Content Highlights
If you are facing the final step in defending against a complaint filed against you with the TMB (Texas Medical Board), you better be well prepared. The final step, the “formal resolution,” is a trial on the merits. You have this last chance to present evidence proving that you have been unjustly accused.
If you want to know more about what happens at the TMB Formal Resolution, read on.
What is the TMB Formal Resolution?
The TMB formal resolution is a trial before an ALJ (Administrative Law Judge) who essentially decides the outcome of the complaint filed against a physician. The ALJ is a state employee within the Texas SOAH (State Office or Administrative Hearings). This proceeding is called a “hearing,” but it is almost exactly like a trial in court, except there is no jury. The ALJ decides if the physician violated the Medical Practice Act as alleged in the complaint. During the trial, both the physician and the attorney for the TMB present evidence in the form of documents and testimony of witnesses. At the conclusion, both sides present a summary of the evidence and legal arguments regarding whether a violation occurred.
Eventually, the ALJ will make a recommendation to the TMB regarding how the case should be resolved. The TMB makes the final decision. All of the recommendations and decisions are in writing and can be appealed to the Travis County District Court.
What Happens at the TMB Formal Resolution?
The TMB Formal Resolution proceeds much like a trial in court, except that the parties submit their evidence and legal arguments to the ALJ. The hearing, as it is called, takes place in a conference room setting, not a courtroom. The rules of evidence are more relaxed, although the parties offer documents as exhibits and tender witnesses to testify. Many times the ALJ will interrupt and ask questions of a witness if the ALJ is not getting the clarity required. The persons employed as ALJ’s usually possess considerable experience in evaluating medical evidence and understanding the substance of the matter.
Because the TMB bears the burden of proving that the physician violated the Medical Practice Act, the TMB attorney begins and is first presenting evidence. The lawyers question and cross-examine the TMB’s witnesses. After the TMB puts on its case, the physician next presents his or her defense by way of witnesses and exhibits. The lawyers for both sides question and cross-examine those witnesses. The TMB gets an opportunity then to present rebuttal evidence to whatever the physician presented, which then concludes the evidence portions.
After all of the evidence is completed and contained within the “record,” both parties have the opportunity to present closing arguments, called a “summation.” Each attorney for the parties summarize the evidence, point out the legal standards, and explain to the ALJ how the party has proven its position. At that point, the hearing concludes, and the ALJ typically will request each party to submit a post-hearing “brief,” a written summary of the evidence and the law. The ALJ studies these briefs and many times uses portions in the ALJ’s final order. The ALJ the issues a document called a “Proposal for Decision” that contains:
- Findings of fact: A summary of the facts, i.e., what happened and also inferences drawn by ALJ based on the evidence presented during hearing;
- Conclusions of law: Legal principles applied by ALJ to the facts of the case to determine legal outcome or consequences, the ALJ’s legal conclusions leading to the final decision as to whether the physician did in fact violate the Medical Practice Act; and
- Recommended Actions: Suggestions put forth by ALJ regarding appropriate disciplinary measures or resolutions to be taken.
The recommended disciplinary actions may include a fine, license suspension, or revocation of the physician’s license — or if no violation is found, dismissals of all charges. The Proposal for Decision is then submitted to the TMB for review and consideration.
Upon receiving the Proposal for Decision, the TMB assesses the recommendations and may accept, modify, or reject them. The TMB holds a hearing at which the parties argue their respective positions to the TMB. The TMB issues a final order, which is binding and serves as the conclusion of the formal resolution process.
If the physician disagrees with the TMB’s final order, the physician can appeal to Travis County District Court. It is important to note: Grounds for appeal are limited, and even if there are grounds for an appeal, the physician cannot offer any additional documentary evidence or call any witnesses to testify. The District Court decides the appeal solely on the evidence that was presented to the ALJ.
Why is Legal Representation Important in the TMB Formal Resolution Process?
If a case makes it to the TMB Formal Resolution stage, proper legal representation is crucial because TMB attorneys possess the expertise to navigate the nuanced legal procedures and present compelling arguments on behalf of clients. For example, in Van Boven v. Freshour, the TMB imposed temporary restrictions on Dr. Robert Wayne Van Boven’s medical license following multiple patient complaints alleging unprofessional conduct. The TMB conducted a two-step disciplinary process, beginning with an informal settlement conference, followed by a formal complaint filed with the SOAH. The SOAH found that the allegations against Dr. Van Boven were not proven. This resulted in the dismissal of the complaints and the lifting of the restrictions on his medical license.
Following the TMB formal resolution, Dr. Van Boven filed a lawsuit challenging the TMB’s decision to report the disciplinary actions to the NPDB (National Practitioner Data Bank), a repository of information for adverse actions taken against healthcare practitioners. Dr. Van Boven argued that the TMB’s failure to submit a Void Report (filed to retract or withdraw a previously submitted report to its entirety) constituted an ultra vires act: an action taken that exceeds the authority granted to them. Dr. Van Boven alleged that the restrictions on his medical license were unjustified and constituted an abuse of authority. The case went all the way to the Texas Supreme Court, which sided with Dr. Van Boven. The high court held that the TMB had wrongfully failed to correct its previous report in the NPDB and that a Void Report should have been filed to withdraw the TMB’s previous report showing that Dr. Van Boven’s license had been suspended. Anyone searching that database should not have been able to see that there was ever any disciplinary action taken against the doctor.
The Van Boven v. Freshour’s case demonstrates the crucial role of legal representation in safeguarding physicians’ licenses. With a skilled attorney on their side, physicians can better protect their licenses, uphold the integrity of their professional reputations, and ensure that the proper standard of care is accurately reflected to the public.
Contact a TMB Expert
If you are caught up in a TMB enforcement process and your case is headed to the Formal Resolution stage, you need an expert TMB attorney to fight the case with you. At Gardner Employment Law, we have the expertise necessary to “go to battle” to defend you. Rest assured, we can help.