like a lot of these physicians, is being prevented from practicing my trade. I ask the board just like some of the previous speakers to help us to keep Texas up with good physicians and those who are truly dedicated to their patients. Thank you very much. [Applause.] Chairman: Any questions? Thank you doctor. Let the record show that Dr. Howard Marcus who did not testify was for the Texas Medical Board representing Texas Alliance for Patient Access. Laura [Bramlive ??]. [Inaudible off mic 2:46:46] is testifying neutrally. Kim Patterson, who did not testify was neutral and he represents physicians before the TMB. The Chair calls Dr. Larry Price. My name is Larry Price. I’m the Vice President of the Board. I’ve been on the Texas Medical Board for ten and a half years. It’s been an interesting day for all of us I think. It’s been also an interesting journey for the last ten and a half years and the transition that I’ve seen this board make. The ISCs when I first came on the board in 1997 were rather brutal. The ISCs made a decision, it went through the full board pretty much rubber stamped. There wasn’t a lot of questioning of that. There wasn’t a lot of instruction on how to be a board member. It took you a couple of years to figure out how to learn the ropes of that. It was basically learning from your peers when you showed up at an ISC. A lot of that has been formalized. A lot of rules and regulations on our procedural aspects of conducting hearings. We went through Chapter 190 that had to do with disciplinary aspects to try and I think the goal was consistency in that you had someone who come through with orders that the fine was $500 and somebody was $5000 and you didn’t quite know exactly why. So I think the board over the last few years that I have observed has tried to strive for a consistency so that we don’t get an egregious order for something that’s a rather minor violation. The other thing is we have been through three executive directors and about four general counsels. The management style changes and sometimes the emphasis changes a little bit as time goes by. We went through a little valley when the Dallas Morning News had a lot of criticism of us. This has almost been like a little wave. If you remember, it wasn’t that many years ago, but it was the fox garden hen house. We were criticized for being too hard on doctors and then we were criticized for being too soft on doctors. Now we’re riding the wave again.

Price:

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But you can imagine some of the fallout of what happened in 2002 with a lot of criticism of the board is that we weren’t hard enough. What’s the board going to do about that? Well, maybe the pendulum has swung. Maybe the pendulum has swung too far some people would say. I think there has to be some balance of that and we look towards our legislators and our statutes and our Medical Practice Act to help us achieve that balance. Let me give you an example. You’re a DPS patrolman out there. Somebody is going down the road and they see they’ve broken the law. We’ve all done that from time to time. Sometimes we get a warning ticket. Sometimes we get dismissed. Sometimes we get a ticket that we deserve. Breaking the Medical Practice Act and a violation there is a little bit different when we come to the point of discretion. That patrolman that stops you on the side of the road has some discretionary ability. When somebody comes before us it’s kind of black and white. We kind of have to decide did they break and violate the Medical Practice Act or they didn’t. There are a lot of things that are considered there. Was it something that was a pattern or this physician has multiple cases in which there’s concern or is this a single case, single bad outcome? As physicians as we look back over our practice we can all see people who may have had bad outcomes that we wished things had gone better but medical errors are inherent in medical practice. So I guess the message is we don’t have any warning tickets. We have some discretion at the time of ISC. We have some discretion when the process moves forward. That may be something that as legislative colleagues can assist us. We don’t have any warning tickets. If you get a violation you get an order or you get dismissed. We don’t have a lot of middle of the roads. There are some states that have what’s called a corrective action program in that a person may have gone to the wayside a little bit and they just need a little guidance to get back on track again. It may not necessarily be a bad doctor, but it’s not something that’s so – it’s something we can totally dismiss. Because we still have to be responsible to the patients and responsible to the public, many times it is warranted to take some type of action. We all know as physicians that a board order has many other implications besides just what’s read on the order. There are issues as far as public disclosure of that. There’s issues as far as insurance being kicked off insurance panels, hospital privileging and other issues that are far reaching.

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I guess my other comment would have to do with a fiscal issue. That has to do with this committee and in the legislature itself. We’re part of the executive branch. We get a lot of our direction from you. I had a case a few years ago of a physician who came for an ISC. We issued a board order but the legislator contacted us basically wanting the order to go away. I think in my ten and a half years on the board that the most difficult decision I’ve ever had to make. The legislator contacted some of our management staff and I kept getting calls that we wanted this case to go away. I didn’t really feel good about that. I didn’t feel appropriate about that, but we felt a lot of pressure to do that. So it came to a point of a decision, what’s best for the board? Do we compromise our funding and we compromised the collegial relationship that we have trying to come up with laws and regulations to help guide the practice of medicine, or do we stand by our guns? So we folded on that and we dismissed the case. I think we’ve all had kind of a bad feeling in our gut about that. So as a board we met and we discussed that. We considered it a threat to us. We’ve decided as a board that we won’t be threatened anymore. We’re just going to do our best job. With the resources we have, whether we’re fully funded, or partially funded or whatever, we’re going to go forward and try to do the best job we can. Thank you. Chairman: Male: Thank you, Doctor. Any comments? Yeah. Did I understand you to say that a legislator, that you think, it is your opinion that a legislator contacts you or the board members to try to pressure you into doing whatever you want to do that that would be wrong of you to comply with that legislator if you disagree with them? I think we make a decision on that and if it’s a legislator that contacts us and puts pressure that they want this case to go away because it’s one of their constituents, I don’t feel real good about that. I don’t feel that there’s integrity in that. You know, I think things are open for negotiation and things are open for discussion about that. But I think we went forward with that, learning from it that we’re just not going to take threats anymore and we’re just going to stick to our guns. And I agree with you. I guess what I’m trying to find out is did you know at the time you made the decision that it was wrong? That it was wrong?

Price:

Male:

Price:

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Male: Price: Male:

Yeah. No, we felt like we made a good decision about… You said that you dismissed something a legislator asked you to do and you felt it was wrong… When we dismissed it, yes. But we had to come to a decision point, what’s the best thing for the board here? Are we going to compromise and threaten our funding or are we going to move forward? It was just – like I say, the most difficult decision that we’ve had to make in probably 10 years. I’m sure that that’s a tough decision. I will submit that in any given case when you’re dealing with this position the only question you should ask, it has nothing to do with the legislature. I understand that is a concern. The only question you should be asking on that case is did the physician do something wrong or not? Period. If you can’t make that decision you probably ought not to be on the board. Our… I understand making tough decisions. We’ve got to do them too. But, you know, I believe that to – this is tough to hear. I understand your position. You’ve got some legislator or somebody who’s got some ability to do something to you who’s sort of pressuring you. We deal with that all the time. I think just personally our obligation, and I don’t always get it right either, but just if we can have sort of a Kumbaya here, our obligation is to do what is right based on that case. I totally agree. And that was our consensus agreement. Rather than let one or two people shoulder that responsibility, let it be a responsibility of the entire board whether we go forward with that case or we do not. That was our consensus. We learned from that. I think it was a mistake. I think we learned from that. I appreciate your demeanor and your attitude in this hearing. Chairman? Mr.

Price:

Male:

Price: Male:

Price:

Male:

Male:

If I could just follow up with that. We’ve gone through a lot of growing pains as a legislature. If you were to ask you folks who have been around this building for 25, 30, 40 years, they’ll tell you that committees and the process and the ways that those got passed and the influence on legislators was a lot different. I come in brand new. I only have one session under my belt.

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What I will say is we are contacted all the time, whether it’s for the funeral board, the Texas Department of Insurance, I haven’t had any phone calls regarding your particular – Texas Medical Board. But the way my office handles it, and I hope it’s not misinterpreted, is we feel a responsibility to our constituents. When they call us about an issue they have with a state agency, we call for info, information gathering purposes only. I would never ask, never, never, never, not even if it was my closest, biggest supporter who is in front of a state agency who was seen going under any particular process, I would never ask a state agency for any particular favor. But I will call to make sure the right policies and procedures are being followed. So I hope that in the future phone calls are being made and being approached in a similar manner as my office approaches it – and I always tell my staff. It’s usually staff that does it. Rarely will I call unless it’s just very egregious. I always tell my staff, “Don’t call and ask for any favors or any particular preferential treatment. Just ask about the facts and inquire as to whether the policies and procedures of that state agency were followed.” So I hope that that’s not being confused. If you were being asked to do something and specifically asked to do something, I apologize on behalf of those involved in the process. But in the future, I hope that you understand that we are under an obligation sometimes to contact you. Price: Absolutely. And that’s how we happen to see our role, is bringing information to you. As you see we’ve brought all of our staff today who has all of the facts and figures so that you get the story exactly right. I look forward to working with you. And we are going to share a lot of information. Thank you. Thank you. The Chair calls Dr. Lang Sebring. I’m Lang Sebring. [I’m not going to take my time ??] with what really happened with me and my dealings with the board. But there is one thing that is very near and dear to my heart and that’s the ability to practice alternative medicine. I fear the board in that regard. Some point in my career, about 10 years ago I realized I didn’t like what I was doing. I was prescribing prescription medications to people that we didn’t really know what they did. It was learned here recently that you can’t trust the FDA to protect us, that’s according to their own director. It just didn’t make sense to me in my idea of life on Earth and how I saw it. You don’t need for some sort of molecule that never existed on the planet prior to the pharmaceutical company making it.

Male:

Price: Chairman: Sebring:

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I started reading, going to conferences and attending physician conferences. I didn’t like what we did as doctors. After about two days I realized why, because they like doctors, they just thought they were misled. I started realizing they’re treating upstream at a causal level where the problem is. As physicians we’re taught to treat the symptom. We have a pill for each one. If you listen to your patients long enough, they’re going to tell you what’s wrong and you go, “I know what this is. You’ve got four medications. You need one. It doesn’t have anything to do with the pharmaceutical company.” Usually nutritionists – and I began learning this. It’s amazingly powerful. You’ve heard some other physicians that I think have discovered this as well. There’s another problem because doctors don’t know this, they don’t know this – we’re shielded from that information. The pharmaceutical industries own our medical journals. [Inaudible 3:03:34] she practices there, she teaches there. She said the pharmaceutical industry owns our medical journals. Nothing gets published except what they approve. That’s very interesting coming from her because she’s former editor-in-chief of the New England Journal of Medicine. There was a study done in 2005. They looked at the top four English language medical journals on the planet. They went back 4 years and they discovered that 90% of the published research had a financial conflict of interest, either the people who published it or the people who funded the study had a financial interest. So I guess the answer is it’s done. And if we don’t allow doctors to get together and to discuss and to use alternative medicines – by that I mean nutrition. And I do bio-identical hormone replacement. That means use our own hormones. That’s kind of a novel concept, using our own hormones for ourselves. We always use some prescription altered patent version of that. That’s what’s been improved. But it’s a lot simpler to be healthy than what people realize. I just, because I practice that I fear the drug – the State board. They don’t like that type of medication, that type of medicine. So I worry about that. I’m just here to say that I hope y’all look into this because I want the ability to do that. It’s very effective. The chance of doing harm is just about zero. It’s main vitamins. It’s mainly – the food we have doesn’t have the nutrition it’s supposed to have. When you study hunter-gatherers, all of a sudden there’s a whole new paradigm of health that shows up. You find out that they don’t have the

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diseases that we have. And by the way, their average workday is two and a half hours which means yeah, we’ve really improved things a lot. So they don’t have allergies. They don’t have asthma. They don’t have irritable bowel. I’ve had three mothers follow the diet recommendation and all three of them had babies that lifted their own heads at delivery. Mothers trying to get pregnant that aren’t able to do that, I just change their diet. I come from a very long line of very fertile women. So using these techniques we – I don’t treat diabetes too much anymore. I just change their diet and the diabetes goes away. It’s really doable and I’m talking about adult type diabetes. Some of the physicians here, we can go from a glycohemoglobin of 13 down to 5.0. That’s [inaudible 3:06:24] range from person in an average blood sugar around 360. It’s this diet. It’s eating food that we’re designed to eat. And when you learn what those are and what’s not food, then we can all do it. Disease began when we started eating food we weren’t designed to eat and those were grains. Grains aren’t food for anything on the planet. Grains don’t want to be eaten. They put toxins in it so animals don’t eat it. If they’re used to feed they can’t reproduce. Vegetables and fruits and dairies want to be eaten. So they provide animals with nutrition they want because 10 minutes down the road they’re going to deposit their seed in a pile of fertilizer on the countryside. So they’ve learned to feed the animals. Animals learned to live off of that. Now animals don’t want to be eaten, but too bad. When you eat them you get everything they’ve got. Brain size doubles when you start eating meat. If you look at the archaeological records in the history of human beings, we’re carnivores. I’m just going to say that and I’ll shut up. Everyone wants to go home. I just want to tell you about this. I think it needs to be known. Chairman: [Applause.] Chairman: The Chair calls Alex Winslow, Texas Watch. testifying neutrally. Dr. Harold Lewis? Is he gone? He was Members, are there any questions? Thank you Dr. Sebring.

Lewis:

Harold Lewis, family practice in Austin for 30 years. I want to thank the committee, the chairman for having this meeting. I think it’s been very helpful and answered many, many questions. I’ve learned a great deal.

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I want to talk tonight specifically about file number 040332 which is on file and is public information. In 2002 a third year medical student and myself were in clinic when a young man came in with warts on his hand that he had had removed. We had cauterized those warts three or four previous times and they kept coming back. He expressed his frustration to me that these warts kept coming back, is there anything we could do. I used electrocautery on the warts as I’d said, three or four times before. So I talked to the medical student. I said, “Here’s what I think we should do. Is infiltrate the area and we’ll take a wide margin around this cluster of warts and do a deep cautery in an attempt to get rid of them.” So we did that. Unfortunately, I didn’t know at the time that it was against the board rule. I’ve asked for this board rule to be presented to Dr. Miller but I never did get to see it. I stepped out of the room twice during the procedure to take phone calls. I never lost visual contact of the procedure. I thought I was in compliance with the rules of preceptorship as I understood them at the time. A year later I noticed this young man at the front desk. I could tell by his demeanor that he’s very upset. So after he left I asked the front girl. I said, “What was that about?” She said, “He came in and paid his bill. He had been turned over to collections.” I said, “I didn’t know that. He was upset about something.” She said, “Yeah, he just came in and said he wanted to pay his bill.” So I knew, sometimes you have a premonition. There’s more to this. This is not the end of this story. So sure enough, about a year and a half later I received a request from the medical board to send his chart. I thought, oh, okay, I know where this is going. So I sent it. I wasn’t worried. I wasn’t concerned. I didn’t really even become concerned until I had a conversation with Phyllis Anthony, which was the investigator that was assigned to the case. She called me at the clinic one day and said, “Dr. Lewis, whose writing is this on this chart note on this date?” I said, “It’s mine.” She said, “It’s not yours, you weren’t in the clinic.” I said, “Yes ma’am, I was in the clinic.” She said, “No, you weren’t.” I said I was arguing with an investigator with the state board, this was not good. So I got the notice to come down to the informal show of compliance. Dr. Miller and Dr. Starks I believe that’s how you pronounce his name. They ask you when you first go in to tell a little bit about yourself, so forth. So I said, “My name’s Harold Lewis. I’m a family physician in Austin, Texas. South Austin for 30 years.” They said, “Dr. Lewis, are you board certified in anything?” I said, “Yes sir, I’m board certified in family practice.” He said, “You better stop right there. You’re getting yourself in more trouble.” I said something to the effect of, “Well, I didn’t think I was in trouble. I thought that I was here to show compliance.” I refer to the ISC

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as an informal show of compliance to show that you are in compliance with the board rules. He said, “Did you take the ESMLE?” I said, “No sir, I took the AOA Boards, I’m an osteopath.” He goes, “You cannot say you’re board certified unless you have taken and passed the ESMLE.” Well, you can take notes. I was taking notes. So I took notes. On my notepad I said, “Call David Garza.” He was another D.O. that was on the board, and “Call the executive director and call the AOA.” So after that little thing, I think Dr. Starkes kind of knew better, but he didn’t say anything. He just kind of looked at Dr. Miller. Then we went on. I’m just going through the whole thing. They asked me some questions about, “How many cc’s of local did you use?” I said, “Well, I think it was 2 cc’s.” He said, “Well, you didn’t write it down in the chart.” Dr. Miller said, “You didn’t write it down on the chart so you’re going to have to take 10 hours of record keeping and 10 hours of ethics. We’re going to put your complainant, we’re going to put your accuser on the phone and let him give his statement. Then you can ask questions if you want to.” The findings of facts that Dr. Miller presented to me said that on September 26th of 2002, yadda, yadda, yadda. Number two, “The respondent was at another office and requested the medical student to perform the wart removal. The R.D. had never performed such procedure, requested that the respondent complete the wart removal so she could watch the procedure.” Response number three, “Respondent never appeared at the clinic during the procedure.” Number four, “As a result of this unsupervised wart removal, complainant has experienced significant scarring that required surgical correction by a plastic surgeon.” So I found out at this point in time the complaint was because the patient had to deal with the keloid scar. We tried to talk about the fact that you can never predict when someone is going to get a keloid scar. He had not gotten one before, but we had never burned as extensive an area before, burned as deep and cauterized as deep as we had before. We had talked about him with this and he had signed an informed consent which included scarring as a possible side effect of the procedure. Well, we talked about that. I said, “Phyllis Anthony has written down these findings of fact that are incorrect. I’m just praying to God that the complainant is going to tell the truth.” If the complainant lies and says I wasn’t present at the clinic I’m cooked. I can present staff, but who’s going to believe you on staff? You bring them in, I can present charts that I was there right before and right after, but how am I going to – it’s going to be my word against Phyllis

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Anthony and the complainant that I wasn’t in the clinic that day. So we had some discussion back and forth and then they put the complainant on the telephone. Actually, I have to say this. Dr. Miller asked me, he said, “Did you…” I can’t remember. One of them specifically asked me, “Dr. Lewis, did you do any of the wart removal?” I couldn’t remember. It was by now over two years since the incident. I said, “I normally do, but I have to tell you, I can’t specifically tell you that I did because I don’t remember. I just know that I always do. I always ask the student if they feel comfortable. If they feel comfortable they can go ahead and do it. If at any time during the procedure they feel uncomfortable then I take over.” Well the complainant came on, praise God. He just – his version was exactly the same as mine from his perspective. He didn’t like the fact that I had left the room. I found out for the first time that while I was out of the room on the phone the medical student was telling him, “I don’t have any idea if I’m doing this right. I’m not comfortable doing this. I wish I wasn’t doing this.” Expressing a lot of nervousness about doing the procedure. So, but he did – the complainant then did say, “Yes, Dr. Lewis did the first procedure, the first wart. Did the local. Did the first wart and then was called from the room. He asked the student to do the local on another cluster and she did that. Dr. Lewis came back into the room said, ‘That’s good, yep, that’s fine.’ We started cauterizing the warts and then Dr. Lewis was called from the room again for the phone. The medical student finished the procedure and that was it.” That was his testimony. Dr. Miller said, “Do you want to ask any questions through us? You don’t talk directly to the complainant.” I said, “Yeah, I have a few questions. Number one, did the medical student ever express any uncertainty or nervousness or reluctance to do the procedure? Because I had asked her specifically and she had said she was comfortable. Number two, you always ask the patient if they’re comfortable. At any time did you ask, ‘You know what? Stop the procedure and let Dr. Lewis finish?” His answer was, “No. She only talked about how nervous she was when he was not in the room. Number two, I never said anything about the procedure, about having Dr. Lewis finish the procedure.” So I felt real good. I was going, “Praise God.” When I was going outside I was thinking, “I’m going to go downstairs. They’re going to call me back in, ‘So sorry to bother you.’” I’m even thinking they might discipline Phyllis Anthony what they now know to be a false findings of fact. This is I think a pretty serious, blatant abuse of the position of investigator. I had told them that I had had conflicts with Phyllis Anthony

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personally and we had had some shouting matches on the phone and I didn’t appreciate the way she talked to me and so on and so forth. I didn’t think she was a fair investigator to be handling the case. I came back up. Joyce Smith was the attorney for the board. They tell me, “You’re guilty. You’re in violation of dishonorable – unprofessional and dishonorable conduct, failure to practice manage an assistant, failure to adequately supervise and failure to properly delegate certain medical duties.” So the board – the charges against me were delegation to an unqualified person and failure to properly supervise. So it came down to an issue of walking out of the room to take a phone call without losing visual contact. I had enclosed pictures of the phone that I was on in the procedure room where the procedure was done and how you could see. I don’t know if they ever looked at those or ever saw those or not. So Dr. Miller goes, “This is what it’s going to be. It’s going to be $1000 and you’re going to take these 10 hours of courses and classes. You’re going to sign this agreed order.” I told him I didn’t need time to think about it. “You’re asking me to sign a document that you know is false. You’re asking me to sign a findings of fact that you actually know is false. I’m not going to do that. I can tell you right now I’m not going to do it. So whatever the next step is is going to have to be the next step.” So they basically said, “Well, okay, go on outside and think about it anyways.” So I go outside. I come back in and I told them, “Having students is one of the most pleasurable things, most fulfilling things that I did in my practice.” I had students from every medical school in Texas rotate through with me in family practice. So on the way down, after I go back in and go, “I can tell you I don’t have to think about it. I’m not going to sign this. You know it’s wrong. I’m not going to sign it.” So on the way down the elevator Joyce Smith says, “You realize you need to talk to an attorney. You need to talk to an attorney. You need to get your attorney to call me so that we can clean up the language of this complaint.” I’m telling the board, “Look, there was a bad outcome. There was a scar. As Dr. Price said, sometimes bad outcomes are from misdeeds, medical mistakes, but not every bad outcome is because of a medical mistake. Sometimes bad things just happen. They just happen.” You do everything the way you did it before, you get a keloid scar. I have no control over that. God’s in control over that. So on the way down Joyce Smith says, “Do you know that if you don’t take the informal show compliance offer, we go after your license?” Why didn’t I – the first time I’d ever heard was today that they couldn’t change from what they proposed at the informal show compliance. That’s certainly not the impression they give you. They specifically threaten you

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with a more severe, as the attorney said they’ll do it but when we went to SOAH it was basically the same thing. They wanted $1000 and they wanted me to take 10 hours of medical records and 10 hours of medical ethics. So a long time went by, a lot of money to attorneys, a lot of anguish. Chairman: Lewis: Doctor, I’m sorry. Can you kind of hit the high points? I’m about through. So we get to SOAH and we’re going for a mediation. The mediating judge said, “What’s wrong with this informal settlement offer?” I tell him. I said, “First of all I don’t think you want to say that third year medical students aren’t qualified to burn off warts. They’re doing all kinds of things. Number two, I still haven’t seen, and I didn’t have a peer review, I didn’t have an expert witness review my chart. All I had was it is a violation of a board rule to take a phone call while the medical student cauterizes warts.” So my attorney and I said, “Here’s what happened. If they’ll put down what happened,” by this point I just want it to be over. I just want it to be finished. I had made some remarks. I was the President of the Texas College Osteopathic Family of Physicians in ’03. That was after this thing had started. I had made comments to our board of governors during a meeting at which David Garza and Roberta Kalafut were present that I felt like this board was just harassing doctors and trying to intimidate doctors and in my case were trying to intimidate me into signing a document that they knew was false and not doing anything to the investigator who has written the false report. After that I started getting complaints in earnest against me from the board but that’s another story. Basically I said, “If you write this thing to what happened that day I’ll give the board their $1000. I won’t take students anymore. They changed the rules on me and I didn’t even know.” That was it. I paid the $1000, took the 20 hours. I could take students if I did all this other stuff that they put in here but I’m just not going to do it. Most family physicians wouldn’t do it if they knew that they were responsible for every single thing, that they had to stay in the room with the medical patient – I mean with the medical student at all times. Chairman: [Applause.] Chairman: The Chair calls [Lease ??] Filler, Citizens Commission on Human Rights, speaking neutrally. Members, any questions? Thank you doctor.

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Filler:

My name is Lease Filler. I’m with the Citizens Commission on Human Rights. Wow, what a day! If you could do it every now and then, no matter which side of the medical board you’re on, it’s good for a agency to have it’s laundry aired every now and then. That’s certainly happened today. Now I’ve been on the other side of this. I’ve filed medical board complaints. I’ll tell you, in two years, after two years it still baffles me as to what it could take to get a medical board complaint substantiated. An example would be the Andrea Yates case. We had her records reviewed by a psychiatrist, a pharmacist, an internist, a pharmacotoxicologist and wrote a complaint based on their facts and findings. Every one of them found problems with the antidepressant she was given like excessive dose, things like that. We sent it up, nothing happened. So this is a continual thing. Last year or the year before we sent in a complaint on a young boy who was given an antipsychotic and developed a blood disorder. In the record his psychiatrist said, “Yeah, it’s probably caused by this.” He continued to give it anyway. So we sent in a complaint. Nothing happened. So unlike a lot of the other people here today that’s maybe gotten nailed too hard, a lot of times we don’t see action happening. It leads me to believe that – I don’t know, what would you call it, capricious? It’s hit and miss. There’s some variable that we don’t understand. That might be one of the answers is making sure that doctors and the public understand how the medical board is going to take things. The other thing that I’ve learned is in Texas if you’re a felon you can’t vote, you can’t carry a gun, but you can practice medicine. That bothers me. I’m going to give some examples. Psychiatrist Richard David Yantes, convicted on 13 counts of fraud, served 23 months in federal prison. Now this is from the Medical Board’s documents. 23 months in federal prison and then following his release in 2000 he [inaudible 3:27:31] to get his medical license. Before long he’s able to practice under restriction. He’s supposed to be on this five year probation where his practice is under restriction. Within three years his license is free and clear. Robert Havely Gross, one charge of criminal contempt, one charge of healthcare fraud. Spent his time in jail, comes out. It sounds like he’s going to have quite a bit to do but technically he can practice medicine. One of the doctors that were involved in the big motorized wheelchair fraud scheme in Houston got convicted. He got convicted on 20 counts of healthcare fraud and one count of conspiracy. The medical board said he

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could practice while his appeal was pending. Today he’s in prison and his license is under suspension. I assume that means that when he gets out, if he’s still young enough to practice, he can practice. There is definitely something wrong with our medical board system. It beats me how to fix it. I’ve heard some good suggestions today. I think transparency is key. I think knowing that the decisions of the medical board are somewhat dependable and somewhat standard would be a good place to start. I think not being able to practice medicine if you’re a felon is a good place to start. Let’s face it, you can do some pretty doggone dangerous things with drugs, with surgeries. That’s a really big responsibility. You go to your doctor – who else do you meet for five minutes after meeting them maybe you’re stripped naked? That’s a pretty big deal. [Laughter.] Filler: But a felon can do it? Something’s got to change here. I appreciate what y’all are doing. The other issue, another [inaudible 3:29:24] alternative paths here. Over the years we’ve heard from some alternative doctors that they’re under a bigger burden than those who do standard medical practice. I would urge you all to make sure there is a petition for a physician on the board for people who do practice alternative medicine. If you have bought into the pharmaceutical literature or whatever, what are the odds you’re going to give a good decision to somebody who hasn’t? My own doctor’s a good example of that. He’s real careful because there’s certain things I don’t want to do. I don’t want to take aspirin every day. I had to go somewhere else to find out I could take fish oil instead. He’s like, “Yeah, you can do that.” They ought to feel free to practice medicine and discuss things with their patients. If it takes an extra layer of disclosure so the patient knows what they’re getting into, hey, let’s do it. but let’s make sure that people are treated fairly and that when there’s a problem that the Medical Board acts and we can depend on them to act and we can depend on them to act fairly and not capriciously. That’s about all I had to say. Thanks. Chairman: [Applause.] Chairman: Thank you. Any questions members?

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Filler: Chairman:

Thank you. You were next up? I was just going to ask you first if you can do this in seven minutes? [Inaudible 3:31:00] after her. My name is Shirley Pigott, M.D. I am a diplomat of the American Board of Family Medicine. I am a fellow of the American Academy of Family Physicians. I practice solo family medicine in Victoria, Texas for 24 years. I’m going to tell you some things that you don’t know that you will never see unless I tell you. I became interested in bad faith peer reviews because I experienced it. Otherwise, how would I know about it? Most doctors who are shammed peer reviews are ashamed and won’t tell anybody. I’m not ashamed and I’m telling people. That’s the only way I would know that it exists. I received – the board received a complaint on me in about March 2006 for an untimely release of a lab report. This is in a patient who came to me to have me interpret her lab report. She could have gotten an uninterpreted report from the lab.

Pigott:

Chairman: Pigott: Chairman: Pigott:

Do you want to move that mic a little bit closer to you? There you go. Okay. Do I have to start over? No, go ahead. Okay. Now, based on that untimely release of lab report, I didn’t do it within 15 business days because the patient came to me for the interpretation. I was given a proposed public disciplinary order signed by Dr. Roberta Kalafut. If I had signed this order I would have agreed to false findings of fact. I would have agreed to conclusions of law based on false findings of fact. I would have agreed to an order based on conclusions of law based on false findings of fact. I would also have agreed that I’m a danger to the public. This is because I didn’t release a lab report? I would have agreed that I was intending – I want to say that I would love to put myself under oath. You are. Good. I would love to offer the board to ask me anything that they say they can’t ask me. You only have seven minutes so you better hurry. You gave everybody else more than that.

Female: Pigott:

Chairman: Pigott:

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Chairman: Pigott:

Yeah, but it’s after 9:00. You waited till 9:00 to call me. If I had signed that I would be waiving unspecified rights, rights guaranteed me by the U.S. Constitution and the Texas Constitution, unspecified. I would be agreeing never to appeal. I would be agreeing to an administrative penalty to save money for the people of Texas. When I was being investigated I asked Mrs. Robinson if this was really an appropriate expenditure of the taxpayers’ money to investigate me for a delayed release of a lab report. She never answered by the way. I would be agreeing to have a doctor appointed by this board, unspecified credentials, monitor my medical practice a minimum of 30 charts a quarter paid for at my expense for a year. If this doctor recommended anything I’m supposed to do it. Now I think I’m a pretty good doctor and I’m not going to do what some uncredentialed doctor tells me to do. Now at the end of the year this could be renewed indefinitely. Now if you would look this up on the board’s website it’s not going to be there because I didn’t sign it. I’ve got it here. You can see it. I didn’t sign it. I wrote a letter to Dr. Kalafut telling her that this was so outrageous I suspected there was another agenda. Dr. Kalafut never responded. Now I’m going to go to something else because you’ve heard so many cases about that. You’ve got to listen for a minute. I’ve got documents here and .PDF files that I would love to share with y’all. You know .PDF files cannot be altered. I’ve got a document here from Chris Kuhne, SOAH judge Wendy Harvell analyzed. She was an administrative law judge. I’ve got her analysis here. She recommended complete dismissal of a $40 accidental overcharge. I heard this lawyer practically get down on his hands and knees begging this board not to file her recommendation. They went into executive session for 30 minutes. When they came out they said, “We didn’t make any conclusion.” Then a minute later some board member raises his hand and said, “I didn’t understand what was going on. I had to ask the lawyers afterwards.” But they increased his fine from $1000 to $10,000. I don’t know if that’s published yet or not so I won’t say that. I’ve got that SOAH hearing analysis by Judge Wendy Harvell. I attended that board meeting. I think it made some of the members nervous. Okay, I’m going to go to what I’ve got next. I’m the one who questioned Roberta Kalafut about her credentials. I made a complaint to the Texas Medical Board about her credentials based on what two other doctors have

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told me because they wouldn’t make the complaint, I would. I’m the one who plastered her name all over the internet because she wouldn’t respond. Chairman: Pigott: Chairman: Pigott: Doctor, let’s don’t get personal. Okay. It’s hard to do. Let’s stop. You’ve only got 25 seconds anyway. Okay. [Regis ??] Hughes is a nurse that works for another former board member who has admitted on her – to the Texas Nursing Board to over 50 forgeries of schedule two controlled substances. She’s still practicing. That’s a whole other agency so let’s just leave that alone, okay. It’s regarding a board member that they will not investigate. I understand, but that board member is no long a board member. But he’s a physician. I understand. All right. Let’s just stop. All right. Members, do we have any questions? Ask me any questions you want to. I am under oath. We’re all under oath. Everybody’s under oath. I didn’t know that. If you’re in this room you’re under oath, yes ma’am. They are under oath? Yes ma’am. Good.

Chairman: Pigott: Chairman: Pigott: Chairman: Pigott: Chairman: Pigott: Chairman: Pigott: Chairman: Pigott: Chairman: Pigott: Chairman: Pigott:

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Chairman:

Representative Van Arsdale.

Van Arsdale: Dr. Pigott, is that right? Pigott: Yes.

Van Arsdale: To your knowledge has any complaint been filed against Dr. Miller? Pigott: Yes, I’ve filed about a dozen and Mari Robinson has lost – I’ve got a receipt from the for filing four complaints by certified mail since the board – the person who is involved in investigations with this board says that she’s never gotten the complaint. I’ve got the receipt. She said she loses too many certified mail. Give her a chance to respond. Do you have anything else, members? I’ve also made complaints about deposition by email, by the board’s website. I’ve written all of the board members who will give me their email addresses making complaints about this physician. Do you have it logged in? I’m sorry, I can’t [inaudible, off mic 3:40:00]. Yes you can. I waive. No. Doctor, that’s all right. Let’s – there’s no other questions, thank you. Okay, thank you.

Chairman: Pigott:

Robinson: Pigott: Chairman: Pigott: [Applause.] Chairman:

Monica Litticky. The Chair calls Monica Litticky. Thank you. Dr. Russell Robey. Dr. Russell Robey? Just keep going. He was appearing, testifying against. Is there anyone else who would like to testify on, for, against the Texas Medical Board? Hearing no one. Dr. Patrick, Mari, anybody, y’all want to say anything, any closing? [Inaudible, off mic.] Thank you. I appreciate y’all have been good sports through all this. It would be hard for me to sit here and have everybody attacking me.

Robinson: Chairman:

[Laughter.] Chairman: So I appreciate y’all. I mean y’all have been here just like we have, since 10:00 this morning. Y’all have taken a lot of heat. I sincerely appreciate

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the changes we talked about earlier and the – I’m flabbergasted that you went from 180 days down to 86 days, is that what it is? Good job. We’ll get back together with y’all at a later date. Do the board members have anything else? We thank y’all for being here for the day. All the rest of you folks, thank you for staying with us the way you have. If somebody’s buying margaritas let us know. We’ll be there. [Laughter.] Chairman: There being no further business this hearing is adjourned.

[End of Audio.]

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