Policing our Own
Making the TSBME more effective

It’s been “open season” on doctors in the local news media this year. In “tabloid journalism” style, the newspapers have claimed that the Texas State Board of Medical Examiners doesn’t adequately protect the public from physicians who sexually abuse their patients or who have too many malpractice suits. Investigative reporters on the television networks have suggested that vaccinations are dangerous, causing parents to be afraid to have their children vaccinated. Because Texas already has one of the lowest immunization rates in the nation, such television reports hardly can be viewed as a public service! About 10 years ago, I heard a well-respected network news anchor make a startling revelation. He said that the networks consider news programs to be entertainment, not a public service, ie, it’s all about ratings (advertising dollars). Because the anti-vaccination series ran during “sweeps week,” I wonder whether the news media care more about their ratings than about children dying needlessly from diseases that are preventable by immunization.

I was outraged by the tabloid style of the newspaper series about the TSBME, in which the underlying message was that there is a problem with oversight by the Board. Unfortunately, that has also been my personal observation over the past 10 years. While serving on the DCMS Physicians Recovery Committee, I observed the inconsistency in how the TSBME treated physicians recovering from drug or alcohol abuse. During the same year or two, I saw addicted physicians with similar degrees of problem behavior receive greatly different lengths of probation under Board order. The Board uses a system of hearing committees, in which the physician meets with three members of the Board. Therefore, the severity of the discipline received is based on “the luck of the draw,” namely, which three Board members hear the case. Furthermore, physicians who self-reported their substance or alcohol abuse, and sought treatment, often had to wait a year or more before the Board heard their cases, although those cases should require an absolute minimum amount of investigation.

The TSBME has several problems. One big problem is chronic underfunding. The state receives about $20 million from physicians’ license fees, but it gives only $5 million back to the Board. The rest goes to the general fund in a not-so-hidden tax on doctors to support the general state budget. Without adequate funding, the Board traditionally has been overworked and understaffed. Because the public tends to judge the Board’s efforts by the number of physicians disciplined each year, it seems reasonable to think that overworked Board investigators might tend to work the cases that are easy to resolve. We all know that there is a handful of physicians that consistently either overtreats or bills excessive amounts. Those physicians give the rest of us a bad name. We all would like to see their behavior controlled by the Board. However, these cases typically require a disproportionate amount of the Board’s time and resources, and are difficult to prove. Furthermore, those physicians tend to have plenty of money to hire the best defense lawyers, who seem to have no trouble getting the Board’s orders reversed in court, where the Board is represented by underpaid entry-level lawyers.

The newspaper articles suggested that more physicians should have their licenses revoked, instead of being put on probation. The truth is that unless the doctor already has been convicted of a felony or has violated a previous consent order, he easily can thwart the Board’s attempt to revoke his license. The very next day, his lawyer can obtain an injunction in State District Court preventing the license revocation. During the years of court battles that ensue, the doctor can keep practicing without any restrictions. The only way to successfully modify an errant doctor’s behavior is to “suspend” his license, “stay the suspension,” put him on probation, and have him sign a consent order, agreeing to modify his behavior. This system of probation allows immediate modification of the physician’s behavior and is the only effective way to protect the public.

Ever since the American College of Surgeons began grading medical schools about a century ago (which eventually led to the formation of the Joint Commission), physicians have been trying to police their profession. In the innumerable peer review processes in which I have participated in the past 20 years, both at the hospital level and the county medical society level, I have never seen a group of doctors vote to let one of their colleagues “skate by” with questionable behavior. My colleagues always have been eager to maintain the highest standards of practice and to hold their peers to the same high standards. My experience is that doctors do an excellent job of policing themselves when they are allowed to do so by our legal system.

The problem is that we have control over physicians’ practice patterns only within our narrow sphere. At the hospital level, we can remove someone from the medical staff for errant behavior, but we have no jurisdiction over his treatment of patients in his office or at other area hospitals. At the DCMS level, we can expel a member from the society, but we can’t keep him from practicing at his office or hospital—we must rely on the TSBME to control his practice behavior. We need the Board to be strong and effective in order to maintain the high quality of medical practice that we have attained in Dallas.

How can the Board become more effective? The first step is to adequately fund it. The Legislature should put more of the money it collects from physicians back into the TSBME. With adequate funding, the Board should be able to hire enough investigators to keep up with its caseload, so it doesn’t take more than a year to process some cases. The Board needs a set of internal guidelines for its hearing committees to ensure a more consistent application of justice and discipline. Let’s see how effective a fully funded and adequately staffed Board can be. If more money doesn’t solve the problem, it should at least uncover any remaining system problems.

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