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TMB complaints are an unfortunate reality for Texas physicians, and it may come down to your word against the patient’s. There are best practices that can help you avoid being reported to the TMB, or if the TMB formally files the complaint, best practices to handle the complaint. The best proactive practice is to take steps to maintain professional boundaries in all interactions with patients.
At Gardner Employment Law, we have the experience to help physicians when the complaint comes down to their word against a patient’s. Read on to learn more on this topic.
How Do You Handle a “He Said, She Said” TMB Complaint?
The best advice is to contact an attorney with experience in this area of the law and work together on a strategy – immediately. One of the most challenging scenarios for a physician in defending again a TMB (“Texas Medical Board”) complaint is a “he said, she said” situation, where it is the physician’s word against the patient’s. In these cases, evidence may be scarce, and the investigation may hinge on little more than the credibility of both parties.
As previously discussed in, ‘How Do Physicians Defend a Review at the Texas Medical Board?’, the TMB aims to ensure that physicians are following professional and ethical standards. When a complaint is filed against a physician, the TMB generally will initiate an investigation to determine if any violation occurred.
The TMB takes all complaints seriously, and even in cases where there is little to no physical evidence, the consequences can be severe. This is especially true if the TMB concludes that a physician has violated the trust of a patient by invading the patient’s privacy rights. These are the situations where it’s often the physician’s word against the patient’s. In these cases, the lack of physical evidence or third-party witnesses means that the outcome likely will rely on subjective interpretations. This uncertainty can be nerve-wracking. Not to mention, the stakes are incredibly high – all the way from disciplinary action to potential loss of your medical license.
One of the main principles governing these cases is the inherent power imbalance in a physician-patient relationship. Patients may feel vulnerable and place a great deal of trust in their doctors, while physicians are expected to keep professional boundaries. However, when a complaint arises and the physician’s actions are investigated, the TMB will proceed under assumption that the physician holds more power and responsibility in the relationship. This dynamic may make it challenging for a physician to himself or herself, even when the physician knows that he or she acted appropriately.
Tips to Help Physicians Deal with “He Said/She Said” Complaints
The first thing that I advise my clients: Do not discuss or talk about the matter with anyone. People talk. No matter the size of your clinic or department, be it two persons or 2,000, others will reveal the “story” to their most trusted friend. And that person will do the same, but the facts will be changed just a bit. And those new people will continue spreading the “story.” That is the nature of people. It’s a juicy tidbit that they cannot keep to themselves. As the “story” is retold, people will embellish. Soon the “story” may not be at all like the true facts. The best practice is to not reveal or mention the complaint, the patient, the facts – to anyone but your attorney.
Along the same lines, do not put anything in writing about the complaint except to your lawyer. I advise my clients, “If you don’t want to see your email published on a billboard on the Interstate highway, do not put anything in writing.” This includes texts, memos, letters, notes by carrier pigeon – nothing in writing. I have had too many instances where the client’s email or text message somehow got distributed, made its way to the opposing lawyer, and showed up as an exhibit in a hearing or lawsuit.
Do not take things into your own hands because you “know how to handle these matters.” Yes, you are very bright; you are the most knowledgeable about the occurrence and the patient’s treatment; and you might save a few dollars. But unless you have a law degree and you have experience in practicing healthcare law, you don’t know what you don’t know. I tell my clients, “I promise not to practice medicine if you will promise not the practice law.”
As we have advised in other articles and as mentioned above, the very first thing that you should do when you receive the TMB’s notice of a complaint against you, call a healthcare lawyer with experience in this area of the law. “Having an experienced attorney help you craft your response can be the deciding factor between losing your license and having the complaint dismissed.” See A Physician’s Response to the TMB’s Complaint Letter. Do not get started on the wrong foot with the TMB. They are prosecutors who seek to protect patients’ rights.
Beyond these basics tips, lawyers must analyze each complaint standing alone to determine the best strategy. Every complaint is based on its own unique facts and its own medical records. The sooner the attorney can get started reviewing those materials, the better position you will have.
The Story: What Can Happen if Professional Boundaries Are Violated?
Consider the following scenario. A physician, we will call her Dr. Jacobs, allowed a personal relationship to develop with an adult male patient whom she had treated several years prior. After Dr. Jacobs solved his difficult medical problem, this patient was under her care for annual clinical follow-ups since then, all in a professional atmosphere. The patient began to initiate a more personal relationship, but Dr. Jacobs was a consenting party. For multiple months, the personal relationship included only innocent, friendly interactions. The patient, who struggled with a chronic illness, reached out to Dr. Jacobs for emotional support, leading to an exchange of personal confidences. It is important to know that Dr. Jacobs had been experiencing a period of diminishing self-confidence and vulnerability because of a bitter divorce that she was going through. She found the patient’s attention flattering and supportive.
The patient began sending flirtatious texts and engaging in conversations that were beyond the scope of professionality. What started as Dr. Jacobs’ caring personal support gradually turned receptive to the patient’s advances. Additionally, Dr. Jacobs and the patient met outside the clinical environment on multiple occasions, including social drinks and dinners. Despite her belief that her counsel was beneficial given the patient’s medical history, the personal nature of their interactions was quickly going down a slippery slope.
The relationship took a more problematic turn when the patient exhibited seductive behavior, making clearly inappropriate sexual suggestions. Although Dr. Jacobs rejected these advances and maintained that no intimate contact ever occurred, the emotional nature of the relationship became unbalanced. The patient’s persistent texting and calling further complicated the situation. Eventually, the patient’s grown daughter somehow discovered evidence of the personal relationship and confronted her father, the patient. He apparently told his daughter that it Dr. Jacobs who had “led him on,” causing him to think that she wanted more than just a physician-patient relationship. The daughter then reported the situation to Dr. Jacobs’ employer. This led to an investigation by the medical committee. After the investigation, the employer notified Dr. Jacobs that her employment contract would not be renewed and reported to the matter to the TMB.
The case was a matter of Dr. Jacob’s word against the patient’s, except for the emails and texts exchanged between Dr. Jacobs and the patient, which were not helpful to Dr. Jacobs’ position. She deeply regretted the lapse in not maintaining appropriate boundaries. She acknowledged that her judgment had been impaired by factors such as burnout, depression, and anxiety about her crumbling home life. In response to the situation, Dr. Jacobs entered personal therapy and counseling, registered for a physician-based boundary course to better understand the risks of boundary crossings, and made significant life changes, including relocating her practice with her children to another state. The move took many months. Dr. Jacobs’ process of reflection and professional development hopefully will prevent similar issues in the future. But her illustrious career was forever tarnished beyond repair.
How Can You Prevent a “Your Word Against the Patient’s” Situation in Your Practice?
To prevent similar situations, physicians must adopt best practices that safeguard both their professional integrity and patient welfare:
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- Always Have a Third Party Present: Whenever possible, have a nurse or another healthcare professional present during patient interactions trained in proper observational techniques. This is especially important with those patients who seem overly attached or needy, and always if the procedure involves an evaluation of intimate body parts. The witness adds a layer of protection against potential misunderstandings and provides a witness to the encounter.
- Recognize Patient Types and Set Boundaries Early: Physicians should be vigilant in recognizing when a patient is becoming overly connected or reliant on them. Early intervention is key; establish clear boundaries and communicate them firmly to the patient. Disengage from any personal interactions immediately.
- Address Burnout and Mental Health: Burnout, depression, and anxiety can impair judgment, making physicians more susceptible to boundary violations. Regularly assess your mental health and seek help when needed. Engage in self-care practices, seek counseling if necessary, and strive for a healthy work-life balance.
- Enforce Professionalism: Maintain a strictly professional demeanor at all times. Avoid personal conversations, flirtatious behavior, or anything that could be construed as unprofessional. Keep communication focused on the patient’s medical needs.
- Refer a Problematic Patient to Another Provider. You may need to refer a patient to a colleague if the patient starts making personal advances, you have clearly communicated your respective roles, but the patient persists in trying to forge a personal relationship.
By adhering to these best practices, physicians can reduce the risk of boundary violations and protect themselves from the potentially devastating consequences of a TMB complaint.
A Medical Chaperone May Be Appropriate
Another safeguard for both the patient and the practitioner is for the clinic to engage the services of a qualified, trained medical chaperone, a third party, to be present during the most sensitive of examinations. These included examinations such as rectal, genital, or breast examinations. The purpose of having a medical chaperone is act as a witness and provide assurance to the patient and to prevent any misunderstandings about the nature of the exam. Always ask the patient whether he or she agrees to have the chaperone present and explain that it is for the patient’s protection and feeling of security. While a patient is not required to accept the presence of a medical chaperone, this part of a sensitive examination is considered best practices. It reduces the risks to patients and maintains public trust in the medical profession.
Courses are offered in this field of becoming a medical chaperone. Students study the proper observational techniques, how to document the examination, maintaining boundaries, draping techniques, the importance of neutrality, reporting requirements, and other components of a chaperone’s role. Texas does not require a medical chaperone to be licensed, although some states do require a license. In Texas a clinic staff member or a family member can act as a chaperone, but the person should have the proper training.
Some states have enacted legislation requiring medical chaperones to be present during certain sensitive examinations. The American College of Obstetricians and Gynecologists recommends that a medical chaperone be present in the room during all genital, rectal, and breast examinations.
Contact An Expert.
As a physician, your words carry significant weight, but so do your patient’s. Maintaining professional boundaries is crucial not only for your protection but also for preserving the trust and integrity of the doctor-patient relationship. At Gardner Employment Law, we can help you safeguard your career. Contact us today.