Texas Medical Board Lawyer

Texas Medical Board Defense Attorneys

The Texas Medical Board is the state agency charged with protecting the public’s health, safety, and welfare through the licensure and regulation of all physicians, physician assistants, and certain other healthcare professionals licensed within the State of Texas.  As a physician, regular contact with the Board occurs first through the initial licensure process and then through periodic renewals of their medical license.  Unfortunately, at some point during their medical career, many physicians will also be contacted by the Board about a complaint.

The attorneys at Lype, Dest & Smith Lawyers have a combined 30+ years of experience defending physicians and other medical professionals in front of the Texas Medical Board. We have represented physicians and other licensees before the Texas Medical Board in all manner of complaints and in every stage of the investigation/disciplinary process. One of our attorneys can also boast experience from the other side, having worked for the Texas Medical Board as a staff attorney before joining the defense bar. Our background allows us to effectively defend a physician’s interests before the very active and aggressive Texas Medical Board without wasting their time and resources.

Initial Board Complaints and How An Attorney Can Help

Medical Board complaints can be initiated by the Board itself in certain situations, by a patient or patient’s family, or by an interested 3rd party such as a hospital peer review committee, insurance company, or subsequent treating physician.  In short, nearly anyone can file a Medical Board complaint, and if the complaint clears the relatively low bar of alleging some conduct that would constitute a violation of the Medical Practice Act, the physician will be sent correspondence from the Board alleging a violation and requesting their response within 28 days of the date of the letter.

At this stage, the best chance at gaining an early dismissal and preventing a prolonged investigation almost always involves finding an attorney experienced at successfully defending physicians before the Texas Medical Board.  If a complaint warrants dismissal, the initial response is the best chance to shut it down early and prevent an ongoing investigation that can be a source of additional stress and headache. Even if the complaint isn’t dismissed an attorney can help prevent the response from being used to the physician’s disadvantage if an investigation is opened.  Further, if a complaint has merit, or requires a nuanced defense, the hiring of an experienced attorney to aggressively represent your interests and preserve your ability to practice medicine, is even more important.

The attorneys at Lype, Dest & Smith have defended physicians facing all different types of complaints. These include complaints alleging:

• Failure to treat a patient according to the generally accepted standard of care.
• Improper supervision.
• Sexual or personal boundary violations with a patient.
• Using false, misleading, or deceptive advertising.
• Improper billing.
• Inadequate documentation.
• Nontherapeutic or overprescribing.
• Failure to follow pain management guidelines or failing to register as a pain management clinic.
• Telemedicine violations.
• Assisting another person to practice medicine without a medical license.
• Medspa complaints.
• Prescribing without establishing a physician-patient relationship.
• Self-prescribing or prescribing to friends or family members in the absence of immediate need.
• Discipline by another state’s Board of Medicine.
• Discipline by a hospital peer review.
• Criminal proceedings that may or may not be related to the practice of medicine.

Texas Medical Board Procedure After the Start Of A Formal Investigation

If a complaint is not dismissed based on the initial response, the physician and their attorney will be notified that the Board has opened a formal investigation.  The Board can open an investigation for a variety of reasons some of which are unrelated to the complaint’s merits. This can include cases that are later dismissed after further investigation.   For example, if the complaint is particularly complicated or involves a specialized area of medicine, the Board may open a formal investigation to gain additional information.  Likewise, if a complaint involves a subsequent treater’s records or other medical records not in the licensee’s possession, the Board may feel that they need to open an investigation to obtain these additional records for review.

 

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Dan Lype

Founding Attorney

When the Board opens an investigation it will often request additional information from the physician or their attorney. The information requested often depends on the type of complaint. For instance in a case involving the alleged inadequate supervision of a mid-level provider, the investigator will usually request the physician and mid-level’s prescriptive authority agreement, practice protocols, and meeting logs. In a case involving alleged impairment, the investigator will ask for a history of the physician’s substance abuse or mental illness and a list of all their treating providers for the last few years. The Board investigator will also subpoena records and information from outside entities, such as the hospital or practice where the physician works.

Once the Medical Board investigator has all of the information they need, the physician and their attorney often will not hear anything for several months while additional documents are obtained and, in the case of a standard of care complaint, an expert review  is obtained from outside physicians.  In some cases, the matter is dismissed at the investigation stage if the investigator finds the allegations are unsubstantiated and/or if the expert review finds no violation of the standard of care.  If the investigation appears to substantiate a violation of the Medical Practice Act, and/or the expert reviewers find a violation of the standard of care, the case is passed to the Board’s Litigation Department. Most cases are then scheduled for an Informal Settlement Conference.

An Informal Settlement Conference (or “ISC”) is an opportunity to fight for a dismissal, or if this is not possible, to try and obtain an agreed settlement.  The ISC is a confidential, off-the-record meeting with a Panel of the Texas Medical Board.  The Panel will consist of two representatives of the Texas Medical Board- a physician and a lay-person who may or may not have any background in health care.  The Board Panel is assisted by an attorney from the General Counsel’s office, who runs the meeting and advises the Panel.  The meeting is also attended by a Texas Medical Board Staff Attorney, who acts as the “prosecuting” attorney.

At the conference the physician and their attorney are afforded the chance to provide additional rebuttal evidence and address the allegations at issues and the Board members and Board attorneys are allowed to ask questions. The complainant will also be given an opportunity to address the Pane at the start of the conference. The physician’s demeanor and presentation, and that of their attorney, can often persuade a Panel to dismiss a case, where the record by itself has failed.  Appropriate guidance and preparation is key to achieving the best result.

At the end of the ISC, the Panel will make a recommendation for a dismissal, non-disciplinary action, or an Agreed Order for discipline.  Whether the result of the ISC is dismissal or an Agreed Order, it is just a recommendation at this point and will still require the full Board’s approval before the outcome is finalized. If the Panel proposed a resolution other than a dismissal, the proposal will subsequently be put into writing by a Board attorney and sent to them for their consideration. If the ISC recommendation is an Agreed Order, and the findings or terms of the Agreed Order are unacceptable, the physician and their attorney can attempt to negotiate a different result or decline the proposal in its entirety.

512-881-3556

If no resolution is reached, the Board’s Staff Attorney will file a Formal Complaint at the State Office of Administrative Hearings and the matter will be set for a contested case hearing, or, if the parties agree, mediation. The State Office of Administrative Hearings is a state agency tasked with conducting contested case proceedings and mediations between state agencies, such as the Texas Medical Board, and their licensees. It is independent from the Medical Board.

If both the physician and Board agree a mediation may be held before the case proceeds to a final hearing.  If the proposed Agreed Order out of the ISC is unacceptable, sometimes mediation can result in a better resolution, and in some cases, even a dismissal.  The mediation takes place at the State Office of Administrative Hearings and an Administrative Law Judge will serve as mediator.  The mediator will not be the Administrative Law Judge assigned to the Formal Hearing.  The mediation usually takes place in one day, with the Board being represented by a Staff Attorney and Board representative, and the licensee participating with their chosen counsel.  If the matter is resolved during mediation, a formal hearing is no longer necessary.

A formal hearing is a contested case proceeding before an Administrative Law Judge, where both parties may call witnesses and introduce documentary evidence.  In most cases the Board bears the burden of proof, meaning they must prove a violation of the Medical Practice Act in order to prevail.  After the formal hearing, the Administrative Law Judge will produce a Proposal for Decision, taking into account the evidence and testimony provided.  The Proposal for Decision will include their factual findings and conclusions of law.  If the Board’s allegations were not proven, the Administrative Law Judge will recommend that the case be dismissed.

The Administrative Law Judge’s Proposal for Decision is then presented to the full Texas Medical Board for their consideration.  If the Proposal for Decision contains findings of a violation, the Board will impose sanctions according to guidelines set out in their Board Rules and issue a Final Order.  The Board also may seek judicial review of any findings of fact or conclusions of law contained in the Proposal for Decision that they do not believe is substantiated by the record.  Likewise, if the licensee disagrees and wishes to appeal the decision further, an appeal must be filed with the District Courts of Travis County within 30 days of the Board decision.

Darrin Dest

Darrin’s practices primarily in the areas of administrative and health care law, with a focus on the representation of professionals in front of their licensing boards and credentialing bodies. Darrin formerly worked for the Texas Medical Board and currently defends licensees.

Years of experience: 15 years
Bar numbers: 24065146
Location: Austin, TX

Representative Cases

The attorneys at Lype, Dest & Smith have defended physicians and physician assistants in all types of cases. The following is a list of some of our attorneys’ past cases:

• Physician v. TMB

Physician was notified that he was under investigation for non-therapeutic prescribing of opioid pain medications and failure to register as a pain management clinic.  Physician had been in talks with a pain management clinic to become their Medical Director.  Negotiations stalled, but the physician had provided information, such as their DEA number, to the clinic as part of onboarding.  The clinic proceeded to issue prescriptions under physician’s name and DEA number for months without his knowledge and without any physician oversight.  We advocated for physician and demonstrated that they had essentially been the victim of identity theft and cleared his name and license before the TMB and DEA.  The investigation was dismissed.

• Physician v. TMB

An investigation was opened alleging that a physician had not properly registered as a Pain Management Clinic.  We responded to an audit of physician’s practice and demonstrated that he met an exception to registration based on physician practicing within his specialty and providing alternative treatment modalities to more than half of the patients also receiving controlled substance prescriptions.  The investigation was dismissed.

• Physician v. TMB

A physician had been placed on a Performance Improvement Plan (“PIP”) with their hospital for several cases that were alleged to fall outside the standard of care. The physician resigned their privileges before completing the PIP, resulting in an adverse report to the National Practitioner Data Bank and a complaint to the Texas Medical Board.  At an ISC, the Panel recommended a severe restriction of the physician’s practice that was unwarranted based on the underlying care.  The case was scheduled for a Formal Hearing.  We requested a mediation at the State Office of Administrative Hearings and successfully settled the matter for an Agreed Order with limited findings.  Rather than a practice restriction, the only terms of the Order were additional continuing medical education hours.

• Physician v. TMB

Physician received a complaint alleging that they had engaged in a telehealth scheme whereby low-cost pain relievers and topical gels had been prescribed to patients and charged to their insurance without the patient’s apparent knowledge or approval.  The extent that the company misused Physician’s license was not apparent until presented with the Board’s evidence.  Through comparison of the available medical records and pharmacy orders, we were able to establish that the telehealth company involved had been ordering medications, in type and quantity, well beyond those authorized by Physician.  We also demonstrated that the Physician had taken steps to remediate the situation by ceasing work with the company once they recognized that the telehealth company was acting inappropriately.  The ISC Panel recognized that Physician had started with the company in good faith and took appropriate remedial action once they recognized red flags.  The matter was dismissed at ISC.

• Physician v. TMB

Physician received disciplinary action in another state due to an administrative violation- a failure to ensure that state’s board had received information required as part of that state’s license renewal.  The Medical Practice Act makes discipline by another state a per se violation in Texas if the conduct would also constitute a violation in Texas.  We were able to provide mitigating evidence and convinced the Board to offer a non-disciplinary Remedial Plan in place of a reciprocal disciplinary order.

• Physician v. TMB

Physician, a plastic surgeon, received a Board complaint alleging that he had failed to place breast implants appropriately and then failed to offer and provide corrective surgery to fix his alleged mistake.  The patient had filed their complaint nearly a year after the procedure was completed, asking for corrective surgery.  We were able to demonstrate that the surgery at issue had been done correctly and resulted in an acceptable outcome.  We further showed through the patient’s signed informed consent documentation that a free revision was not warranted and that the patient was free to consult further with Physician, but that any additional work would be subject to a new agreement.  The complaint was dismissed.

• Physician v. TMB

Physician received a Board complaint alleging they had become romantically involved with a patient and then prescribed the patient controlled substances. Client was also alleged to have inappropriately prescribed his wife controlled substances. The Board wanted to revoke the client based on their extensive past disciplinary history for the same issue and their prior felony conviction for possession of a controlled substance. Physician’s case went to a trial at the State Office of Administrative Hearings where a judge entered multiple findings regarding mitigating factors. This included the continued value to the community if the physician was allowed to continue practicing. Based on the judge’s findings, the Board imposed a public reprimand that allowed the physician to continue practicing.

• Physician v. TMB

Radiologist received a Board complaint based on their substance abuse and ordering of controlled substances directly to their house from a drug wholesaler. Physician subsequently went to treatment and became sober. Following an informal conference, the Board wanted to impose a disciplinary action that would have restricted the physician’s ability to hold a controlled substances registration. This restriction would have precluded the physician from becoming credentialed with hospitals and insurers. The case went to trial at the State Office of Administrative Hearings where the full facts of the case and various mitigating factors were presented to a judge. Based on the judge’s findings, the Board entered a final order allowing the physician to prescribe controlled substances while practicing in a radiological suite. This result allowed client to maintain their hospital credentials and in-network status with insurers.

• Physician v. TMB

Anesthesiologist had been previously suspended by the Texas Medical Board due to an inability to safely practice due to mental illness and for becoming romantically involved with a patient and prescribing them controlled substances. The suspension was lifted following an appearance at an informal conference. The evidence presented showed the physician had obtained treatment for their mental illness and had been stable for multiple years. Representation also included helping the physician successfully reapply for a DEA controlled substances registration.

A Law Firm Dedicated to Defending Physicians

Your license to practice medicine is your livelihood and reputation.  Do not take a Board complaint or potential Board action lightly.  Avail yourself of confident and seasoned legal counsel.  The attorneys at Lype, Dest & Smith have decades of experience fighting the Board on behalf of physicians. Contact us for a consultation today.

Client Reviews

What our clients are saying about us

Anonymous

A thorough and experienced lawyer. We are grateful to have Dan and his staff helped us with our case, dealing with Texas Medical Board. Dan is honest, experienced and very thorough. He was supportive throughout the proceedings. His caring and calm nature has made us feel at ease during the whole process. His office staff was professional and responsive. Dan responded to our phone calls and emails promptly. We wholeheartedly recommend Dan and his firm without any reservation.

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Our Practice Areas

Texas Medical Board Defense
Physician peer review and credentialing
Nursing Peer Review
Texas Pharmacy Board Defense
Texas Board of Nursing Defense
Texas Dental Board Defense
Texas Board of Law Examiners Defense
Medicare and Medicaid Exclusions, Payor Audits, and Related Enforcement Actions
DEA Defense
Professional License Defense
BHEC Defense