Facing a TMB hearing is a daunting prospect for any physician. The complexity of medical issues combined with legal intricacies demands a strategic approach to defense. In this article, we explain how expert witnesses can significantly impact a physician’s case against the TMB. 

You need a skilled lawyer to defend you against a Texas Medical Board Review. At Gardner Employment Law, we have extensive experience representing physicians, and we know what it takes to be successful. 

What Cases Require a TMB Expert Witness?

A physician needs an expert in the same specialty being addressed at the ALJ hearing.  This is the hearing that is much like a trial except that it is tried before only an administrative law judge, generally referred to as the “ALJ.”  Some refer to this hearing as a “contested case hearing” or an “SOAH hearing (State Office of Administrative Hearings.” The ALJ is a state employee, part of the SOAH.

The physician also should have an expert to defend at a hearing to decide a temporary suspension of a physician’s license to practice medicine.  This hearing decides whether the physician’s practice of medicine poses a continuing threat to the public welfare and should be suspended until the Informal Settlement Conference.  The entire temporary suspension process happens under the authority of the TMB.  The hearing is presided over by Board members and is prosecuted by TMB staff.  The consequences of getting your licensed temporarily suspended are dire.  Even if temporarily suspended, the process of getting your unrestricted license back will require much time and money.

The TMB has an expert panel that hears contested cases and gives an opinion. If required by the circumstances, members of this panel will be asked to testify as expert witnesses. The scenarios that require the TMB to have an expert witness are:

1. Temporary Suspension Hearings: The TMB mandates expert testimony in cases deliberating a potential temporary suspension of a physician’s license. These hearings involve a panel of Board members. Expert witnesses provide critical insights into the severity of the situation and potential risks to patient safety, aiding the board in making informed decisions.
2. ALJ Proceedings: In instances where the case proceeds to the SOAH, expert witnesses are required. Expert testimony is essential for presenting evidence and making persuasive arguments, particularly in matters involving complex legal and medical issues.

These situations highlight cases where the TMB presents expert witnesses. You, the physician, must have your own expert to counter any adverse opinions given by the TMB’s experts.

Why Are Expert Witnesses Important for A Physician’s Defense?

Despite your expertise in the specialty, expert testimony from a physician in the same specialty, one who has no stake in the outcome, can provide credibility and perspective. The decision maker knows that you want to win and are therefore biased in your own favor.  The expert you engage is one step removed and can testify from a more unbiased perspective.  An expert witness can serve as your ally, if leveraged effectively, and potentially influence the outcome of the case.

Here’s why experts are vital:

1. Consultant Expert Guidance: Lawyers defending physicians often engage consultant experts to educate the lawyer on medical intricacies, to prepare for the coming battle, and to strengthen the physician’s defense strategy.
2. Influence and Credibility: Expert witnesses offer an impartial assessment of the physician’s actions, enhancing credibility and persuasiveness before the decision maker.
3. Clarification of Standards: Expert witnesses provide clarity on medical standards of care, helping adjudicators understand whether the physician complied with these standards.
4. Support or Refutation of Allegations: Your expert can support or refute allegations made against you, challenging the TMB’s claims.
5. Protection of Professional Reputation: In cases where your reputation is at stake, expert witnesses can testify to your competence and ethical conduct, mitigating potential damage.

How Can Expert Testimony be Leveraged for Defense at the TMB?

Expert witnesses, specifically when defending the actions of a physician, play a pivotal role in presenting evidence, interpreting medical facts, and helping the TMB reach fair outcomes. Their involvement can be instrumental in the following ways: 

• Navigating Complex Medical Issues: Expert witnesses simplify complex medical concepts, making them understandable to non-medical professionals.
• Providing Professional Opinions: They offer their professional opinions on the physician’s actions, assessing whether they acted appropriately based on medical training and circumstances.
• Enhancing Credibility: Expert witnesses add credibility to the defense, persuading board members or ALJs to rule in favor of the physician.
• Educating Defense Lawyers:  Especially in complicated medical issues, experts can quickly bring the defense lawyers up to speed .
• Guiding Defense Strategy: Their insights guide the defense team in preparing evidence, drafting rebuttals, and navigating the complexities of TMB proceedings effectively.

Expert witnesses play vital roles in the process from assistance in reviewing evidence and anticipating necessary testimony for submission to helping prepare a narrative of medical care and reasoning, ensuring a comprehensive response to TMB reports.  In instances when the TMB has engaged experts, you definitely need your own expert.

Contact An Experienced Professional

If you need assistance understanding the role of expert witnesses in TMB proceedings or require expert testimony, contact us today. We have handled many administrative hearings and know that a good expert witness can make all of the difference in a physician’s defense.