The Basics of a Texas Medical Board Complaint:

As a physician, physician assistant, or other licensee of the Texas Medical Board, there are few things scarier than receiving a complaint letter in the mail. The spectrum of emotions probably includes frustration that your professionalism or clinical competency has been called into question, and concern over whether it is likely to affect your practice of medicine.

The Texas Medical Board receives about 9,000 complaints every year. Many if not most physicians, physician assistants, and other professionals licensed by the TMB will need to respond to a complaint at some point during their career.

This post is intended to give a rundown of the Texas Medical Board complaint process and answer some of the most common questions fielded by the medical license defense attorneys at Lype, Dest and Smith from physicians and physician assistants who have received a Texas Medical Board complaint. Please note nothing in this article is intended to serve as or substitute for legal advice from an experienced defense attorney. Each case and client are different. If you have received a complaint from the Texas Medical Board, we urge you to contact one of our medical license defense attorneys for a consultation.

 

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Dan Lype

Founding Attorney

Initiation of a Texas Medical Board Complaint:

When a complaint is filed with the Texas Medical Board, Board staff has 45 days to conduct a preliminary investigation and determine whether the complaint will be dismissed or proceed to a formal investigation.

Before the licensee even receives notice that a complaint has been filed against them, Board staff will review the complaint for a few threshold issues. First, the complaint must contain, at a minimum, the name and contact information for the complainant, the name of the medical licensee against whom the complaint is filed, the time and date of the alleged violation, and the name and date of birth of the patient who was allegedly harmed, if applicable. Second, the Board must have jurisdiction over the complaint. The subject of the complaint must be a licensee of the Board, i.e. a physician, physician assistant, respiratory care therapist, etc. licensed by the Texas Medical Board. Third, the complaint must allege conduct that, if true, would be a violation of the Medical Practice Act and/or Board rules. For example, while it may be vexing, it is not a violation of the Medical Practice Act for a patient to be made to wait past their scheduled appointment time.

If the complaint received by the Board contains the necessary information, concerns a licensee of the Board, and alleges conduct that would generally constitute a violation of the Medical Practice Act, the Board will mail a complaint letter to the licensee’s address of record with the Board. For any licensee of the Texas Medical Board, it is extremely important to ensure that your contact information with the Board is up-to-date and complete. The Board’s website has a prominent link on the front page with directions on how to complete a change of address online.

The Contents of the TMB Complaint Letter:

The initial complaint letter may appear intimidating. After all, the implication is that the licensee may have violated the laws governing their license. The letter also contains statutorily mandated language and references to specific alleged statutory violations that are likely unfamiliar to the licensee. However, the complaint letter follows a standard form and an experienced license defense attorney, who has seen countless iterations of the same letter, is able to effectively focus on the most important information and direct the client’s efforts and worries in the right direction. In addition to being able to mount an effective defense against the allegations, an experienced license defense attorney can often provide significant peace of mind to a licensee, who is understandably unsure and apprehensive about the potential outcome of a Board complaint.   

There are several key pieces of information contained in the standard complaint letter. The first is the deadline for response, which is cited prominently within the letter. As the Board is required by law to complete their preliminary review within 45 days of receiving the complaint, there can be no extension of the response deadline. If a response is not filed with the Board by the deadline, the case will most likely proceed to a formal investigation.

The second key piece of information is the list of general statutory violations. These are typically non-specific, and a standard patient care complaint will almost always allege “practice inconsistent with public health and welfare” (Tex. Occ. Code 164.051(a)(6)) and “unprofessional conduct” (Tex. Occ. Code 164.052(a)(5)). These statutory provisions serve as a catch-all for most alleged violations. Cases that involve other types of violations or more specific violative conduct will also include statutory citations for more specific violations like non-therapeutic prescribing, failure to supervise delegates, criminal convictions, etc.

The most helpful piece of information contained in the complaint letter, as it relates to responding to the complaint, is the short paragraph that identifies the patient at issue and summarizes the facts of the alleged violation. The complaint document itself and the identity of the complainant are confidential and not available to the licensee at this point. The information contained in the complaint letter is a very short distillation of the complaint allegations but should give enough information for the licensee to be able to respond to the complaint.

The Importance of Hiring a Texas Medical Board Defense Lawyer:

While there are several opportunities for a complaint/investigation to be dismissed during a Board investigation, the soonest opportunity is to file a comprehensive response to the complaint allegations prior to the 45-day deadline. Hiring an attorney who is experienced in crafting such a response can be vital in achieving an expedient dismissal and can spare the licensee the time, money, and stress of an ongoing investigation.

The licensee may respond on their own, but this runs the risk of providing too much or unhelpful information, focusing on the wrong issues, and neglecting the application of the Board’s rules/statutes to the factual scenario at issue. An ineffectual response at this stage could rob the licensee of a chance at an early dismissal and could raise issues that exacerbate an ongoing investigation.

After the licensee responds to the complaint, Board staff will review it to determine whether probable cause exists to open an investigation. For standard of care cases, this review is done by a staff member with medical qualifications. If it is a non-standard of care case, the review is done by a Board staff attorney. If the complaint is dismissed, Board staff will send out a letter informing the licensee. If the complaint is opened as a Formal Investigation, the licensee will receive a letter from a Board investigator, often requesting additional information.   

The Texas license defense attorneys at Lype, Dest & Smith have extensive experience defending physicians, physician assistants, and other licensees of the Texas Medical Board who have received complaint letters. We are very familiar with the Board’s process and have developed response strategies that give our clients a chance at the best possible outcome. If you have received a complaint letter from the Texas Medical Board, don’t hesitate to contact us for a consultation.

Dan Lype

Not afraid to go to court when necessary, Dan has successfully litigated cases all the way to the Supreme Court of Texas. Dan also prides himself on being readily available to clients throughout their cases. He strongly believes effective representation should be a collaborative effort between a client and their attorney.

Years of experience: 15 years
Bar number: 24065658
Location: Austin, TX