Texas Legislative Hearing, Subcommittee on Regulatory,

in Oversight of the Texas Medical Board (TMB)

October 23, 2007
(Draft 12/14/07, all rights reserved to make any corrections against the audio)

Chairman: … (inaudible) … Subcommittee on Regulatory will now come to order

and will the clerk please call the roll?

Clerk: Brown?

Brown: Here.

Clerk: Menendez?

Menendez: Here.

Clerk: Taylor? Darby?

Darby: Here.

Clerk: Lucio?

Lucio: Here.

Chairman: There is a quorum. I’d like to introduce some of our special guests today.
Chairman Don Davis, chair of the health and human services
subcommittee of appropriation. It’s good to have you here. Chairman Bill
Callegari, Chairman of the regulatory, good to have you here. Corbin Van
Arsdale, good to have you. [Inaudible, audio issues.] Debbie Riddle
(inaudible)

Chairman: Let the record show that Representative Taylor is here. And we just got a
call folks from one of the golf courses wondering where all of their
doctors were today. [Laughter] There is an overflow room right across
the hall if any of you would like to sit out. Members, this subcommittee is
meeting today to discuss fiscal matters relating to the Texas Medical
Board. Let me begin by thanking everyone for being here today. Thank
you to the members of the Texas Medical Board and their staff for their
attendance. We appreciate your service to the citizens of this state. Thank
you to the members of the public for your participation today.

As chairman of this subcommittee I take my oversight role very seriously.

And to ensure the prudent use of funds of state agencies it is necessary for
us to stay informed of agency operations. This is the purpose of this
hearing today members. Aside from contingency appropriations and
appropriations in the system benefit fund, the Texas Medical Board
 received the third largest general revenue fund increase in percentage
terms, almost 19%, and the second largest increase in dollar terms, $2.1
million of all regulatory agencies in the 2008-2009 budget.

To meet our oversight duty and in light of the great demands for Despont,
Texas, medical board resources in recent years, I wanted to hold this
hearing today. We will cover the medical boards operations from the
fiscal perspective. This allows for latitude, but I would like for everyone
to present questions and testimony with that in mind.

This subcommittee, even the full appropriations committee is not a

committee that creates policy or amends laws related to the practice and
regulation of medicine. However, as state representatives, we all represent
citizens on every aspect of government. To the extent that we hear
testimony regarding policy or statutory recommendations we will take
these into consideration, to also forward these recommendations onto the
members of the appropriate legislative committees and the sunset
commission.

Additionally, if you are a doctor and you have a legal proceeding currently
before the Texas Medical Board or some other state of adjudication,
you’re welcome to discuss that matter with us but in our role as legislators
we do not have the authority to resolve these matters and we will not be
prone to do that today. With that said, we can begin our invited testimony.

Members, are there any questions or comments you’d like to make before
we get started? If not, chair calls the legislative budget board. Hi, Nora.

Velasquez: Good Morning.

Chairman: Mark Wallace appeared also.

Velasquez: Good Morning Mr. Chairman, members of the committee. My name is

Nora [Velasquez], the legislative budget board. In response to the
questions that you requested for today’s hearing, our office has prepared a
brief overview of the Texas Medical Board. Each of you should have a
packet similar to this one in front of you.

Page one of your packet.

Chairman: Does everybody have their copy? Okay.

Velasquez: I’ll turn your attention to page one of the packet which includes a
summary of expenditures of the fiscal years 2002-09 as well as FDE
information for each fiscal year. I would like to highlight a correction at

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the bottom of that table for fiscal year ’08 and ’09. That number should
read 142.5, not 140.

In addition to that I would just like to point out that in fiscal year 2003 the
78th legislature passed Senate Bill 104 related to the regulation and
enforcement of the practice of medicine. This bill also created a general
revenue fund which surcharged on physician license registration. The
initial implementation of this bill required and involved an annual
registration and the collection of the $80. Following future years starting
in fiscal year 2005, there was a biannual registration fee. As you will see
from the table up at the top you will see that the amount of revenue
collected started to decrease after fiscal year 2005.

In addition to adding revenue available to help the agency, the bill also
created an expert physician panel and strengthened the agency’s
enforcement activity.

As requested, on page two of the packet we’ve included performance

measure highlights from extended 2002 through fiscal year 2009.

At this time I’d like to direct your attention to page three of the packet and
begin with some of the agency’s fiscal year 2006 financial challenges.
The medical board presented information regarding a budget shortfall in
fiscal year 2006. After further review the governor’s office provided the
agency with an emergency in deficiency grant in the amount of $375,000.
A table that begins at the bottom of page three details the agency’s total
request and how those funds were implemented.

On page four in fiscal year 2007 the agency submitted a similar request to
our agency for a supplemental appropriation for an anticipated shortfall
that fiscal year as well as additional funds to pay for the governor’s grant
that had been provided to them the previous year. To address the agency’s
shortfall, the 80th legislature passed House Bill 18 which appropriated the
agency an additional $1.8 million. This money was to be used to pay for
the governor’s grant as well as for expenses in the areas of licensing,
enforcement, and information technology. The table on page four
highlights the agency’s total request and how those funds have been
implemented.

I’d like to move forward to page six of your packet. We have also
included information on the average cost per complaint resolved from
fiscal years 2002-09 as well as expert witness information. The agency
has reported that expert witness fees for [inaudible 7:22] cases are a major
source of expense.

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 In fiscal year 2006 the agency paid approximately $123,000. In ’07 the
agency expended approximately $192,000. In looking forward to ’08 and
’09 the agency has estimated about $223,000 being paid each fiscal year.

Members, this concludes the remarks that I have.

Chairman: Chairman Menendez?

Menendez: I would just like to ask a quick question. I was noticing the exponential
increases in the funds allocated. I wanted to see if you could help me. On
page one if I see – if I added correctly, from expended ’04 and you add to
expended ’06, it looks like a 53.3% increase from ’03 to ’06. Is that
correct? In general funds appropriated?

Velasquez: That’s correct.

Menendez: Okay. The next – what my question is, I didn’t see on the expert witness
information on page six the – if you could add for us the increases in as far
as the percentage increase. When they come up with this $223,000
estimate, do they provide any sort of a support material to support why
there’s such an increase? I mean that’s $100,000 increase in two years, in
a two to three year period.

Velasquez: I do not have that information from the agency.

Menendez: I’d like to know if that’s because of an increased number of cases or if the
witnesses are charging that much and we need to look for different
witnesses. I’d like to know why our fees are going up from $123,000 in
’06 to an estimated of $223,000 two years later for ’08 and ’09.

[Inaudible male voice off mic 9:15]

Velasquez: I don’t have that information for you, but I can defer that question to the
agency or I can get back to you on it.

Menendez: Yeah, after you finish I think we definitely want to ask the agency to
answer that question. Thank you. Thank you Mr. Chairman.

Chairman: Go ahead, Nora.

Velasquez: Mr. Chairman, I’ve completed my highlights of the overview. I’d be

happy to answer any questions you have.

Chairman: Members, any questions? I want to have the staff come up and answer
that question.

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[Inaudible noise off mic.]

Chairman: We need to get somebody from audio/video to turn the mics up.
[Inaudible 10:14]

McFarland: Good morning!

Chairman: Good morning!

McFarland: I’m Jane McFarland. I’m the Chief of Staff of the agency.

Robinson: I’m Mari Robinson. I’m the Director of Enforcement. I would be happy
to address your question. Essentially what occurred, you did hear Nora
mention it, is that Senate Bill 104 was passed. Once that passed, the
agency was given the ability and the authority to investigate much more
thoroughly, and a much more larger number of complaints specifically
related to standard of care.

We then had expert panelists who reviewed standard of care during the
investigative process. So it allowed us to give more focus to that. The
result of that that you are seeing in fiscal year ’05 and ’06 is we were able
to then take those cases forward to SOAH. So you saw an increase in the
expert testifying fees for those two fiscal years as we were able to try to
eliminate any backlog that had been sitting, waiting to be filed because we
did have a shortage in staff and we did have hiring freezes throughout that
time.

Once we were fully staffed and fully funded, we were able to go ahead
and file those matters that had been pending, waiting funding from the
legislature. We greatly appreciate that funding. As such, once those cases
went forward, the fees that went out for experts to testify did increase. So
that is why you are seeing that.

Now related to the next year what I understand is that they estimated for
next year by taking what we expended and guessing that it might go up
20-25%. You’ll hear later on that we’re having very large increase in
complaints. In fiscal year ’06 we had 5200 complaints. In fiscal year ’07
we had 6800.

So we’re expecting an increase throughout the cost of enforcement. We’re

just trying to anticipate as best we can so that we can give the legislature
the best information that they need to make appropriations decisions.

Chairman: I appreciate the answer. Thank you. I’m sorry, I didn’t get your name.

Robinson: I’m sorry. It’s Mari Robinson. I’m Director of Enforcement.

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Chairman: Thank you Ms. Robinson. Ms. Robinson, so it’s your testimony that the
reason that the volume and dollar figure’s going from $123,000 that we
paid in ’06 to $223,000 estimate for ’08 – ’09 is due to an increase in
volume of cases.

Robinson: Yes. Yeah, well it’s a two part thing. We’re getting in more cases and in
fiscal year, towards the end of fiscal year ’05 and ’06 we also filed many
cases that we had been waiting to get filed when we had the appropriate
funding.

McFarland: And then those expenses crossed over into the next year also.

Robinson: Right. The civil process unfortunately takes some time. So it’s not
unusual for them to cross over one or two fiscal years.

McFarland: And as for what we budgeted for this fiscal year, we do the best we can.

Chairman: I’m sorry, I think for the recording you need to state your name for the
record.

McFarland: Oh, I’m sorry. I’m Jane McFarland. I’m the Chief of Staff for the board.
Our estimate, it is an estimate because this year we probably had budgeted
and expected to spend a little bit more than we did on SOAH. Some cases
settled in mediation prior to actually going into the SOAH hearing. So we
saved some costs in the last quarter of the year. That may very well
happen in the next two years. Those costs may be more in line with the
current year.

Menendez: I can understand increasing costs due to volume. I guess my concern is I

looked right above the eye witness information to an average cost per
complaint resolved. I noticed that we have a similarly troubling table that
takes our average cost for complaint resolved in 2002 from $1115 to a
budgeted cost in 2008 of $2960 which is almost three times as much.

Robinson: Right. That’s because in 2002 we were not required to have two board-
certified physicians review standard of care cases. But when they passed
Senate Bill 104 and then the subsequent Sunset Legislation 419, it does
require us to have two board-certified physicians review every complaint
that involves standard of care.

Actually, you will see if you look a little differently, if you look at 2004,
2005, 2006 and 2007 we’re actually trending down right now from 2005 at
$2900, 2006 at $2500 and 2007 $2288. We are trending down. There are
two reasons for that. We’ve tried to increase efficiencies on that. I spoke
last time that we met that we had instituted a computer system that

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 allowed us to eliminate tens of thousands of shipping – dollars in shipping
cost. That has been fully implemented.

We’ve also added an efficiency within the panel process where if the
second panel reviewing fully agrees with the first panelist, they simply
have to write a senate saying, “I fully agree,” so that they do not have to
incur additional fees for the board to pay. Additionally as I mentioned,
we’re having an increase in complaints.

So if you think that the cost is the numerator and the complaints is the
denominator, as the denominator goes up, obviously it’s going to be a
lower cost per complaint resolved. Right now we’re at $2288.

Menendez: Right.

Robinson: It’s very hard to budget out. You know how that is. They ask you to
budget out for 2008 back in 2005. We really do not anticipate the 2008
number to be $2960, but of course at the time that we were making these
estimates we really just did not know. We made our best guess on what
we were spending at the time.

McFarland: We were surprised by how low 2007 came in at the end of the year.

Menendez: I guess that’s a concern to see that trend line. It’s a good trend line from
’05 to ’07 where you’re coming down from that high of $2919 to $2288.
But then to see these budgeted numbers, they almost seem like they’re
padded or inflated.

Robinson: Well, it’s because the year asked. We were in 2005 when we were getting
$2900 per complaint. That’s when they asked us to project for 2008. So
we thought based on the data that we had at the time that it would be the
same. We weren’t aware of what would be coming out and all of the
efficiencies we would gain in the computer system and things like that.

McFarland: And the other issue is that the cost to actually operate and enforce this
program may be pretty much the same or slightly higher because of the
additional expert panelists, but the cost per unit may go down because of
increased numbers of complaints. So we’re doing the same number of
complaints with the same staff. We budgeted…

Robinson: We’re doing a higher number of complaints with the same staff.

McFarland: Right. We projected this cost per complaint – we may end up – the budget
will be the same, but the number of complaints we manage to do for that
may be more and it may drive that down.

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Chairman: Thank you. Thank you for that explanation.

McFarland: Because we have the same staff regardless.

Chairman: Right.

Chairman: Jane, you don’t see us having the same problem this year as we did last
year as far as shortfall?

McFarland: I do not anticipate that kind of problem. I think we have much better
systems in place. There are, as always with the medical board and any
regulatory agency, there are sometimes costs that are outside of your
control that come up. But right now we are very satisfied with the
appropriation we have. We’re grateful, very grateful to the committee for
the funds that we received. We have a much better system in place for
tracking costs and are implementing a new system now that you’ll hear
more about.

Chairman: Okay. Thank you. Members, any questions? [Inaudible 18:05]

Male: Yeah. How long – you said you were Chief of Staff to the Board. Did I
get that right? Is that your title?

McFarland: Yes.

Male: How long have you been at that position?

McFarland: One year.

Male: Were you at – did you have a promoted position that came before that?

McFarland: Yes, I was called a special project manager.

Male: And how long were you at that position?

McFarland: I have been with the board since about 2000. I came in in one position
and moved into special projects. I was probably in the special projects
position for about four years.

Male: Okay. And when you first came to the Texas Medical Board, who was the
Chair and the ED at the time? Do you remember?

McFarland: I first came to the board, the ED was Bruce Levy. He was talked into
coming over to the medical board from the health professions counsel and
then left about two months later. Then there was another ED. His name
was Dr. Langley who was here just a year. I believe the Board President

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 was Dr. Fleming when I first came and then Dr. Lee Anderson was the
President.

Male: Okay. Ms. Robinson, you’re the Director of Litigation and Enforcement,
is that right?

Robinson: I’m the Director of Enforcement, yes.

Male: How long have you had that position?

Robinson: I started with the board a few days after I got married, so I know this.
Seven years. [Laughter] I started out as a litigating attorney there. I held
that position for a little over a year and a half. I was promoted to manager
of investigation. I held that position for about three years. Then I
managed both litigation and compliance for a very short time. Then we
had a little bit of a realignment within the agency and I became the
Director of Enforcement. That happened in September of last year.

Male: Okay. When you first came to TMB, who was the ED and the Chair?

Robinson: Dr. Langley was the executive director and the Chair I believe was Dr.
Anderson, but it switched over right about that time between Dr. Fleming
and Dr. Anderson.

Male: Okay, thank you.

Chairman: Members, any other questions? Thank you ladies. Let me remind the
audience, if you plan on testifying today if you’ll pull out a Witness
Affirmation form. We want to be sensitive to everybody’s time. I know
some people have early flights or may have early flights today. So if you
will let us know on your Witness Affirmation or pass us a note we’ll try to
work you in so we can get you out of here on time. If you’ll just let
Hunter know right over here.

The chair calls Dr. Roberta Kalafut, President of the Board.

Kalafut: Thank you Chairman Brown, and honorable representatives for allowing
us the opportunity to highlight our progress in the seven weeks of fiscal
year ’08. Before I begin my prepared statement I would like to take a
moment to introduce the board members that have come today in
attendance and the board staff.

If the members and staff will please stand when I introduce you. There
are 16 out of 18 board members here today. The executive committee of
the Texas Medical Board consists of Dr. Larry Price, Vice President,
serving since 1997. Mr. Kim Turner, Secretary/Treasurer, public member

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serving since 2003. Dr. Larry Anderson, Chair of the Disciplinary Process
Review Committee serving since 2005. Dr. Michael [Arambula ??] newly
appointed Chairman of the Licensure Committee serving since 2006.

Board Members in attendance include Dr. Jose [Benevidie ??] serving

since 1999, Miss Paullette Sutherd, public member, chair of the public
information committee, serving since 1999. Miss Melinda Fredericks,
public member, chair of the legislative committee serving since 2003. Dr.
Manuel Guardo, chair of the [ad-house ??] committee for scope of practice
serving since 2005. Dr. Irv [Geitler ??] serving since 2006. Dr. Charles
Oswald, serving since 2006. Miss Julie Atterbury, chair of the finance
committee serving since 2005. Mister Tim Webb, serving since 2007. Dr.
[Kahn ??], I’m sorry, I won’t pronounce your first name, serving since
2003. Dr. Margaret [Knicknee ??], chair of the peer review committee
serving since 2006. Dr. Melinda McMichael, serving since 2007. The
remaining two public members couldn’t be with us today.

Senior management team includes our executive director, Dr. Donald

Patrick, Chief of Staff Miss Jane McFarland, Director of Enforcement
Mari Robinson, Director of Licensure Jaime Garanflo, General Counsel,
Mister Robert Simpson, Manager of Finance, Christine [Fuellar ??],
Special Project Manager [Mi-ging ??] Good. Thank you.

All of us board members are volunteers. We spend approximately 20-30

days per year in Austin away from our practices, jobs and families. It is a
significant commitment we agreed to and we all take this responsibility
seriously. I am proud and honored to be serving on this board with these
individuals.

Chairman Brown, you and I were called to a meeting in the governor’s

office three weeks ago. During that meeting we discussed that there’s
some in this hearing room today waiting to testify. This hearing has been
widely publicized and anticipated as more than just an appropriations
meeting. As you stated today in your opening remarks, to hold all
participants and discussions strictly to the relevant topic of appropriations,
I will in accordance with your discussion, follow your request.

I would like to start out by reading our mission statement which we read
out loud prior to each board meeting to remind each and every one of us of
our duty and purpose on this board.

The Texas Medical Board’s mission is to protect and enhance the public’s
health, safety and welfare by establishing and maintaining standards of
excellence used in regulating the practice of medicine and ensuring quality
of healthcare for the citizens of Texas through licensure, discipline and
education.

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 Currently we have greater than 58,000 physicians holding a Texas license.
I believe it is important to provide historical information regarding our
recent appropriations and the role this subcommittee has played in
strengthening our mission.

Let me put this mission statement into perspective. I was appointed to this
board in 2002 by Governor Rick Perry as one of three GL members and in
2005 as its first woman president. Two weeks before I was to serve on my
first board meeting, the Dallas Morning News printed an article making
the headlines of the Sunday paper. I have it with me today. “Board Easy
on Doctors Test Offenses.” The article highlighted a board that was lax in
its duty to protect the citizens of our state.

Throughout the year of 2002, three additional articles were published by

the Dallas Morning News, each more disturbing in the truth than the
previous. “Harder Line Taken on Doctor Abuse.” [Audio problems.] It’s
about our appropriations, how you’ve strengthened us. Thank you. Thank
you, sir.

I presented for my senate confirmation hearing in the Spring of the 78th

legislative session. To say it was brutal is putting it mildly. I, and four
other newly appointed members, were berated repeatedly for failing to
protect the public and giving physicians a free pass, none of which we as
newly appointed members were responsible for.

The senators also held up these very articles that I held up today. But the
message was loud and clear that day. The legislature would not tolerate a
board that failed to hold physicians accountable for violating the Medical
Practice Act. The Board must be strong in its charge, reinforced by
statutes. The legislature would no longer tolerate requests for special
favors or requests to turn a blind eye on the physician licensure and
disciplinary processes. This subcommittee in conjuncture with the
legislature…

Chairman: Dr. Kalafut, could you wait one minute?

Kalafut: Yes, sir.

Chairman: We will not tolerate outbursts, okay? Everybody will have their time to be
able to come up and present their case and talk about what they want to
talk about. But we need to be respectful of the people that are before us as
witnesses.

Kalafut: Thank you, sir.

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Chairman: Go right ahead, doctor.

Kalafut: This subcommittee, in conjunction with the legislature, recognized the

important role of the medical board in protecting our citizens. You
responded to our needs of the Medical Board by enacting laws that
strengthened the board. In 2003 the legislature unanimously passed
Senate Bill 104 by Senator Jane Nelson which provided new statutory
strength and increased resources.

Specifically, Senate Bill 104 included the following provision – it created

an expert panel, physician panel to review standard of care cases, a
dedicated fund from the $80 surcharge added to physician licensing fees.
It covered the cost of enforcement for physician panel and costs of
additional staff.

Statutory deadlines were implemented for complaint investigations and

litigation. It’s clarified and strengthened the board’s authority to take
immediate action and temporarily suspend a physician’s license when
necessary if a physician was felt to be an immediate danger to the public.

We were given more funding and more manpower to keep up with the
exponential growth in licensure. However licensure renewals went from
annual registration to biannual registration, a move that would later have a
significant impact on our budget.

During the 2005 legislative session we went through a full Sunset review.
The staff, Sunset staff, observed board meetings as well as informal
settlement conferences throughout the year. They reviewed each and
every one of our policies, rules and statutes. They interviewed countless
staff and board members. Our rules, statutes, processes were fully
dissected and vetted in an open public forum. The legislature made
statutory the agency’s initial 30-day review process. It also created the
new requirement for stakeholder input into board rules.

During the last legislative session the agency’s budget shortfall noted in
2006 was addressed by the subcommittee. The primary reason for the
shortfall was a significant decrease in appropriations in the general
revenue dedicated fund through the Senate Bill 104 statutory change
requiring annual to biannual registration. These funds were to be used for
investigation and enforcement. By granting the supplemental
appropriation, the legislature sent a strong message to us once again. If
Texas enacts torte reform, we must have a strong medical board to oversee
and police its own profession while protecting the citizens of Texas.

We take this charge seriously and we have heard your message. As of this
date in October 2007 we are seven weeks into our fiscal year ’08. While it

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is too early to provide any meaningful budget reports for the current fiscal
year, we do have workload data for the first month of fiscal year ’08. I
can recap specifically fiscal year ’07.

During September ’07, the first month into our new fiscal year, we have
received 372 applications for physician licensure, the highest in that
month on record. That is a 9% increase over the previous record in fiscal
year ’06 which was a 76% increase over the record set in fiscal year ’05.

In fiscal year ’07 the Texas Medical Board received a record number of
physician licensure applications, 4,041. We issued a record number of
physician licenses, 3,324. This is 811 more licenses in fiscal year ’07 than
’06, almost an increase of a third. This was done with the same number of
employees as [inaudible 32:26] legislature in 2001 despite a 60% increase
in applications since fiscal year ’02.

The emergency appropriations bill was not adopted until May ’07,
authorizing six additional FTEs. The agency used temporary staff and
overtime in attempts to keep up with the demand. Average days to issue a
license in ’07 was 81 days, the second lowest in six years. A projected
average for ’08 – ’09 is now 51 days.

This subcommittee and the legislature responded to our needs with

additional funds and six additional FTEs to aid in accomplishing its goal.
We have reduced the backlog of physician applications by 20% compared
to March ’07. In addition, the medical board authorized rule changes in
the Fall of ’06 that reduced and/or eliminated certain documentation and
other requirements making the overall process more efficient.

During most of fiscal year ’07 [inaudible 33:45] gave priority to

completing low-complexity applications so that more doctors could be
licensed more quickly. The focus shifted from completing the more
complex applications during July and August.

Now I’m going to go on to enforcement. Just to put this in perspective

over a three-year period, 99% of our licensees do not have board actions
against them, 99%.

During the first month of our new fiscal year we have opened 334
investigations which is a 17% increase from this time last year. During
fiscal year ’07, 69% of the complaints were filed by the patient and/or
family. The next largest number of complaints were filed by the TMB,
15% in response provided by the licensee on their annual registration
form, audits of their CME compliance, multiple malpractice suits and
media reports. Seven-percent were filed by healthcare professionals,
physicians, pharmacists, nurses.

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Review of the last two years’ data show that we received close to 11,000
complaints. Insurance companies filed less than 0.8% of complaints, none
of which have resulted in disciplinary action to date. Pharmaceutical
companies have filed none.

Since the inception of our current database in 1986, we have accepted

anonymous complaints. The intent was to ensure public confidence in our
system that a complaint could be filed without retribution from the
physician. During the past two years as previously stated, we received
close to 11,000 complaints. About one-hundredth of a percent of
anonymous complaints received resulted in a board order.

The following boards in Texas also accept anonymous complaints:

pharmacy, psychology, dental, chiropractic, podiatry, nursing, OT/PT,
optometry and 21 of 22 professions licensed [inaudible 36:09]. Massage
therapy does not. I would hate to hold the medical board to lower
standards.

Chairman Brown, you have commented in the past and other

representatives that you have heard from hundreds of physicians. We too
have heard from our share of citizens looking to the medical board for
help. During fiscal year ’07 the agency received a record number of
complaints, 6,893 compared to a previous high of 6,038 in fiscal year ’05.
A total of 63% of all complaints in fiscal year ’07 were dismissed during
the initial 30 day review without investigation, saving enforcement
resources. Thirty-seven percent resulted in investigation. There were 482
IFC’s held in formal settlement conferences in fiscal year ’07 and 36%
were dismissed at the IFC resulting in 311 orders approved by the board.
Of these 79 of the 311 were for minor violations, failure to obtain required
CME, false advertising, failure to timely release medical records. Sixty-
four were settled by waiver, 14 after an IFC and one at SOAH. We looked
at this and the agreed orders on these administrative cases one to two
percent of agency resources. Twenty-five percent of agreed orders to
charge administrative took one to two percent of agency resources.

A review of complaints filed against physicians each fiscal year from

fiscal year ’03 to ’07 shows that a consistent 7% of complaints resulted in
action each year. This percentage has not changed since 2003. We have
completed a record number of investigations – 2,550. We asked that you
temporarily suspend or restrict a record 20 physicians who were found to
be an immediate danger to the public pursuant to Senate Bill 104 by
Senator Jane Nelson.

With our previous statewide computer software we could not easily

segregate from the entire cost to the investigation’s complaint. With your

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 additional funding last session, this has allowed us to purchase software to
individualize our needs and hire and IT staffer. This is just being
implemented and we should be able to provide more detailed data in the
future. However, with the previous limitations cited, I am able to report
the average cost per complaint resolved. I think this was discussed
previously with representative Menendez so I won’t repeat that.

Finally, information technology. The agency has a large number of

critical IT projects that must be completed. We have prioritized the
projects. One of the most exciting projects in development is a web-based
system for physician licensure applicants. This IT improvement project is
going to be known as Licensing Inquiry System of Texas, or LIST.

LIST will allow the applicants to check the status of their application and
supporting documents online at any time. They will be issued a user ID
and password that will allow them to log on to the website to check which
documents have been received by the TMB and which have been
accepted. This will significantly free up staff time to work on processing
license applications. The TMB estimates savings equivalent of 1.8 FPE.

All communications to the applicants will be immediately posted in the

LIST with immediate access. Estimated time for full implementation is
early spring 2002 – 2008.

In conclusion, Chairman Brown, honorable representatives, thank you for

the opportunity to speak today. With your support and insight you have
helped this board continue to maintain standards of excellence in
regulating the practice of medicine as well as ensuring quality healthcare
for our citizens. Thank you.

Chairman: Dr. Kalafut, let me first congratulate you on cutting the days in half on
licensing. That’s a – now we have like 2200 doctors in queue back when
we met during appropriations. You’ve cut that time in half.
Congratulations on that.

Let me just ask you a question because I don’t understand this, and this is
what I hear I think more often from doctors that have been through the
enforcement process and it had to do primarily with minor infractions,
advertising or overcharges, things like this.

What I hear so often is the fact from the time they get their initial packet
from the medical board to the time they get to an informal settlement
conference it normally lasts nine months and they have to spend a lot of
money to get to that informal settlement conference as far as defending
themselves plus the fact that during that time they worry about, “Am I
going to lose my license?” “Do I need to change my livelihood?”

15
 Everything, the package that comes together with that. “Well, who is it
that brought me before the board and really what is the charge?” That I
hear all the time. My question is does it have to be so lengthy?

I understand that an advertising charge or an overage charge – I had a

surgeon call me just last week. He overcharged a patient $69 and turned
around and refunded the money. He’s in the middle of this process now.
He told me that looking back, “I don’t think I would ever – if my kids
wanted to go into medicine I’d talk them out of going into medicine.” He
said this has just been a horrible experience. So can you kind of enlighten
me on that.

Kalafut: Thank you Chairman Brown. I’m glad you brought that up. I know we’ve
discussed this as well. It [inaudible 42:56] our physician licensees. First
of all, everything we do has been mandated by the legislature. They’re the
executive branch. So we follow the laws of the executive branch. We
have time frames and time tables. I have them here if you want me to
quote statutes as to how long the process takes.

So this is a process that has been mandated to us by the legislature. Every

– during a complaint that is registered, as I said earlier, 69% are dismissed
immediately within 30 days. It’s the other 31% that we are talking about.
We have to enforce in the Medical Practice Act every violation of the
Medical Practice Act. I’m here to say that if you want us not to enforce
certain minor violations, then so be it. Tell us which ones we should not
enforce. We are just following the letter of the law.

The question about why it takes so long and whether they should have an
attorney, the decision for having an attorney is up to the respondent, up to
the doctor. As you see, 69 I think I quoted, or 64 out of the 79 minor
violations resulted in a waiver where they did not even come down to
Austin and they were given an administrative penalty. That should not use
up agency resources. The doctor during any investigation unless he uses
temporary suspension the doctor is free to practice. Minor violations, not
releasing medical records, not completing your required CME does not
threaten the doctor’s livelihood or whether they can continue to practice
medicine.

Why it takes so long? The first process is the initial 30 day screen. Then
we have 180 days by statute to get it from investigation through legal.
There may be extenuating circumstances that we don’t know about that
would drive that process. I think Mari Robinson can address this in more
detail as to the minor violations. If you would like a more detailed answer
she’s a wealth of knowledge on length of time if you would permit that.

Chairman: Please.

16
[Inaudible, off mic 45:20]

Robinson: Again, I’m Mari Robinson, Director of Enforcement. Two quick things I
just want to sort of point out, or actually three. The average time for a
resolution in 2002 was actually 308 days. We have knocked 47 days off
of that to 261 in 2006. So we are trending down on resolution. However,
we are also trying to implement a couple of things to even make that more
efficient.

When Sunset did meet and we went through that process, they did give
credence to a practice where we can offer for minimal violations, for what
you’re talking about, what’s known as an administrative order. That
allows the physician to say, “I know I didn’t get…” for example CME. “I
know I did not get my CME. I know I’m five hours short.” So this will
allow them to pay a $250 or $500 fine, whatever the board has directed is
appropriate, and have that resolved very quickly without the necessity of
an IFC, without the necessity of a hearing date and without the necessity
of that physician having to take time off and coming to Austin and/or hire
legal representation to attend that hearing.

Additionally, we put that into place about a year and a half to two years
ago. That I think is what you’re seeing reflecting in this trend down.
Additionally, what I have done for these types of [inaudible 46:44]
violations is I have assigned a different investigative way of processing
them. We’re trying to get these down to being processed more like 30 to
60 days instead of 180 days.

I’ve been meeting with Dr. Patrick on this new sort of streamlined idea
that we have. It’s going to allow these types of cases to take up less board
resources and be resolved much more quickly, be more like the traffic
violation. Be more like when the police officer pulls you over and says,
“You ran a red light. Here’s your ticket. Pay it and you’re resolved.”
That’s what we’re trying to move towards. Then the board resources that
we do save will go into these more [inaudible 47:25], these cases that
pattern the standard of care problems. These cases with patterns of
impairment problems or [statute ??] abuse.

We actually have drafted this up and we are more than happy to provide
the committee with this on a four-track system that allows us to route
complaints due to their severity through different tracks within the medical
board itself. We really are hopeful that it will allow for the very, much
more rapid resolution of the types of complaints that you’re talking about.

We do think we’re expending a very small percentage rough-estimate

wise, way less than 10% on these all ready. But we would like to make it

17
 even quicker and even faster. We certainly do understand the concern that
you’re putting forth which is why we’ve been working on this alternate
system for the last couple of months.

Chairman: When do you think that’ll be implemented?

Robinson: We actually have a [rules group ??] meeting tomorrow with stakeholders.
We’re going to start talking about the first sets of rules that would need to
go into place to start that. So we’re really trying to fast track this and get
it done.

Chairman: Don’t get me wrong, I think I’ve been unequivocally say for everybody up
here that we want you to go after doctors that are putting – taking out
wrong parts or that are killing people or that have drug or alcohol
problems or abusing people.

Robinson: Sure.

Chairman: I mean that’s what you’re mandated.

Robinson: Sure.

Chairman: We just have to be sensitive to these doctors that are saying, “Give me
some help.” Nine months because I made a mistake in advertising?

Robinson: Sure. Actually we kind of looked into how the bar is doing this a little bit.
Their system is much more rapid. If it’s my birthday, I don’t have my
CME I get a letter in the mail that says, “Here’s your fine. Pay it or
appeal.” That’s really what we’re looking to do. We want to make this
much more rapid. We want a quick resolution but we want it to be fair.
We will still have time to allow for a physician to exercise their due
process rights should they choose to believe that there has been no
violation.

Chairman: [Inaudible 49:22] chair Menendez?

Menendez: Just a quick question on that CME issue. Paying a fine doesn’t exclude
them from getting CME. It’s pay the fine and get your CME I’m
assuming.

Robinson: Yes, that is correct.

Menendez: Okay, I just wanted to make sure.

18
Robinson: Yes. We actually just did our CME project and we did it in 60 days, the
entire project. And every order that came out of that does say, “Pay this
fine and complete the outstanding CME.”

Menendez: Okay, thank you.

Female: We’re the only agency that audits and we do a periodic audit. Like the bar
association does it automatic for every licensee.

Robinson: Most other agencies track their licensees and every single person they
track who doesn’t get the CME gets fined. We only do a small audit every
year.

Chairman: Congressman Felton, I mean Representative Felton?

Felton: Thank you Chairman Brown. While I’ve got both of you on, I don’t know
which one of y’all want to answer this, but I guess my question is, and I
don’t remember which one brought it up, but it has to do with the
anonymous complaints. I believe it was Dr. Katafoot that talked about it
that you don’t do anything that’s not in statute and that y’all started doing
the anonymous complaints in 2006. Am I accurate?

Robinson: No, we’ve been doing anonymous complaints since the inception, since
1986, not 2006.

Felton: Okay, okay.

Katafoot: I’m sorry if I said 2006.

Felton: Yeah, okay. Maybe I misunderstood. Be that as it may though, I’m just
wondering what the statutory authority is for the anonymous complaints.

Katafoot: I have it here. There’s couple of things. One is Occupational Code

154.05 under “C”. A person, including a partnership, association,
corporation or other entity, may file a complaint against a board license
holder with a board. The board may file a complaint on its own. But the
definition is, this one that you’re interested in is 22 Texas Administration
Code 178.2 definition Complainant.

Felton: I’m sorry, give me that code?

Katafoot: Okay. 22 – I’m not an attorney so if I’m not…

Felton: No, you’re fine. You’re fine. Go ahead.

19
Katafoot: 22 Texas Administration Code 178.2. The definition of a Complainant is
any person including an individual, partnership, association, corporation
or other entity who initiates a complaint with a board against a licensee.
The complainant may be a patient, a family member of a patient, a
healthcare professional or any other person who has information regarding
a possible violation of the Act. A complainant may be anonymous in
which case the complaint will be investigated to the extent that the
information is provided on which an investigation can be initiated.

Robinson: I need to do a correction. It’s 154-051 is the original Medical Practices

Act citation on the complaint initiation. Then it’s 22 Administrative Code
176.2 that’s dealing with the anonymous.

Felton: Okay. So the 22, the Administrative Code was enacted in relation to
Section 154.051 Health and Safety Code. Is that correct?

Robinson: That’s what I believe at this time, but we can certainly go back and double
check what happened in 1986 to make sure that that’s exactly right.

Felton: This is a question for you, Miss Robinson. I’m just – on the anonymous
complaint and I have a hard time when it comes to due process. As you
know there’s procedure on [subsitive ??].

Robinson: Sure.

Felton: Procedurally we know that procedurally it has to do with notice and

opportunity to be heard.

Robinson: Right.

Felton: [Subsitive ??] though, don’t you think they ought to know who’s
complaining about them?

Robinson: Actually I think it’s irrelevant.

Felton: Why?

Robinson: The fact of the matter is… [Laughter] The fact of the matter is that either
a violation of the Medical Practices Act occurred or not. And if the
violation occurred, the physician needs to come and speak to the medical
board at an informal settlement conference about what occurred. If no
violation occurred, then it doesn’t matter.

For example, the President of the United States could file a complaint
against Dr. Smith. If what the President of the United States says is not
true, we’re not going to bring Dr. Smith in for a hearing. But somebody

20
 else who’s never liked Dr. Smith could have information that Dr. Smith is
self-prescribing drugs to himself. Well, if Dr. Smith and the pharmacy
records show that Dr. Smith is self-prescribing drugs to himself, the
medical board wants to know about that.

It doesn’t matter if the person who reported them likes them or not. No
one is given any more credibility, credence or non-credibility or credence
when it comes to investigating the facts that occurred in the case. That is
all that we are interested in.

Felton: I haven’t dealt a lot with doctors in compliance, but I have with police and
fireman a lot under civil service because I litigated that quite frankly for a
long time. One of the things that we always did was they knew who the
complainant was. For the life of me, I don’t know why you say it’s
irrelevant. So you’re telling me that you don’t believe in the substance of
due process.

Robinson: No, I believe in substance of due process. I just don’t believe that it’s
required as you’ve outlined in this specific instance. You’re drawing an
analogy to criminal law which is very different. You’re right, there is a…

Felton: No, civil service is not criminal law. It’s administrative.

Robinson: Well you’re referring it if you’re pointing out the beliefs. In criminal law
obviously there’s a right to know your accuser. But as I’ve said, the fact
of the matter is the board treats every complaint exactly the same. All
they want to objectively know is whether the violation occurred or not. If
the violation occurred, they need to come and address the medical board.
If the violation did not occur, they do not.

The public policy decision was made by the legislature many, many years
ago that many people fear retribution from filing complaints. Honestly I
have seen many cases where that would have occurred where a physician
is very, very disruptive, is sexually harassing, is harassing patients.
They’re in a high position in a hospital and the people who know it know
that this physician is litigious or they fear for their job. The only way that
they can report is anonymously.

To take that protection away, that’s certainly within the purview. If it’s
something that the legislature wants we will certainly do that. But that
was the public policy reason behind it, to make sure that the public was
protected from dangerous physicians regardless of how the board found
out about it.

21
Felton: Mr. Chairman, if I may finish follow up just a second. So you’re telling
me that you think that subsentive due process and procedural due process
only deal with criminal law?

Robinson: No sir. That is not what I said. I said that there were differences…

Felton: But you’re talking about that, isn’t that right?

Robinson: I said that there were different due process requirements for criminal law
regarding knowing your accuser. Subsentively you know that the
physicians within our system have due process. You can tell this by the
fact that the complaints are dismissed yet they have a right to be heard.
You’re right, that’s the normal.

The other half, the subsentive half is that we are listening to their right to
be heard. It is actually being acted upon. There is actually a right to
having your side of the story considered by the board. That is in fact
happening. You know this because the statistics that were given to you of
the percentages that were released after the 30 day review, of the 40% that
are released after the hearing is happening. These things are being done at
the board. The hearings and the reviews that we have are meaningful and
they eliminate the vast majority of the complaints that are seen before us.

Chairman: Are you finished, Robert? Senator Patrick, it’s good to have you over here
on the poor side of the legislature. It’s good to see you today.

Patrick: [Inaudible.]

Chairman: We’re glad to have you up here. Senator Callegari?

Callegari: When somebody makes an anonymous report, how do you guard against
somebody making an unfounded or an improper report and how do you do
that in a way that’s least dangerous if you will or least damaging to the
physician if in fact it is an improper or unfounded report? How do you
wade through those without having that physician spend a lot of time and
money trying to defend something that’s not proper?

Robinson: Sure. We do that the same we do every complaint. That is we have

instituted an initial 30 day review that we do before we file the complaint.
We expressly did this so that if somebody does have a complaint filed
against them that turns out to be absolutely baseless, they can say that they
have never been investigated by the medical board.

So we do a 30 day review before we ever file a complaint so that when

they do have to fill out those peer review applications and they are asked,
“Have you ever had a complaint filed?” Their answer is no. In that 30 day

22
 process, the complainant is contacted if we know them. In this case we do
not. Anonymous complaints we don’t know who they are.

But we do contact the physician in almost every case unless we feel that
there is a danger to the public in waiting that period, and we give them an
opportunity to respond. It’s a short opportunity, it’s 14 days. But we only
have statutorily 30 days to process the entire thing before it’s considered
filed.

The doctor at that time has the chance to respond and say to us,
“Absolutely not,” or, “It’s nothing like that,” well before there is even an
investigation filed. After that there is another full investigation time of
180 days maximum where they are given another full opportunity to
respond. During this time period all of these complaints are confidential.
They’re not discoverable by other peer review bodies. They’re not
discoverable by the public. They’re not discoverable by anyone.

Part of the reason for that is because we don’t know yet if there is a true
violation here or not. That’s part of the reason why they were made
confidential. You’ll hear the public say often that they don’t think it’s fair
that the doctor part of this is confidential.

There is another side to this too. The physicians don’t think it’s fair that
the complainant is confidential. The public doesn’t think it’s fair that the
complaint is confidential. The fact of the matter is if the legislature so
chose, it would be the easiest for the board for everything to be public,
every piece of information to be public to everyone. But we will do
whatever the legislature chooses to do.

Callegari: Yeah. And it’s an initial 30 day situation, what if you have a he-said she-
said situation? How do you really wade through that? Somebody makes
an anonymous complaint, what kind of weight do you put to it – put on it?

Robinson: Well if it’s truly the only he-said she-said situations are ones in which
there is no evidence one way or another. So if you’re talking about a
sexual assault possibility or something to that effect what’s going to have
to happen is there will have to be a hearing on that.

The percentage on anonymous complaints was I think 1-2% a year of the

overall complaints that we receive. So of the 6800 I believe it was 1-2%.
Of those anonymous complaints, most of them do not go forward because
there’s not petition information in there to identify the potential violation
in the first place. But if there is sufficient information we will go forward
and pursue it just as though it had a name on it.

23
Callegari: Once you go past the 30 days and you’ve determined that you think there
may be an issue, is there any point at which the physician has an
opportunity to know who the complainant is and specifically to confront
that?

Robinson: No. The complaint is confidential by law and it remains confidential by

law all the way through to the end of the process. That includes the state
office of administrative hearings unless they are a testifying witness.

Now I will tell you that in he-said she-said type situations if it’s something
involving like inappropriate sexual allegations, something where truly the
only evidence is the witness, if that witness will not waive their
confidentiality, the board can’t go forward with that complaint because
really the only evidence is their statement versus the physician’s
statement. But if it’s an allegation that there is independent evidence on,
if there are medical records available, that is what the board will look at
and certainly Dr. Kalafut I did not mean to cut you off if you had anything
to add to that.

Callegari: The other thing I was told that is of concern is when a doctor has a
situation and is brought before the board that he really has no opportunity
to have somebody in there to help him or again to confront his accuser.
That seems unfair. How do you – why could he not have somebody to
help him – to confront the accuser, to defend his position?

Robinson: I’m not sure I understand exactly what you’re asking. The physicians are
allowed to bring in attorneys and/or representatives to the IFC. Now if
you’re saying at the period in time when a complainant is testifying who
wishes to remain anonymous, is that what you’re saying?

Callegari: No, I’m talking about during the hearing.

Robinson: During the hearing?

Callegari: Yes.

Robinson: During the hearing they’re allowed to have their attorneys present during
the whole thing and the doctors are allowed to be present in the whole
thing. There are original – there are occasional cases where the
complainant prefers to testify without the doctor looking at them, but
whenever that occurs I believe that is done by audio, that the audio is
piped in and it’s a two-way thing so the physician and his attorney do hear
it and can respond to it and do have all of the due process rights to respond
to whatever statement is made by that complainant.

24
Callegari: What about if he doesn’t have an attorney but wants to have someone else,
say it’s another doctor, his assistant or what have you. Is that allowed?

Robinson: Well, typically a physician can bring in and have speak on his behalf
whoever he wants to have speak on his behalf. Now generally it’s not
going to be that 20 witnesses are going to remain during the entire hearing.

Callegari: Sure.

Robinson: But if they want to present a witness they certainly have the opportunity to
present any statements by anybody that they wish to present.

Callegari: Okay, thank you.

Chairman: Representative Lucio.

Lucio: Thank you Mr. Chairman. Good morning. I have a few questions. I hate
to switch the subject. I’m going to kind of split back and forth. I had
questions about FTE’s. I don’t know who’s best situated to answer those
questions.

Female: Jane McFarland.

Robinson: Just overall FTE’s?

Lucio: Well, during this past session I sat on this committee and sat and listened
to several of the agencies come and talk about their issue with turnovers.
My understanding of that is every time there’s a turnover you have a
certain period where you have to train those new FTE’s.

Robinson: Sure.

Lucio: Not only that, we were very concerned with the wait time for someone to
get their license. So we went ahead and created six new FTE positions
and appropriated money for those new FTE positions. I wanted to know
what the turnover was like in terms within your agency, whether it’s with
enforcement or with licensing, are we having employees stay there for a
significant number of years so that we don’t have to train new people
every so often and which creates wait time whether it’s to resolve
complaints or to get new doctors their licenses.

Female: Can I – can we defer to Miss Jane McFarland?

Lucio: Sure.

Female: She’s Chief of Staff…

25
Lucio: Sure. And then I have a question when it comes to compliance though.
I’m sure she’ll [inaudible 65:40].

[Inaudible conversation off mic.]

McFarland: I’m Jane McFarland, Chief of Staff of the board. Representative Lucio,
we have had some turnover issues when we look at our data. Like all
smaller agencies we run slightly ahead of the state total or the state
percentages. However, our turnover is pretty consistent over years. We
went back to 2002 and turnover was the same pretty much over 2002,
2006, 2007.

It does take a lot of time to train staff. And it’s particularly difficult in the
areas of licensure. We ask people to know so much for so little in those
positions because they are administrative assistant level positions most of
them. There is a career ladder there though. And people do get promoted
up within those positions which creates a constant then movement and
creates more vacancies because we have a lot of internal promotions
within that department. So now we just leave those positions posted pretty
much all the time because we know that we’re going to need additional
people.

Lucio: Has that caused a significant delay in physicians receiving their licenses?

McFarland: [Inaudible discussion off mic 67:06.] I’m going to let Jaime, the licensure
person, speak to that.

Lucio: And also, have all six FTE positions been filled and are we at capacity
right now?

McFarland: We have filled all six of the new positions. We have new turnovers.
Some of those positions were filled internally and created new ones.
We’ve hired – we’ve had a retirement in the last month. I’m going to let
you speak to that Jaime. [Inaudible discussion off mic 67:30.]

Garanflo: My name is Jaime Garanflo. I’m the Director of Licensure and Customer
Affairs with the board. Representative Lucio, you asked first if turnover
had an effect on the time to issue licenses. My answer to that is I don’t
believe so, no.

It has had the greatest effect on the increase in time to license – physician
licensure applicants has been the huge increase that we had beginning in
FY ’06 because the turnover has been about the same. At the end of FY
’07 we had not filled all of the positions. We were advertising and in the
process. As of now we filled those six FTE positions. But because of

26
 other turnover, some internal promotions and internal transfers, I’m still
down at five FTE’s overall in the [inaudible 68:25].

Lucio: We’re only up one let’s say.

Garanflo: Yeah. And the ones that were filled are new, new people.

Lucio: So we’re going to have to train them.

Garanflo: It does take a long time to train people how to complete…

Lucio: What about in enforcement and investigations? How’s the turnover there?
Is it adding to the length of time that some of these investigations are
going on?

Robinson: Well investigations is a pretty large [inaudible 68:50]. There’s 26 of them.

So it’s very hard to keep 26 people fully staffed at all times. We have a lot
of retirements more than anything else in investigations. We normally do
not have a problem with it because we try to fill as quickly as we
anticipate knowing the retirement – for example we’re all ready posting
for somebody who we know is retiring. But there was a point in time
where we did have a hiring freeze. So when that happened and those
FTE’s were opened, that did hurt us because we couldn’t rapidly fill.

Lucio: Could you say – could it be said that some of the reason for the amount of
time – and maybe no, but some of the reasons or contributing factors to
the amount of time it takes to resolve a case is because of lack of staff?

Robinson: I think it could certainly be said that if we were ever fully staffed we
would do it faster than we are now.

Female: We also had a period of time – was it last fiscal year or the year before?
Where we had a number of people who were still employed but they were
out on FMLA. Those are the things that really hurt. Or you have
someone who is leaving and they’re running out time and you’re not able
to fill that position yet. We’ve had some vacancies there that way.

Robinson: We’re working very hard to get it filled as quickly as possible.

Female: We are.

Robinson: But we – as soon as – if we ever do maintain full staff obviously it will be

more – done more quickly than it is now. We’re making some efficiencies
by changing processes, but obviously if we ever do maintain full staff we
will be even faster at it.

27
Lucio: That’s the only questions I had for FTEs. The other one I had was I’m
looking at a chart that was handed to me by my staff that has a breakdown
of how complaints are originated by patients, by family and friends of
patients and then by the TMB.

Then I am looking up at the top of this handout and it lists several ways
the TMB can bring up complaints. One is [product ??] of continuing
education. That’s pretty straight forward. Reports of multiple malpractice
suits. That seems to give some room for discretion. Media reports and
malpractice reviews also seems to give a lot of discretion. Newspaper
items, that seems to give a huge amount of discretion. And board
discovered violations.

My question I guess is kind of several questions in one. How much

discretion in that 15% that originated within the agency, how much
discretion is given to the definition of what constitutes as a violation? Is it
something – I’m sure you’re familiar with the federal [inaudible 71:38]
guidelines that you just look up and there’s a definition of how you handle
that? Or is it on a case by case basis.

Robinson: Well, okay. They’re all different is sort of the answer. The CME audit is
discretionary. We have been doing the same percentage now forever.
Jaime, I think it’s 1%?

Garanflo: It is 1% and our plan is to increase it to 2%.

Robinson: So that’s what we do every year on that. Newspaper articles, what that
really is is when the newspaper finds out about a crime way before we do.
So like a headline comes up, “Doctor arrested for child abuse.” “Doctor’s
office raided.” We will use that and will open that up and find hundreds
of [TMB ??] because that’s how we found out about it through our
clipping service that we use to monitor all of the physicians.

So that is discretionary to a certain degree, but if there is a crime indicated

we’re going to open that up. That’s what the newspaper clippings really
is, is reportings of crimes. The medical malpractice is statutorily laid out.

Lucio: Okay.

Robinson: It requires – it’s in Section 164 of the Occupation’s Code. It requires that
we review any physician that meets certain criteria. Three of a certain
type of report within five years, we have to look at that. Then we open
investigations on the ones that seem like they might really have some sort
of validity to the claim.

28
 Fortunately that number has been going down. It used to be that we had to
look at every claim, malpractice claim that came in. They’ve eliminated
that. Now it’s a payout and settlement and actual lawsuits filed. So that
number is dramatically trending down.

A lot of times we get compliance violations when they have an Agreed

Order. They’ll get a compliance violation out of the Agreed Order. They
popped positive on a drug test or something like that. Then they also have
to fill out their registration form. It asks them four questions that are
really intended for the enforcement part which are, “Have you been
arrested?” Essentially, “Are you suffering from any sort of addiction or
impairment that makes you unable to practice?” That kind of thing.
Those are all also opened up under TMB.

Lucio: In your opinion, does that system lend itself to consistency with – I mean
it is 15% of all complaints filed. It’s kind of an internal initiated system.

Robinson: Right. Well, the CME is pretty consistent. The malpractice is statutorily
laid out so that is consistent. It’s consistently trending down right now,
that’s the definition of change. The newspaper, that’s going to depend on
what doctor gets arrested and what’s in the paper. So that [inaudible
74:32.] Then with the reporting on the registration, that we look at every
single one. So that is consistent. Lastly, it’s going to depend on how
many people violate their board orders. So if a lot of people violate their
board orders, we’re going to have a lot of those. If nobody violates their
board order which would be wonderful, we’re not going to have any.

Lucio: Okay. Thank you, Mr. Chairman.

Chairman: Representative Van Arsdale?

Van Arsdale: Yeah we just got – we were handed a list of biographies of the medical
board members. I noticed there were five or six that had been sort of like
– I guess their terms, they’ve been reappointed during the session but it
was sort of towards the end of the session. Then Dr. Kalafut, you were
reappointed – unlike the others you were reappointed several months later,
at least according to this sheet in September. What’s the – what’s the
reasoning for that?

Kalafut: Representative Arsdale, you’ll have to ask the governor’s office why.

Van Arsdale: You don’t know?

Kalafut: No.

29
Van Arsdale: Okay. Did you ask? Between May and September did you ask the
governor’s office why you were being held up?

Kalafut: I did. There was some question whether I wanted to stay on this board or
not.

Van Arsdale: Oh, okay. When you asked them did they give you an answer or did they
tell you anything, or just not return your calls? What was the – I mean…

Kalafut: You know, I serve at the governor’s pleasure. At first there was a –
whether there was a willingness to continue to serve. Then of course it’s
the governor’s decision ultimately whether I stay on this board or any of
us stay on this board. So there’s some delay.

Van Arsdale: Okay. I have some questions about – I downloaded this complaint form
off of the website where you like – I believe that’s what was on the
website where you file a complaint. Is this the form that people use when
they…

Kalafut: It looks like it. I mean I can only really see the first page, but yes. If you
downloaded it off the website I would assume that it was. You can also
fill that out online and send it straight in.

Van Arsdale: Okay. Is it – I noticed unless I’m missing a sheet or unless there’s some
instructions, I didn’t really notice anything on here about confidentiality or
anonymity.

Kalafut: There is – as far as I’m – I want to make sure that I say this right. Because
the form that we actually mail out to people has a FAQ section. It has like
a Q&A. It talks about all that confidentiality. I think, I think that there is
a FAQ on the website that also answers all of those questions.

Female: That is correct. It’s on the website as a separate document.

Kalafut: Yeah. It tells them all about, you know, what the meanings of their
complaints are, what they can expect from the process, things like that.

Van Arsdale: Do y’all have any idea of what percentage of your complaints, your forms
that you – let me back up. Can someone make a complaint orally or does
it have to be in writing?

Robinson: We almost never take oral complaints because essentially we want it to be

done in the words of the complainant. We have done it once or twice
when someone was physically unable to make a complaint. We had one
person who was blind so we did take theirs orally, but almost never.

30
Van Arsdale: So I noticed in the statute that TMB, the medical board like employees or
staff I guess can also make complaints, is that right?

Robinson: Well, it’s allowable, yes.

Van Arsdale: If they make a complaint do they fill out one of these forms too?

Robinson: They have a form that they fill out, yes.

Van Arsdale: Is it the same one everybody else fills out?

Robinson: I don’t think it’s exactly the same because we have an additional form that
they attach to the underlying information that they have found out about it.

Van Arsdale: The form – so am I hearing that the – if you’re – let’s say you’re on the
board of TMB or you’re an employee of TMB and you file a complaint.

Robinson: Okay, the board members, yes. They fill out a form. The staff…

Van Arsdale: The same form as everybody else?

Robinson: Okay, let me make sure I understand because what I was thinking you
were talking about were field investigators. Because what will happen is
we’ll have compliance officers for example in Orange County. When we
were out trying to deal with some of the situations in Orange they would
wind up meeting with other law enforcement who would say, “There’s
another problem doc here. Let’s go look at it.” He would come back and
make a report and say, “This is what I found out in Orange. We really
need to look into blah, blah, blah.”

When that happens, no, they do not fill out this entire thing. It is written.
It is maintained as part of the file but it is written more like an
investigative report of, “Here’s what I found. Here’s what we need to
look into.” That is categorized by TMB. However, if you are making – if
I were making a personal complaint against my physician I would have to
fill it out exactly like this and it would not be classified as TMB. It would
be classified as Mari Robinson, patient.

Van Arsdale: Okay. So, I guess what I’m trying to find out – I’m assuming that each
case that’s started against a physician is started because someone filed a
complaint.

Robinson: Yes.

31
Van Arsdale: Okay. And I’m assuming other than the rare exceptions where someone
can’t write or someone physically can’t write, they have to fill out a
complaint form.

Robinson: Yes.

Van Arsdale: Is that true of people that are on the medical board, not talking about their
personal physician, but let’s say someone on the medical board wants to
file a complaint and start the complaint process against a physician – not
their physician, but I noticed that you all said 15%, I think is what you
said, of the complaints are filed by the TMB. Did I hear that right?

Robinson: I don’t think that you’re – I’m sorry, I think that the statistics and Jane’s
talking right now, are misleading. What we’re saying with the [T&G] are
the ones that I had spoken to you about just now. They’re not board
members. [Several talking at once off mic.]

Van Arsdale: Okay, let me back up. TMB Board, staff, employees – I thought I heard
someone say that 15% of complaints are filed by somebody in the Texas
Medical Board. I think that’s what I heard. Did I hear that right?

Robinson: Fifteen percent are categorized as initiated by TMB which are the ones
that representative Lucio were asking me about where they fill out a
registration and indicate they have a problem or an arrest or they are
getting a CME audit where they have violated their board order, where we
have filed articles in the newspaper that indicate somebody has been
arrested or something is wrong. Those are categorized as TMB
complaints.

Female: Enforcement.

Van Arsdale: So TMB initiated the complaint?

Robinson: Right, after we received it. The agency does it.

Van Arsdale: When they do it, do they fill out a complaint form?

Robinson: No.

Van Arsdale: Why not?

Robinson: Because we take – for example if it’s, well first of all it would be
inefficient. If we have the newspaper article what we do is we scan in the
newspaper article and that is the documentation for the complaint. Just
like if I were Citizen A and I wrote a letter to the TMB, it doesn’t

32
 necessarily have to be on this piece of paper. You can just write a letter
saying whatever the problem is.

Van Arsdale: Let’s say I have a problem with my doctor. Do I have to fill out one of
these?

Robinson: Yes.

Van Arsdale: Okay.

Robinson: Or you have to send something in in writing.

Van Arsdale: So it doesn’t have to be on the form?

Robinson: No.

Van Arsdale: You’ll take this form but it can just be a letter.

Robinson: That’s right.

Van Arsdale: If someone writes a letter and submits it to y’all, y’all may sort of launch
that case or whatever. You don’t necessarily need this form.

Robinson: No.

Van Arsdale: So let’s say an insurance company wants to start one.

Robinson: Sure.

Van Arsdale: They want to file a claim. Do they fill out one of these forms or just send
in a letter?

Robinson: They are treated exactly the same as anybody else.

Van Arsdale: They have to be in writing?

Robinson: It has to be in writing.

Van Arsdale: Okay. One of the stats that y’all gave was that 15% of the complaints
were initiated within the TMB and that 7% were initiated by healthcare
professionals.

Robinson: Sure.

33
Van Arsdale: If a person – let’s say a person is on the board of TMB and they are a
healthcare professional. They’re both. In other words they’re on the
board.

Robinson: Sure.

Van Arsdale: And they initiate a complaint. How do y’all characterize that?

Robinson: It would depend on what they were complaining about.

Van Arsdale: What if it’s not about their doctor, what their doctor did to them. It was
just…

Robinson: The category healthcare professional is used, and this would include any
healthcare professional on the board, when a healthcare professional
complains about another provider, not their own. They are not the patient
in that scenario. But they – for example say that they are a treating
physician and they have five people referred to them in a row after
receiving extremely poor treatment by Dr. Jones. They can make a
complaint to the board and we will investigate what occurred with those
five patients with Dr. Jones.

The same as with a pharmacist. It’s very common for a pharmacist to

realize that the doctor has an addiction problem before anyone else
because they’re the one that the doctor keeps going and getting their drugs
filled with. So a pharmacist falls under that. A nurse might be aware of
the fact that a doctor is committing fraud against Medicaid. She’s the one
who files that complaint. Those are healthcare professional complaints.

Van Arsdale: Do y’all – so it almost sounds like when you mention the newspaper
articles and other things, it’s almost like the TMB is sort of like a proxy –
maybe they got their information from somewhere else and it’s all up to
TMB how the complaint – that they got the information from somebody
else.

Robinson: Only part of the time. The CME audit is done by the TMB itself. The
registration form is the registration form that is colleted at a TMB. The
things that come out of board orders are because we are monitoring
somebody who’s on a board order to see if they’re complying with the
terms. A newspaper, yes, that is definitely a proxy. The same thing is true
of law enforcement. They can file complaints and we will take those in,
things like that.

Van Arsdale: So if – I think I heard y’all say that the anonymous piece of this – it’s on
the FAQ part of the website and maybe did you say it’s in some sort of
form that you mail out?

34
Robinson: The form that we mail out does not look like this. The form that we mail
out has an FAQ included with it about confidentiality and all of that type
of thing and to tell people what to expect as a complainant. This is what
they fill out if they want to submit it on the website. Then there’s a place
for them to go to find that same information.

Van Arsdale: So if they’re doing it on the website and all they do is fill this out, they
don’t really know that it can be filed anonymously because this is all
they…

Robinson: Well, there is a space that gives them the information, but they may not
realize that, no.

Female: They may not read it.

Robinson: I mean they may not read the information we give them when we mail it
out to them anyway.

Van Arsdale: How do you decide how to mail it – like when you say, “Mail out a
complaint form” does someone request it?

Robinson: Yes. People call in. We have an 800 number and this is actually under
customer service. But people call in and say, “Hey, I’m having a problem
with my doctor.” Then we say, “Okay, let us get your address. You can
either go on the website and file a complaint and we’ll look at it, or if you
don’t have access to a computer we are happy to mail you out a complaint
form.” I think we do hundreds of those a month.

Female: I think we do 400-600 probably a month that the calls come into the
customer information center. In return they receive a complaint form.

Van Arsdale: So what happens is – what percentage would you say of your complaint
forms are the result of a phone call – if someone makes a phone call and
then you send them…

Robinson: We have no idea. We don’t track the 400 phone calls or 600 phone
calls…

Van Arsdale: Do you send a form to everyone that calls?

Robinson: Right but basically that’s just taking a letter…

Van Arsdale: Doesn’t that cost money?

Robinson: Yes.

35
Van Arsdale: Why wouldn’t you track that?

Female: I do have – I do have…

Robinson: We track how many.

Female: I have a number every month that are sent out as a result of an inquiry to
the call center. Most of them would be by telephone. Some of them could
be in writing. The call center gets a lot of the written documentation
coming into the agency. So I do know that. I have never put the numbers
together to see what percentage that constitutes of the total complaints.

Robinson: And we couldn’t. We don’t keep track of who all we sent a complaint
form to. If the legislature thought that would be important we could
certainly dedicate a full to a half-time FTE, take that off of licensure and
enforcement and do that.

Van Arsdale: I’m just curious because – do y’all track what percent – like let’s say you
send out 600 forms. Do you track how many of them actually never get
sent back in?

Robinson: No.

Female: No.

Robinson: We would have to write down the name of 400-600 people a month and
then do a – I guess weekly scan of the system to see if they ever turned
their complaint form in. And if that’s something that y’all believe to be
important, we could certainly take resources off of something else to do it.

Female: The other issue is that somebody might call in on behalf of the person who
sends it, so you really wouldn’t have a good way to track if the one you
sent out was the same complaint that came in.

Female: I get calls sometimes from legislative staff asking me to send a complaint
form to someone. I mean it could be someone else who calls and asks that
we send a form. They will say, “We’ve got a constituent who wants to
know how to file a complaint.” I’ll usually direct them to just call into the
800 number, but they may say, “Well, can you just send them a form?”

Van Arsdale: Well when the person’s been harmed by the doctor or think they’ve been
harmed, if they go through them, the person can’t remain anonymous.
They have to identify themselves. If the suit is frivolous there are
sanctions in place. The judge can sanction someone who sues somebody

36
 frivolously. My question is with the TMB is let’s say, what provisions do
y’all have for sanctioning complainants if it’s a frivolous complaint?

Robinson: We don’t have jurisdiction over complainants, only physicians.

Van Arsdale: Okay. So if a complainant files a complaint against a physician, or let’s

say files 20 complaints against a physician just to harass the physician,
you’re saying you don’t have any penalties or sanctions or anything you
can do?

Robinson: Well first of all I would submit to you that I have never, ever seen that
happen that 20 complaints are filed – that 20 complaints have been filed
by one person against a physician.

Van Arsdale: Okay, let me –

Robinson: That simply does not occur.

Van Arsdale: If we’re going to play that game let me ask you this. Let’s say someone
files one complaint against a physician to harass a physician to force – I
know y’all don’t think they have to hire a lawyer but if you’re going to
lose your license a lot of doctors are going to hire a lawyer and spend
some money. Let’s say that the complainant knows that. Let’s say that
the purpose is harassment. Are you saying that y’all don’t have any
jurisdiction or any provisions to penalize or sanction someone to keep
them from doing that?

Robinson: That’s exactly right. We only have jurisdiction over licensed physicians,
not the general population.

Van Arsdale: So let’s say I’m the physician’s competitor physician.

Robinson: Sure.

Van Arsdale: And I file complaints against my competitor anonymously.

Robinson: Are they valid complaints?

Van Arsdale: I’m not getting to the point of validity. I’m just saying that just like today
if I’m mad at some doctor today that’s here, can I get on the website this
afternoon, fill out a complaint form and fill it out anonymously with y’all
and trigger a case?

Robinson: Absolutely. People can behave badly in any aspect of their life and that
includes filing complaints with the medical board. That’s why we do an
initial 30 day chance for the physician to respond and that’s why we have

37
 180 day investigation. That’s why we have an [IFC ??]. If we thought
every complaint that came in was 100% valid we could issue a penalty
upon receipt of the complaint and we would have no need to ask the
physician to respond or have a hearing or have the medical board consider
it.

Female: Representative Van Arsdale, I was the subject of a frivolous complaint

recently. I got a complaint filed against me stating that I never went to
John’s Hopkins’ Hospital University for my training in physical medicine
and rehabilitation. My name was plastered across the internet stating that.

Now that’s a frivolous complaint. There’s proof that I went to Hopkins. I

was Chief Resident at John’s Hopkins. That is a frivolous complaint and
it will be dismissed because I have proof of my certificates that I went
there. I know what you’re talking about. I personally lived through that.
But then again I’m the one who gets my name across the internet on
websites saying that I am falsifying.

Robinson: But in response we would not be doing anything disciplinary to the person
who filed that complaint.

Van Arsdale: Which employee or members of TMB staff or board file complaints?

Robinson: Well essentially if you’re talking about the type that I talked about that
were investigative, really anybody in the enforcement group as they are in
the course of investigating that complaint can fill out a report, basically
documentation on what else we need to look into. That becomes a
permanent part of the file.

Now what also may happen is some of this information comes from the
licensure [inaudible 91:46], for example the registration that I mentioned.
When they send in their registration and they check if they’ve had any
arrests, they refer that up to me. So that comes from the licensure division
with the piece of paper that is the registration. So that would come on up.
So really anybody who’s sort of involved in evaluating physician fitness at
one time or another would be somebody who would submit something in
writing for us to look into.

Van Arsdale: So would that be like you, like in your position do you file a complaint?

Robinson: I rarely do mainly because I am not actively investigating anybody. I’m

not an investigator. I’m not a litigator for the board. I’m not a compliance
officer. Basically how that happens is an employee will come to me and
say, “Look, we found all of this out.”

38
 The most recent example that comes to mind that I mentioned earlier was
the Orange situation where we had a compliance officer come back and
say, “We found in working with the local sheriff there we found these
other cases.” I said, “Great, we need to look into that. Let’s get that
started.” Myself, I do not. I’m not involved at that level. So it’s
extremely rare. I do not ever remember doing it, but I hate saying never
because for all I know in 2004 I did. But generally that just does not
happen.

Van Arsdale: Do the board members file complaints? I’m not talking about complaints
against their personal physicians. I’m talking about do the board members
file complaints?

Robinson: On a rare occasion I have had a board member provide me with

documentation and say, “Hey, I don’t know if there’s anything to this but
you might want to look at it.” Sometimes I’ll look into it and there’s
nothing to it and we just don’t file it or sometimes I’ll look at it or have
somebody who works for me look at it and realize, “Oh, there might be a
problem here.” Then we’ll file it and investigate it.

Van Arsdale: Okay. So when that situation takes place who’s actually the complainant?

Robinson: Oh gosh, that is so rare. I would have to try to go back and find you one.
I honestly don’t know because it’s a very, very rare situation.

Van Arsdale: What if someone at TMB files a complaint anonymously? How would
you know who filed it?

Robinson: It could be Minnie Mouse for all I know. It’s anonymous. I don’t know
who filed it.

Van Arsdale: Okay. So have you ever filed an anonymous complaint yourself?

Robinson: No.

Van Arsdale: No? Do you know of any board members that have done that?

Robinson: Not that I’m aware of.

Van Arsdale: Dr. Kalafut, have you ever filed – do you know of any board members that
have filed complaints anonymously or…

Kalafut: I do not.

Van Arsdale: Or any family members of board members that have filed…

39
Robinson: In all honesty I would like to point out that even if that were the case it
would be statutorily confidential and she would not be able to say it orally
in this hearing and we would have to get…

Van Arsdale: [Inaudible 94:38]. I’m not asking for who – I’m not asking you for who
filed it. I’m asking you if someone’s aware. I don’t think that’s affected
by confidentiality.

Robinson: Sure. I’m just clarifying in case you were seeking out names.

Van Arsdale: Do you know of any – Dr. Kalafut, do you know of any board member or
board member’s family member that’s filed an anonymous complaint
against physicians?

Kalafut: I do not.

Van Arsdale: Tell me about Mr. Miller, Dr. Miller I guess. When did he go off the
board?

Kalafut: Dr. Miller went off the board, don’t quote me exactly, but I think in
August…

Van Arsdale: August, that’s enough. What was his position?

Kalafut: He was a board member but he was also Chairman of Licensure at that
time…

Van Arsdale: Okay.

Kalafut: …of his resignation.

Van Arsdale: Remind me – he was – it sort of was a deal where he was involved in
some – I guess being an expert witness or something. What was he doing
that was a problem?

Kalafut: It came to my attention in the spring that he was an – he was testifying as

an expert witness in cases. That was his issue. I did not know that prior to
that.

Van Arsdale: Did any of the members of the TMB staff know that?

Kalafut: No. Then when it came to my attention I contacted him to ask him for
more information. He told me about the case. I told him that I felt this
was a conflict of interest and that I would not support it. Immediately we
took action. Within a week I had a stakeholders’ group formed to look at

40
 this issue of board members because there wasn’t any in statute – board
members testifying as expert witnesses.

I felt very strongly that this was a conflict. So we reacted before the
legislature did. And of course the stakeholders’ group said, “Yes, this is a
conflict of interest.” In the April board meeting we drafted rules before
the legislature before the legislature put it into the legislation. We drafted
rules preventing a board member to testify as an expert. Then it had to be
published in the Texas Register and get [inaudible 96:45] and then it was
passed along with the legislation.

[Inaudible conversation off of mic.]

Chairman: Representative Riddle, do you have a question?

Riddle: Yes. I’m a little bit concerned – and clarify this for me. Maybe I’m a
little slow on the uptake here. Correct me if I’m wrong doctor, whichever
one of you might want to respond to this, that a large percent of the
anonymous complaints are dismissed.

Robinson: That’s accurate.

Riddle: Can you remind me what that percentage is?

Robinson: We do have it written here somewhere.

Kalafut: If you look at a two year time period and I said there were about 11,000
complaints registered in a two-year time period, actually 10,980. But
within that time period we got 427 anonymous complaints. I’m going into
a little more detail for you than I gave in my initial comments.

Riddle: Thank you.

Kalafut: So of those 427, 168 were non-jurisdictional meaning we have no control

over – they’re not our licensees. So they were basically just dismissed
[inaudible 98:09]. Of those, 116 were felt to be jurisdictional, they hold
our licenses. The problem with an anonymous complaint is if you have to
file up on it, we have no one to contact. A lot of them get dismissed
because there’s no source to say, “What about this information?” So 38 –
of 116, 38 were dismissed following the investigation. Out of all of those
427, 10 have resulted in disciplinary action. Disciplinary action consisted
of seven administrative penalties…

Robinson: Eight administrative penalties. That was my math error on the thing that
she’s holding. Seven instead of eight, yeah.

41
Riddle: So let me see so I don’t get lost here. There were 400 over a two-year
period - out of 11,000 complaints 427 were anonymous. Basically the
bottom line that we’ve worked down to, 158 were not within your
jurisdiction. 115 were within your jurisdiction. You said 38 were
dismissed but now you were down to 10.

Robinson: Four to five are still active.

Riddle: Okay, four to five are still active. Forty-eight of the 115, 38 were
dismissed. Forty-five are still active and have yet to be resolved and 10
resulted in disciplinary action so far – and only 10 in disciplinary. Now
since you have such a small percentage that resulted in a disciplinary
action, do you have any idea or have you kept any kind of record as to
how many of these complaints that were generated through anonymous –
anonymously, wanting to maintain their anonymity where the physician
needed to or felt that they might need to hire an attorney which takes a
way a great deal of time for them, finances, and resulted in a net loss of
money for the physician?

Robinson: Well we can tell you of the 168, they were never notified.

Riddle: I’m sorry?

Robinson: The 168, they were never notified.

Riddle: Okay, 168 not notified. But of the rest, those that were within your
jurisdiction which you said was 116.

Robinson: One hundred sixteen because 143 were non-jurisdictional and…

Female: No, you said 168 were not jurisdictional.

Robinson: One hundred sixty-eight were non-jurisdictional. One hundred forty-three

were eliminated in that 30-day evaluation period leaving you 116 that
were jurisdictional.

Riddle: Okay.

Robinson: Of that 116, no, we did not – we don’t track what percentage of the
respondents, the licensees, hire attorneys or don’t because we basically tell
them that that’s their choice. They can do that and have representation or
they can represent themselves.

Riddle: Well I can understand it if their license and their ability to practice
medicine is on the line they probably would. Do you think – and I’m just
curious about this because you are in your positions of authority and we as

42
 legislators, we need to try to work together here because obviously you
said that your job, what you’re trying to do as a member of this board is
basically keep bad doctors from doing bad things to good people. Is that
not correct?

Robinson: Yes.

Riddle: Okay, do you think there is a reverse of that coin where we should have
something in place, maybe we need to consider this legislatively, to keep
bad people from doing good things – bad things to good doctors and
keeping good doctors from having access to their position. [Applause.]

Robinson: And I would say to you that is why we instituted all of the levels of ability
to respond and hearings that we do have so that the doctor can present
their side of the story and we can try to eliminate everybody who does not
have a violation from the board’s processes as soon as humanly possible.

Riddle: Would you recommend to legislators sitting before you that we look at
some type of legislation for reimbursement, lose their pay if you will, for
physicians who are out time, expense and taken away from their practices
and their patients for frivolous accusations? I mean we’re all the way
down here to – you’re up to four to five that are still active. Ten there has
been disciplinary action. In over a two-year period of time, that’s out of
427. That’s pretty lopsided I would think, even taking into account that
there was 168 that were not even within your jurisdiction. It seems like
it’s really lopsided. Is there something I’m missing?

Robinson: Honestly I cannot recommend legislation as I work for a state agency as

you’re well aware. The fact that there was a voluntary surrender – what
got cut off was that there were eight administrative penalties, one
restriction and one voluntary surrender. That says to me that there was at
least one physician that shouldn’t have been practicing out of the 10 that
were restricted.

I can tell you the effective legislation, as a state employee, the effective
legislation that allows a physician to sue someone or retain damaged from
them who may be somebody with not a very high education level, who
may be somebody with not a lot of resources, who may be a hospital
who’s afraid of suit anyway. They simply will not tell us regardless of
whether the complaint is valid or not.

So that is simply something the legislature will have to weigh. In the past
when they were weighing that they decided that it was more important to
make sure that as much information that could possibly indicate a bad
physician should come in. It may be that the legislature has decided that it
is more important for doctors to not have to spend time out of their office

43
 to respond to complaints and just accept the fact that many complaints will
never be filed that are valid due to fear. It’s certainly whatever the
legislature decides is the appropriate balance this agency will enforce.

Riddle: I think what the legislature is looking for is indeed balance. Right now
with these numbers, somehow with me looking at it there seems to not be
balance. I find that of great concern. But I do thank you for your answers.

Chairman: Members, we also want to welcome Chairman McClendon. It’s good to

have you here Madam Chair. Members, any other questions? Yes sir,
Robert?

Felton: I’ve got one more based on Representative Riddle’s question. Did I
understand that on some of the anonymous complaints that you may not
even know who it is? Is that correct?

Robinson: All of the anonymous complaints we don’t know who it is.

Felton: You don’t have a clue who it is?

Robinson: That is correct.

Felton: Do you take them in writing, or do you get them by the internet or all they
oral?

Robinson: I’m sorry to – I apologize to repeat this part of my testimony. Actually we

require complaints to be in writing. They can come in over the internet.
It’s a very, very, very rare occasion where we take a complaint over the
phone. It’s usually somebody who does not have the ability to write on
their own. The last one we did was somebody who could not see. Almost
all of them are required to be in writing – 99.99%.

Felton: So do you know who they are when they put it in writing? At least the
agency knows because you can’t even reveal it to us, can you?

Robinson: No, we do not know. That’s why they’re called anonymous.

Felton: Thank you.

Kalafut: That’s why they’re hard to follow up is you don’t have someone to contact
to say, “You know you made this allegation against the doctor. We need
records or we need more information.” We can’t follow up.

Felton: Well, and it’s very difficult for the doctors to do it too when they don’t
even know where it’s coming from.

44
Kalafut: Mr. Chairman? Let me – can I clarify that? If all complaints are
essentially anonymous and if we don’t reveal who the complainant is,
we’re talking about that very small percentage of complaints that come in
unidentified with no name attached. Those are the anonymous complaints
to us. We hear a lot of confusion about people talking about anonymous
complaints, but it’s just that we don’t release that information under
statute.

Robinson: And that would be about 2%.

Kalafut: Yes.

Female: You just said something Dr. Kalafut, that makes me think about the issue
of anonymity being a double-edged sword with neither edge being good.
That if someone as you said with lack of education or lack of
understanding or lack of funds chooses to make an anonymous complaint,
but as Dr. Kalafut said that if they indeed are anonymous they are very
difficult to follow up on and you have an obligation and a concern
regarding the safety of the public and the safety and the welfare of the
public regarding physicians that may not be doing what is proper or giving
good patient care, would you not then say that anonymous complaints
could be dangerous to the public?

Kalafut: I think the anonymous complaints, I mean the complaints in general.

Female: No I’m talking about – not in general. I’m talking about anonymous
complaints. I thought that I understood you to say that it was very
difficult to follow up on a complaint when the complainant chose to
maintain their anonymity. Those weren’t the words that you used, but I
believe that you said something similar to that. Did you not just say that?

Kalafut: Correct.

Female: Okay. Now follow my reasoning here and tell me where I’m wrong. If
there is a need to follow up an anonymous complaint is probably going to
wind up in file 13, and from the numbers you gave me it does appear that
the numbers are low. Then would you not then be concerned that being
able to file anonymous complaints should be discouraged and maybe the
legislature needs to look at that? Anonymous complaints are not
producing maybe what they need to produce.

Kalafut: Our concern, the Texas Medical Board’s concern – and again, I’m going
to answer your question but I’m going to go about it just a little bit, just to
protect the public. We get a complaint in, let’s say anonymous. No name,
just wrote in, “This doctor blah, blah, blah.”

45
 If the evidence provided in a statement is enough that we question whether
there is a violation in the standard of care or perhaps it is this doctor is
drunk or there may be an article that they clipped with it saying, “This one
was picked up for a DUI.” There’s enough information there we can
investigate then we do because our concern is standard of care or
impairment of a doctor or what have you. That that doctor is safe to
practice and treat our citizens. If there’s not enough information there, it’s
spotty, we cannot connect the dots, it doesn’t look like there’s enough
there, it gets dismissed.

Female: So it looks like the vast majority of them would get dismissed because of
lack of ability to follow up and so if there are bad doctors doing bad things
to good people then those bad things are going to continue because of lack
of ability to follow up. I again ask you, would you not agree that the
anonymity would be something that would not be in the best welfare of
the public.

Garanflo: I can tell you because we take so many calls in the information center…

Female: What is your name again?

Garanflo: My name is Jaime Garanflo. I’m the Director of Licensure and Customer
Affairs.

Female: Okay.

Garanflo: I am the director of the division that handles the customer information
center, the first point of contact at the agency, almost all of the calls that
come in. We do take a lot of calls that are about complaints about
physicians. When the caller – we often explain the process, the
investigative process. Even though it’s on the website, there is sometimes
questions. Our representatives answer those to the best that they can.

But I will tell you that when the complainant is asking questions they do
ask sometimes about, “Can I remain anonymous?” Although we tell them
that it is possible to do that, we also explain the problems that can happen
with anonymity, such that things can’t be followed up on and we would
not be able to do certain things. We wouldn’t be able to contact you if we
had another question. So we do do our best to let the complainant know
over the telephone why an anonymous complaint would not be best.

Female: Okay, so this is only done verbally over the phone. This is not done in
writing when the form, wherever it is here. When this form is filled out
and it is anonymous, is that same type of information given to the
complainant?

46
Garanflo: I don’t know.

Female: Why don’t you know?

Garanflo: I’m sorry, I just don’t know.

Female: Does anyone know?

Robinson: My rough answer would be that it does address confidentiality on the

website. It is not going to tell them whether to file an anonymous
complaint or not. It is going to explain to them the complaint process, that
they retain the confidentiality and that type of thing. The other part is up
to them.

We certainly can update materials if the legislature feels that that would be
appropriate, but currently we do not tell people what to do one way or
another.

I would like to say one other thing very quickly. Sometimes these
anonymous complaints are dismissed not only because it’s difficult to
follow up, but because there’s sufficient information there for the board to
determine there’s no violation, just like every other complaint. In the
initial 30 days a very large portion are dismissed because we’re able to
determine no violation has occurred.

Chairman: Representative Darvy?

Darvy: Thank you Mr. Chairman. My – so much discussion this morning has
been on the complaint process. I’d like to go into a little more detail about
that. I’m looking at the overview provided by the TMB on page 24.
There’s a flow chart which is associated with that. Step one, the
complainant – the complaint is received and processed by complaint
analysts.

Robinson: Yes.

Darvy: Who are those people and how many are there?

Robinson: That very first part, they’re just administrative. It’s that very front part.
All they’re doing is eliminating those cases that are non-jurisdictional.
Then they’re moved on to nurses. Once we’ve weeded out everything
that’s non-jurisdictional like for example we get a lot of complaints about
podiatrists or psychologists, things that belong to other boards, we refer
those along. That’s their job. But then everything that’s physicians goes
on to nurses.

47
Darvy: But complaint analysts are staff personnel…

Robinson: Yes.

Darvy: …with TMB.

Robinson: Yes.

Darvy: Then according to your process then you are paying the lack of these
disciplinary medical malpractice history from your records, [inaudible
114:42] and presumably you’d receive a copy from the national’s
practitioner database.

Robinson: Right. That was done by the legislature.

Darvy: Okay.

Robinson: The statute requires us to get that.

Darvy: Then that is sent on to the central nurse investigator.

Robinson: Right.

Darvy: Now what kind of qualifications does this central nurse investigator have?

Robinson: They’re RN’s and a few of them have backgrounds in investigative

medicine with other state agencies. But they’re RN’s and then they’re
trained to go through the investigative training with the board. Those are
their qualifications.

At this point in time what they’re doing is looking at whatever evidence is

brought in, formulating any questions that maybe need to be asked of the
complainant to make sure that we have the sufficient information, and then
sending a notice letter to the physician if required.

Sometimes after just talking to the complainant it’s sufficient to close the
complaint. But if it’s required, sending something to the physician saying,
“We received a complaint about your care of patient AB in June of 2007.
Would you like to respond? If so, here’s your deadline.”

When that physician response comes in that nurse will evaluate all of the
materials provided by the physicians. Often times it’s the medical records.
They will take out everything that indicates no violation occurred. A very
large group of complaints are eliminated at that point in time, about a
third.

48
 The remaining third of complaints go on to the field investigators who are
also nurses or PA’s and they gather all of the requisite evidence – medical
records, witness statements, any other evidence that’s required. If it’s
standard of care case they submit that to two board certified physicians.
Those physicians make an opinion on the standard of care. The case
comes back, a final report is written and it’s either referred to the board’s
DPRC committee – Disciplinary Process Review Committee – for
dismissal or it’s referred to the litigation department for prosecution.

Darvy: I guess my question relates to at what point the complaint is filed.

According to this flow chart that would be in step two, after the central
nurse investigator has assembled that information, presumably received
the letter back from the doctor in response to the complaint, talked to the
complainant and then according to your statement here says if the
complaint is filed, who examines all that body of information to determine
whether or not the complaint should be filed? Is it simply the nurse
practitioner?

Robinson: Yes.

Darvy: The RN makes this decision whether to go forward at that point?

Robinson: Yes.

Darvy: A doctor doesn’t make that, nobody from staff is involved in that process?
Simply that simple – the central nurse practitioner is doing it?

Robinson: Sure, that staff member is the one who pulls out all the ones who should
not go forward. It used to be that everything that was jurisdictional in any
way went forward for the full investigation. All we took out were the non-
jurisdictional. We put in the 30-day review by the nurse to eliminate
everything additionally that shouldn’t be there. So that’s why the case is
there.

Darvy: In order to address some of the concerns expressed this morning, should
that part of the process be expanded to give more attention to whether or
not it should go forward? I mean in your opinion?

Robinson: Well, it would basically just be transferring what’s done at the

investigation to an earlier period. That’s certainly up to the legislature. It
would require a statutory change because right now we are limited to 30
days. But…

Darvy: But if you had more time could a lot of these issues be disposed of before
we have to go hire lawyers or doctors have to hire lawyers?

49
Robinson: I honestly don’t know that it would make that much difference because the
fact of the matter is if we had more time we would do exactly what we do
in the 180-day process which is to go and gather all the medical records
and submit it to a panel, an expert panel for review.

During the 30-days it’s not that we have a lack of time to review those two
pieces of evidence because there’s enough time in the 30-days to review
those two pieces of evidence. At the end of the 30-days it’s not closed it’s
because we can’t determine without a full investigation whether a
violation occurred or not. We think one probably has. So that’s why it
then goes on to the full investigation, to get all of the medical records and
to have two board-certified physicians look at it.

Darvy: But in your opinion, simply by expanding the time, this 30-day period to
bring more involvement, fresh – other eyes looking at this would not be an
effective tool to deal with this concern that these – that have been
expressed today?

Robinson: I honestly do not know that it would simply because that’s something
that’s all ready – that piece takes a long time. Either expert review takes a
long time and getting medical records takes a long time. I mean it just
does. That is all ready being done in the full investigative process.

Kalafut: But I think that’s something – I mean we can talk about that and see if
between now and the session if we can look at that process and see any
way. Off the top of our heads that’s not something we see but it’s
certainly something [inaudible 120:29] talk about and speak…

Male: I think everybody would like the approach to try to resolve these, certainly
the anonymous complaints and other complaints, as quickly as possible
without the involvement of a lot of time and money by the physicians and
other staff. If we could resolve this early in the process and talk about
some of these issues quickly then perhaps it won’t extend into a full-blown
investigation requiring…

Kalafut: We have worked so hard to refine this process. We put in this 30-day
initial review to avoid opening complaints when we don’t have to when
we can avoid that. We look at it and think, “Gosh, this is so much better
than it used to be.” But maybe there’s a way it can be better. We can
certainly…

Male: Certainly I am a little concerned that we have a nurse practitioner making

such a critical decision in this short of time frame. So from my
perspective I’d like to see an examination of that particular phase and
perhaps we can divert some of these actions without going through a full-
fledged investigation.

50
Kalafut: The other piece of this is also that dismissals are reviewed by the
disciplinary review committee, correct?

Robinson: They’re audited.

Kalafut: They’re audited.

Robinson: They’re audited. Once they’re dismissed after 30 days they’re audited by
the disciplinary review committee of the board. I will say that other
thoughts – I mean we’re certainly open to talk about that. Other thoughts
that come up about maybe trying to interject a physician review it’s just –
we just can’t afford it. To hire four full-time physicians which is what it
would take, you can imagine cost and a lot more money than hiring four
full-time nurses.

Kalafut: We can lay it out and see.

Robinson: But we’re more than happy to talk about that possibility. It’s certainly
nothing that we have any sort of philosophical problem with.

Male: It’s been said there’s no shortcuts, only costly detours. Maybe that would
be a way we could look at efficiencies to avert expenses on down the line.
Thank you for your testimony.

Chairman: Members, we have some camera issues so we’re not live right now, or one
of the cameras is stuck momentary. So they’ve asked us to recess for 15
minutes and give them the opportunity to fix that. When we come back if
it’s okay with you all, we have a lady that would like to testify that’s
pregnant and isn’t feeling good. We’d like to let her come up. Then we’ll
go right back, okay? We stand in recess for 15 minutes.

[Audio goes silent for a few minutes.]

Chairman: The subcommittee on regulatory will now reconvene. Will the clerk
please call the roll?

Clerk: Brown?

Chairman: Here

Clerk: Menendez? Taylor?

Taylor: Here.

Clerk: Darby and Lucio?

51
Male: Here.

Clerk: A quorum is present.

Chairman: A quorum is present. If we could have everyone please come in and take a
seat we’ll get started again.

[Conversation off mic 124:00.]

Chairman: The chair calls Sharon Fuentes. Thank you for coming. I’m sorry you had
to wait. We’ll try to get you in and out of here as quickly as possible. If
you’ll give your name for the record please.

Fuentes: My name is Sharon Marie Fuentes.

Chairman: You can go right on into your testimony please.

Fuentes: Thank you Chairman Brown. Representative Brown and other legislative
members, thank you for allowing me to come before you to share my
extensive… [Comment off mic 124:53] Is that better?

Male: Yes.

Fuentes: Sorry. I’ve never been accused of not being heard before, so that’s kind of
surprising. I would like to thank the members of the board for allowing
me to come before you today to share my experiences that I’ve had with
the Texas Medical Board.

I would like to begin with the acknowledgement that I come before this
committee with no physician in training permits, no Texas Medical license
and knowing that I may never receive either of these as a result of my
testimony today. I also know that everything that I say will be public
record and that it can be made available to anybody who requests it.

However, I’m a person of principle and strongly believe that individuals

should take a stand against injustice and discrimination. If my testimony
today will result in the greater good of improving processes and changing
the culture of discrimination at the Texas Medical Board I’m more than
willing to take this risk. You’re talking about issues of appropriation. In
my case I believe that this is an example of how money is not best used
judiciously at the Texas Medical Board when investigating and allowing
physicians to get a permit.

I was born in Texas, began in medical school in 1998, continued with

pathology residency here in 2003. I had a one-time incident with law

52
enforcement with an arrest for an unpaid speeding ticket in 1989. I
applied for and received a physician in training permit or PIT in June 2003
where the Texas Medical Board did not realize that I had not reported that
speeding ticket arrest.

There was a question about major depression. I answered yes. It said,

“Have you ever been diagnosed with major depression?” I said, “Yes.” It
was due to a B-12 deficiency that I had. I provided letters from my
psychiatrist and treating physician and records from my neurologist, but
no psychotherapy notes were sent. I was granted the PIT in a timely
manner. In 2005 I had a relapse and saw my doctor five times over eight
months. She diagnosed me with hypothyroidism. I went for two
psychotherapy sessions and three med checks. Later I saw an
endocrinologist to switch the medication and try to figure out what was
causing the hypothyroidism. He was never informed of the depression.

The short episode of depression never interfered with my work or my

professional life - my personal life, excuse me. I met all of my clinical
obligations with the same level of enthusiasm and energy that I did when I
did not have depression. During the time that I was “depressed” I received
an award from my faculty in my department for excellence in patient care.

In December 2006 I applied for a Change of Institution PIT for my

fellowship training in Houston. When answering the questions on the
application I noted the question about arrest and replied, “Yes.” I believe
that this was a new question and did not remember seeing it in 2003.

I contacted the Texas Medical Board, Beaumont Police Department and

DPS all on December 20th about this arrest. Neither Beaumont nor DPS
could find the arrest in their computers. I provided them with my original
driver’s license. I filled in two forms, put them in an envelope, sent it via
regular mail to the Texas Medical Board along with the original
documents for another speeding ticket and sent it to the Texas Medical
Board without the certified return receipt.

I also noted a question that was worded within the past year, have you
ever been diagnosed or treated for the following. Included in the
following was manic depression - excuse me, major depression and it went
on to state that did it ever significantly impair your ability to function in
school, work or other important life activities. This was worded
differently than the 2003 question and I answered it, “No.”

In late April I contacted the TMB to see if my application was complete. I

was not aware that it was incomplete until May 25th. I resent the
information for the arrest overnight on June 5th and it was signed for on

53
June 6th. I contacted my analyst on the 15th and she said she had to go
hunt it down.

She stated that the arrest information was not present and wanted to know
why I had omitted it. I called her and caught her at her desk. I asked her
to please look for it, that I know that both of them were there and that it
probably got misplaced. I also contacted the Beaumont Police
Department, spoke to an investigator who was able to find the information
and he e-mailed her that information.

I resent the information to them and faxed them along with letters and
phone records showing that I had made those calls in December.

On June 28th, this is the last time I ever had discussed this issue with the
Board. On June 26th I was informed that I would be required to supply
information about my depression in 2003, even though I specifically said
no to the question on the PIT Application.

I was made to fill in forms, write a letter related to the question about
depression, had to have my physician send letters, medical records and
psychotherapy notes, the pre-med check notes and my labs showing the
low value.

I began my fellowship as an unpaid observer on July 2nd. I was told that I

would not get a salary or benefits. I could not be engaged in my clinical
activities or responsibilities until I received the PIT.

On July 5th I contacted Senator Janick’s office and was referred to

Rebecca. I told her I did not want her office to call if it was going to result
in an adverse effect of my obtaining a PIT. She assured me that it would
not and contacted the Texas Medical Board on my behalf.

In the follow-up conversation with her I was informed that Senator Janick
would not be able to assist because it was considered an ethics violation
and that the TMB could and would file a complaint for this type of
interference. After I contacted Senator Janick it became apparent that this
Board was doing as much as possible to delay my application and make it
as costly as possible for me.

The internal subcommittee made up of Dr. Donald Patrick, Director of

Customer Affairs, Jaime Garanflo, a General Counsel, Assistant General
Counsel and a Manager of Licensure and Permits were sitting on my
internal subcommittee. And they met on July 10th where they determined
that they would need more information from my endocrinologist about my
hypothyroidism and that my file could not go forward without it.

54
However, on the 17th, without the second letter, it was determined that my
file would be sent to a consultant psychiatrist to review at the cost of $100
per hour. Notes from my five visits to the psychiatrist, three letters from
the treating physicians and lab values were sent to this board appointed
psychiatrist, whom to this day I still don’t know, who took four hours and
55 minutes to review them. Any time over five hours in this review
process requires that the applicant be notified to put down a deposit.

On the 31st my program director and I submitted a temporary PIT request

to Dr. Patrick so that I could start my training and begin getting paid. On
the 7th of August I was informed that my request was being denied, no
explanation as to why was offered.

On the 3rd I was informed that the consultant had provided a report. On
the 10th I was told that my file was to be reviewed on August 14th. I was
not made aware of their decision until August 20th and I was required to
see a forensic psychiatrist.

I spoke with a forensic psychiatrist to schedule my appointment. During

the conversation, which I had never met this individual, he was uncertain
as to why the board was sending me to see him. He said his physicians are
psychotic, they are not depressed from a medical illness. I saw him on
September 20th and at the end of our one hour and ten minute session, he
shook his head. He said, “You’re fine to have a PIT and I still don’t know
why the members of the board sent you to see me.”

The whole process, which included an extensive file review, a

comprehensive psychiatric evaluation, dictation and correction of the final
report, took a little over three hours and ten minutes and cost $800.00, two
hours less than the other person who reviewed my file.

The report was submitted to the above mentioned internal subcommittee

who met on October 2nd. On that day I received the following e-mail:
Your file was reviewed today and the consultant review was approved.
However, you’ve been asked to withdraw and reapply due to falsification
regarding your arrest.

So what has the board done in my case? They have used the medical
diagnosis depression that had no effect on my ability to practice medicine
in medical school or during residency as an avenue to discriminate against
me. They required me to give them information about my condition even
when I answered the application truthfully, that it had not affected my
ability to practice medicine.

55
They have used this diagnosis as a way to stall my application, maximize
monetary damages, keep me from my training and punish me all under the
umbrella of protecting the citizens of Texas from doctors such as myself.

The internal subcommittee either did not believe me and their Texas
License Board Certified Physicians regarding the fact that my depression
was due to hypothyroidism or they were simply making a point that I
should not have contacted Senator Janick.

Now that I have spent $1,300.00 on their specialists, I do not have a

psychiatric condition that impedes my ability to practice medicine. I have
been instructed to admit to falsifying my application, withdraw and
reapply. I refuse to do this. I am a physician who will not accept anything
from industry because it adds to the cost of healthcare for my patients and
it is unethical. I did not falsify any application.

I also resent that fact that an internal subcommittee headed by Dr. Patrick,
with not one appointed board member sitting on it, is trying to force me to
admit to lying on this application. I have not lied or falsified any
documents. If the form on the question was the same in 2003 when
previously asked this question, any failure to disclose an arrest for failure
to appear before the court that arose from an unpaid speeding ticket 20
years ago has a combination of oversight on my behalf and the
incompetence of the board staff who lost the explanatory documents
twice.

Throughout this whole process I have not been afforded due process. My
attorney advised me that the only recourse I have is to go to the District
Court and file a Petition to the Board to force them to follow their
procedures. I have been kept in the dark about these procedures. I have
been kept in the dark about the independent consultant results and my file
has never been submitted to or reviewed by one member of the Board, the
Licensure Committee, or the Full Board.

The Licensure Committee or the Full Board should be the group result -
requesting that I see the psychiatrist and that it should not be mandated by
the Executive Director and his small yet omnipotent internal
subcommittee, made up of himself, the General Counsel, Assistant
General Counsel, Analyst Supervisor and a Director of Customer Affairs.

If the falsification of my application was a problem then it should have

been addressed in June, not October. The Texas Medical Board is aware
that I’m not getting any salary, that I’m pregnant, I have to pay my own
insurance, I cannot start my program until I have this PIT.

56
To date I have spent out of my own pocket, $17,500 to pay my own living
expenses, medical insurance, their consultant, their forensic psychiatrist
and my attorney.

They have not given my attorney all of the documents which she has
requested over five weeks ago. By the next Full Board meeting which is
on November 29th I will have had my application before this body for
almost 12 months for not a full license, but a permit to study and learn my
pathology as a fellow. I doubt that after today they will be compelled to
put my application forth on that date as my attorney and I have requested.

Many may contemplate why I’m here today. It is not that I think or
believe that this committee will be able to do anything to help me to obtain
my permit, but hopefully to change the process to help those in the future
with issues similar to mine.

I’ve been informed by a psychiatrist program director that many program

directors across the state have been trying for years to get the medical
board to change how they process applications of doctors with depression
and how the question is worded about this condition. However, not one
program director or anyone else is willing to come forward for fear of
retaliation against them or their program.

But more importantly, physicians such as myself with mild depression

caused by a medical illness and it never affected their ability to practice
medicine, should not be afraid of risking their licenses if they are to seek
help. We should not ever be made to feel that we should not seek help
because of a punitive medical board.

The underlying message that the board sends by discriminating against

physicians with depression is that we should suffer in silence, never seek
help for fear of a diagnosis and hope that no one ever takes their own lives
because they cannot go seek out the help of their colleges. I know three
people who have committed suicide in my profession, personally.

We should also not be forced to turn over our psychotherapy notes to a

committee of five to six individuals who are not sworn to protect our
privacy, five of whom are not doctors and the one who is, is not a
psychiatrist.

I resent the fact that a staff attorney and other state employees are allowed
to see my information that I have proved to my psychiatrist and who have
no business knowing the painful experiences from my past. Several
reports from our treating physicians, minus the minute details of our life
should be sufficient. That was the case in 2003 when they allowed me to
have my permit.

57
 In my case my depression, thank God, was caused by a treatable
condition. Most adequately licensed physicians are aware that B-12
deficiency and hypothyroidism causes depression and that it resolves with
treatment. However, this was either missed or ignored by this committee
and those who simply demanded that I spend $1,300 on their additional
psychiatric evaluation.

All physicians should have clear procedures and due process alternatives
available when they feel that their applications are not being processed
properly.

There should be no secret anonymous expert reviewers who get paid to

pad their pockets by dallying five hours over ten documents and
submitting reports that we should never be able to review. There should
be no internal committees which are not authorized by statute, as in this
case, headed by the Executive Director and non-physician employees that
he controls through the hiring and firing process. This creates an
opportunity for intimidation and abuse of power, which I believe is in my
case.

I was told by Dr. Patrick to go here, go there, do this, do that, pay for this
evaluation and then a forensic exam. Now that I’ve done that and been
stunned by his own psychiatrist who says that he can’t believe that I was
even referred to him I’ve been told that I have to withdraw my application
and reapply simply because of an overlooked question in 2003. This is
something that they knew of five months ago. They could’ve caught it in
2003, but now it has become an issue.

So, here I am today hoping this committee can do something to change

how the current Board operates and at the very least have them follow
their own rules and statutes, which they have not done in my case.

I sit before you knowing of my own personal and professional

vulnerability and that with the thought that the nail that sticks up the
highest is the one that will get hit. But I will not be censured through
intimidation by the Texas Medical Board. If I am retaliated against
because of my testimony, then so be it. But, I will sleep at night knowing
that I have done what is right for those who have suffered the same as I
and hopefully this will result in changes that will improve the process for
all with depression in the future. Thank you.

[Applause.]

Chairman: Representative Riddle.

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Riddle: First of all I want to thank you for your courage. Sam Houston once said,
and I had this hanging up in my house while my children were growing
up, he said, “Do right and risk the consequences.”

Fuentes: Yes ma’am.

Riddle: And, I hope the consequences for you are going to be not serious. I hope
that good things come to you and I appreciate your courage. I apologize, I
did not hear your name to start with.

Fuentes: Sharon Marie Fuentes

Riddle: Sharon…

Fuentes: Fuentes. F-U-E-N-T-E-S.

Riddle: Okay, I really appreciate that doctor. Would you please stay in touch with
my office and let me know how things are going as it progresses? We
need good physicians and we need people of courage. I think sometimes
in our world we have an abundance of cowardice and a lack of courage
and I see courage in you today. I thank you. Thank you Chairman Brown.

Chairman: Representative Lucio.

Lucio: Thank you Mr. Chairman. Ms. Fuentes I would just like to also thank you
for your testimony today. I have a loved one that suffers from the same
condition that you do, so I know a lot about that.

She too has received great remarks at work. It has never interfered with
her ability to perform her job, but you know, because of a medical
condition, hypothyroid B-12 deficiency, she has certain things that she
needs to do to keep from being depressed, not because of a mental
condition that she can’t recover from, but because of a medical deficiency.
So it’s hard. I understand what you’re going through. I haven’t been
through it personally, like I said, my loved one.

So, keep fighting the good fight and, you know, like Representative Riddle
said, in the end good things will come to you. We look forward to you
being a great doctor of Texas. So thank you for being here.

Fuentes: Thank you.

Chairman: Representative Riddle.

[Applause]

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Riddle: Mr. Chairman, there was a question that I needed to ask the doctor. It
seems like this whole thing seemed to be triggered by a traffic ticket that
she got, maybe she was speeding or something, what was it, like a
speeding ticket?

Fuentes: It was 20 years ago.

Riddle: …twenty year old speeding ticket. I’m just curious, in the past 20 years
has anybody in this committee hearing room ever not had a ticket?

[Comments off mic.]

Riddle: I mean if you’ve not had a ticket in 20 years would you raise your hand?
Okay, well it looks like we’ve got a few.

[Several comments off mic.]

Riddle: I don’t know, I think it…

Fuentes: In the defense of the board, which is going to be ironic but, in their
defense it was an arrest that resulted from a speeding ticket and not just
the speeding ticket.

Riddle: My daughter had a similar situation when she was in law school.

Fuentes: Right, well I gave it to my father. It got put on the kitchen table and when
it disappeared he thought I paid it and I thought he paid it.

Riddle: One of those things that happens, I was just curious.

Fuentes: No problem.

Chairman: Any other questions, members?

Female: I just want to say to Representative Riddle, that this goes to show you we
do have some perfect employees.

[Laughter.]

Chairman: Members, down to my left here is the new Chairman of Sunset and I just
want you to know that I didn’t think it was very Christian what your
school did to Texas A&M two weeks ago.

[Laughter.]

Male: I beg to differ. That was the most Christian thing we could do.

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[Laughter.]

Female: Chairman Brown?

Chairman: You’re welcome. We’re glad to have you here. We’d like to spread
proselytize [inaudible 145:10] UT down here in a few weeks.

[Laughter]

Isett: Ms. Fuentes, thank you for your testimony and your time today. I just
want to confirm one thing. You never in your testimony did you state any
of the actions taken against you in regard to this matter had anything to do
with your education or the quality of care you gave your patients.

Fuentes: Absolutely never. In fact, in 2006 when I was depressed I got the award
as resident. I continued my care, nobody knew what was going on. I
helped my patients. I mean I’m a pathologist, so my patient care is limited
contact, but on clinical rotations such as [thydal ??] pathology where we
do fine needle [lasperats ??] or blood banking where we do have a lot of
interaction with clinical care I was on both of those rotations at the time
and it never would.

I’m the type of person that if I ever felt like something was going on that
would affect my patients adversely, I would be the first person to walk
away, hang up my coat and leave the profession. I would not jeopardize
patient care under any circumstances.

Isett: Did the board bring up patient care either in a positive plight or a negative
plight at any time during this?

Fuentes: No, sir. Their wording is not that specific.

Isett: Okay, thank you.

Chairman: Members, any other questions? Ms. Fuentes, we’re proud of you for
coming today,

Fuentes: Thank you.

Chairman: …it takes a lot of courage and we will ask the Board to keep us apprised
of your future situation.

Fuentes: Yes, sir.

Chairman: …and hopefully it can be resolved soon.

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Fuentes: Thank you.

Chairman: Thank you so much.

Fuentes: I appreciate your compassion in accommodating me too, thank you.

Chairman: Thank you ma’am. We have one more, members we have one more
doctor that has to catch an early flight. [Inaudible off mic 147:06] Dr.
John Paine. Doctor, if you’ll just give your name for the record and then
go right into your testimony please.

John Paine: Yes, my name is John Paine. The great British philosopher Edmund
Burke said when bad men combine the good must associate or else they
fail one by one an unpitied sacrifice in a contemptible struggle. I hope
that when I am finished you will question those cherished beliefs in the
[unsalable??] honesty, integrity and equanimity of this war.

The only good thing that we could fastidiously take of the stark
revolutions is that this medical board be reduced to a few individual
doctors, saving much money and consternation, that has for all intents and
purposes been functioning by permitting a self righteous cabal of
individuals to frequently decide which doctor in Texas must be punished.
They unfortunately have to resort to biased, unfair and dishonorable
tactics perverting the professionalism of the process and employing
inaccurate facts and testimony, calmly delivered by prejudicial reviewers.
It appears the more judicious members of the board have not been sullied
or shamed by this repetitive injustice, provided in the words of Edmond
Burk.

My case perfectly reflects the above proposition. And, further reveals a

board that can, at times, be vindictive and target certain physicians. I lost
my license based on one malpractice case. At the time the board went
after me, I had only one case in my record as a result of practicing in
Texas for approximately 12 years, a settlement for a spine case.

Of course, as any other busy neurosurgeon in the state, I had at any one
time a number of cases filed against me, many of which would fall by the
wayside. The fact that a lawyer in this day and time files a malpractice
case against a doctor is hardly vindictive of medical malfesis.

I had been Chief of Neurosurgery at John P. Smith Hospital, a large

community hospital in Peterian County and a major trauma center. I had
been listed in the Forbes Magazine as one of the top Neurosurgeons in the
area based and poled by area doctors. I was the first D.O. to ever do an
M.D. neurosurgical residency and achieve MD board certification.

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The board was aware of me for several reasons. I had staunchly supported
and testified for a D.O. Neurosurgeon, Roland Chalifoux, at his hearing
and had testified before the Sunset Committee in which several of us could
hear the whispered sentiments and snickers of a couple of board personnel
sitting behind me relishing their smugness by saying that they had me,
implying that my days were numbered as Dr. Shalaco.

The main reason for my apparent notoriety is that I had been involved in
two peer view actions in which the board had completely exonerated me.
As a result of these two unjustified and anticompetitive, peer view actions
I filed lawsuits. Criminal lawsuits involve a very powerful and influential
group of neurosurgeons known to be friendly with the past President of the
Board, Dr. Anderson.

The board never went after the hospital for failing to submit any
reasonable explanation of the complaints justifying the peer view action.
The Medical Center had the audacity to merely send four inpatient charts
down to Austin. This is a gross violation of due process and the board
meekly acquiesced and did not demand the information of facts from that
institution to justify their action.

One must keep in mind that the prevailing opinion among most doctors
throughout the country, many experts, is that a peer view is in the majority
of cases political and economic. One of the members of this group had, at
the time, eight major malpractice cases either lost or settled for large sums
of money, involving paralysis and death.

This individual had also exhibited a drinking problem leading to at least

one DUI involving an accident. Yet, he was sitting on a surgical QA
committee. The Board remained unperturbed by his record and went
blatantly after me. So, it should not surprise anyone when the board goes
into this malpractice case it wasted no time in initiating an investigation
against me. These are the same neurosurgeons who initially reviewed the
case as they had two prior times.

Apparently, the Texas Medical Board was unable to find one or two
neurosurgeons in the state who did not know me and had not indicated a
most malevolent predisposition and previously shown a propensity to
make unprofessional, wildly incorrect and awardance grievance about the
cases reviewed.

I was first confronted by this neurosurgeon when he was a State

Consultant in my second peer view case. As a result of his remarks and
like the other expert for the first peer view I had to proceed to an informal
hearing. The two doctors cleared me after reading the numerous reports

63
from my experts and one of the physicians apologized to me, Buddy
Sebalis, M.D., about the quality and character of the state’s expert who
was full of inexact facts and littered with such pronouncements as, “Dr.
John D. Paine’s behavior is unprofessional, dishonorable, and that he all
ready over treated these patients and is very likely in the future to deceive
the public. He has in these cases plainly over treated these patients.”

The second time I went down for an informal hearing was again due to the
same doctor’s rank misrepresentations in referring to my surgical
comments as lies. Here again, a comprehensive and thoughtful review of
my expert and my explanation clarified any questions of poor care on the
individual case being examined. The patient, shortly after that trip down
to Austin, dropped her frivolous law suit.

Interestingly, the esteemed Dr. Donald Patrick showed up to observe my

informal hearing. He voluntarily admitted that he knew the neurosurgeon
and stated that he thought his analysis was over the top and excessive.
Without difference to probity and rectitude, the board eagerly relied on
that neurosurgeon to review this malpractice case.

In question and true to form his outrageous and inflammatory diatribe

resulted in my appearing before another informal hearing. His analysis
included such statements and I quote, “I believe that Dr. Paine’s behavior
is unprofessional and dishonorable. Dr. Paine has a history of marginal
indications for surgery. This represents a complete disregard to patients’
wellbeing and this is another example of the deception of the public and
flagrant over treatment of patients. He will persist in this abominable
fashion. I believe that Dr. Paine is a menace to this community.”

The civilian panel member, David Bockan, confessed that he had never
read such a malicious and spiteful review before. The informal hearing
was a mockery. The doctor, an elderly internal medical physician, and
totally unequipped to comprehensively analyze all the facts can only
tediously repeat that I should have gotten a second opinion by a
neurologist before proceeding with surgery, totally failing to mention that
a competent neurosurgeon proved it to the Workers’ Compensation
System. They decided to recommend four years probation and 50% of my
cases be reviewed by an outside neurosurgeon yearly. There is no
mention of my experts. The civilian member could only reluctantly say
that he had to accept the opinion of the State Consultant.

So of course, no reasonable doctor could accept that when the facts clearly
indicated I had not done anything wrong. If I had accepted such a harsh
penalty, my practice would have been destroyed. I eventually had an
administrative hearing before an administrative judge who suspiciously
replaced the original one designated. The state picked their second expert

64
who was an orthopedic spine doctor that had been the expert for the initial
malpractice filing.

On an earlier deposition by Dr. Tray Folt betrayed at TBI, he [inaudible

155:33] stated that the doctor expressed a dislike for me. The state had
out did themselves in obtaining another biased expert. The most shocking
thing was that the doctor during the hearing testified that he accepted
nearly $10,000 from a malpractice lawyer and wrote a report without ever
looking at the facts of the case. He admitted to violating his code of ethics
on the transcript.

This devastating admission never phased the administrative judge or the

Board of Medical Examiners. Additional fact, the charges had been
brought against a neurosurgeon by a member of his Dallas County
Medical Society for making false charges only exalted this individual in
the eyes of Dr. Patrick and the board’s attorney. My hearing was
foreordained, I now know how a black man may have felt before an all
white jury and white judge. Whatever you do or say there is a sickening
realization of the horrible inevitability of your predicament.

To add insult to injury, one of the more vocal members of the board
contacted the neurosurgeon in Laredo intimidating him to the point he
would not testify for me, verifying that I had secured coverage prior to
coming down to cover for him. I had some professionals of neurosurgery,
one chief of spine section at Stanford stating unequivocally that I did not
violate any standards of care. A pathologist hired by the family to do the
autopsy stated that this poor unfortunate patient, fatal stroke and multi-
system organ failure was not due to my surgery or post-operative care.

Though the attorney for the state implied that the nurses may have actually
overdosed the patient, something that I had no control over, the judge
agreed with that possibility and unbelievably still ruled that my post-
operative pain medication regimen was a reason to remove my license.
They never acknowledged that the amount of medication was significantly
reduced during post-operative day number three in his distorted findings
of fact.

The state was very deceptive and clever in that they never accused me of
causing the patient’s death, but merely reiterated the malpractice
complaints which were weak and contrary to the information, clinical
history and hospital course. They made an end run and got away with it
because this board is not accountable to anyone.

If you sent this case to any neurosurgeon in the country with the
accompanying testimony and expert opinions and told them that the
license of the operative surgeon was subsequently terminated, most would

65
 assuredly be aghast and downright incredulous particularly, after
analyzing the administrative judges and accurate findings of fact.

The very relevant and inconceivable fact seems incongruous, knowing the
outcome is that the two state experts openly did not completely agree with
the state’s allegations to the extent that the accused physician should have
lost his license.

I don’t say this as a bitter and broken man who had his license and years
of hard work and sacrifice ripped from his being, but that administrative
judge had to be in the back pocket of the board to supported my
termination. He manipulated his findings of facts, which had multiple
errors and conveniently downplayed important aspects of the patient’s
treatment favorable to me. He never explained why he preferred the state
witnesses over mine, unless it was because they were on video due to
shortage of money.

The judge’s most egregious transgression to bolster his decision was that
he used my malpractice history and peer review cases as contributing
factors without ever asking me or my lawyer to explain things to him.
That is why he had numerous, erroneous and misleading statements about
those important subjects on his findings of fact. I truly doubt that the
leadership on the board that was so dedicated in terminating my license
ever thoroughly studied the judges’ findings and reports by my experts
and ultimately it wouldn’t have mattered since the board was single
mindedly committed to removing my license.

My final statement is this: You should be concerned and exceedingly

worried that a board that would so blatantly, unabashedly abuse its power
could be trusted to not show favoritism to other doctors whose records are
worrisome and represent a serious risk to the citizens of Texas. I have
never accepted the premise of unethical behavior can be easily rationalized
and compartmentalized.

I thank you for your time. I just have one other statement. I went in with
a slight alteration to the quote by Edmond Burk, “Bad laws are the worst
sort of tyranny,” to a corrupt insular government, committee or board is
truly the worst sort of tyranny. I thank you very much for your time.

Chairman: Members are there any questions? Thank you doctor.

[Applause.]

Chairman: We’ll go back on our agenda now, members. Dr. Kalafut, are you finished
with yours? You are, okay. The Chair calls Ms. Melinda Fredericks.

66
Female: Wait a second. We still have more questions about…

Chairman: Oh, you do? Dr. Kalafut, they have - some members have more questions
for you, so would you come back up? Representative Van Arsdale.

Van Arsdale: Yeah, I was noticing in the statutes and occupation’s code about some sort
of annual report that has to be filed with the governor, speaker and
lieutenant governor, I believe, by the TMB detailing I guess, basically
funds received and disbursed and apparently also is suppose to include any
investigations that remain pending after a year. Is that, is there like a set
time that y’all submit that every - when do y’all submit that?

Kalafut: Can I defer to staff on that one, do you mind?

Van Arsdale: No, not at all.

McFarland: Again, I’m Jane McFarland, Chief of Staff for the Board. Oddly that
report is required to be submitted with our annual financial report. Now
that we have the early - and that’s always been in November. Now that
we have an option for an early submission of the AFR we submitted the
financial part that our addendum will be submitted. The addendums are
not yet due so they’ll be, they’ll probably be submitted within the next
month.

Van Arsdale: And that list…

McFarland: I will be happy to provide you with it.

Van Arsdale: Okay, thanks. Does that also list the cases that are pending for
investigation?

McFarland: Yes, it lists - it’s really, I believe Mari could speak more specifically to
this, but it’s a snap shot of cases that are over a year old in the agency and
cases that have exceeded that time.

Van Arsdale: What is, I noticed also that board members, it says here in the statute that
they get per diem for each day that they engage in board business.

McFarland: Um-hm.

Van Arsdale: Board members, what kinds of things, I mean do you submit per diem,
what kinds of things do board members get per diem for?

McFarland: We get $30.00 a day reimbursement for our time away from our practices
and we get, if we use hotels, they give us state government rates and we
get $36.00 for meals.

67
Van Arsdale: I’m not so - I wasn’t really meaning the dollars. I was meaning more like
what kinds of activities…

McFarland: Oh, okay.

Van Arsdale: …do the board members do that you know…

McFarland: Coming down for board meetings and for hearings.

Van Arsdale: When you say hearings are you talking about like stellar hearings and
IFC’s and…

McFarland: Informal settlement conferences, mediations. We typically don’t

participate at the stellar level.

Van Arsdale: Okay. Are those - would you say that the involvement of board members
is sort of equally distributed on terms of how much each board member’s
spending time at the IFC’s or is it - are certain board member spends more
time doing the IFC’s than others?

McFarland: It’s based on schedules. You know some physicians, depending upon
their call schedule, sometimes can’t get away. It may be a bad quarter,
they’re taking a lot of calls. It’s a rotation kind of thing where, and we
have to have a public member on each one, and so we only have seven
public members. So they have to rotate. So, we use ourselves as well as
the DRC Committee Disciplinary - the District Review Committee that
helps us out and so it’s actually who’s available.

Van Arsdale: I was also noticing the statutes that when you - it talks about initiating a
charge and a formal complaint. It says, and I’m reading out of Occupation
Code 164.005 where it says that a charge must be in the form of a written
affidavit. I’m curious as to how you can have an oral charge if the statute
- am I confusing something? I don’t want to get that wrong.

McFarland: Ms. Robinson?

Van Arsdale: How am I getting that wrong?

[Inaudible conversation off mic.]

Chairman: Mari give your name.

Robinson: Again, this is Mari Robinson, for the Director of Enforcement. I believe
that what you’re looking at and I’ll double check is the formal complaint

68
 to SOAH and that does have to be filed as an affidavit. 164.005, is that
what you’re looking at?

Van Arsdale: Yeah.

Robinson: Yeah, that’s a formal complaint. I’m sorry I know that’s confusing. But a
formal complaint is the petition that the board files at the State Office of
Administrative Hearings. That is not a complaint that walks in the door.
So they’re saying that if we file formal charges, public charges, at the
State Office of Administrative Hearings, they have to be sworn to and we
do that on every filing.

Van Arsdale: So, when it says that it may be instituted by an authorized representative
of the board, who would be, who are the people that are authorized
representatives of the board?

Robinson: Well, it’s going to be whoever the board designates. But right now the
staff attorney is the one who drafts it up but it has to be signed and
authorized, it has to be warranted by Dr. Patrick.

Van Arsdale: Okay, who is the ED right?

Robinson: Yes.

Van Arsdale: You know I’ve heard some - there’s something interesting. You know
when I go to church sometimes the pastor will say something and you kind
of see everybody kind of nod their head, you know like in the audience so
that it kind of resonates the people. One of the things that doctor, is it
Fuentes said, I saw a bunch of heads nod was this idea that there is - we
spoke earlier of fear of intimidation on behalf of the patients, and that’s
sort of the basis for having anonymity. But when the doctor testified
about fear and intimidation by the board, I saw a bunch of people’s heads
nod. I’m wondering if you think that they’re, you know, if they’re
delusional, or are these people, is there something to this?

Robinson: I don’t think they’re delusional. I think that the board has not done a very
good job getting out into the community and communicating our processes
and talking to people about how the procedure works and letting them
know how everything goes and what the laws are and what they can
expect. We actually have been putting together a plan to try to improve
that.

So, I think that there is a lot of mystery right now surrounding the board.
They don’t, the physicians may not know what to expect because, you
know, and surprisingly they don’t read the Medical Practices Act for fun,
even I don’t do that. And I think that it’s just there’s a lot of

69
 misinformation. But, the fact of the matter is, and I’m sure this will elicit
a response, we do not retaliate against anyone.

[Inaudible – several talking off mic.]

Robinson: There’s the response. But the fact of the matter is we do not. And,
honestly I don’t even know how we would given the work loads that we
have.

[Inaudible, several talking off mic.]

Robinson: …but, the fact of the matter is we do not. But, we really do need to do a
better job of getting our information out there and explaining to people
how things work and what they can expect.

Van Arsdale: Well, you know, I mean we’re all Americans here, right? We’re all
together. We each have things we do. I mean you’re a state agency. You
know, we’re legislators. There’s doctors in here. There’s various other
types of representatives in here. Each of us make some mistakes in what
we’re trying to do. I mean, I recognize that.

Robinson: True.

Van Arsdale: I also know that when this whole government was set up back in, you
know when the founders founded this country, you know one of the things
that they instituted that was very important was checks and balances.
And, that’s what we’re doing here today is we have the legislative branch
and the executive branch having checks and balances and sort of getting
information out. And it seems to me, just from things I’ve heard and from
things I’m hearing today, there is some sort of credibility problem. Would
you agree?

Robinson: I agree. That’s why I say I don’t think that we’ve done a very good job
communicating with people about the board, what the board does and
what the board processes are. The truth of the matter is the board gets into
a very difficult situation because what you are going to hear is a bunch of
physicians today state their side of the case.

We cannot publicly respond to that. I cannot publicly respond to Dr.

Paine’s alleged complaints with the board that weren’t publicly filed. I
can’t say to you, “This is exactly what happened and this is exactly what
we did and here is exactly how we followed the process,” in a public
forum.

Now, I certainly, if you sign a waiver, I can give it to you as legislative

oversight and the board has no problem with legislative oversight. We

70
 welcome it. We are happy to give you any materials that you wish to see.
But that becomes a problem because I have never heard a physician, in all
the years I’ve been there, and even if you think that we over discipline,
you have to think at least one of the person’s we disciplined in five years
actually did it. I’ve never heard one person say, “Well the board actually
caught me. I did that.” Every single one of them says, “I was rail-roaded.
It’s not the truth,” for the most part.

So, the fact of the matter is we have a hard time responding to that. It’s
difficult for us to explain and show how we followed our process and it’s
not just for the physician’s it’s for the complainants too. They don’t
understand what happened with their case and we’re not able to tell them.
And, that is a problem.

Van Arsdale: Well, and you know, most of the people that we represent as legislators,
we don’t hear from the people that think things are going good…

Robinson: Sure.

Van Arsdale: …things that are going well, okay. We hear from the people that think
things are going wrong.

Robinson: Sure.

Van Arsdale: And so, even though I think this is a slice of what you do, nevertheless,
there is an obligation on all of us to try to fix the areas where there are
problems and I just as appropriator, you know, we go home and everyone
back home knows we are on the appropriations committee. So we talked
about government spending and spending tax dollars, I mean, it’s a
concern to the legislators when we’re spending money on an agency that
has - where there are credibility problems.

Female: I’d like to make a comment on this. As you know as a legislator there are
two sides to everything and you knew in our meeting…

Van Arsdale: There are more than two if you haven’t figured that out.

[Laughter.]

Female: Okay, but when we had our confidential meeting in the governor’s office
there were cases brought up and there’s another side to it. I think that
since we were in a confidential meeting I was able to discuss and I think
if, you know, if you’re going to hear all these complaints from your
constituents, then perhaps to hear also or if you sign the confidentiality
waiver they’ll bring the chart over to your office so that you can see and
read what we have in our investigative file.

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Van Arsdale: Yeah.

Female: And I would just like to say that, to the concern that was voiced about, you
know, retaliation if you go to your legislator, we hear from five, six,
seven, legislators a day with constituent issues and we’re glad to respond
to those. You know, usually they’re licensure matters. They just want
information. They want to explain the process. But we will gladly
provide you with a confidentiality agreement and share with you any
information that you need to, you know, to confirm for yourself whether
or not we are following our statutes. Please, we invite you to do that.

Van Arsdale: Janie, if five or six legislators call you a day, who has to field all those
calls?

Janie: Lisa and I usually.

Van Arsdale: Jane [inaudible 172:34], you’ve got to get a raise.

[Laughter]

Janie: Thank you.

[Laughter]

Janie: We can’t afford it.

Van Arsdale: All right, now Mr. Chairman, I also wanted to ask on the IFC conferences,
how do they - how do y’all assign the panel members? Is that done
randomly, or how do y’all…

Robinson: The way that that is done as Dr. Kalafut was saying, doctors sign up for
specific hearing dates based on their schedules. So what happens is when
the determinate - we consider cases in a group twice a week rather than
every single minute that one comes in. And once one is accepted into the
litigation department we look at what the next four or five hearing dates
are available and we’ll just plug in those cases into those next four or five
days.

So, we try to use about four or five days because, for example, if we have
Dr. Price coming in for a cardiology, and he has cardiology experience,
we’ll try to put in the cardiology case. If we have Dr. Orandue coming in
who’s a psychiatrist, we’ll try to put that psychiatric case in. But, it’s
really based on the days that they’ve signed up for and we have to set X
amount of days out to make sure the doctor gets sufficient notice. But,

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 that’s how that’s done and we have drafted up a fairly detailed response
we will be happy to provide you with as well.

Van Arsdale: And, do y’all keep records of how many different IFC panels and various
members sit - do you keep records of how many?

Robinson: I’m sorry, do you mean, how many they sit on per year, or are you
saying…?

Van Arsdale: Yeah.

Robinson: I would not be the one responsible for that. I’m not aware of whether they
do that or not. I’m guessing since everyone is looking around the answer
is probably not.

Van Arsdale; So y’all don’t keep records of that?

Robinson: Well we have, we have records on who has sat on IFC panels.

Van Arsdale: You could go get the information, you just don’t have it…

Robinson: We could go get it.

Van Arsdale: …it’s just not at your fingertips.

Robinson: Sure, yeah.

Van Arsdale: On the experts, how are those, how are the experts chosen?

Robinson: It’s been done a variety of different ways. The most - the two biggest
pushes that we had is we - they’re required to be board certified. So we
sent out letters to all the certifying groups, the boards of the specialties and
asked them to nominate physicians who they thought would be appropriate
to do this kind of work. And then we took those nominations back, ran
them through our system to make sure that they didn’t have a public board
action, that they were in fact in active practice and then all of those names
were approved by the board, the active physician panelists.

Then we did another really big push, more than a year ago where what we
did is we ran a very large board report of all the physicians who reported
themselves as board certified, who had no disciplinary history, who were
in active practice and we cut that list down by specialty and we sent that
list to the physicians who were on the panel all ready and asked them to,
you know, circle the names of people they thought would be good. So like
all of the otolaryngologists who were all ready on the panel got a list
saying, “Here are all the other laryngologists who we believe to be board

73
 certified who have no disciplinary history with the board. Please let us
know if you think any of these people would be great panelists.” And,
again those all went through the board for approval.

Recently we had - we’ve got a fairly good pool right now. So right now
what I’m doing is if we have a shortage at the disciplinary review
committee, the DPRC, which is the one who oversees enforcement, I will
tell the board we have a shortage in, for example we had a shortage in
radiologists who specialized in mammography, and I said we have a
shortage in this. We’re looking for people who might be interested in
applying for that so it was one or two applications came in that way.

Van Arsdale: Do y’all maintain lists of the experts and…

Robinson: Yes.

Van Arsdale: …and how often they participate.

Robinson: We have a list. We have a public list of all of the experts.

Van Arsdale: On the - you know when a settlement hearing takes place and the ALJ
makes a recommendation, how often does the board disregard or, you got
a big smile on your face. How often does the board overrule the or just
disregard the ALJ.

Robinson: I believe, well…

Female: I had…

Robinson : I believe it’s two times in the past five years.

Female: I have the statistics and from January of 2003 we had 21 discipline orders,
disciplinary orders of the board that had been subject of a judicial appeal
to a district court, having gone past SOAH, what we’ve gone to SOAH,
eight temporary suspensions or automatic orders have been appealed from
SOAH. Two were dismissed for lack of prosecution or non-suited, three
were settled by agreed order, three are pending in district court, none have
been reversed, board reversed.

So 13 final orders after a SOAH hearing have been appealed, three board
affirmed by district court and the court of appeals, one appeal to the
supreme court was denied, three board affirmed by district court appeal is
pending, one board affirmed by district court no appeal filed, one was non-
suited, five pending in district court and zero were board reversed.

Van Arsdale: I think I’m kind of confused, how many…

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Female: That’s what the higher court did, I’m sorry.

Van Arsdale: Right. How many times, how often does the Texas Medical Board
overrule or disregard the ALJ’s .

Robinson: The answer is, rarely.

[Laughter.]

Robinson: I believe, again…

[Laughter]

Van Arsdale: Can you give me some numbers?

Robinson: Yes. I believe it was two to three in the past five years and Robert is our
general counsel so you could certainly correct me on this if I was wrong.
But what we’re talking about here is finding, changing findings of facts
and conclusions of law. Which is all SOAH is suppose to be doing. The
penalty part has never been SOAH’s purview. It’s 100% the discretion of
the board. So, that’s not an oversight. SOAH doesn’t have the authority
to make that recommendation.

Van Arsdale: Are you talking about the board changing the penalty?

Robinson: The board…

Van Arsdale: …or changing the findings of fact?

Robinson: Let me say this. SOAH only has the authority to make findings of facts
and conclusions of law. That is all the authority they have to do period.
To change those, there are very specific guidelines on when an agency is
allowed to change those. The board has only changed those, to my
knowledge, twice in the past five years out of all of the PFE’s that have
come from SOAH.

Now, SOAH may make a recommendation on the penalty, but that’s really
- they don’t have the authority to do that. That authority is completely left
to the board and there’s a reason for that.

Van Arsdale: But, they have the, do they not have the authority to make a
recommendation or they don’t have the authority to…

Robinson: Technically, no. Because the fact, and there’s a reason for that and I’m
going to tell you why. The board cannot appeal a SOAH decision. So the

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 foot to that is, because the board cannot appeal, they get the final say on
what the discipline is, based on what SOAH said the facts are of what
occurred and what laws were violated.

Van Arsdale: But, if I’m a lawyer, I mean I’m a lawyer, I would rather have…

[Laughter.]

Van Arsdale: I’d rather have the ability to overturn the judge’s findings and facts as long
as I had the ability to appeal.

Robinson: Well, this is what the legislature set up. This is not…

Van Arsdale: But, you’re saying that the board does not have the authority to appeal.

Robinson: No.

Van Arsdale: I mean why would you want it if you can change the findings of fact and
conclusions of law?

Robinson: You can’t, except in very slim circumstances, which is why we’ve only
done it two times in the last five years.

Van Arsdale: Regardless of the - even if you can’t change the findings of fact, that you
get to, the board sets the penalty.

Robinson: If there is a violation found, yes. If there’s no violation found you can’t
really set a penalty if there’s no violation found.

Van Arsdale: Oh yeah, yeah.

Robinson: Unless you change the findings of fact or conclusions of law.

Van Arsdale: What kind of…

Robinson: All state agencies are - I’ll just say this very quickly. All state agencies, or
almost every state administrative agency is under that exact same scheme.
That is not unique to the medical board. That is how the SOAH system
works. There are few people who are exempted out of that, and they have
even more authority to change things than the rest of the agencies.

Van Arsdale: But what you’re saying is, I think, is that the ALJ, which I’m assuming is
a lawyer…

Robinson: I, most of the time I would assume that they are.

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Van Arsdale: …makes the findings of fact and conclusions of law and then there are
certain incidences where the board, Texas Medical Board, can, under
specified statutory incidences, can change…

Robinson: Yes.

Van Arsdale: …the findings of facts and conclusions of law.

Robinson: Yes.

Van Arsdale: And, are you saying those two incidences, is that what happened in those
two incidences that you mentioned?

Robinson: Well, that’s what the board asserted, yes. And one - the last - the most
recent one, yes, that is exactly what happened and we will have to see
whether the court affirms that or not.

Van Arsdale: What, I mean just off the top, I mean I can go read it, but what are the
types of things you can change a judge’s findings of facts and conclusions
of law?

Robinson: Okay, well I feel like I’m taking the bar exam.

[Laughter.]

Van Arsdale: Well we are lawyers.

Robinson: Yes, I know. Well, in all honesty this is really more the general counsel’s
purview.

Van Arsdale: Well, maybe he can come up here and ask.

Robinson: But, the basic things are, if they’ve gotten the law exact - if they’ve gotten
the law wrong and they’ve misinterpreted it to a degree that, I’m going to
turn this over to Bob.

Simpson: Yeah, basically the only grounds for which…

Chairman: Sir, if you could…

Simpson: I’m sorry my name is Robert Simpson. I’m general counsel for the board.

Male: Has he filled out a witness information form?

Simpson: No, I have not.

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Male: Okay, I was just asking.

Simpson: But, I’ll be glad to. I didn’t anticipate this. The basic grounds for
changing the findings of facts and conclusions of law are that the ALJ has
misapplied a statute or rule or decision of the board. And if they have
done any of those things then the board can change the findings of fact.
One of the, the first case Mari is talking about, I believe…

Male: Could you repeat that?

Robinson: He asked you to repeat it.

Male: …how this came about to change the statement of facts.

Simpson: How do you change them?

Male: When the ALJ does what?

[Inaudible 182:32.]

Male: When the ALJ takes what action, you make a change in the findings and
facts.

Simpson: If the ALJ has misapplied a statute, a rule of the board or a previous
decision of the board.

Male: What if the ALJ thought you were wrong?

Simpson: If the ALJ what?

Male: Thought your ruling or rule was wrong.

Simpson: Well, certainly they think it was law. If we believe that they are mistaken
in the way they have applied the law, then the board can change that
finding of fact or conclusions of law.

Male: So the - I’m sorry Mr. Chairman, may I?

Chairman: Yes.

Male: So, the due process that we have in statute that allows them relief of an
administrative law judge, you then can overrule?

Simpson: Basically, it is…

Male: What process - then what due process do we have for them?

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Simpson: Well, the due process is an appeal of the board’s decision…

[Applause.]

Simpson: …to the district court.

[Applause]

Robinson: This is the - just to clarify, this is the process that is for every regulatory
agency, unless they are exempted out and the agency is given more
control. It’s exactly the same process for every regulatory agency that
uses SOAH. The exceptions are extremely narrow. They are extremely
narrow, which is why the board has only applied it two out of five years.

If the board does make those changes because they think the SOAH judge
has misapplied the law and the doctor wishes to appeal that, they appeal to
district court. If they don’t - if they disagree with the district court they
appeal to the third court of appeals. If they disagree with the third court of
appeals they seek [inaudible 184:22] at the supreme court. Exactly the
same way every other appeal of every court system, or court decision
works in the state of Texas.

Male: Mr. Chairman.

Van Arsdale: I think I, I mean I get what you’re saying when you say, you know based
on how the ALJ applied a statute, or a decision or a ruling. I get what
you’re saying about conclusions of law, even though I’m going to say that
maybe we need to change it for the other agencies, and I know that’s not
really to be decided here today. But what I don’t understand though is on
findings of facts. Why - how is it that you can change a findings of fact
under those specific things, those specific things that you mentioned have
nothing to do with facts.

Simpson: Now usually it would come into play that you would add findings of facts,
based on the record because the ALJ had determined some facts not to be
relevant under their application of the law. Whereas, to have a complete
finding, complete set of findings of facts under our interpretation of the
law or the conclusions of law, we may need to add some facts. But, they
would still have to be in the record.

Van Arsdale: Okay, one other question. The last month board, did y’all have a board
meeting that was canceled or something like that last month?

Robinson: Yes.

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Van Arsdale: What was that all about? Why was that?

Robinson: Well, I’m going to let Jane answer but it was essentially canceled to make
way for the November board meeting.

Jane: We had had an unusual situation where our August board meeting was
very light, our November board meeting, or what was normally a
December board meeting was being held in the last week of November
because of a scheduling problems getting a building, room in the building.

So we were going to be holding three board meetings very close together

and the amount of time for staff to prepare for a board meeting, to recover
from a board meeting, to handle all of the paperwork in time for the board,
it just made sense to not hold the October meeting since we just had one in
August and were going to have another one in November. We used to
have more control over when we could schedule meetings but not building
and procurement schedules all of those conference rooms and we just
don’t get to have them exactly when we would like to.

Van Arsdale: So y’all don’t have kind of set dates, you just sort of pick them each
month.

Jane: Every, generally - we’re only required, the board is required to meet four
times a year. They usually hold six meetings. We’ve had one other year
when we’ve cancelled, I believe it was an August board meeting and we
only held five that year.

Van Arsdale: So, you all ready had the space for it, it was…

Jane: It was on an odd day. I mean it was crowding three meetings very close
together. We’d of had a large agenda in August because it’s the year end,
you’re trying to move all the licenses through that you can, get everybody
covered. We would have been meeting again in just five weeks.

Van Arsdale: How far in advance did y’all cancel it?

Jane: Oh…

Van Arsdale: June?

Jane: Oh, we canceled it, I don’t know…

[Inaudible off mic 187:29.]

Female: It was at least four weeks because I was, I’m sorry I was out of town at the
time that those proceedings were being moved.

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Jane: Yeah, it was several weeks.

Chairman: Representative Riddle do you?

Van Arsdale: I’ve got one more, before Debbie gets a hold of it. Yeah, I was kind of
interested in the confidentiality piece of this. Like when somebody files a
complaint and it gets into the process and there is all of this
confidentiality, how much does that protect or avail communications
within TMB? In other words do board members talk amongst themselves
about cases, or do staff and board members - who, what does the
confidentiality – confidential with who? What is the scope of the
confidentiality?

Robinson: If you’re talking about confidentiality of complaints as to who

complained…

Van Arsdale: No, not the complainant, more about the nature of the complaint, the
substance of the complaint.

Robinson: Every staff member has access and every board member who inquiries has
access to any of the complaint information.

Van Arsdale: So, everybody within TMB can see what the complaint is and what it’s
about.

Robinson: Yes.

Van Arsdale: Okay.

Robinson: Well actually that’s not true. I’m sorry let me caveat that. The customer
information group that Jaime is over does not have access to that. It’s
really enforcement staff because the fact of the matter is it can’t be
released to the public and they would rather not have access to it and that
way they can absolutely say, “We never released it, because we don’t even
have access to it.”

Van Arsdale: Okay.

Robinson: So it’s the enforcement group has access to the enforcement information.
And of course Jane and her staff do as well to be able to answer legislative
inquires and things like that.

Van Arsdale: So is there any communication between the TMB sort or directors or
officers? Do they communicate within the IFC panelists about…

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Robinson: No.

Van Arsdale: No. Is there any communication between TMB folks and like the SOAH,
ALJ or…

Robinson: No ex parte communications.

Van Arsdale: Yeah, see I didn’t know what the rules were.

Robinson: Well, no we cannot give the IFC panel, the litigating attorneys cannot
speak to the IFC panels without saying the exact same thing to the defense
counsel. We have a hearings counsel who is separate from the litigation
staff who is under the general counsel and Bob may want to speak on this.
But they are there to give the board any sort of legal advice they need but
they are not part of the litigation staff that is actually presenting the case.

Van Arsdale: Okay, and do - does anyone at TMB have discussions with carriers or
insurance companies about specific physicians?

Robinson: No. We can’t discuss a complaint with anyone outside of the agency
unless there’s a specific statutory exemption for it, for example,
legislators. We can’t even discuss it with the wife of the physician, much
less, anything else.

Van Arsdale: Okay.

Robinson: Unless there’s an exemption.

Chairman: Representative Riddle.

Riddle: Thank you Mr. Chairman. To any of you here in front of me, I have a
question and I’m not clear on this and I really want to make clear not only
in my mind, but I think for those of us here on the [dive ??]. Is the nature
of the complaint fully disclosed to the physician who is the subject of an
anonymous complaint?

Robinson: Well, the nature of a complaint is disclosed exactly the same regardless of
whether it’s anonymous or not.

Riddle: Okay, so the physician, there is absolutely no part of the complaint that is
in any way, shape, form or fashion, veiled, changed, withheld - is that
complaint given to the physician…

Robinson: No.

Riddle: …word for word as the complaint is given?

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Robinson: No, absolutely not because that would identify the complainant in most
cases.

Riddle: I’m not talking about identifying the complainant. I’m talking about the
nature of the complaint.

Robinson: I understand, but if you gave them the complaint word for word most of it
says, “My doctor did this,” so…

Riddle: Okay.

Robinson: …we don’t give them a copy of the complaint. What we do when we
receive the complaint is in the initial 30 days, we give them - we try to
give them…

Riddle: Kind of a vague outline?

Robinson: We try to give them, well at that point all we have is the complaint, okay.
So what we try to do is we tell them what the allegations are, what statutes
we believe come into play here. So it could be you know, practice
inconsistent with public health and welfare.

And we try to give them the detail of the patient who we’re discussing if it
does involve a patient and the time period that we’re discussing it and if it
relates to billing or care and treatment and all that. We try to give them
the most information we can in that initial 30 day period, but that is not
going to be as much information because we just at the very beginning
have a single complaint.

Riddle: Well, I guess I’m really confused because I heard you say earlier in your
testimony that you felt like that when someone makes and anonymous
complaint that whoever the complainant is is completely irrelevant.

Robinson: It is irrelevant.

Riddle: So you concur that you said that. Well, how can you say then that that is
irrelevant because the full nature of the complaint, if someone is going to
complain about you, yet part, some part or some percentage of that is
veiled.

Robinson: We tell the physician everything…

Riddle: How can he respond to that?

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Robinson: …we tell them everything, every allegation that we believe they may have
violated and we tell them the facts surrounding what we think they may
have violated. In the initial 30 days it’s a single letter. After the
complaint is filed and we gather more medical records…

Riddle: But you cannot give the full scope of the nature of the complaint.

Robinson: I don’t understand exactly what you mean by that. We do the - we give all
the information to allow the physician to respond that we have, short of
releasing the complaint itself. And before the IFC they get a copy of
every piece of evidence that we have. So, that is, I mean we give them -
that’s even statutory.

Riddle: So now what you’re saying is that under statute you must give the
physician everything regarding the nature of the complaint, saving except
who the complainant is, if it is an anonymous complaint.

Robinson: What the statute says is 30 days prior to the informal settlement
conference we must provide the physician with a copy of all of the
documentation and evidence that we intend to use at the hearing.

Riddle: That is the formal settlement. That is not the initial when the physician
would have an opportunity to respond within the first 30 days, is that
accurate?

Robinson: Within the first 30 days we give them the allegations that we believe they
may have violated.

Riddle: Fully and completely?

Robinson: Every allegation that we believe they may have violated and the details
that we have available to give them regarding the nature of the complaint.
So, for example a physician might get a letter that says: Dear Doctor, we
have received a complaint. We are giving you an opportunity to respond
before we file it. This complaint concerns your care, treatment and
diagnosis of patient John Q. Public at Herman Smith Memorial Hospital of
June of 2007. We believe that you may have committed practice
inconsistent with public health and welfare. If you would like to respond
to these allegations, please do so by this date.

Riddle: Sounds pretty vague.

[Inaudible conversation off mic. 195:33]

Robinson: Well…

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Riddle: I mean, how do you respond to that?

Robinson: Well, they are…

Riddle: I mean, I, I, I don’t understand. Well, okay. I think I’ve got the answer.
I’m pretty shocked at the answer.

Robinson: There is sufficient responses that occur that 2,000 of them get dismissed
every year. So, it, it, at least 2,000 physicians are getting sufficient
information to respond to where those are closed at the end of 30 days.

Riddle: Well, I would think that one would need to have as much information as
possible to respond. Let me go ahead on with my questioning, I want to
be respectful of time. I’ve got two more things that I need to address. Dr.
Kalafut, are you familiar with Dr. Christine Canterbury?

Kalafut: Yes ma’am.

Riddle: Are you aware that she sent out a - or sent a letter, I’m in receipt of a letter
saying that she served until 2006 and I quote, “When I resigned early – I
resigned early for a variety of reasons. One of those reasons was that I
could no longer justify the actions of the TMB to my peers back home. I
felt like a hypocrite and I submitted my resignation letter. Since leaving
the TMB I have actually had the unfortunate experience of going through
the process on the other side.”

She goes into a little bit more detail but then later on down at the bottom
of the first page, she says, “When we received our statistics, the message
from the board was that we were dismissing too many cases. We were
told that by the time the physician reached the IFC there was a
presumption of guilt because the physician had all ready gone through the
investigation process. The board had all ready decided that a violation of
the Medical Practice Act had occurred. Our job at the IFC was to
essentially decide punishment.” She goes on regarding this. Is this
accurate?

Kalafut: Let me address some of your questions that you brought up and when
reading the letter.

Riddle: I mean this is disturbing, would you not…

Kalafut: Let me - thank you for allowing me to explain this. First of all, that’s kind
of shocking because the conversation I had with her when she resigned
was that she was having problems with a pregnancy and she had worked
very hard to get pregnant and wanted to concentrate on that. I knew

85
 nothing of the other reason. So that’s new to me with you letter and I did
not receive that letter.

The second about people being, or physicians being assumed guilty, now,
please excuse me. I’m only a physician so I’m going to try to explain our
process and I may have to ask for some legal help here. But our process in
an IFC is based on a prime fascia case, which I am told, and this is how
the board’s attorneys have educated us non-legal people on the board, that
it’s common in law and since an IFC, an informal settlement conference,
is not a contested hearing, the standard of proof, they say, doesn’t apply.
And, I’m going to get to your answer.

So the board’s attorney presents what they call a prime fascia case,
meaning that with all the evidence they have accumulated in their
investigative process the case can stand on its own merits to go forward
with litigation. An example of this would be say, failure to release
medical records. We get the accusation that, you have failed to release
medical records in a timely fashion and the evidence that the board has
may be there’s repeated patient requests, there is no evidence that the
doctor’s released the records so we’ve got the evidence there.

The informal settlement conference is another form of due process for the
doctor. It’s the doctor’s opportunity to show compliance with the Medical
Practice Act. So, using that example that I just gave you, the former
example, let’s say the physician comes in and says, “Here, look at this.
Here is the signed green receipt. This patient is lying, this patient got it.”
I’m just giving a very simplistic example. So that would be dismissed and
this process works because 39% of cases that get to the IFC hearing get
dismissed after the doctor shows compliance with the Medical Practice
Act.

Riddle: Well, in her paragraph here, and I just find this quite disturbing and
especially for a physician to put something on paper. It’s one thing to
have a casual conversation but it’s really serious when they’re willing to
put in on paper and sign their name to it.

She continues saying, “I initially received a letter from the TMB,” I’m
skipping down here a few paragraphs to conserve time, “stating that a
complainant about my care of patient X had been filed with the board, at
this point you have no idea who the complainant is, or what the allegation
is, but they ask you to respond within 30 days. If the response answers
their questions, although you have no idea what the questions are, the
complaint may be dismissed without opening an official investigation.
However, if you answer and an official investigation is opened your
answer may be used against you in later proceedings.”

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 I just wanted some kind of response to that, because I found the letter
quite disturbing in its nature. To finish up, I kind of had three facts here,
they’re things that I wanted to go to and notes that I’ve been taking. Dr.
Kalafut, have you ever filed an anonymous complaint?

Kalafut: No ma’am.

Riddle: Have you ever had your physician husband file an anonymous complaint
for you?

Kalafut: (pause) Yes. Not for me, but he has filed one on his own.

Riddle: He has filed an anonymous complaint…

Kalafut: Yes.

Riddle: …on his own. Were you aware of it?

Kalafut: Yes. And it was dismissed. And it was dismissed in the 30 days. But I
don’t have the right I’m told to disclose that.

[Inaudible discussion off mic 202:17]

Riddle: Have you asked your husband or any other person to file an anonymous
complaint against Dr. Dan Munton, your former partner?

Kalafut: I don’t have the right to, I don’t - have the right to disclose that.

Riddle: You cannot disclose that?

Kalafut: Yes, I’m told now ….

Robinson: No, she - we cannot disclose the name of anyone who complains. The
complaint identity is confidential. We certainly can if we get a legislative
form, actually, that isn’t even part of the form.

[Inaudible discussion off mic 202:51.]

Riddle: Okay, did you doctor, file an anonymous complaint against or have you
filed an anonymous complaint against any physicians or staff at Hendricks
Medical Hospital in Avaline? I’m not asking for specifics…

Kalafut: I have not.

Riddle: You have not?

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Kalafut: I have not.

Riddle: Have you asked your husband or any other person to file an anonymous
complaint against any physician or staff at Hendricks Medical Hospital in
Avaline?

Kalafut: I have not, nor do I need to - my right to disclose that.

Riddle: Have you ever, doctor, discussed physician cases which were before the
TMB with any members of your staff or with your employees?

Kalafut: Only after it has become public.

Chairman: Representative Riddle, I think we need to move on.

Riddle: Okay

Chairman: We’ve got a lot of people to testify.

Riddle: Okay, thank you very much, doctor. I appreciate your answers.

Chairman: Representative Lucio.

Lucio: Thank you Mr. Chairman. I have a question. During Dr. Fuentes’
testimony she said that she had contacted Senator Janick’s office, you
know just to clarify what was going on with her case, to see if he could
help, which many of us, you know get those legislative inquiries. People
come into our office. They elect us, you know some of them work on our
campaigns and when they have an issue dealing with state government,
they come to us.

She said that she initially went to Senator Janick’s office, Senator Janick’s
staff called you and that the Texas Medical Board told Senator Janick’s
staff that if she continued to inquire into this case it’s considered an ethical
violation and we will file an ethical violation complaint against you. Is
that practice? So if I were to call next week to the Texas Medical Board
and say I have a doctor in my district, just want to know what’s going on,
could I possibly…

Garanflo: This is Jaime Garanflo, I’m the Director of Licensure and Customer
Affairs. I have never heard of that happening. I have never instructed
anybody to say anything like that. We do our best to accommodate
inquiries from legislators and that is just so out of this world I can’t even
imagine it happening. I can’t.

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Lucio: Okay, so well I mean, because that’s pretty serious. It’s a pretty - when
we have someone testify and say that she called a Senator and that the
Senator’s office was told don’t ask and if you do ask we’re going to file an
ethical complaint against you.

Garanflo: I can provide you a list of all the numbers of legislative requests that I’ve
had on licensure issues or any other and, you know, our response to that is
to do everything we can to, you know, if you say you need to expedite this
person because, you know, they are going to an underserved area or
whatever, I probably talked to staff for some of you who know that our
response has been, you know, completely constructive to that, to try to
help you help your constituents.

Lucio: Okay. So, that is something that is not practiced.

Garanflo: It is not.

Lucio: …has not been done, to your knowledge.

Garanflo: No, to my knowledge and I would also like to reiterate something that
Mari Robinson said earlier. We do not retaliate against anyone. I’m
speaking for licensure now. If there were ever an inquiry made by a
legislator on behalf of an applicant, we would never retaliate against the
applicant for doing so. And, I agree with Jane that I would like for you to
see the list of legislative contacts we’ve had and I invite you to call each
one of them and find out what has happened in each of those cases. You
will not find that.

Lucio: Thank you Mr. Chairman.

Chairman: Representative Taylor.

Taylor: There is a difference when one of our offices follows up on someone’s

license. That would be different from one of our offices following up on
somebody that is going through the disciplinary process. So, that would
be and ex parte.

Garanflo: If you sign the confidentiality agreement we can share with you the facts
of the case. We cannot share, under statute, the statute specifically
addresses that we cannot reveal even to a legislator the name of the
complainant. But we can give you all the other information if you sign,
under the Public Information Act, you have the access as a legislator to
information that is otherwise confidential. And when you sign an
agreement that says it’s for legislative purposes then we’re going to tell
you everything we know about that, everything you want to know.

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Taylor: All right, thank you.

Chairman: Representative Van Arsdale.

Van Arsdale: Okay, I’ve got two really quick ones. Does the TMB allow notes to be
taken in IFC’s?

Female: Yes.

Van Arsdale: Yes? So they don’t prohibit notes from being taken at IFC’s?

Simpson: The rules of the board specifically allow notes to be taken at IFC’s.

Van Arsdale: So that was pretty fast. Hang on I got one more question. We’ll say a
complaint is filed and then the complainant wants to withdraw the
complaint. Is there a provision for them to withdraw their complaint?

Robinson: No, the complainant actually isn’t a party to the matter. Once they file the
complaint we investigate it, because the fact of the matter is, as I said
before, either a violation has occurred or it hasn’t. If the information
comes to the board, regardless of the source, we’re going to investigate it.
And at some point in time if no violation has occurred, it’s going to be
dismissed. And if a violation has occurred and it’s going to go to a
hearing, an appropriate disciplinary action will be taken.

Van Arsdale: Let’s say the complainant accidentally put the wrong doctor’s name on
there. Wouldn’t it be more efficient for them to allow them to withdraw
the complaint rather than go through an investigation and go through your
process?

Robinson: If they put the wrong doctor’s name on there, we’re going to call that non-
juris – we’re going to close that out. That’s going to be immediately
dismissed and then we’ll ask them if they want to file a different
complaint about the corrected name of the physician. But that’s one of the
things that we put in as non-jurisdictional or that we close very, very
quickly. If the physician - if it was opened in error.

Van Arsdale: But if a complainant files a complaint and, what would, if they can do it
anonymously why would they not be, what’s your objection or your fear
of them being able to withdraw it?

Robinson: I’m sorry?

Van Arsdale: It seems like it would be a more efficient use of the tax, of money, if the
complainants that no longer wish to pursue their complaints could
withdraw them.

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Robinson: The fact of the matter is, like I’m saying, if a violation occurred the
medical board wants to know about it. The medical board wants to
address it…

Van Arsdale: Yeah, but you can only investigate something that someone has
complained about, right?

Robinson: Once we know about it we can investigate it.

Van Arsdale: Is that right?

Robinson: No. For example it goes back to the if we see something in the paper.
Nobody filed a complaint that, you know, Dr. Jones was arrested for child
molestation. We saw that in the paper and we opened that complaint
because we want to know what happened there and if Dr. Jones was
convicted of that or what the thing was but the Board needs to take action
on that. And, that thing rarely ever occurs but usually it occurs when the
doctor has made a conclusion that he knows who the complainant is and
he’s called and threatened them. Which happens all the time – in those
types of situations it does – when they want to withdraw.

Chairman: Chairman Callegari?

Callegari: Ah, just a follow-up on that. You mentioned that if the wrong
doctor…let’s say they made a complaint and happened to be the wrong
doctor…how would you know it’s the wrong doctor because it doesn’t
seem like the process really lets you find that out.

Robinson: Well, we contact the complainant first before we contact anything else and
we try to verify all the information. So we catch the majority of that kind
of thing at that very first time before the doctor is even notified.
Occasionally if it slips through, the doctor sends us the letter and says
‘I’ve never seen this patient, I did not work at that thing’…and if we can
verify that that’s right, we will write back and say your absolutely
correct…

Chairman: How do you verify that it’s right?

Robinson: Well we’re able to see where, if they say, “This is where I’ve worked,” we
are able to contact the hospital and see, yes indeed, even though they live
in Houston, they never did have privileges at Herman Memorial and that’s
where this occurred.

Callegari: But it could be two doctors in the same office.

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Robinson: If, well if, we have to have the name of the physician to open the
complaint. We don’t open complaints on…

Callegari: But, if they name a particular doctor and find out later that it’s the wrong
doctor…

Robinson: Sure.

Callegari: …how are you going to, now I want to understand how you allocate that.

Robinson: Okay, if we receive a complaint, first we’re going to contact the

complainant and confirm that it is the doctor they think it is.

Callegari: Right, but if you contact the doctor, the doctor doesn’t really know who’s
made the complaint and what the complaint is all about. How are you
really going to find, even find out that they named the wrong doctor?

Robinson: Okay, but they are notified what the complaint is about. They are notified
as to what patient it involves. They are notified as to when it occurred. So
they could easily write back and say, “I’m sorry I have never seen this
patient. This is not my patient. I’ve checked the records. I believe it’s
my partner who treated this patient.”

Callegari: But, but if the, I’m trying, if you don’t - the complainant can’t go back and
tell you, “Yes, I agree I went to the wrong doctor.” It’s kind of a he said
she said thing again, right? When the doctor says, “I don’t know, you
know, I’ve never visited, met with this patient,” how do you verify that?

Robinson: Well, typically they say the other person who’s treated, if it’s their partner,
typically they say, “This is not me, this was my partner,” and so we then
ask. We open a complaint on the partner and get the medical records and
we know that it was the partner who treated them. If it’s not a partner, if
it’s something of a close name, John Smith, who both live in Houston,
who both are oncologists and they say, “This is not my patient. I never
practiced at that hospital.” We will call and verify whether they ever
actually practiced in that hospital and if it was a case of mistaken identity,
we will tell them, “You are exactly right. We’re taking this off your
record.”

Callegari: What about if it’s anonymous, how do you check it then?

Robinson: The exact same way. If…

Callegari: But, you don’t know who the patient is.

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Robinson: …no, we absolutely do not open complaints, to open a complaint about
standard of care we have to have the name of the physician and the name
of the patient. If we do not have the name of the patient we cannot open a
complaint. Those are…

Callegari: Okay

Robinson: …all considered non-juris…

Callegari: The other question is, if there’s a complaint, did you want to say
something?

Female: I think there’s confusion. The complainant may not be the patient. It may
be a family member, or someone else who treated them. So, that’s where I
think the confusion comes in.

Callegari: If there is a complaint, I think you said that the response of the doctor does
not indicate the specific complaint, just that there’s been a violation of the
Medical Practice Act.

Robinson: No, we give them a specific description of the complaint. We do not

release the complaint itself. But that’s how they know to respond to it,
that’s how they know what to say.

Callegari: So you would tell the doctor that somebody complained that gave them -
you prescribed such and so and it was the wrong prescription for whatever
the malady was.

Robinson: It would say something to the effect, “We have received a complaint
regarding your prescribing practices of Julie Smith in June of 2007 and if
it’s too much…”

Callegari: So it would name the patient?

Robinson: Yes, it names the patient.

Callegari: Okay, all right. Okay thank you very much.

Chairman: Mari, let me ask you one real quick question.

Robinson: Sure.

Chairman: I heard this earlier today, before we broke, and you know I think all of us
are very concerned about the fact. I over bill the patient $65.00, whatever,
and I get this packet and this whole process takes me 180 days or longer.
The cost is $15,000 to $20,000 for legal fees, plus all the misery that goes

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 along with that. Now, what I heard you say earlier was that you all are in
the process of coming out with a fast track program, for lack of a better
example. Is that correct?

Robinson: Yes sir.

Chairman: And, that’s good. How long do you think it’s going to be before that is
actually in operation?

Robinson: Like I said, that we are putting the rule up to the stakeholder group, which
is required by statute tomorrow. So we’re hoping to have that up, I’m
thinking, for the November board to consider and to publish it, hopefully,
at that time. Then it would be adopted at the next board meeting.

Chairman: So, it would be essentially the same thing as getting a speeding ticket?

Robinson: Yes, that is exactly what we are trying to institute. Additionally with that,
we’re trying to just make it as administrative as possible.

Chairman: So, so no longer would doctors have to worry about minor infractions
taking this nine month period of time?

Robinson: That’s correct.

Chairman: And, what are you thinking that this is going to be boiled down to as far as
time?

Robinson: I’m hoping that it can be, now this is you know, I’m hoping that it can be
boiled down to 30 to 60 days.

Chairman: It will save tremendous resources for you all, for the state, and especially
for the docs.

Robinson: I agree.

Chairman: I mean, if a person has a real busy practice, things happens, right?

Robinson: Sure.

Chairman: I mean, we all understand that. But, we don’t want to run doctors off and I
think that’s what we’re concerned about as legislatures. Because we
invest a lot of money in our doctors, you know, as we raise them up
through school and we bring them in and so, I mean, it’s in all of our best
interest to show some flexibility. So I like that. I think everybody else
does too. Thank you. Oh, Chairman Isett?

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Isett: Thank you, Mr. Chairman. You know, with regard to your line of
questioning, it might be that your committee wants to look at the
performance measures on the time [inaudible 8:23]. When I look through
the – and that you have your performance measures and the [LBB ??]
document, but when you look through there there isn’t - there is a measure
for the number of days and it’s been going on over time down to about
260-ish and I think the budget is for 240, 240 days. It might be a bit as we
go through this process that in one of the things, I think, we all agreed to
on the appropriations list, was to review the performance measures this
cycle with [LBB ??].

But, it is disconcerting when you have performance measures, and I don’t

quite understand them, but the percent of complaints resulting in
disciplinary action is 18%. So, one in five of the complaints roughly is
resulting in disciplinary complaints. I’m hoping that that’s not being
translated by the board as a…

Robinson: Sir, I’m sorry, it’s 14% for 2007.

Isett: Okay, I’m looking at the budget.

Robinson: Yes.

Isett: …for ’08 – ’09.

Robinson: It’s 18% of the jurisdictional complaints. It’s not 18% of the overall
complaints.

Isett: Percent?

Robinson: It’s 18% of the jurisdictional complaints, that’s within the definition. It’s
not of all the complaints received. So all those ones that were, the 6,800 -
it’s not the 6,800. It’s 18% of the ones that actually went on to
investigation.

Isett: Okay, then we need that better specified in the way that we present it then
in the budget. But what it - when you have a measure, let me ask this
then. When you have an outcome percent of licensees with no recent
violation, how recent is recent?

Robinson: I believe it’s the last three years.

Isett: So, 99% - if the goal is to have 99%, that means then that the last one
percent are committing a significant number of complaints, 200 and some
odd...

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Robinson: Yeah…

Isett: …they go to…

Robinson: It’s that they don’t have a - it’s that those do not have a order taken against
them. So, there are going to be physicians who are investigated whose
complaints are dismissed within the 30 day process and they’re not
considered to have had a disciplinary action.

Isett: Okay. So, I think it’s something we need to talk about.

Chairman: Members, any other questions? Dr. Kalafut do you have anything else?

Kalafut: No sir.

Chairman: Okay, thank y’all. The Chair calls Melinda Fredericks. Go right ahead
Ms. Fredericks.

Fredericks: Chairman Brown and representatives, I appreciate the opportunity to

appear before you to give a perspective.

Chairman: If you could just give your name please for the record.

Fredericks: Oh, okay. Since you called me I didn’t realize I needed to say it again.
Melinda Fredericks, Medical Board Member.

Chairman: Thank you.

Fredericks: I appreciate the opportunity to appear before you to give a perspective of a

public member on the board who oversees physicians. The Texas Medical
Practice Act says specifically that we public members represent the public
and the Act requires that neither ourself nor we, may be involved in the
healthcare filed actively or financially.

One of the things I have learned from being on this board is how dedicated
and hardworking our doctors are here in Texas. Through my experience
on the board I have seen some terrible situations and in some cases the
underbelly of the medical profession. However, I know this represents
less than 1% of physicians in Texas. I’ve become a great admirer of the
doctors in the state of Texas.

Dr. Kalafut read the board’s Mission Statement to you earlier, but, I would
like to read it to you again because that statement belongs to the public
members of the board as well as the physician members. The Texas
Medical Board’s mission is to protect and enhance the public’s health,
safety and welfare by establishing and maintaining standards of excellent

96
use in regulating the practice of medicine and ensuring quality healthcare
for the citizens of Texas through licensure, discipline and education. The
Texas Medical Board is not here to protect the doctors, it is here to protect
the public.

The public members are called the conscience of the board by the previous
board President, Dr. Lee Anderson. I believe it’s very important to always
strive to be fair to the doctors, but at the end of the day, every time I have
to make a tough decision on the board in regard to physician discipline, I
ask myself, if after work I will be able to look my neighbor in the face and
tell him the decision I made and why I made it, because that’s who I
represent on the board. My neighbor, your neighbor, your wife, your
children, every Texan. I always keep in mind, I have a sacred duty to my
fellow citizens to do the right thing. I believe all of my public, of my
fellow public members feel the same way I do.

But, I also believe that the doctors on this board feel the same way and I
tell you they are remarkable. They care about the people of Texas as well
as upholding the high standards of their profession. I work with these
doctors and I can tell you that they have the public first and foremost in
mind and not covering for their fellow doctors. They are willing to take
the heat and [bonification ??] that sometimes comes from other
physicians. And I think it speaks volumes that all the doctors on the board
are here today.

Board members donate six weeks of our time every year, and I realize we
get the 30-day per deim, but, it’s basically a donation, donate six weeks of
our time every year in order to serve the people of Texas. This is time
away from home, family and work. Plus, the homework time we spend
preparing for our bi-monthly meetings and monthly informal settlement
conferences amounts to another week worth of work.

Dr. Kalafut mentioned the newspaper articles that came out in 2002 about
the board and how those articles acted as a catalyst to reform. Board
members and staff took those articles to heart in realizing they were not
fulfilling their responsibility of protecting the public. This was before my
time on the board. Governor Perry appointed me in September of 2003,
just after torte reform, actually the torte reform election.

Dr. Kalafut remembers what it was like, as she mentioned, when the board
was not fulfilling its responsibility to the public and that is part of what
motivates her to assure that the board carries out its responsibilities today.

I want to show a few what motivates me. I campaigned hard to convince

fellow Texans to vote for torte reform, as did many of us in this room, and
I’m glad I did. We have all seen the great benefits that torte reform has

97
brought to our state. In fact, I think torte reform has brought greater gain
than any of us dared to imagine it would.

The non-economic damage med mal cap not only dramatically lowered
insurance rates for doctors, but, also is dramatically increasing patient
access to doctors. Dr. Kalafut outlined for you earlier, as Dr. Kalafut
outlined for you earlier, the medical board has been flooded with
applications for license to practice in Texas and the flood is not letting up,
but in fact is increasing. But, there could be a down side to torte reform if
the medical board is not kept strong and motivated to do the right thing.
And I’ll be honest with you here, I believe that some of our detractors
want nothing more than for the board to be undermined and to be
weakened so that torte reform will be pushed, removed, or weakened.

How many of us in this room has read the stories of patients who have had
terrible medical outcomes and because attorneys say there is not enough
money in suing doctors anymore, no attorney will take their case? The
wronged patient’s recourse is the medical board. Through the medical
board they will at least get the satisfaction of knowing something was
done about the wrong that was done to them and that measures are being
taken to see that it doesn’t happen again to someone else. If people don’t
have a strong responsive medical board, then where can they go?

Doctors are human beings. They suffer the same frailties as the public,
such as mental illness and substance abuse. These frailties could affect -
can affect, their ability to provide safe medical care unless they’re
controlled. Doctors’ mistakes typically are not deliberate, I realize, but
nonetheless, mistakes happen.

In other cases the doctor might want to practice medicine only if he or she
fits, only if he or she sees fit, regardless of the current standard of care.
And, I have even dealt with doctors, personally I’ve dealt with doctors,
who wanted to refuse the accountability and overwhelming evidence and
solid scientific proof.

On rare occasions doctors, and I want to say I did say on rare occasions
and these are my words I’ve written all of this, on rare occasions doctors
are sloppy or careless or distracted. In most professions, a lack of
attention to detail might not be critical, but with doctors, we are talking
about people’s welfare and even their very lives.

Doctors must be held accountable for their actions. It’s just human nature
to work harder and better when you have someone you will have to
answer to if you don’t. A strong medical board holds doctors accountable
and we’ve seen what happens when a medical board is weak.

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 Ironically, I received an e-mail last week which complained that the
medical board was interfering with the doctor/patient relationship. What
the person that wrote this e-mail doesn’t realize is, it’s the medical board’s
job to intervene and take action when the doctor isn’t practicing in an
appropriate manner. Our processes are carried out according to statutes
[inaudible 19:11] by the Sunset Commission two years ago. The
recommendations and requirements that came out of Sunset have been
fully implemented.

The public counts on the medical board to ensure that doctors are
providing good care. As a board member whose responsibility is to
represent the public, I can look each and every person, each and every - I
can look each and every one of you public citizens in the eye and tell you
that the public can have confidence that the board is doing its job.

Finally, I would like to say something about the Texas Medical Board
staff, and I believe again I can speak for this entire board when I say that
the TMB staff is exceptional. Their dedication is boundless. Their focus
on their mission is clear and their commitment to excellence is inspiring.
Texas is well served by the Texas Medical Board staff. Thank you.

Chairman: Members, are there any questions for Ms. Fredericks? Chairman Isett.

Isett: Thank you. Ms. Fredericks, thank you for your service to the State of
Texas in this capacity. I just want to ask you a quick question about torte
reform and…

Fredericks: Yes sir.

Isett: …and it was a hard fought battle in the legislature and a hard fought battle
to win the constitutional…

Fredericks: Yes sir.

Isett: …election. And I appreciate your help with that. I guess the question that
we have, and I think that there will be some questions or perhaps some
testimony from other advocates of torte reform here later, is that what fear
do you have, if any, that the actions of the board are more aggressive than
necessary to protect the safety of Texans that it will undo some of the
good that we did and that these findings when they end up on the agency’s
website that a doctor performed poorly, whether it was in relation to an
administrative matter or quality of care matter that it will then become
[fauter ??] or evidence trying to justify or give credibility to bad behavior
of a doctor?

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Fredericks: Let me make sure I understand your question, if I might. You’re saying
that my concern, or what concerns do I have that if the medical board is
over-enforcing, that it still might undo torte reform. Is that the question
you have?

Isett: Yes ma’am.

Fredericks: Okay. I do want to say that we have had some issues, and I think that is
definitely something to be concerned about. I’m not saying we’re doing it
but it’s something to be aware of. We do - previously when our orders
were written, in order to get a doctor to agree to sign an informal
settlement conference agreed order, our attorneys would debate back and
forth with their attorneys, or dicker back and forth with their attorneys, in
order to get the doctor to…

Male: Is that a legal term Mr. Chairman, dicker?

Fredericks: …sign an order. I don’t know, dicker. I’m sorry, I’m not an attorney. If
there’s a better term for it please tell me, but…

Chairman: [inaudible 22:44] don’t worry about it.

Fredericks: Okay, thank you I appreciate that.

[Laughter.]

Male: Mr. Chairman

Fredericks: Inside joke?

Chairman: No, he’s not.

[Laughter.]

Male: I’m an outside joke.

[Laughter.]

Fredericks: …and in doing so, part of the agreement would be, often times they would
soften the findings of facts. We would not put in the findings, you know
sometimes some of the findings of facts were pretty bad and so it was part
of the bickering to reduce some of those findings of fact in order to get the
doctor to enter an order in order to get the public protected and to also
save in the finances. But largely, typically if it’s egregious it’s to get the
doctor under an order.

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 Since then we did come to see what a problem that was because it was
becoming [fauter ??]. We had, we were hearing countless stories to tell
you the truth, of doctors who were under an order but they’re saying,
“Look, all I did was this and look what they did to me. They hugely
restricted me but all I did was this.” And so, we came to see the
credibility problem with that, because it is a credibility. So since then I
think you will if you compare orders previously, I’m not sure how long
it’s been. It’s been about a year, maybe six months that we’ve stopped
agreeing to reducing those findings of fact. I mean, they’ll still do some
dickering, but largely we’ve made it very deliberate to make sure that the
findings of fact are spelled out so that they match up with the agreed order
and what the discipline is.

Isett: Do you have any information - I have read and heard testimony now that
insurance companies are making anonymous filings against doctors?

Fredericks: No sir, I don’t have any information on that other than what our
enforcement department put together the statistics on that. I have them,
would you like me to…

Isett: What statistics do you have?

Fredericks: How many of the complaints that have been filed have been filed by
insurance companies. Is that the questions you’re asking me?

Isett: I wanted to know if they were anonymous.

Fredericks: Oh. You know that I don’t know.

Isett: Okay. Again, I want to…

Fredericks: Let me ask the staff. Let me - that’s a good question, I don’t know.

Robinson: I’m sorry, this is Mari Robinson again, Director of Enforcement. Very
quickly, and I just want to clarify this one more time, when the board is
talking about an anonymous complaint, what they mean is there is no
identifying information on it.

Isett: Oh, so anonymous as to…

Robinson: We do not know who it is at all. Now, all complaints are confidential
okay, so there’s a distinction there. The physicians probably see every
complaint as anonymous, but they’re not. Only about 1%, 1-2% of
complaints are truly anonymous with no identifying information.

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 Now, of insurance companies they file less, either at a percent or slightly
less than an eighth of a percent depending on which fiscal year you’re
looking at, of the complaints that we receive, a very small portion. And to
date, no disciplinary action has resulted from a complaint filed by an
insurance company.

Isett: Okay, thank you.

Fredericks: So, I guess to answer your question, if an insurance company has truly
filed a complaint anonymously we don’t know because it was truly
anonymous.

Isett: Okay, again I just want to thank you for your time and appreciate your
service on the board. And let me just say that, for me, and probably the
rest of us here and probably the doctors of Texas, if a doctor acts badly
shame on him and we expect you to do your job. And we’re not
advocating that you not pursue those who do badly. I guess the concern is
that there, the concern we’re hearing is that there is over-enforcement, and
each one of these cases differently, and we would just encourage you to
just do the right thing and again I thank you.

Fredericks: I certainly do want to do the right thing. I appreciate that.

Chairman: Thank you Mr. Chairman. Ms. Fredericks there is a question from
Chairman Callegari.

Callegari: I again thank you as well for your service to the board. And you may not
be able to answer this question but something just occurred to me based on
an earlier question, what happens if a physician refuses to sign the IFC
order?

Fredericks: If they refuse to sign the agreed order?

Callegari: Yes.

Fredericks: Than we file it SOAH.

Callegari: Okay, thank you.

Chairman: I think Ms. Fredericks that probably, I think I can speak for most of us that
we all appreciate the commitment to our state and your service to the state
on this board and your honest feeling of giving back to the state through
your service and we want to thank you for that. And I think if you, the
feeling I get is that there seems to be some, a breakdown in the process
and maybe we can fix the process through better communication through
both the physicians and maybe some education with the physicians and the

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 community at large. I think that we could work on that process in
everything that I’ve read. So, I want to thank you for your testimony
today.

Fredericks: I think there is always room for improvement on anything and I think that
positive communication is the way to solve it, I agree.

Chairman: Thank you. Members, are there any other questions?

Next on the agenda we have scheduled Dr. Donald Patrick, Executive

Director for the Texas Medical Board. Dr. Patrick, please state for the
record, just state your name and who you represent and then continue.

Dr. Patrick: Donald Patrick, Texas Medical Board.

Chairman: Thank you. Welcome and please go ahead.

Dr. Patrick: I had just had some summary remarks to make which I don’t really need to
make. There’s been lots of dialogue back and forth and I’m here to
answer any questions that you might have.

Chairman: Members, are there any questions of Dr. Patrick at this time? Chairman,
Representative Van Arsdale.

Van Arsdale: Yeah, how, in terms of the process of like the ISC’s, what is your
involvement as a complaint goes through the process?

Dr. Patrick: Me personally?

Van Arsdale: Yeah, you.

Dr. Patrick: The complaint comes in, goes through the same sort of evaluation that Ms.
Robinson told you about. When the case has been referred by an
investigator to the central nurse investigator or a hearing and such nurse
investigator agrees that there is enough evidence to do so, it goes to a
panel of three of us - the head of litigation, the head of enforcement and
me to look at all the cases to go in front of us.

We make a decision about which ones go to informal settlement

conference at that time and we assign, to the degree that we can, the cases
to the board members. I believe Mari told you what that process was.
And at that point my involvement in the informal settlement conference
and what happens after that is minimal.

I do not discuss the case with the board member who is going to hear the
case and I don’t involve myself in the case at all in any way except that I

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 hire and fire and put people in place that run the machinery of all that
working.

And I don’t make decisions. The decisions are made by the board. And
once I’ve made the decision that the case should go to informal settlement
conference then I don’t make an actual decision following that. That’s my
involvement in it, but I do set the machinery in place that has the case
come to the informal settlement conference. And I am involved in the
machinery afterwards with, because I supervise the directors who then
manage the things that we do. And the board at a public meeting then
either approves the orders, approves the dismissals, etcetera.

Van Arsdale: So, for example the experts that are chosen, do you have any involvement
in that?

Dr. Patrick: I did in 2003 in that we had to have experts and so the first thing I did was
pick 40 guys that I knew in various specialties. My criterion was, can they
take care of my family. Then I asked them to be experts. Well, it didn’t
take but a couple of weeks before we were out of experts and so we had to
then find other ways. So, what we did was we sent out a letter, like Mari
said, to all of the specialty societies in the state and got back 100, 150
recommendations and about half of them agreed to serve as experts. And
we’ve done that now three times. We get referrals from various other
entities like board members will refer people they think are good and the
members who are all ready on the panel will refer other experts to us.

Van Arsdale: Have you personally ever, and I’m not talking about your own physician,
do you ever file complaints against physicians?

Dr. Patrick: No.

Van Arsdale: Do you have any personal knowledge of any board members filing
complaints against physicians?

Dr. Patrick: I don’t.

Van Arsdale: Or board members’ family members filing complaints against physicians?

Dr. Patrick: No.

Van Arsdale: How does TMB handle a complaint that’s filed against an existing TMB
board member?

Dr. Patrick: What happens?

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Van Arsdale: Like if someone files a complaint against a member of the Texas Medical
Board, how does that…

Dr. Patrick: Well we, this has happened so I can tell you how we’ve done it. The case
comes in as a complaint. It’s run through the usual sort of mechanisms
that are done. I recuse myself from the case because all of the board
members are my employers in a way so that my place has to be taken by
another member of the board.

If it comes to a point where the case is considered jurisdictional and is

filed and it’s investigated and the nurse investigator and the central nurse
investigator both believe that the case should go to an informal settlement
conference, or at least should go to have the lawyer look at it, I don’t sit on
that quality assurance team at the time that it’s sent to an ISC. That’s done
by a board member. I recuse myself from anything that has to do with the
case.

And so, if it goes to an ISC and the board says you violated the Medical
Practice Act and you need an order and the individual agrees to that and
signs it, then it’s a public order like anybody else. If the individual does
not agree to sign that order then it is filed at SOAH.

Van Arsdale: At the time those discussions are going on about whether to sign an order,
are there ever conversations about the license being revoked?

Dr. Patrick: About an individual board member?

Van Arsdale: Of the physician. In other words, let’s say you have an ISC and now
you’re talking about whether or not to have basically an order signed, an
agreed order.

Dr. Patrick: You’re talking about a typical ISC, not…

Van Arsdale: Not specific to the board.

Dr. Patrick: …we’ve gone past that, right?

Van Arsdale: Well it would include obviously them, but anybody, any physician at all,
board or non-board. At the point of ISC when you start talking about the
possibility of signing an agreed order, is there any communications about
revocation of the license?

Dr. Patrick: Well, I mean if it’s someone that the board thinks ought to have their
license revoked, I think that would be part of the discussion between our
attorney and theirs, or our attorney and the individual. It’s not routine,

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 because we don’t believe very many of them need to be revoked, but those
that do, I’m sure there’s a conversation in the negotiation phase.

Van Arsdale: About revoking the license?

Dr. Patrick: Yes.

Van Arsdale: As part of the negotiation?

Dr. Patrick: Yes.

Van Arsdale: Thank you. What are the penalties, what are the maximum penalties, let’s
say a complaint filed against a physician three or four months down the
road, what’s the worst possible thing that can happen to that physician?
What’s the list of things that can happen to him?

Dr. Patrick: Well the…

Van Arsdale: …or to her.

Dr. Patrick: …the options are, the case would be dismissed, or…

Van Arsdale: That’s not bad. I mean I would think that the physician would think that’s
a good thing.

Dr. Patrick: Okay,

Van Arsdale: I’m talking about the bad stuff.

Dr. Patrick: Then the case goes to an informal settlement conference and the board
makes the decision about what - whether the individual should have an
order or not and if they believe that the individual should have an order,
they will then recommend an order to that individual.

Van Arsdale: Maybe I didn’t ask it right. Let’s say that a person files a complaint
against this doctor and we go through all the stuff. We go through the
ISCs and the hearings and the blah, blah, blah. Let’s say the worst
possible thing happens to the physician in terms of punishment and
penalties. What are the things that that physician is subject to if he gets
the harshest punishment?

Dr. Patrick: Revocation.

Van Arsdale: Is that it?

Dr. Patrick: Yes, that’s the harshest.

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Van Arsdale: He gets fined or…?

Dr. Patrick: Well, they might be fined too, but any, virtually any fine…

Van Arsdale: That’s what I’m trying to elicit, that’s what I’m trying to get at. What are
all the things that can happen to him?

Dr. Patrick: Okay, all of the things?

Van Arsdale: Yeah, all of the things!

Dr. Patrick: Okay, so…

Van Arsdale: Revocation of license is number one?

Dr. Patrick: Fine.

Van Arsdale: How big of a fine?

Dr. Patrick: It can be anywhere from $250.00 to $750,000. Dr. Sheffey got hit for
$750, he didn’t pay a penny of it, but…

Van Arsdale: So there was a doctor that was fined three quarters of a million dollars?

Dr. Patrick: Excuse me?

Van Arsdale: There was a doctor that was fined three quarters of a million dollars, is
that what you’re saying?

Dr. Patrick: Yes.

Van Arsdale: Okay. So revocation of license, fines, what else?

Dr. Patrick: Mari has corrected me, once it goes to informal settlement conference it’s
$5,000 for violation is the fine.

Van Arsdale: Is there a cap or a max on how much total?

Dr. Patrick: That’s a…

Van Arsdale: I understand there’s a per occurrence…

Dr. Patrick: Oh, occurrence…

Van Arsdale: …occurrence or something cap.

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Dr. Patrick: Right. Right.

Van Arsdale: …but if there’s like 200 occurrences I guess they could – yeah. Okay, so
revocation of license, fines and what else?

Dr. Patrick: Well, if it’s a standard of care case a monitor of their charts, 30 charts
every quarter would be reviewed by an expert from the board and reports
be given back to the compliance officer. Courses in…

Van Arsdale: Now would that only apply, would a monitoring situation I’m assuming
would only apply if the license wasn’t revoked?

Dr. Patrick: Correct.

Van Arsdale: All right, well I’m not talking about that kind. I’m talking about the worst
punishment. In other words, if you have your license revoked you’re not
in a monitoring situation.

Dr. Patrick: Yeah, well we just, they don’t…

Van Arsdale: I’m not talking about the worst thing…

Dr. Patrick: Well, that’s a mild measure.

Van Arsdale: I’m talking about the…

Dr. Patrick: That’s the worst we can do is revocation.

Van Arsdale: Right. And, you can do revocation and fines.

Dr. Patrick: You can.

Van Arsdale: And I’m assuming, is there any kind of criminal?

Dr. Patrick: We don’t do criminal.

Van Arsdale: Y’all just refer it over to….

Robinson: There could be. It’s very, very rare. But there are criminal statutes
relating to a physician’s performance. I’m sorry, this is Mari Robinson
Director of Enforcement again. There are criminal statutes relating to
anybody who tries to perform surgery while intoxicated. But obviously
we don’t take that action, we refer that to the district attorney. So, the
same thing, if we had subpoenaed somebody and then they practiced
medicine without a license or we had tried to revoke somebody and they

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 practiced medicine without a license, again that’s a felony and while we
couldn’t criminally go after that we refer that to the district attorney.

Van Arsdale: In terms of which board members sit on which cases, do you have any
involvement with that?

Dr. Patrick: Yes.

Van Arsdale: You do?

Dr. Patrick: I have an employee that works for me that calls up the members of the
board and the members of the district view committee and there are 47 of
them all together and works their schedule around to where we can have
one public member and one board member on every single informal
settlement conference case. And there are 400 some odd cases a year and
over 100 appearances between all of these people. And so those are set
out months in advance.

And so when it comes time to assign the case that’s been referred to legal,
to the quality assurance team that I’m on, then we have about a two week
period that we can assign that case because of the timing that we must
have statutorily and within the agency. And so usually that will be a
group of five or six board members and DRC members, a pair, so either 10
or 12, and then typically we pick by what the specialty of the doctor
involved is in that case. Because if it’s a case of OB/GYN for example we
would want our OB/GYN doctor there. If it’s cardiology we want a
cardiology doctor there. Some specialties for which we don’t have board
members in which case they would be assigned to what we think is the
best match.

Van Arsdale: How long have you been Executive Director?

Dr. Patrick: A little over six years.

Van Arsdale: And what were you doing before that?

Dr. Patrick: Practicing neurosurgeon.

Van Arsdale: Okay. Have you ever served in any capacity for TMB or the medical
board before this?

Dr. Patrick: None, I didn’t even know where they were.

Van Arsdale: Had you ever been on the board?

Dr. Patrick: No.

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Van Arsdale: This situation that occurred with doctor, I think his name was Keith
Miller, is that his name?

Dr. Patrick: Yeah.

Van Arsdale: When did you first have personal knowledge of this sort of, the notion that
he was serving as expert witnesses in malpractice cases?

Dr. Patrick: It was some time in April or May. I’m not, it could have been June, I’m
not exactly positive.

Van Arsdale: How did you find out about it? Who told you?

Dr. Patrick: I don’t remember who told me, but I know I found out.

Van Arsdale: Once you did find out, what did you do?

Dr. Patrick: Well, he’s a board member. I work for him. I don’t go confront him.

Van Arsdale: You did or did not?

Dr. Patrick: I did not confront him.

Van Arsdale: Why not?

Dr. Patrick: Because that’s, that devolves on the President of the Board, and so the
President of the Board dealt with him.

Van Arsdale: Did you carry this to the President of the Board?

Dr. Patrick: She knew at the same time I did or roughly the same time.

Van Arsdale: So, whoever told you, but you don’t remember who it was?

Dr. Patrick: I don’t.

Van Arsdale: …you think told her at the same time?

Dr. Patrick: Or there about.

Van Arsdale: How did, did she communicate to you about it? How did you know she
knew?

Dr. Patrick: Yes, I knew that she knew. She told me, yeah.

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Van Arsdale: So, did you communicate to any other member of the board about it?

Dr. Patrick: I wouldn’t say it was impossible that I did, but I don’t recall specifically
doing so. I think the board all knew by the time I knew.

Van Arsdale: As the head of the agency, I mean running the agency, would that concern
you that a board member was doing that?

Dr. Patrick: Well, it depends on the degree and the situation involved. The facts that I
was told at the time was that there was an open case in which he was
serving as a plaintiff’s witness and it was in the context of the dental board
having dentists who were routinely acting as defense witnesses for dentists
having malpractice cases filed against them. And so, the context that all
of this sort of came out of started with the Dental Board and then we
found out that Dr. Miller was involved in this case and the board
immediately kept to having a rule that says that you should not act as an
expert witness in a case that involves a licensee of the board.

And at about the same time, I think triggered by the Dental Board, the legislature took
this up and came up with a law that was passed in May and effective June
1st [inaudible 45:38]. And so, I wouldn’t say that we tagged on to what
the board. I think the discussion was going on in the legislature at the time
that we had a board meeting and made this decision, but the dates I’m a
little vague about.

Van Arsdale: So it sounds like that Dr. Miller’s involvement in some of these cases as
an expert witness had been going on for a while before you knew about it?

Dr. Patrick: Well yes, I subsequently found out that yes, quite some time.

Dr. Kalafut: Representative Van Arsdale, may I comment? Dr. Kalafut, President of
the Board. I found out in the spring. I found out between, I’m the one
who told Dr. Patrick. I got a call from the TMA, from a representative of
the TMA and this was between our February and our April board meeting.
And the conversation was such that, “I think one of your board members is
testifying as an expert witness.” And I said, “Whom?” I’ll get the
information for you. So, it took a little while but the information was
given.

I immediately contacted Dr. Miller said, “What’s going on here?” He told

me he was involved in one case, and one case only, asked me to support
him on it and I said, “No, I cannot,” that I thought it was a conflict of
interest.

And, then the next board meeting - and then I said initially right after that
within a week, I talked to Dr. Patrick immediately and then within a week

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 we had a stakeholders group formalized to look at this because we have to
have stakeholder input. I was wanting to propose a rule. We had nothing
in our board rules that said whether you could testify or not as an expert.
Before we generate a new board rule you have to have stakeholder input.
So we formulated that, or got that formed in a rush fashion within a week.

And so, by the April board meeting we had proposed rules and we had to
kind of tweak them a little bit before they were published in the Texas
Register. So, as I stated earlier in my testimony, we took action on that
before the legislature did. I support what the legislature did as well. I
think that’s the right thing to do. And then, in the summertime we found
out there were more cases and I think Dr. Miller, after passing that rule,
after the board passed that rule, resigned after that.

Van Arsdale: So, he actually, basically, in between the time of the April meeting and the
time of the actual resignation there was basically other cases that had
become known that had not been previously known.

Dr. Kalafut: No, he informed me there was only one, but, in July I found out there was
a lot more.

Van Arsdale: Okay, one other thing, Dr. Patrick, that you said was, when I asked you if
you mentioned it to Dr. Miller you sort of said no and then your first
words were something about him being your employer. Why did you,
what were you meaning by that?

Dr. Patrick: Well, the board, I serve at the pleasure of the board. He was on the
executive committee of the board and they specifically are tasked with
hiring and firing of the executive director. I thought it was probably a
mistake for me to confront him about that and so I thought it was a matter
for the board, not for the executive director and they thought so too and
they handled it.

Van Arsdale: Well, I would submit to you and to the board having sat through a session
on a select committee for the Texas Youth Commission, I would
encourage you if you are a board member or you are the executive director
of an agency, if you see something you think is wrong that you go talk to
the person about it. Because, what I hear you say is that this is my
employer and I hear, I’ve heard a lot of fear today, a lot about fear.

I’ve heard about fear of the patient, the people that are complaining
against the doctors. I’ve heard about the fear of the doctors being sort of
retaliated against by the board. A fear of the ED of the board, you know
we’re going to run into a lot of problem in governmental agencies.

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 I’ll tell you the agency that I worked on, I’m not trying to compare y'all to
the Texas Youth Committee by any stretch of the imagination, but, there
were a couple of staff people doing some really bad stuff in that agency.
A lot of people were doing their jobs great. The problem was for years
nobody was saying anything and everyone was scared to - I’m scared of
this person and we’re scared of that person, and then the board wasn’t
proactively getting to the bottom of what was going on. Because of that,
the State of Texas, the people of Texas lost confidence in the board.

What ultimately ended up happening was even though the board

technically didn’t do anything wrong, they ended up having to step down
because the credibility had reached a point where it was lost. And so,
what I’m – I’m just saying to you, I don’t think that’s the stage things are
at right now, but I do think that it is, possibly could get there if there’s not
some more active behavior in terms of getting to the bottom of things.
That’s just my gut feeling.

Dr. Patrick: Well, I don’t think there’s any relationship between the other agency that
you mentioned and this incident. Dr. Kalafut did remind me that she’s the
one that told me and was all ready in control of what was happening. So, I
think your concerns are not, are not, I don’t think I’d be concerned if I
were you.

Van Arsdale: Well, I am concerned and I think you’re wrong.

Dr. Patrick: In what way am I wrong?

Van Arsdale: I think you need to be concerned when you get some information that one
of your either employees or employers is doing something that’s wrong or
that affects the credibility and the morale of your employees and your
agency. I’m a little bit surprised that someone that’s charged with an
executive director position that you are is making a statement like that.

Dr. Patrick: Thank you, I’ll avoid it in the future.

Van Arsdale: Well, if that’s what you believe, I can’t change your belief. This is a real
cavalier attitude to take to people, I’d rather be home with my kids right
now. It’s like you’d probably rather be doing something else too. So,
here I am, we’re dealing with this. Why are we dealing with this? We’re
dealing with this because people have come to us. There aren’t a whole
lot of other agencies we’re dealing with today. We’re dealing with the
Texas Medical Board. And so you’ve got a credibility problem. One of
your own staffers sat up here and testified you have a credibility problem
and I think it’s hard to say all is lost. I mean we can work on this and try
to fix this. But, that attitude you are displaying right now, I don’t think
it’s going to get it done.

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Dr. Patrick: Yes, sir.

Chairman: Members, any other questions for Dr. Patrick?

Lucio: Just a quick question.

Chairman: Representative Lucio.

Lucio: What was the time table once it was revealed that this particular board
member was testifying as an expert witness from the time that was
revealed to the decision makers at the board to the time that he was
removed? Was that before the next board meeting?

Dr. Patrick: It was, there were two board meetings that passed and he removed
himself.

Lucio: So, how often does the board meet?

Dr. Patrick: We meet typically every two months.

Lucio: Okay, thank you.

Chairman: Representative Talton.

Talton: Thank you, Chairman. Sir, you sit in on the informal settlement
conferences is that correct?

Dr. Patrick: No sir, I don’t.

Talton: You, do not?

Dr. Patrick: When I first came to the agency in 2001 I sat in on about five just to know
what they were like, but, I’ve not sat in on one since.

Talton: Okay so you know, and to your knowledge have they changed any since
then?

Dr. Patrick: Well, it’s changed dramatically since then because of the location and the
individuals that sit on the board, but it hasn’t changed in terms of our, the
procedures that we follow.

Talton: So, the procedure is the same?

Dr. Patrick: Correct.

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Talton: Is there any record made at all by the informal settlement conference by
y’all?

Dr. Patrick: My understanding is that there’s not.

Talton: So, there’s no notes, there’s no tape recordings there’s not anything, is that
correct?

Dr. Patrick: I’ll defer to Ms. Robinson, but I believe that’s correct.

Robinson: I’m sorry, I need to just clarify very slightly. There are no tape recordings
because it is a confidential proceeding. But the decision of the board, the
decision of the ISC panel where they make their recommendation as to
what they want the agreed order to be is recorded and it is signed by the
two panel members so that we have the accurate information whenever
we’re going back and drafting up that legal documentation to present to
the physician.

Talton: So, is it audio?

Robinson: No, I’m sorry there are no recordings of the hearing.

Talton: It’s only written?

Robinson: Yes, its written and it’s presented, what happens is the, whenever they
break to deliberate and then they’ll call the physician back in and the staff
attorney back in. They will announce their decision and the staff authority
will record that and they will give that to the panel members to look at and
to sign to make sure that it is accurate to what the panel believes the
appropriate offered resolution is.

Talton: And so, if a physician wanted to take notes what would y’all do?

Robinson: The physician is allowed to take notes of the proceeding. As Mr. Simpson
previously said, it is expressly allowed within the board rules.

Talton: But, he can’t get anybody else who may be in there assisting him to take
notes?

Robinson: I’m not exactly sure… Anyone can take notes. It can’t be recorded
because it’s a closed session, it’s not an open meeting. But, the people can
take notes for their own notes of what happened, sure. I mean I would
expect that the attorney or the physician himself would be writing down
whatever the decision of the board was for their own records.

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Talton: Right, but do you know of any instances in the past where that assistance
to physicians, that their notes by their assistants were confiscated?

Robinson: I do not, sir. I was not involved in anything like that at all. I do know that
you cannot, let me explain, you cannot record an ISC nor can you
transcribe it as though you were a court reporter, but you can certainly
take notes. So, if anyone attempted to record it, and we have had people
try to smuggle in recording devices, or if anyone attempted to transcribe
word for word that might become an issue because it’s not an open record
and it is not allow to be recorded. It’s an executive session, confidential
ISC.

Talton: So, if the assistant was a shorthand person and could take shorthand you
would take their notes, is that what you’re saying?

Robinson: If someone was attempting to transcribe the hearing, to make a

transcription of the hearing word for word, and Mr. Simpson you can feel
free to come up here with me as you’re the general counsel on this thing,
but if anybody was trying to record something word for word, either via
audio or typing, that is not allowed. You cannot transcribe a confidential
hearing.

Talton: Okay, and while I’m talking to you by the way, we discussed about the
complaints and stuff so I was just curious at the break and so I called the
state bar of Texas, and I was curious what they do. Bar complaints have
to be in writing and signed. They don’t have anonymous. They know
who the complainant is in the state bar.

Robinson: Well we, every other health licensing agency except for massage
therapists has anonymous complaints. I’m not…

Talton: I understand that.

Robinson: …sure about the bar, but the podiatrist and the psychologist and the
OT/PT and every other health licensing agency except for massage
therapy accepts anonymous complaints.

Talton: No, I understand, but I’m just saying it seems to me like the doctors and
lawyers are the two highest professions as such. It just seems odd to me
that the lawyers aren’t afraid to do complaints and then y’all are. What’s
the difference? It’s going to hurt a lawyer’s profession too, as it would to
a doctor. What difference does it make whether it’s anonymous or you
know who the complainant is?

Simpson: Let me respond.

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Talton: And you are?

Chairman: Give your name again.

Simpson: I’m sorry, I’m Bob Simpson, I’m general counsel.

Talton: Thank you.

Simpson: I beg your pardon. I don’t think our agency is here to defend anonymous
complaints. That has been the policy of the agency long before any of us
were around and we’re simply continuing that. If in the legislature’s
wisdom they want to change that, I think we would certainly go along with
that. The point is however, that that has been the policy through the time
that the Medical Practice Act was recodified in 1999. It was the same
policy that was in effect when Senate Bill 104 was adopted in 2003. It
was the same policy when we went through Sunset review in 2005. So,
it’s been the policy for a long time and we believe that that is, that it was
done originally set as the policy because that’s what the legislature wanted
is for us to get all of the information we could get. If you want us to
change that, we’ll be glad to change it.

Talton: Mr. Simpson, while you’re talking about that, is there any part of the
procedure in the complaint system, whether it’s anonymous or otherwise,
where the physician at any stage knows who the complainant is?

Robinson: No.

Talton: Out of 11,000 or however many there are complaints?

Simpson: We do not tell them who the complainant is in any case.

Talton: Right, that’s what I understood. Secondly, or lastly I guess, and I was a
little concerned, the gentleman to your right, I don’t remember his name I
came in late I’m sorry.

Male: Dr. Patrick.

Talton: Dr. Patrick, Representative Van Arsdale was asking you questions and I
guess what bothered me and I just made the note, is that if you see
somebody doing something wrong within your agency and whether he’s
your superior or your underling are you telling this committee that you’re
not concerned whether it’s right or wrong? It’s just not your concern?
You don’t believe in there’s a rightness and a wrongness?

Dr. Patrick: I was very concerned and I contacted the President of the Board.

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Talton: Well, you didn’t seem that way. You wanted to argue with Representative
Van Arsdale about the rightness and wrongness of things and it just kind
of concerned me that you took that type of an attitude. I think he called it
cavalier. But it was very bothersome to me to sit there and say well that’s
why and exactly what he’s telling you. He sat on the panel.

I read a lot of the stuff from the Texas Youth Commission. That’s exactly
why we had the scandals that we did in the youth commission. Very
simple, because nobody would, they would see something done, they
would go report it and nobody would do anything about it and it went on
for several years. And then, we have scandals all over and kids getting
raped and whatever else was going on to them and that’s what you get
when you take those type of attitudes and so I’m concerned about that.
That’s one of the concerns that I’ve got.

Simpson: May I make a comment about that? The fact is that the President of the
Board did know about it. The President of the Board immediately took
action to direct that rules be drafted to specifically state that that was a
violation of the board rule or that board members should not do that. That
board rule was presented to the April meeting, regular April meeting of
the board and it was published in the Texas Register following that
meeting with the contemplation that it would be finally adopted at the June
meeting.

During that period after the April meeting and before the June meeting the
legislature acted and because the legislative enactment was slightly
different than the rule we had drafted, we conformed the rule to what the
legislature has done. At the June meeting instead of adopting it, we
republished the rule so that we would have exactly the correct rule
published. It was then adopted at the August meeting. So, I believe it
was, I believe that this board acted very responsibly in acting quickly, as
quickly as we could to address the problem.

Talton: Thank you Mr. Chairman. Representative Van Arsdale.

Van Arsdale: Yeah, I think the board did a good job on that. I’m not sure how that got
lost in translation. I just think that if the State of Texas is going to pay an
individual over $100,000 to run an agency he has some personal
obligations regardless of who the board is. I think you agree with that.

Simpson: And, I think he agrees with that also and I think the fact that he knew that
the President of the Board was taking care of it was what meant that he did
not have to go confront the member that was involved with it, that it was
being taken care of.

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Van Arsdale: Yeah, you understand though that when he first answered the question he
didn’t mention that. He mentioned the fact that it was his employer. In
the future, if some board member, and for all you know there could be
something okay, so all that Miller stuff was going on and none of you
guys knew anything about it. There could be something going on right
now with a board member. I’m saying that if he finds out about it, he’s
getting paid one hundred and some-thousand dollars from the State of
Texas, he has an obligation to do something about it.

Simpson: I agree.

Chairman: Any other questions members?

Male: Dr. Patrick let me ask you two quick questions. I heard a nasty rumor that
the board adopted a rule that instead of going through the higher education
coordinating board who gives accreditation to medical schools, that it’s
now taken on by your agency, is that, is there any truth to that?

Robinson: Do you mind if a person from licensure who does that.

Dr. Patrick: I sure hope not.

Male: Go ahead.

Garanflo: Jaime Garanflo, Director of Licensure and Customer Affairs. And, I think
I am going to punt to Bob because it’s a very complicated situations that
have to do with determining substantial equivalence of international
medical schools and we believe that our expertise in that is worth
something and we also believe we’re exempt from that particular statute.

Simpson: Yes, the Higher Education Coordinating Board has a specific exemption
for professional licensing agencies. And it authorizes, first of all, it gives
the Higher Education Board the authority to designate a substandard
school. And it says that no one with a substandard education can
participate or can use that degree in the State of Texas.

We have doctors that come from some foreign medical schools and some
of those are not very good and we recognize they are not very good, others
however, have proved, at least to our agency, that they have a pretty good
curriculum and we have licensed doctors from that agency.

The Higher Education Board did put on their website a list of schools that
they had not been through any kind of a hearing process but that they had
determined in some way might be not substantially equivalent, might be
substandard schools. A couple of those schools are schools that we had
licensed from and so we did adopt a rule which specifically addressed the

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 exemption that the legislature provided in the higher education code so
that those doctors who we had licensed from those schools, which the
Higher Education Board may have indicated on their website might be
substandard, that they were licensed by us and they could continue to use
their degree and their license to practice medicine.

Chairman: Okay. And the last question doctor is this express minor infraction
program that Mari Robinson and I have had a couple of conversations
about, are you committed to that, do you like it?

Dr. Patrick: Well I thought it was my idea.

[Laughter.]

Chairman: Well, okay, it may have been, good for you.

[Laughter.]

Chairman: But you are committed to it?

Dr. Patrick: Absolutely.

Chairman: Because I think it serves everybody justly on that. Okay. Members any
other questions for Dr. Patrick so we can move on here?

Dr. Patrick: Thank you.

Chairman: The Chair calls Mary Elizabeth Herring, JD Texas Main and Health
Science Center.

Herring: Honorable Chairman…

Chairman: Hi.

Herring: Members of the committee, good afternoon.

Chairman: Please state your name for the record.

Herring: I’m going to sit in the middle in case I need assistance. Mary Elizabeth
Herring. I’m an Associate Professor at Texas A&M College of Medicine.
I’ve been teaching in the medical school for 16 years and I have been
recently doing a research project involving the Texas Medical Board. I
was approached, I got a call about a week ago asking me if I would be
available for this hearing. I did not know that I was going to be asked to
present, but as a lawyer and aggie and a professor I am always prepared to
speak.

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[Laughter.]

Herring: First of all I need to tell you that I work as an instructor in the medical
school. I have many, many colleagues who are physicians, hundreds
literally and they are clinical affiliates. And my department head, dean,
president and chancellor are all physicians. I do not speak for the Health
Science Center or the College of Medicine or Texas A&M University
system.

My testimony is based on my observations and experience during the

research for a project based on reviewing disciplinary actions that the
board has taken over the last, almost 20 years. I went, I’m going back as
far as I can looking at board disciplinary orders. Most of these orders are
public orders that are on the website. You can find the same information
that I relied on. I was permitted, the board voted to permit me to do this
research and I am under a confidentiality agreement. I was permitted to sit
in on some informal settlement conferences. I cannot tell you precisely
how many I sat in on. I kept no records. I didn’t even record the number
of conferences that I sat in on.

Chairman: Okay.

Herring: The only ones that I remember are the ones that involved colleagues or
friends of mine.

Chairman: Excuse me one minute. Representative Lucio.

Lucio: I just have a quick question. Was this a research project that you initiated
on your own will or were you asked to do this by…

Herring: No, I came up with this idea. Dr. Patrick, every year for, since I’ve been
with A&M, we’ve had the executive director come and speak to the fourth
year medical students. And over the past six years I’ve gotten to know Dr.
Patrick and I wanted to do this to see if there were predictors in, from the
time that we started keeping records on physicians. So, that if you looked
at an entire physician’s licensure record were there things that predicted
bad behavior or indicated that a doctor would be disposed.

Lucio: This made a difference in how I took that information, thank you.

Chairman: Did you get a grade on this by any chance?

Herring: I haven’t yet.

Chairman: Okay.

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Herring: Actually, I’m still in the preliminary. I did a split six month research
project and I’ve only completed three months and we’re inputting that data
right now and then I’ll go back for three months with the board to
complete my research project and hopefully publish some articles and
have some reports that will be useful to the board. And my hope is to
impact medical education. I think, we’ve talked about the board has a role
in educating physicians.

Certainly medical schools have statutory requirements to teach

jurisprudence, but I think we need to go beyond that and perhaps in our
residency programs where we’re, we know that we’ve got physicians who
are going to train and stay in Texas. They need to have a requirement for
jurisprudence and Medical Practice Act education so that doctors who are
coming to Texas newly trained will know that, the specifics of the Medical
Practice Act, because it is very, there are a lot of small rules that can trip
you up if you’re not familiar. And, you cannot rely on common sense.

You need to know how many days you have to turn over a patient’s
medical records. You need to make sure that you understand that you’re
responsible if your staff doesn’t do that, or if your staff who is signing
your signature on your billing certificate, stamps your signature, you’re
the one who’s responsible. And I think physicians, or at least in the
medical schools, physicians in training are overwhelmed by gaining the
knowledge to take care of people and they don’t have a business
background or a business attitude.

So, for my current position I coordinate the first year medical ethics
course. I teach a legal medicine elective second year and I teach the catch
stone course for fourth year students and coordinate that. It involves pain
management, practice management, risk management, medical
jurisprudence, ethics and a talk by the executive director on how the board
works both from a licensure standpoint and a disciplinary standpoint.

I have some preliminary impression that I have shared with the medical
board that I would like to share with you. The first is education. I think
it’s an important component and that’s the part that I hope to develop and
basically have an educational module that I can export to any medical
school or residency program in the state that would sort of cover the things
that need to be covered for a practicing physician.

Certainly, there are some opportunities, you know I’ve seen the process,
and Dr. Patrick welcomed me to and the board to give them any feedback
and I certainly applaud the fast track program.

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 Sitting in the ISC’s I saw faces that I thought should not have been
dismissed and I saw faces that I thought should have had higher penalties
than there were and I saw faces where I saw and felt that maybe the
physician should not have been forced to come down and even appear
because of the nature. So, I think the fast track option where minor
infractions can be dealt with expeditiously is going to be a tremendous,
positive improvement for the board and its processes.

I have encouraged the board, based on my research, because typically if

you go to the website you can see the board orders and that history on the
physician, but you can’t tell everything that’s come up about that
physician. And I think you need to have, the board at least, the licensure
board at least, needs to have a complete picture of the physician from the
time they are licensed to the time that they either retire or die or lose their
license, so that you can tell if you have a pattern of violations.

Some of the cases that I saw or read about were very disturbing.
Egregious violations and I felt like the fines were not always sufficient to
get the physician’s attention to be deterrent or to punish them for what
they had done. In other cases I felt like it was a minor infraction involving
staff that cost the physician a lot of money to come and defend themselves
at the board.

On the whole, I was, I have had experience with other state agencies and I
felt like the board staff was in fact exceptional. I think they had
extremely, an extreme wealth of experience in the agency that enables
them to work well. They don’t have to rely on brand new, out of school
individuals to teach them the system. They have good systems and
processes and I was very impressed with the board members and the
amount of time that they devote preparing for these hearings and preparing
for the board meetings, coming in asking decisive questions,
understanding the case before it came, or as it came before them and then
expediting the results and the resolution.

I’d be happy to answer any questions. I’ve had kind of an unusual

opportunity to work with the board.

Chairman: Well yesterday Dr. Nancy Dickey gave you a glowing report.

Herring: Well, thank you.

Chairman: So…

Herring: I hope this is being recorded.

Chairman: She’s hard to impress, so congratulations. Representative Lucio.

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Lucio: Thank you Mr. Chairman. This is kind of a general question. Do you feel
that the policies and procedures that have been mandated by the legislature
lend themselves to being consistently applied during the review and
investigation process with the Texas Medical Board?

Herring: You know I have struggled with that, because I’m in the business. I’m
certainly someone who is for physicians. I train physicians. I try to teach
them to be ethical, to stay out of trouble with the medical board. But, I
have had friends and colleagues who were brought before the board and
uniformly they feel that it was unfair or that they have been unfairly
accused and it’s a difficult position for me to defend the board because of
the time length, the length of time and the amount of money they have to
spend to clear their name from an allegation.

Lucio: And that’s not your responsibility today to defend the board or not defend
the board.

Herring: No, but…

Lucio: …just to give your opinion.

Herring: …but I do tell, I do tell, one of the things that everyone I talk to now is
interested in talking to me about the board, whether they’ve been for the
board, or almost every physician has someone they know who’s gone
before the board. And, I really feel like the board’s mission, which is to
protect the public, and the mission of physicians, which is to protect the
health of the public, is aligned. I think we’re all on the same side. And so
in that respect, I would echo what Mari Robinson said and that the board
has an issue of explaining its process and its credibility so that physicians
understand why it works.

Certainly no one wants to punish a physician by making them spend

$14,000 or $15,000 in a matter that’s ultimately dismissed and yet we
have to have a fact finding process so that the facts can be brought out.

Lucio: It’s a tough situation.

Herring: I did see, in several cases physicians brought expensive lawyers with them
and in many cases those lawyers were an impediment because we like to
talk too much and we tend to take over. And, really the purpose of the
settlement, the informal settlement conference was for the physician to tell
their story and their side and why this matter arose. And in a lot of cases I
felt like good litigators came in and tried to litigate the matter rather than
letting the physician tell their own story. So, I did see some physicians
who appeared pro se and they did very well for themselves.

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Lucio: Now, other than lack of knowledge of the process from the physician’s
standpoint, is there anything other, anything else, anything other than that
that you can say the legislature could work with the Texas Medical Board
and adopt policies and procedures for next session to bring about more
consistency, more - I mean I don’t know that there is ever going to be
satisfaction with the system, because it’s a system that is policing the
medical profession. So all in all in any policed or judicial type process, no
one’s going to be satisfied with the system. But just to say that we can
understand what the mission is that’s being applied consistently. I mean is
there anything that you see in terms of lack?

Herring: I was impressed with the amount of consistency.

Lucio: Okay, well good.

Herring: …in the way that things were laid out. And, I’m not here, you know I
didn’t have to come and speak. I’m going to go and finish my project
regardless of what I say here today. But I’m genuine when I compliment
the board and it’s process and it’s staff. I do think that there needs to be
some resources devoted to education and public interaction with the board
so that they see that the board are advocates of good medical practice.

And, you know, I’ve had physician friends say that, “Do they have some
kind of a quota system? I feel like I got caught up on a quota system.”
And that’s not true. It’s a complaint driven agency and so long as that is
true there are going to be complaints that are misplaced or frivolous or
emotional complaints.

Lucio: Right. You know I’m comparing apples to oranges. This is an extreme
very, very far fetched comparison but I am an a attorney and I have
worked with other attorneys doing some criminal law work. And one
thing that I’ve found that is very different from the situation at hand is that
by the end of the, of whatever the system mandated, whether we went to
trial, whether we worked with the DA’s office, the people being accused
were understanding of the situation – of the policies and procedures,
understanding of the process. And at the end regardless of the sentence
they kind of understood, “Well there was a violation that took place. I was
found guilty. I understand that.” And they pay their debt whether that be
a fine, whether that be jail time or whatever, and at the end of it there’s not
as much resentment. But, I don’t see that, by any stretch of the
imagination in the particular circumstance.

It seems like, and I think the staff of the Texas Medical Board explained
that earlier, that in pretty much every case the doctors that are being
investigated and go through the process feel like they were railroaded, feel

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 like they were targeted, that there was a witch hunt. It just seems that
there is very little information being shared that this is, and you know
you’re at the education level and maybe that’s where it needs to come.
And, it seems like there is efforts all ready in place, but, “If this happens to
you when you practice medicine expect this,” and if they know that during
their education years there would be some, I think at least acceptance of
the process. Not necessarily…

Herring: There is a great deal…

Lucio: …approval.

Herring: …of animosity towards the board generally among physicians who have
been disciplined, which I have not seen at the bar either. That’s not been
my experience with attorneys. But, there are a lot of cases that come
before the board that are clearly violations, I mean things that you would
be applauded by the volitional, willful violation of the Medical Practice
Act and those people are unapologetic as well, which makes it difficult to
react to every person who is incensed by the treatment that they got from
the board, because some of them I saw were completely justified. You
didn’t have to weigh the risk and benefits at all.

Lucio: Yes, ma’am. All I can say is that I love doctors. They’ve always taken
great care of my family. I’ve never or no one close to me has ever
experienced any bad behavior or bad practice from a doctor and I can
understand both sides here. It’s very hard to sit up here in this
circumstance and feel that there’s not justification on both sides.

As an attorney who has a license I would be very concerned if I felt or my

profession as a whole felt that the policing mechanisms in place were
unfair. And that’s what we have here. The profession as a whole seems to
feel that way. But, at the same time the Texas Medical Board does have a
very, very hard task in front of it to protect people from being hurt by bad
doctors. So, there’s a lot of information that we need to share, open lines
of communication from both sides and you’re a great mutual third party.

Herring: To stay with your analogy, lawyers are much more used to process and
adversarial arguments and then walking away from it. Doctors, and it’s
been my privilege a great opportunity of my life to be involved in medical
education, and I like doctors. I really enjoy the opportunity. But, they are
collegial. They earn the right to make independent decisions and to be
respected for the level of education and expertise that they have. And I
think it’s very humiliating and offensive to them to be called and
questioned by staff or by people who are following a manual, a list of
statutes or rules. And so, I think there is a natural distrust and dislike of
that, a chaffing at that process.

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Lucio: Yes ma’am. Well thank you for your testimony today.

Herring: Certainly.

Lucio: Thank you Mr. Chairman.

Chairman: Members, any other questions? Thank you so much for being here with us
today.

Herring: Thank you.

Chairman: We appreciate it and have a safe trip home.

Herring: Thank you.

Chairman: Members, next we have public testimony and we would like to ask anyone
that’s testifying as we call your name, if you could try to hold your
testimony to seven minutes. We have a lot of people that are going to
testify. So you get bonus points if you hold it to seven minutes. The
Chair calls Dr. Eric Solomana. Give you name please for the record.

Dr. Eric: I’m Dr. Eric Solomana. You can call me Dr. Eric because no one can
remember my last name anyways.

I’ve, there’s so much I would like to say and I know there is really not
enough time to do that, so I’ll try and keep it as brief as possible. I do
have a statement that was submitted and I covered some of this. Just so
you know a little bit about me, I’m a country doctor, simple ENT doctor
practicing down on the boarder in Laredo. I’ve been here for ten years
and I really wish I could have a little anonymity right now because I have
pending cases in front of the board and I really do feel like there’s going to
be retribution for my testimony here. Intimidation and retribution has
always been part of my experience with the board going back ten years
when I first applied for medicine.

I don’t have anything personally against the board. I don’t disagree with
the need to punish physicians and to change the process and make it better.
I applaud the changes that the board has made. I’m one of the doctors that
ten years ago took over six months to get a license. In fact, I was told I
had to get a license in another state before I could get a license here and
I’m glad you’ve shortened that process.

I’ve, the specifics, there are so many things that I’ve heard here that I have
strong disagreement with and I can’t talk about the generalities of what

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has happened with the board in other cases. I can only talk about the
specifics of my case to explain what’s happened.

To start off with, I’ve had only one investigation that’s been timely
resolved and it took three years to do so. I have another investigation,
which is going into its second year in which nothing is happening because
it’s a - I think the board is waiting for a frivolous law suit to be dismissed
or to decide one way or another.

I have, I felt I was intimidated and forced to finally accept the agreements
of the first case and I did so only to try and end the process, only to find to
have a very generalized investigation started on me in terms of what
happened with peer review. I have really strong hope that out of this
process there can be some due process for the doctors so that we can
defend ourselves. I have no problem discussing my cases and discussing
what’s happened with patients as long as I have a fair chance to do so.

The, in the first case, I, there were two cases that were brought together.
My first conflict with the board was that they had a very brief, vague letter
in terms of what they were looking for, patient’s name, explaining my
case. And, it sounded more like they were bating me than anything else.
They were trying to get as many facts, they were trying to get me to
incriminate myself rather than discussing any specific details or options
about the case.

One of them involved a surgical complication that actually had gone to

court in which the family hadn’t gotten the outcome that they desired and
at the prompting of a competing physician in town, decided to take it to
the state board.

Another case was a patient in which I made a mistake and I was the one
who told the family I had made a mistake. It was a patient I had concerns
about pain management after surgery. I had asked the anesthesiologist
about using a medication. They advocated a recommendation for me.
Turns out that medication wasn’t approved for post-op pain management.
I didn’t know. I made a mistake. I admitted that. There was no harm
done to the patient.

In either cases, in both cases the - it took, there were several times in
which I was brought up in front of the board in which the board members
hadn’t even been given the details of my case. They brought me all the
way up from Laredo to tell me that, “We don’t have the details here.
You’re going to have to reschedule and come back another time.”

I was never told exactly who had made the accusations until the final
meeting in which I was told that there were going to be witnesses, family

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 members of the first case were going to be testifying. I could not cross
examine them. I could not question their testimony. I was not told what
they were going to say. I had no way of preparing any information
whatsoever to defend myself on that.

When my case finally met for adjudication at the IC meeting, I presented

my testimony as I had done in the peer review process, as I had done
several times before for the [inaudible 89:09] that I had in given years ago
and I felt I had defended myself on every point that was brought up by
their special witness, by their only special witness that had reviewed my
case. I didn’t have two.

At the end of the process they didn’t dispute my arguments for the details
of the case. They decided that instead I was a racist and it was a brand
new charge that had not been brought up at anything at all. It really
horrified me, surprised my attorney and I was told also surprised the
prosecuting attorney because it wasn’t part of the issues at all.

Now, I am a white doctor and I’m practicing in a 90% Hispanic

community. I’ve been there for ten years. All of my staff is Hispanic and
they are paid better than the average for staff in that area. Ninety percent
of my patients speak Spanish, so Spanish translation for every single one
of my documents. It has always been that way for 10 years, a Spanish
translation for every interaction with patients.

My daughter is not having a Sweet 16 party. She's doing a [Cincenara ??].

I've had more than fair opportunity in the last 10 years to move out of
Laredo if you don't like Hispanics. One-quarter of my family is Hispanic.
One-quarter of my family is black. One-quarter of my family is Korean.
So I'm really a mixture. I don't know who I'm supposed to be hating if I'm
a bigot, because I'm related to everybody.

[Laughter.]

Dr. Eric: When I told them I could not accept that, you know I defended my case
and defended the charges against me, I couldn't come up with that one.
That's just one question I could never explain. There's no way I'm ever
going to be a Hispanic. I mean I'm a victim of my race. I'm just not going
to take a pill, never going to change that.

They decided to change the facts. They changed the facts to say, "Well,
you should have given antibiotics." Well in my case, the patient in
question had been treated by another physician who had referred it to
another ENT doctor. The ENT doctor had managed it. The radiologist
made this, the finding on an x-ray and then I was brought in to do surgery
based on the recommendation of the ENT.

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 I concurred with the care that was given up to that case in the patient. The
patient had a surgical outcome. It was unforeseen. It was something that
had been decided previously. It was not something that was done on a
malicious basis. It was something that just happened. In fact the hospital
had made several areas and had made payment to this family as a result of
the lawsuit.

I was faced with a situation in which the board said, "Look, if you don't
agree to sign this agreement and taking 10 hours of classes and paying a
fine, then we’re going to take you - we'll let you have your hearing in front
of the entire board, but your punishment is going to be much more
severe."

I was left with the Herculean task of trying to find who these original
doctors were seven years ago in other cities from a family who had an
animosity towards me to try and document this whole backtrack in order
to prove that in fact more than one course of antibiotics were given.

Male: Mr. Chairman. I'm sorry, but if I could, Mr. Chairman just ask one quick
question before he goes on. Who communicated to you the punishment
would be worse and how did they communicate it to you?

Dr. Eric: My lawyer was in discussion with, and I think anyone who goes to these
meetings without a lawyer is crazy. My lawyer was in discussion…

Male: Is that a medical diagnosis?

Dr. Eric: Yes, I'm willing to make that. My lawyer was in discussion with their
lawyer. We talked about our options in terms of what we would need to
do. It became fairly apparent that it didn't matter what the facts were. It
didn't matter what I came up with for justification.

Male: Right, but who communicated it and how did they communicate it?

Dr. Eric: My lawyer was in contact with their lawyer, with the prosecuting attorney.

Male: They communicated through your attorney.

Dr. Eric: The attorneys talked. My lawyer was talking with the board in terms of
this, in terms of the charges. Talking with the lawyer, the prosecuting
lawyer.

Male: They specific said, “If your client doesn't accept this outcome, it will be
far worse from him if he comes before the whole board?”

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Dr. Eric: That's what my lawyer told me. I don't know if anything was written to
him directly. I don't know if this is something that's done on the side.
Because it was all done in an informal manner, there's nothing recorded.
There's nothing I can prove to document.

Male: If you could perhaps ask your attorney how that was communicated, I'd be
interested to know that.

Dr. Eric: I'd be happy to. No sooner than I finally signed off on this to just end it,
then a new investigation was started, a very vague one. It started with a
letter saying, “We know that you have peer review cases at the hospital.
We don't know what the names of the patients are. We don't know when
the incidents are. We don't have any specific incidents. But we want to
know what those cases are.” I proceeded, and we have 14 days to
respond.

I responded by saying, “I've never had a peer review at that hospital.”

When my office called and said, "We want to comply with your orders.
We know there's a time limit. But you have to tell us who it is that you
want files on because we have no idea what you're talking about." My
staff was told, “Just stop dicking around and give us the information.
Don't mess with us.”

When it finally became clear that they had the wrong hospital, they then
started a – they then called for the peer review files at the opposite
hospital. I then got a letter stating that, "You have 14 days to subscribe
five specific cases that happened over the course of 10 years."

I'm pulling together things of minor cases that never went anywhere.
There were never any lawsuits involved with this. There were never any
complaints at the hospital made. There was nothing that really came out
as being anything egregious in terms of what was going on. That was six
months ago. I haven't heard from them since.

I certainly welcome a fast track method, but this thing could go on forever.
There just doesn't seem to be any end to it.

I really feel that it doesn't really matter what the charges are. The fact that
you're accused is enough. The fact that you can't cross-examine the
people who are accusing you, the fact that you never know who it is. I
have people in my life who have claimed to have contacted the board to
create trouble.

I have an ex-wife who is mentally unstable. She said specifically in the

divorce when it didn't go her way, when the judge wouldn't grant her
custody because of her mental disease, that she contacted the board and

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 actively tried to tell them that I had been killing patients, that I had been
leaving sponges in patients, that I'd been making all sorts of things. She
knew some patients that I had problems with in terms of peer review, but
that had all been resolved.

I have a physician in town who has a vendetta against. He's abused the
peer review process in terms of cases. He's contacted patients to ask them
to sue me. He has used his position as a hospital staff to go around the
peer review process and go directly to limiting and restricting my cases.
He's protected under the way the peer review process works, but he's also
made accusations and charges.

Male: Doctor, let me jump in here real quick. Can you just hit the high points?
Because you're way over your seven minutes.

Dr. Eric: I'm sorry.

Male: If you wouldn't mind. We have a lot of people to testify.

Dr. Eric: I know. I really do feel that intimidation has been a long process, long
part of this process. It goes way back beyond the people who are here.
There's a filter of it there. They have a heavy hammer and they should
have a heavy hammer in cases when things are off. But there's no balance.
There's no fairness. There's no way the physicians really can be able to
defend themselves in a fair way. The world of evidence and due process
just don't comply. Please try and introduce that into the system so that we
can defend ourselves in a fair way. That's pretty much all I have to say.

Chairman: Members, do you have any questions for Dr. Eric?

Male: This is not really a question. I was just wondering if it would be okay,
there's a lot of people here. The TMB, the doctors, whatever that have
more they want to say than they can say in this time period. If they could
submit to the Chairman and then you can distribute them.

Chairman: Absolutely. Doctor, do you have written testimony?

Dr. Eric: I have part of it that was all ready compiled I believe, but I will have to
submit it again.

Male: That way we can keep in the seven minutes and still get all the information
that you want us to have.

Dr. Eric: Good, thank you.

Chairman: Thank you doctor. We appreciate you coming all the way up here.

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Dr. Eric: Thank you.

[Applause.]

Chairman: The Chair calls Blakely Long. [Period of silence.] You're testifying
against the Medical Board?

Long: Yes.

Chairman: Yes ma’am. Just give your name for the record if you will and go right
into your testimony please.

Long: Okay. My name is Blakely Long. I just state my name, is that it? Okay.
I'd like to thank the legislators for the opportunity to address you today.
I've never done anything like this, so please forgive me for being a little
nervous. It's been a long day.

I have come here I hope to represent a different view point on one as a

patient who would like to point out a serious flaw in the way the Texas
Medical Board carries out its investigations.

A little over two years ago, a resident physician who was treating me filed
a complaint against another of my physicians regarding my care, only my
care. I therefore became the center of an investigation by the Texas
Medical Board.

The Texas Medical Board investigators then proceeded to obtain my

medical records from all of my physicians, including my personal
therapist's records by subpoena. The investigator did all of this without
my knowledge. Obviously he did not need it. They also did this without
my consent.

I consider this a gross invasion of my privacy. In addition, at no time

during their investigation did the Texas Medical Board investigator or
board ever attempt to contact me to interview me to get my feelings on the
case which of course was about my medical care.

I consider this indifference alone on their part shocking and unforgiving.

Ask yourself right now how would you feel if the Board was investigating
a complaint, perhaps even an anonymous complaint and had obtained a
copy of yours or even your spouse's medical records without your
knowledge?

Perhaps there is a roomful of people debating the care your physician has
given you and reading your records and you don't even know about it.

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Maybe this has all ready happened. Perhaps you will only find out the
nest time you or your spouse go to your doctor's office and somebody at
the doctor's office casually mentions, "Oh, we received a subpoena a while
back for your records from the Texas Medical Board."

Not only was my privacy violated, but my medical care has been harmed.
After the Board had obtained my records, I found the physicians and their
staff did not treat me the same way they treated me before the complaint.
I therefore had to find new physicians to assist me with my care.

My case is complex and I will forever be inconvenienced by the Board's

actions. Both my state representative and I contacted the Texas Medical
Board with these grievances. All they care about is to inform me that they
did not violate HIPPA and therefore see nothing wrong with their actions.

Just because HIPPA gives the Texas Medical Board free rein to invade the
individual privacy of Texans, it does not mean that Texas State Law has to
allow it. An organization must be held accountable by some system of
checks and balances and not have free rein to do anything they want in the
course of an investigation.

Currently, there is nothing stopping the Texas Medical Board when they
are investigating a complaint. The Texas Medical Board has more
freedom with its investigations than law enforcement.

Please consider requiring the following. The Texas Medical Board to

require the patient's permission to obtain patient medical records to
investigate individual medical complaints. Should the patient not consent
and the Texas Medical Board feels that the patient is part of conspiracy to
commit a crime or that there is some overriding reason to obtain the
medical records, then the patient should have the right to go before a judge
and have the judge determine if the records are required to protect other
members of the public.

In fiscal year 2007, the Texas Medical Board, well, we know how many
complaints they received, they've covered it. They opened about 2500
investigations. What was not published on their website was who
originated the complaints. But I found out here today out of these 2500 or
so investigations, 1-2% were filed anonymously they say. As the
president of the Board herself stated this morning, almost 70% are filed by
the patients or their family.

What I'm proposing would only apply where the Board is investigating an
individual patient complaint initiated either anonymously or by a third-
party. Since most complaints to the Board are patient initiated, I do not
think this would come up in very many cases.

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 I have been in contact with my representative, Beverly Wooly, and there
was some uncertainty regarding the jurisdiction of the legislature in
regards to this issue. It is clear that the Federal HIPPA rules do not
require what I'm proposing, but it is also true that there is no reason why
the state cannot impose these rules on their Medical Board.

In summary, because of the Texas Medical Board's actions, I have been

harmed. My care will be forever compromised. Furthermore, I will
probably never again be able to completely be honest with any medical
person ever again, since I know I have no right to privacy of my records
from the Texas Medical Board.

I ask that you change the rules under which the Texas Medical Board
operates so no one else has to suffer from their actions like I have had to
suffer. Thank you for the opportunity to address you. I'd be happy to take
your questions.

Chairman: Thank you Blakely. Do you have - can we have a copy of that statement
from you?

Long: Sure I've written on the back page. Can I keep that?

Chairman: Oh yes, yes. But I think all of us would like to have a copy of that so we
can just follow it up. Mark will give you his card with an email address, if
you'd just like to email it to us.

Long: Sure.

Chairman: Members, do you have any questions for Blakely? Yes sir. Robert?

Felton ??: It's Miss Long, is that correct?

Long: Yes.

Felton: You talk, said that they got your records. Do you know, did they do it by
subpoena power? Did you sign a complaint? Or did the doctors?

Long: They did it by subpoena.

Felton: By subpoena.

Long: They never notified me that there was even a complaint. Nobody ever
contacted me from the Texas Medical Board.

Felton: Thank you.

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Chairman: Any other questions members? Thank you so much for coming and
testifying before us today. Have a good trip back.

[Applause.]

[Period of silence.]

Chairman: The Chair calls Dr. Roland Chalifoux to speak against Medical Board.

[Period of silence, inaudible off mic 17:42.]

Chairman: Okay, we'll come back to him in a minute then. The Chair calls Dr. Joel
Hoffman. I'm sorry?

[Period of silence.]

Chairman: Okay, Doctor, if you'll just give us your name for the record.

Hoffman: Thank you representative Brown. I greatly appreciate the opportunity to

testify. I have to beg your forgiveness. I lost my hearing aid driving up
here when I got out to fill the gas up in my car, so if you have questions,
you'll have to speak up.

Chairman: Okay, thank you Doctor.

Hoffman: I'm wearing a couple of hats here today. One I'm the executive director of
the National Foundation for the Treatment of Pain. That organization's
purpose is ten years old now, it has about 5000 participating members
from every state in the Union and 19 foreign countries and principalities.

The objective of that foundation is to make sure that no legitimate pain

patient is denied effective medical care. We also are dedicated to
protecting the right of physicians, legitimate physicians, to provide that
care.

The availability of pain management for intractable pain patients is a crisis

in the United States, which the American Medical Association, the World
Health Organization, the Food and Drug, everyone acknowledges, even
the DEA acknowledges.

I can tell you now that that is a crisis that I have patients from all over the
United States, I saw patients at 8:15 yesterday morning before I drove up
here who has to fly to see me from Alaska because no physician there is
willing to treat intractable pain for several reasons. The two reasons
mainly are number one, [opiaphobia ??] that a huge majority of physicians

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 are very ignorant on the subject of effective pain management that I
believe that any patient who receive opiates is going to became an addict
over night.

The other main reason that they refuse to treat pain patients is they're
scared to death of regulatory sanction. That of course segways into the
subject of our Medical Board.

I can tell you that I've done everything in my power to relieve and reduce
both of those problems. I even served on the ad hoc committee recently
for our Texas Medical Board to rewrite and revise the regulations and
requirements of pain management.

So I'm a native Texan, a native Houstonian. I received my education in

the public schools of Houston, Wright's University, Baylor College of
Medicine. I completed my residency training in psychiatry at UCLA,
been a physician privileged to practice medicine under this Board for 41
years. I practiced psychiatry for 37 years. I further specialize in treatment
of intractable pain since 1990.

I have taken care of more than 3000 intractable pain patients the last 17
years. I've spent more than 30,000 professional hours doing so. I've
mentioned to you in my role with the National Foundation. I urge you to
go to their website, www.paincare.org and read the patient letters. You
can even read some of my executive director's messages. If you read
those patient letters, it will provide you a profound education into what it's
like to be an intractable pain patient in this society.

I can tell you there is nobody in this room who's more than once stepped
on a banana peel away from becoming an intractable pain patient. I
suspect that the lady who testified just before me may have been one of
the intractable pain patients. My guess is that her case involved her
physicians providing pain medication to her.

Felton: Doctor, I would think that anybody sitting through this hearing would be
one of those patients.

[Laughter.]

Hoffman: I'm sorry to say.

Felton: I would think that anybody sitting through this hearing would be one of
those patients.

Hoffman: I will certainly agree with that. So I publish professional articles,

conducted long-term research, served as an expert witness in dozens of

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forensic cases and Medical Board cases, serve on the professional
advisory boards of many national pharmaceutical corporations who
provide pain medications, Al Pharma, Seflon, Endo, Pardue Pharma. I am
considered nationally, internationally to be an expert in the treatment of
intractable pain.

In all these years and all these patients, no patient under my care has ever
suffered an overdose. As long as they take the medications as prescribed,
they never have a problem. No patient has ever developed an addiction.
They have physiological dependency like a cardiac patient on his digitalis
or a thyroid patient on their [thyroid ??]. No patient's ever engaged in any
criminal diversion. No patient has ever abused their medications on my
trust by seeing multiple physicians. Those few that did were fired from
our practice and were reported to the appropriate authorities.

Working closely with my patients, we've been able to consistently succeed

in controlling their pain, allowing them a reasonable quality of life.
Because patients have a horrendously difficult time finding doctors willing
to treat them, as I mentioned, I have patients from all over. So having
risked immodesty in reciting these things, let me get to the point.

In May of 2006, I was notified that I had 15 complaints in one letter about
my medical care. Subsequently another two complaints were directed at
me. Recently about three months ago, I [inaudible 113:24].

I cannot tell you who initiated these complaints, that is the complainants
are guaranteed complete anonymity under the current rules of the board. I
can tell you that having extended over 100 hours of my time responding to
these accusations, 11 of them were dismissed immediately, three more
were dismissed at an informal conference and on the 29th of this month, I
will deal with the remaining three. I trust it will be successfully. The last
one I have no doubt at all. It was filed in July of 2007, I'm quite sure, I
can't prove it of course, it was filed by a Workman's Compensation
insurance company who wants to get rid of the cost to them of an injured
patient under my care.

I'm told by the principle investigator, recently retired from the board, that
the majority of complaints filed against doctors are by disgruntled ex-
employees, by disgruntled ex-spouses, as you've just heard, professional
competitors, insurance companies seeking to deter physicians from costing
them too much money as an alternative to filing malpractice lawsuits since
torte reform, and by patients who do have a legitimate complaint about
how doctors have abused them.

If you read the website letters from patients, you will be horrified at how
much abuse intractable pain patients suffer from ignorance from the

138
community, from the family, and from their physicians most importantly.
I would like to see the Board more active in pursuing doctors who abuse
patients, who don't deserve that. It's enough to suffer endless pain without
having to be treated like a criminal.

In my case, as with doctors in all specialties, despite all my experience,

expertise and success in pain treatment, I'm totally vulnerable to anyone
who wishes to make trouble for me. I have absolutely no means of
obtaining any form of redress against these people. Simply stated, unlike
every other area of the law, there are no checks and balances in the current
system of administering medical licenses in the state of Texas.

I want to join in with all the others that you'll hear today and whom you've
heard in noting and asking that the number one that the privilege of
practicing medicine be respected. That the relationship of doctors to their
patients be protected from people outside that relationship who are acting
out of personal vindictiveness, of selfish financial interest, ideological
fanaticism and other motives having nothing at all to do with the practice
of medicine or the quality care or even human kindness.

That no person except the patient or their designated legal representative

be permitted to file complaints to the Board of Medicine with several
important exceptions of course. If a pharmacist thinks that there's some
reasonable grounds to file a complaint, then he should be allowed to do so,
but not anonymously. Because how would we abuse them and what
retribution did I have against a pharmacist or an insurance company who
was trying to do harm to me or one of my colleagues?

I also think that peer organizations should be permitted to file complaints

if a doctor has behaved inappropriately as determined by a professional
peer review and a review that is legitimate and ethical and has integrity
and could be defended in a court of law.

If the law provides for complete transparency of charges and proceedings,

that the members of the Board of Medicine be subject to the highest
standards of personal integrity themselves and accountability and
professionalism. You've heard about Dr. Miller's story. And that
complete disclosure be required of them of all their activities so that even
the appearance of impropriety of a conflict of interest could be avoided.

Integrity of this Board is very important. I believe in it. One of the hats
I'm wearing here ironically is that I'm a human example of the success of
this Board of Medicine. This Board reviewed 142 cases that I sent them in
1997 from my practice at that time in New Mexico and found that they
could find no violation of the Texas Medical Act in those cases. That

139
 saved my career given that allowed me to be sitting where I am today as a
successfully practicing physician.

So also I can attest to the board's efficacy in these 14 cases to date, three
remaining on the 29th and one some time after that. I believe that justice
will be done for me. I know that I have done the right thing. I know that
I'm a competent physician. I know that my care has saved lives. My
patients tell me every single day. I trust that the process will go through a
successful conclusion in the next several months as it has to date under the
legions of this board.

So at the least, the law I believe should provide that only a patient or if the
patient is incapacitated, their spouse or legal guardian should have the
right to file a complaint against their doctor with the exceptions I've noted.
The only exception to that should be that if the doctor is found by review
of his peers to have breeched the standards of our profession, the
reviewing entity should have the right to file a complaint.

But in no case should anyone have the right or any organization or entity
have the right to file a complaint against a physician, a baseless complaint
without suffering serious consequences. That's checks and balances in our
legal system.

Finally in the United States of America, every person should have the
right to face their accuser. I think that anonymity for those who file a
complaint is simply morally and legally unacceptable regardless of what
traditions have justified of the past.

This whole argument, well doctors, there may be a retribution if you know
that your patient has filed a complaint. First of all if your patient has filed
a complaint, the communication is lousy to start with. Why couldn't they
tell you? If you've got that kind of communication with a patient you
shouldn't be treating them anyway. If you're not treating them anyway,
what retribution could you have? So the retribution area of anonymity
doesn't strike me as holding water or being very rational. I think it's the
cause of a huge amount of suffering.

Chairman: Thank you Doctor.

Hoffman: It isn't the doctors that suffer in this process. In my own practice, when I
shared with my patients that, who continue, all these 15, 18 patients are
still my patients. When I shared with them that I had to disclose their
files, every single one of them wrote letters in support, explaining how the
treatment had made an enormous positive difference in their life, etcetera,
etcetera. They suffer enormous anxiety for my well being and for their
own well being.

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 So if we're going to protect the patients of, the people of the state of Texas
who are patients in medical care, we have to also take proper care of their
physician. Because so much weight is on our shoulders on their behalf.
So everyone involved has to be, we have to do the right thing by them, for
everyone involved, including our Board.

Thank you very much.

Chairman: Thank you Doctor. Members, any questions? If you have written
testimony…

Hoffman: I do.

Chairman: If you'd like to supply it.

Hoffman: I would be glad to.

Chairman: We'd really appreciate it. Thank you Doctor.

Hoffman: Thank you.

[Applause.]

Chairman: The Chair calls Dr. Nolan Shipman. [Inaudible, off mic.] He did? Okay.
He was testifying against the medical board. The Chair calls Reba
[Ickleberger ??] testifying against the medical board.

Ickleberger: Actually…

Chairman: Did I mess up that…

Ickleberger: [Inaudible, off mic 121:53]. I have some tight suggestions, and I’m going
to cut my testimony in half…

Male: God bless you.

Ickleberger: …by opting…

Chairman: Would you give your name first for the record?

Ickleberger: Oh. I'm sorry.

Chairman: Thank you.

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Ickleberger: I'm Reba Ickleberger and I'm a victim advocate for people who have an
unknown complaint filed against their doctor and so they’re dragged into
that, and they have no due process, no constitutional rights, no rights,
privileges of privacy.

The record is supposedly open to this - or who is going to interview and

review a record of, perhaps, 30 years. My records, my medical records. I
filed no complaint. I’m not complaining about any care. In fact, I've had
a fight with my care, and I adopt the statements made by Ms. Long and
Ms. Fuentes. When you go through a doctor, you tell them some things
that are so personal, and to think that this can just be - someone can file a
complaint. You know in the report? And there’s your whole life laid out
in front of you.

I am an attorney. And my medical records - if it became public

knowledge, a lot of things would harm me because I’ve had a little
grandson that I held while he died in my arms. My husband, who is
[inaudible 123:24] Ickleberger, and I am not going to speak about him
because he was - reached an agreement with the board because of this
process.

And here’s my thought. In this investigation, why not talk to the patients?
You know, you get their medical records, but why don’t you just notify
them, and say, “Hey, I, you know, I want to talk to you about this.” And
the experts, let them examine them. You wouldn’t have to read all those
medical records. You could find out if what that doctor ordered was
therapeutic or not.

Now I happen to be a high school dropout. Never completed anything

until I was diagnosed I had ADD. I then went to our in-school, graduated
in 1969. First person to go through an RN program without a high school
diploma. I graduated with a 4.0 average. Then I became a nursing
director, got a Master’s, and then went to law school. So you see I wanted
to show that my whole life is laid out in those records. And I don’t think I
should - it should have been - or strike that. Let’s [inaudible 124:45] that.

The other thing is my [inaudible 124:47]. My advice is who’s the expert?

Just let them examine the patient, and then make a decision. I heard
someone say this. So it was nothing about - in the strategic plan about
how many physicians are going to be disciplined. But I believe in their
strategic plan they list how many of the doctors who have had complaints
against them are going to be disciplined. It was after the Sunset Review,
and they did this strategic plan.

And my last thing was when this Dr. Miller’s information became known
in April, I believe Dr. Kalafut’s term had expired April 13th, 2007. So

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 when Mr. - Dr. Patrick was talking about how they took care of the Miller
situation, I just wanted to [inaudible 125:41] before the Board. I thank
you very much for hearing me.

Male: Ma’am, I want you to know that - that I took two Ritalins today just to
make it through the day.

[Laughter.]

Ickleberger: Oh. I - I…

Male: We’re - we’re kind of slinkies, you know?

Ickleberger: I’ll - I’ll tell you - let me just say this. My husband has been my doctor.
There is no rule that says you can't treat your family member as long as
you document it. Well since he can't treat me now. I’ve had cataract
surgery, so I’ve been to the ophthalmologist. I broke my finger, so I've
been to the orthopod. I have sleep disturbance - you know about the
Ritalin? So I now wear a little mask at night. And I've been to the
cardiovascular doctor. And it’s all because I can't have my primary care
physician. Thank you very much.

Chairman: Thank you for coming and testifying. Members do you have any
questions?

Ickleberger: Oh. I forgot to mention.

Chairman: Yes ma’am?

Ickleberger: Talking to Boards that do very well, to take up about our epidemic of
[inaudible 126:44]. You know, their policy is to protect the public and
educate us. We have an epidemic of [neprocillin resistance ??]
staphylococcus aurous, and I think every single person must become
knowledgeable about it.

Chairman: Yes ma’am.

Ickleberger: Thank you.

Chairman: Thank you so much.

[Applause.]

Chairman: The chair calls Dr. Roland Chalifoux. He’s against the Texas Medical
Board. Did I mess up your last name, doctor?

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Dr. Chalifoux: That’s pretty close.

Chairman: Okay. Good. Hey what do you expect from an Aggie?

Dr. Chalifoux: Well I appreciate you having this hearing. I actually flew down
here from West Virginia, where I now practice.

Chairman: Doctor, if you’ll just give your name for the record?

Dr. Chalifoux: Yes. My name is Roland Chalifoux, Jr., DO, neurosurgeon. The
dear members of the hearing panel, despite the efforts of the Texas State
Medical Board, I’m still Dr. Chalifoux [inaudible 127:49], board certified
neurosurgeon. Despite Dr. Kalafut’s tirade to the press - and I’ll - if I can
actually quote her, her discussion, or her statement. “According to our
standards in Texas, he is a continuing threat. It would endanger the
public. And we did not feel that he would be able to safely practice
medicine again.” Said Dr. Roberta Kalafut, the Texas Medical Board’s
President.

She said that obviously, and, and as a result of the statement actually, two
things. One is, it was said after I'd received my medical license in West
Virginia. But more importantly, it shows callousness on her part as well
as cowardly information, cowardly response. And nonetheless, she’s
obviously wrong because since she made that comment, I believe back in
2005, I'm actually in West Virginia. I've been practicing there for 2-1/2,
for about 2-1/2 years now. I've returned to practice medicine, treating
many patients in West Virginia, which I'm very, very happy to do. I’ve
been asked to give lectures by medical societies, interns, residents, and
other professionals who know about my situation in Texas. Therefore I
have a difficult time understanding how a statement like that could
actually be said. But nonetheless it was said.

Essentially, my history is not, not, not too difficult, and I’ll be as - I’ll be
as quick as possible on that. I moved to Fort Worth in 1995 after finishing
ten grueling years in medical training, which involves four years of
medical school, six years of neurosurgical residency.

Within two years, I was then able to complete enough proficiency to

receive my board certification in neurosurgery. Do you want to
[inaudible 129:34] residencies them out? I practiced until July 19th, 2002,
when the TSBME - and I - forgive that I'm used to the TSBME
terminology back then because it was - it changed the TBM or TMB after
I left the state.

When they suspended my medical license following a three-minute

meeting, and the Board’s hearing panel when I suddenly was given a list

144
of 15 allegations, which had occurred three to six years earlier. And in
that meeting, actually Dr. Patrick was there. I—I know it for a fact, for
practicing below the standard of care.

Three months later, in front of an independent SOAH judge, five of these

allegations were completely thrown out. During the hearing the SOAH
judge heard testimony from 25 experts in my defense, colleagues that I
had gone out to find to review my charts, including hospital
administrators, department chairmen, as well as patients that I've actually
treated, who were very happy to discuss that they were happy with the
care that they received by me.

I was - that was against the TME’s three questionable experts. And we’ll
talk about expert after I'm done with this as far as what I would
recommend that you folks look at in terms of trying to save Texans some
good hard earned money that they’re spending for this Board.

Essentially one of them was later found to have purgered himself, and
eventually lost his hospital privileges in Colorado. One who admitted he
didn’t have experience in performing these kinds of cases that we, that I
had done and on the record even said that my license should not be
revoked. And the third physician who [inaudible 131:07] himself had
been the target of numerous lawsuits in the Houston area. One in
particular accusing him of being what’s called a ghost surgeon. That’s
when a surgeon actually works with an older surgeon that finds patients,
and he operates and not, not the initial patient - not the initial doctor, but
the ghost surgeon, they call him.

Anyways, what had happened with that was that he had failed to obtain an
interoperative x-ray because he had never really examined the patient. He
was just told go operate this level. And then he was later found to have
operated the wrong level by that person. Again, this was—this was a
TSBME expert. Following this case, the - this individual actually left
Houston and moved to Waco, Texas.

Just quick. During my hearing, which lasted about two weeks because we
had a lot of information to go over, the judges tossed out numerous
charges at the Board’s complaint, saying basically they were hearsay,
lacking any evidence, and/or not following the rules of evidence.

Final findings after months of investigation, they recommended that my –

that my license should not be revoked. In spite of these findings, however,
the mandates by SOAH, excuse me. The Board blatantly disregarded their
recommendation. And it - and arrogantly you stripped, your authority to
proceed to revoke my license in July of 2004.

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The three things that I want to show that you - and I'd be more again, I
believe in transparency would love you to look at the website regarding
the TSB and things like that review on my case. But to be real quick,
number one that it’s actually part of the Board’s record. And that’s the
thing. You need to look at what the Board writes, and what they do.
Because this is where I think a lot of the doctors are going to have a
problem with, and the public needs to know this also.

Number one, that the period in practice, or in question, 1995 to 2002, my -

meaning my surgical post surgical complication rate fell below the
National average despite the fact that many of these patients were high-
risk patients. Below the National average. Number two, had no improper
motives with respect to the treatment of this patient, and was motivated to
provide appropriated treatment. And number three, had to deal with some
post surgical complication caused by the hospital staff errors.

As the result of the TMBs action - and this is where we’ll discuss the last
part, I left Texas with my wife, two children. We basically had no choice.
We were being kicked out of Dodge, so to speak. And went to West
Virginia, where under the guidance of one my expert witnesses, Dr. Julian
Dales, they very knowledgeable and fine chairman of neurosurgery,
invited me up after I had to prove to the West Virginia licensing board that
I was actually competent. And they actually reviewed the charts that they
had here.

Anyways, after reviewing that, I was I took a refresher course. And within
six months, I was offered a position as professor at WD Department of
neurosurgery in June of 2005. The Medical Board’s criteria again, for
issuing my license included full disclosure of what had happened at the
TSBME, as well as a complete review of the action. Despite the fact that
TMB had revoked my license and my family had left state, Dr. Kalafut, on
- I forget what day it was. I think it was back in July of ’05, had the
audacity to essentially, I guess, currently got wind of my new venture and
essentially, acted to try to continue my case, this time through the media.
She essentially made these claims to the newspaper.

I'm sorry. Anyways, having stripped me of my medical license in Texas -

now the Board, through its present action, attempted to go outside of this
jurisdiction in an effort in the last word is what you guys to my career as
evidence to my licensure in West Virginia and also my re-licensure in
Michigan because they had ultimately held on to my held my license
initially. The Board must have been feeling somewhat vulnerable since
their actions were now essentially over turned by two other state medical
boards, the West Virginia Board and the Michigan Board, both with equal
authority in the United States.

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As usual, the Board resorted, in the end, to the one tool they’ve never
failed in their efforts to scare the public. And that is using the press, the
media. The Fort Worth Star Telegram, Dallas Morning News, were
repleat with stories in and around 2002 of Dr. Patrick’s crusade to use
vigilante justice to out out the bad doctors.

My branding by the TSMBE was saved on the unfortunate death of a, one

patient that had a giant aneurysm, who had a poor prognosis to begin with,
with or without surgery. The patient had a large AVM, whose condition
improved dramatically after I performed a delicate brain surgery. And
who later testified on my behalf during the Board’s proceedings. And
unfortunately, the reason why there was an issue is that she was,
apparently, was not given her medication by a nurse, who [inaudible
136:05] the orders, which were clearly identified in the chart. And so the
patient, unfortunately, had a seizure.

Lastly, a patient with [inaudible 136:14]. Being given the three minutes at
the time of my initial hearing, again, I don’t find this to be essentially a
due process. None of the allegations had occurred in or around July 19th,
2002, and therefore once again, I do not understand the definition of clear
and present danger. These were all cases that were old. There was
nothing - since that time I had done over 500 cases of patients. So again, I
don’t understand the immediacy of the stripping a guy of his license.
They know that that’s basically where eventually you’re going to defend
yourself.
Again, it seems very obvious, and they may obviously deny it. But the
TMB, under the direction of Donald Patrick and Dr. Kalafut were
determined to rid themselves of me despite the fact that neither they nor
their experts were ever able to prove that I was a serious threat to the
public. Dr. Kalafut’s actions demonstrate that they were willing to cross
state and jurisdictional lines and resort to using the press, once again, to
continue trying their case in the court of public opinion.

Since their case against me essentially [inaudible 137:20] at SOAH, which

we all thought was supposed to be the deciding factor in this case since
they're supposed to be objective, independent, etcetera. Essentially, what
needs to occur - just a very quick list here?

Define clear, continuing threat to the public’s welfare. Again, that

obviously if a doctor is - is inebriated, taking drugs, and having poor
outcomes during the - during that week, that would make sense. But
we’re talking about things that have occurred years ago. And essentially,
like I said, out of 18 cases, at best they could find is three things wrong
with me. I - I dare them and any other agency to show me any
neurosurgeon who has - has only had three problems, and still has lost
their license. That to me is a [inaudible 138:04] proposition.

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 Enforce the accountability. None from the TMB should be able to be
immune, and/or not held accountable for any of their action. The burden
according to the [inaudible 138:13] committee, as far as I understand,
because I worked very hard with the [inaudible 138:17] individuals was to
encourage accountability. What I'm hearing right now, several years after
is that that’s not entirely happening.

Male: Doctor? I don’t know if you picked up earlier, but assume we’re not here,
the guy that represents Texas Tech, is - is the new chairmen of Sunset…

Dr. Chalifoux: Oh. Okay.

Male: …and - and I think the remarkable thing today about all the members that
have - that have shown up here, and been a part of this hearing today…

Dr. Chalifoux: Yeah.

Male: …that they come from all different committees. We have chairmen from
a number of different committees besides our sub committee…

Dr. Chalifoux: Okay.

Male: …on regulatory and appropriation. So yeah, we have - we have a lot of

members that are - that are very serious about…

Dr. Chalifoux: Well I appreciate that.

Male: …the fact that all of you are here today.

Dr. Chalifoux: Okay. Even though I'm currently living in - in West Virginia, I'm
more than happy to help. You know, do my best to try to make things
better for the doctors here in Texas.

Male: And we appreciate that very much. And I'm just sad that we lost you to -
to Virginia…

Dr. Chalifoux: Well. I can say…

Male: …here in Texas.

Dr. Chalifoux: One of the things I would - I would just like you to folks to think
about is we need to have some kind of a scoring floor chart because I'm
also hearing that when it comes to penalties, I don’t quite understand the
penalty practice here in terms of what to find, what is - you know what’s
considered to be a 30-day probation or whether - I think somebody needs

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 to write that down as far as - almost like a cookbook, where you do this,
you get that. You do this, you do that. It’s almost like what they do in the
civil system.

In terms of the - one thing I would like to bring up, and again, this is not -
probably not the right area for it. But hearing what I'm hearing today also,
why not offer, ask the TMB to review or reopen some of these cases?
Where like, doctor’s licenses were revoked. Especially if SOAH did not
want them revoked.

Male: Yes sir.

Dr. Chalifoux: Maybe we need to take a better look at this because why is it that
independent body, and in my case we had three judges looking at this.
Why is that they were all of a sudden overruled by one state agency? So it
sounds like we had a - we were having a problem with state agencies, that
there would be some kind of middle portion there I think to help that out.

Male: Yes sir.

Dr. Chalifoux: Lastly, I guess in terms of the ISC, as in [inaudible140:18] about the ISC,
and I unfortunately went to the - to an ISC obviously. You know when the
experts - and I love experts. I think there should be experts in there. That
when an expert reviews somebody’s chart, and lets say they're not quite
appreciative, or they don’t agree with that doctor, they are never there to
the ISC. They may have written a report that the two board members are
reading. But then, as a physician, we have to explain it to the board
member. I would rather be able - and I would think most people would be
rather, again, see - know your accuser, see your accuser. If that other
person, that other expert has a problem, why is that you can't have a
debate in front of the board member to see exactly what’s going on? That
to me would make more sense. I mean we’re - we’re supposed to be
cordial, not antagonistic. And that’s exactly what, unfortunately, what I
went through was antagonist.

And lastly, regarding Dr. Miller again - I wasn’t here for that, but are we
going to be reviewing all of Dr. Miller’s cases where he was an expert?
[Period of silence.] I mean, I would be a little concerned about that. I
mean again, you know, if all you're supposed to - if given when you
revoke someone’s license, it is akin to a death sentence. Okay? Our
prisoners are going through death row with appeals. Why aren't we doing
something about our physicians who are currently are not, you know, not
supposed to be villains.

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 So that’s pretty much what I have to say. I'm sorry I - I think it was worth
my time coming down here because like I said, I was in San Francisco
giving a lecture, and I made sure that I came down here for these hearings.

Chairman: We—we appreciate it very much. And - and again, I'm just sorry that we
lost you to another state. If you will, would you - would you give us copy
of your testimony?

Dr. Chalifoux: I…

Chairman: And before you leave, I think Representative Riddle has something that
she’d like to…

Riddle: Hi. Just to - I again, want to reiterate that I'm sorry that we lost you to
West Virginia. I think that your comments are very well taken. And the
fact that we - I think we do need to review those that Dr. Miller was on.
But to make you feel a little bit better, I don’t know how much, and I'm
going to - I’m going to share this after all of the testimony has [inaudible
142:25]. But the National Foundation for Women Legislatures in
Kentucky on October the 13th passed a resolution that I think you’ll be
quite pleased with. And I would like the clerk to go again and give it to
you so you can review it. Thank you Mr. Chairman.

[Inaudible of mic 142:45.]

Chairman: Can you hit the highlights of that resolution? Maybe on the back page
there. And that is a 50 state resolution, is it not?

Riddle: Yes. This is a 50 state resolution. And various legislatures, women

legislatures, have - and by the way men legislatures were there from the
various 50 states. On the back page - I won’t read the whole thing, but it
says, “Be it resolved, the National Foundation of Women Legislatures,
healthcare, and empowerment committee admonishes the elimination of
the practices listed above and advocates their replacement with the
following: A commitment to the sacredness of the patient-doctor
relationship. Two, increase transparency of charges and proceedings.
Three, the increased accountability of board members and their actions.
Four, the increased integrity on behalf of board members in carrying out
their responsibilities. Five, the acceptance of and giving equal weight to
the evaluations of a physician’s care by physicians and others can - chosen
as expert witnesses by the Board. Be it further therefore resolved that the
National Foundation for Women Legislators has hereby recommends for
the creation of an independent and public medical board oversight
committee in each state appointed by the legislature and charged with a
range of duties and authorities that will ensure the enactment and
enforcement of such general policies in as advocated above, including the

150
 ability to receive and evaluate complaints from patients and medical
professionals against the boards and their members. If anyone would like
a copy of this, you’re welcome to it.

[Applause.]

Chairman: Doctor, thank you again for coming out. Now the Chair calls Thomas
Smartwell for [expunsion ??] of medical board files.

Smartwell: Mr. Chairmen, members of the committee, my name is Tom Smartwell.

I’m a lawyer from Houston. I practiced law for 40 years. I've defended
doctors, hospitals, nurses. I even defend lawyers in malpractice cases.

But I come to you now because during 13 of that 40 years, I've represented
the doctor by the name of Jim Johnston. Jim Johnston is a double-board
certified neurologist, who has a valid Texas license. Doctor Jim Johnston,
however, has not practiced medicine in Texas since 1995. Did he commit
a crime? No. Did he violate a board rule? No. Was he found guilty of
some violation of professional conduct? No. Was he brought up before
the board on charges? Yes he was. But here’s what the board has found.
And in summary, this is what I ask this committee to be aware of.

The board found that this doctor was innocent of all charges. They found
there was no evidence that the doctor committed any act of misconduct.
They found that the doctor did not violate any part of the Medical Practice
Act, and that what he did is that he should not be disciplined. And the
board refuses to expunge the record.

He has asked the board many times to expunge the record, expunge the
discipline orders that went on during the five years that this continued to
avoid the data bank entries and to expunge the staff complaint that is still
in there. There is no expungement even today.

If you Mr. Chairman happen to be arrested, you went to trial and you were
found innocent, as Dr. Johnston was, you could have those criminal
records expunged. There would be absolutely no way to tell that you had
ever been arrested. And the code of criminal procedure also allows you to
answer any question if you’re ever asked, have you been arrested? You
can say no. That’s not true at the Texas Medical Board. All of the
documents are available to insurance carriers, hospitals, insurance
companies, and that’s why Jim Johnston hadn't practiced since 1995.

Well what was he accused of? Jim Johnston was accused by the Medical
Board lawyers of sexual assault. Sexual assaults of eight patients in his
medical office, by force, flaccid intimidation and the use of needles. It
was alleged that in 1994, Jim Johnston sexually assaulted eight of his

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patients in his [inaudible 148:06] medical office. He was indicted in June
of 1994 and we tried his criminal case in December of 1994. The jury was
12 to nothing for acquittal on all felony counts. And by the way, I
recommended to him that we go to the jury without even putting on any
evidence.

The medical board lawyer’s w weren't satisfied with that and they
continued the case to the administrative law judge. We tried, in December
of 1997, for a week, all of the same evidence that was presented in the
criminal case. This time presented to Barbara Marquardt who was then
the - one of the administrative law judges. This time, Jim Johnston also
presented all of his evidence. I have to say that in the 13 years I've
represented Jim, I haven't been paid much beyond the criminal trial, but
neither was the witnesses who came to testify in Austin in 1995 before
Judge Maquardt, I’m sorry 1997.

In September of 1998, Judge Marquardt filed an opinion with the medical

board, 125 pages in length. She analyzed all of the evidence, found him
innocent. In December of 1998, 18-member board presided over by Dr.
Bill Fleming, also heard Dr. Marquardt’s testimony. They decided he was
innocent, and they filed their own fact-finding.

How innocent was Jim Johnston? Let me read to you from just a little bit
of it, of the findings by these two bodies. First, from Judge Marquardt.
“In 21 years of practicing law, this administrative law judge has never
seen a clearer case of pure fiction brought against an individual. He did
not commit assault or any illegal action any of his patients, and should not
be disciplined. There is no credible evidence of misconduct by Dr.
Johnston. No complaints have ever been made by any patient against Dr.
Johnston except for these cross-complaints and these false allegations.
From the Spring of 1994, up until the date of this trial, Dr. Johnston has
submitted to examination and testing by every expert in forensics,
psychiatry, and psychology recommended by the Board, law enforcement,
and his advisors, 12 experts, two polygraphs, one [inaudible 150:36].
Each of the experts determined that he is telling the truth that he did not
commit the alleged offenses and he did not have any psychiatric diagnosis.
There was nothing credible about the testimony of the complainants. They
fit the classic profile of the type of persons who file false accusations of
sexual abuse.”

And from the medical board itself, Dr. Flemming presiding. “Based on all
of the findings, no disciplinary action should be taken against Dr.
Johnston’s medical license. Dr. Johnston’s examinations, treatments and
all of the - against all - with all of the complaints in this case were well
within the standard of care. False allegations of sexual misconduct do
occur and these complainants demonstrated classic features of it. Dr.

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 Johnston submitted to an examination and testing by numerous experts,
and he is not a sexual offender, and has never been diagnosed as such.
Because there is no credible evidence of misconduct by Dr. Johnston,
placing restrictions on his license would be improper.”

Innocent? Extremely so. And despite all of these people acknowledging

in the Jim Johnston did nothing wrong. The executive director, who at the
time was Dr. Bruce Leavy, made sure that Jim Johnston was punished
anyway.

Male: Mr. Chairman? Yes sir, chairman I - thank you. The offenses that they
cited were in ’94?

Smartwell: Yes.

Male: When the - what you just read, when was that? When was the case?

Smartwell: After [inaudible 152:16] doctor. Judge Marquardt made her findings
September 1998. The Medical Board made their findings of fact and
conclusions of law in December of 1998.

Male: Okay. Thank you.

Smartwell: So since that time. Dr. Leavy decided that he didn’t agree with any of
that. So he let stand, in Dr. Johnston’s records, in his public records that
anyone could access, all of the original records that were filed with respect
of these charges in this case. Anyone could get the complaint that the
board’s lawyers had filed, and find in graphic detail the alleged sexual
assaults, the alleged detail repeated eight times. Let me give you an
example.

“On February 9, 1994, Dr. Johnston held the patients hand against his
erect penis. Then he rubbed his penis through his clothing against the
patient’s buttock. Then he placed his mouth on her breast, pulled down
his pants, exposed his penis, and attempted to climb upon the examining
table.”

Now if you read that even though all of these findings of innocence were
made, would you hire him and give him a medical job as a neurologist?
Well I can tell you that throughout the United States, the answer is no.

We were able to secure a license for him in New Zealand. Dr. Johnston
would be here today, but for the fact that he left Sunday for one month of
duty in New Zealand where he relieves a neurologist there in a clinic and
is able to practice medicine there in New Zealand.

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 And if you don’t get the exact details from that, all you have to do is look
what is on the Board’s files today. And that is license suspended, license
restricted due to unprofessional conduct, formal complaint filed, a formal
complaint dismissed, and so on. So there’s no question that anyone who
looks to see in this file, will get the idea that Jim Johnston was disciplined
by this Board.

Have we asked him to expunge it? Dozens of times. Dozens of letters.

The Board personnel lose most of the letters. They will not do anything.
They will no expunge anything. I've made an appearance before the
Board Committee on discipline review in August of 2000, saying the exact
same things I've said to you here, giving the exact same evidence that I
have here. We’ve appealed directly to the executive director on several
occasions. No action.

Ironically the medical boards in other states have wiped out everything
related to the reciprocal discipline that they had to impose on Dr.
Johnston. Their records have been expunged. There’s no record,
whatsoever, of this in Idaho, Arizona, or Utah. We only ask for what’s
fair. That’s all. Just what’s fair. And it seems to me that if you’re
innocent, you deserve a false allegations to be expunged. Thank you, Mr.
Chairman. I’ll take questions if…

[Applause.]

Chairman: Members, any questions? Will you - will you leave us a copy of that? Do
you mind?

Smartwell: I wouldn’t. May I send one to you?

Chairman: Yes sir. Yes sir. That would be fine.

Smartwell: But I’ll be happy to do that.

Chairman: Okay. Thank you so much.

Smartwell: Thank you very much.

Chairman: The Chair calls Dr. Esedro Viner.

Viner: Good afternoon. I'm Esedro Viner. I'm a general surgeon, and I've been
in practice in Houston for 25 years. I had an original complaint against
me to the Texas Medical Board on May 10th, 2004. After the Board
investigated, the case was closed on October 15, 2004 with no action
against me. It was about this same case, was a civil small practice lawsuit.
And this was decided in my favor, by a jury, in February 21, 2007.

154
 The family of the patient had a personal grudge against me, and had the
Texas Medical Board reopen the case with a second complaint, which was
the same as the first complaint which, in my opinion, this amount to
double jeopardy.

There were two allegations against me. The first one was on a surgical
technique that should have been used out of re-exploration surgery. The
second one was about the timing of the re-exploration. They had an
anonymous expert who based his opinion on the expert witness used by
the plaintiff in a civil lawsuit. And this is unfair because he used the same
language almost verbatim as their expert witness.

The type of surgical technique advocated by the expert had very poor logic
and was wrought with insurmountable complications. The timing of the
re-exploration, which was 13 hours difference in - as when the exploration
was done, he based on the postoperative findings, which at the time that
the decision was made, they were not available to me. And I had planned
the procedure in this patient based on the - and the patient was improving.
So this is a patient that’s improving. I based the re-exploration on a hint
based on my experience to rule out a potential - a potential infection.

I had an informal settlement conference. And the panel consisted of three

lawyers, one lay person, one internist, and the third panel member was an
ENT surgeon who recused himself form the case because he knew me
personally. They found that the process was unfair. It is the internist and
the layperson did not have the surgical proficiency to render a decision on
the - on the subtle surgical matter.

I tried to explain to them the rationale for the decision, but it was obvious
that they lay more weight on their opinion of their expert witness, who
was not present at the ISC. I feel that - that if a panel was composed by
surgeons, or at least one surgeon, he would have understood the rationale
for the - for the surgical plan.

I was sanctioned by the Texas Medical Board, with 10 CME credits, and I
- if I signed that I agree with this, I couldn’t appeal the - to apply this
verbally. I felt that this was a poor settlement, and an appeal would have
cost me a tremendous amount of money, time and litigation.

I think that Texas Medical Board needs to eliminate their illegal double
jeopardy trials. I think that their ISC panel needs to have at least one
member of same specialty for pertinence of the judgment. And I am for a
strong medical board that is fair, and not feared. Thank you.

Chairman: Yes sir. Thank you, doctor.

155
[Applause.]

Chairman: If you have a copy of your testimony, would you - would you leave it for
us?

Viner: I’ll send you one.

Chairman: Okay. Thank you, doctor. The Chair calls Dr. Howard Lang. [Brief
period of silence.] And Dr. Lang I can't tell - you don’t have it checked
here. Are you appearing before this body to testify against the Medical
Board?

Lang: Somewhat. Just to clarify some ideas for change and improvement.

Chairman: Okay.

Lang: … and problems on the Board.

Chairman: Okay.

Lang: I’m Howard Lang, DO. I practice in the greater Fort Worth area in
[Collinsdale ??] actually. I've been there for about 30 years. And I didn’t
really come because of the compliant against me, personally. I have no
complaint against me. Rather, I know various individuals, some of which
have spoken all ready, that have experienced gross and absurd injustices,
harassment, unfairness, complaint - things that have been don’t that have
no merit and honest complaint problems.

Anyway, I felt compelled to come and speak because of the severity of the
difficulties that are present. And that’s why this meeting is being held.
I'm thankful, very thankful that all of you are here today, and the Board
also is here today to rectify and correct things that are not good.

Anyway, one of the doctors that is being - has been - had complaints
brought against him is internationally famous. There are thousands of
patients all over the world that have benefited form his work over the past
40 years probably. He has international respect.

Last night I stayed at a hotel in a non-smoking room. The reason why the
room was a non-smoking room is because this physician has done all
kinds of work for years, and years, and years, focused on the toxicity of
tobacco and tobacco smoke and what it does, and how it does it. And
that’s why all of us are able to go to places where - that are - that have
non-smoking facilities.

156
When you put gas in your car, there’s a device that draws off the fumes
that would - that we would be exposed to if we just stood there and put gas
in our cars. And so the environmental protection agency has mandated
that various type devices be used to suck the fumes off of the process of
gassing your car so that we’re not exposed to those compounds, octane,
hexane, various compounds present in gasoline, which are a problem for
humans and our environment.

These are just two illustrations and this physician who will be speaking
today possibly, he is one of the individuals that is responsible for this
benefits to our environment and to us as human beings. Anyway, he’s
under attack by the Board.

This is - he’s - to me this is like an Einstein person. And for whatever

reason, for whatever - whatever design is occurring, and whatever the
process is, for whatever reason he’s attempting to be - there’s an attempt
being made to remove him from the practice of medicine.

He’s an Einstein person that - it’s not desirable to just go to Princeton

University and tell Albert Einstein that you need to go away because
you’re smart and you’re really good, and you help people. It’s - this is
unconscionable to me. And that’s why I'm here right now.

One of the things as I began to study what goes on - and there are a lot of
good things that go on, and we - we do need to remove physicians that are
on drugs and that have sexual problems - whatever. The Board has to –
has the responsibility of giving licenses to the right people, and not the
wrong people. There’s so many good things that are done that today most
of - a lot of the things that I've wanted to bring up, were covered all ready.

And one of those things is the expert witness, the peer review idea. Now,
just - this is a report that all of - all of you probably have seen. It’s a joint
select committee to study the [inaudible 165:45] peer review process.
This was a report to the legislature, the 80th legislature that you guys
received in January ’07.

There’s discussion in this report about how peer review should happen.
Peer review means that the review should be done by a peer. Now we’ve
used the word expert witness. There’s various words that have been used
to focus in on this. But really the review of what a physician has done
needs to be done by a peer. That’s actually what that means is that the
reviewing physician needs to be - needs to be in the same exact field that
the physician is in, or a very same or similar field. So it’s got to be close,
very, very close in order to be able to evaluate the complaint process
properly.

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Well that’s not being done. There - many times that’ve been expressed
that I know of that are – we’ve got a psychiatrist evaluating an OB/GYN
person. We’ve got a dermatologist evaluating a neurologist. Sometimes
what needs to be done isn’t done, or there are errors that are made just like
what was expressed just a few minutes ago.

Anyway, that area of due process needs to be improved upon, for sure. To
me, there’s an abuse of funds. There’s - if the Board isn't going to hire a
person to be an expert witness, the person needs to be an expert in that
area. If they're not an expert, they shouldn’t really be doing the - they
shouldn’t be doing peer review if they're not a peer. And to hire them to
do something that when they’re not a peer, that doesn’t - that really isn't
right.

Anyway, I would like - I would like to appeal to you as legislators, and

other people have all ready, but - and that’s special, and to the Board also.
But I would like to appeal to the – there are changes that need to be made.

One of those is the fact that the physician needs to be innocent until
proven guilty. In other realms of law, the person is innocent until they’re
proven guilty. For a physician, he’s guilty up front. Why should the
physician be guilty up front? The issue of anonymous complaints, that
should be done away with. We’ve discussed that earlier today. If it
doesn’t work, do away with it. We don’t need to do it. If it doesn’t work,
hey let’s get rid of that. It’s void. There’re problems with this anonymity
problem.

Anyway the - my thoughts are to just expose some things, and part of
them have been exposed all ready and I don’t have to now. But
nevertheless, you can change the process. You can make if fair. There’s
unfairness. Physicians fear the Board. I’d rather have more reverence
than fear. I’d like to – revere the board, and not fear them. I’d like them
to be for me, and not against me. When there’s some question or
something, they - why be - the other individual is - if it’s a fictitious - a
fallacious problem. If it’s an untrue problem, if it’s false, why should the
board be for the person that's expressing [inaudible 169:12] and not for the
physician per say. There needs to be more weight of that. The weight of
that principle is important.

We’ve all ready - the issues of intimidation and fairness, and patient’s
confidentiality breached without consent, without knowledge. The checks
and balances issue. The transparency of the process. All these things
have been discussed all ready, and I don’t need to restate that.

But nevertheless, I've seen some things that are not right. And you guys
can make them right. And I know you can. And thank you so much.

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[Applause.]

Male: Doctor? Doctor, if you’ll wait just one minutes please?

Female: Hi, Mr. Chairman. Thank you. And I thank you for taking the time to be
here. I just want to share with you. I don’t know who the physician is
who’s the Einstein person you’re referring to?

Female: I can express his name if you want me to.

Female: Would - do you mind telling me?

Lang: Yeah. His name is Bill Ray.

Female: I thought that’s who it was. Let me share something with you. And Mr.
Chairman, I’d like to share with you and the committee, and those here.
Recently, I've been on the plane more than I've been on the ground. And I
had to be in Atlanta. I was in Israel for a period of time, and then I have
gotten back from Kentucky.

I was flying back on one of those trips with a physician. She was sitting
next to me. And she was sharing with me the problems that are going on
here in Texas with our Texas Medical Board. She has extraordinarily high
regards for Dr. Ray.

She said that he is nationally and internationally respected, and that

physicians who would not normally come and testify for him out of fear of
retribution, are willing to do so. They’re willing to put their license on the
line. She herself said that she would be willing to do so, but she was a bit
relieved that she was not going to have to do that because it was going to
create a financial hardship for her, and she herself was fearful of the
retribution.

So sitting on an airplane next to a physician, coming back home from out

of the state, I want you to know that I was hearing about the reputation of
Dr. Ray, and how physicians from all over Texas, all over the nation, and
indeed all over the world would stand up for him. So I did know you were
talking about, but I just thought that might be him, and I wanted to share
with you what that doctor had to say.

Lang: Yeah. Well thank you. I hope there’s no retribution. I hope there’s a
process that you’re protecting, like myself, from retribution.

[Laughter.]

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Lang: I mean really. I’m just speaking truth. All it is is truth, and that’s it. I…

Male: I guess in the coming weeks, we’ll sure find out, huh?

Lang: Yeah.

[Laughter.]

Male: Thank you.

Chairman: Thank you doctor. Hey I want to thank every doctor that’s here because I
know it took [inaudible 172:38] to Lang to be here because I had - you
know, we’ve all had so many doctors call us and said they’d like to be
here, but they didn’t want the end results, or what they thought the end
results would be. So to all of you, our hats are off to you, and we thank
you for making this trip. And then, of course, sitting here all day long
through these hearings. But thank you so much for coming today.

The Chair calls Tim Wheats, speaking neutrally. How are you doing?

Whites: Tim Whites.

Chairman: Whites, okay.

Whites: Mr. Chairman, members of the committee, I am a defense attorney by

choice. I am a government regulator. I'm with the law firm of McDonald,
Mackey, and Whites. I speak on behalf of my firm and on behalf of
myself today. I bring you sort of a unique perspective because I worked
for the Medical Board for six years. I was elected General Counsel for
three of those years back in the early ‘90s.

It was not my original intent to testify today. It was really - I was really
here to see the philosophy of the legislature, listen to what the board
members had to say, try to have an understanding of the staff perspective.

I can tell you right now, I empathize with the staff in many respects. And
I empathize with the board members, many of whom account among my
friends, old board members and current board members alike. And I can
tell you that I've often argued before the Board that the perfection standard
should not apply to physicians. And that at times we have disagreed about
what that means.

But I would also submit that the perfection standard should not apply to a
state agency, like the Medical Board. These are growing pains that you're
seeing. And these are things that can be fixed. And the problems that you
have heard have been emotionally charged. Some of the solutions that

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have been proposed have been poorly thought out, but certainly well
intended.

What I would like to bring to the table today is not throwing stones in
glass houses because I can tell you I'm as vulnerable as anybody to having
criticisms thrown at me. And what I truly intend here is some constructive
criticism, perhaps, to somehow find a way to weave between some of the
rocks that we’re facing, and come up with a system that works, one that
works better.

I've always heard the saying over at the Medical Board, first make it work,
then make it work right, then make it look pretty. I'm not sure what stage
we’re in right now. But I can clear there’re some things that I would like
to see as a defense attorney that would not overly slant the table one way
or the other.

In the regulatory arena, the pendulum swings to the right or to the left
depending on who’s running the legislature, who’s in the executive
branch, and who’s in the judicial branch. And those checks and balances
that you’ve spoken of can get out of whack. And I believe what you're
seeing right now is a result of those checks and balances being out of
whack. And to some degree, it’s the fault of the media. At some degree
it’s the fault of the legislature. And some degree it is the results of what
the consumer has expected unrealistically, of not only the physician
community, but also the board that regulates them.

So keeping those things in mind, and please try to take my comments as

truly constructive criticism. I plan to practice in front of the Medical
Board for the next 20 years if I'm lucky. And maybe when I’m a much
older man, I’ll be a public member of that Board, and be able to help it
along to the next stage.

But to come here before you, and tell you these things is something I do
out of a public service, a belief in what I do. Because I truly believe this is
my calling. I’d rather be dipped in molasses and thrown in an ant bed than
to have to come and testify with the members of the Board sitting behind
me, and with my defense bar colleagues somewhere out there wondering
what I'm going to say next.

So with those things in mind, let me just suggest what I believe are novel
ideas that you might want to explore. Maybe one of them will work.
Maybe a few of them will work. Maybe a hybrid combination of it will
work. But what we’ve seen right now is really an evolution, or perhaps a
mutation, of the regulatory process in this state. And it’s not unique to
Texas. It’s going across the entire country. It begins to focus on do we let
the marketplace control? Do we let the plaintiff’s lawyers regulate the

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professions? Or do we let the people who are appointed by our
government try and control how this is handled?

And what I would submit to you is this, a lot of what your focus is
primarily today is on fiscal matters. And if could address some of the
fiscal matters, you can improve the efficiency. By improving the
efficiency, you can also preserve the due process with many of these
physicians [break in audio 176:51] complaint is of the same time.

One of the things I would suggest you probably going to be very

unpopular with the Board, and probably unpopular with the staff. And
with the time that I was with the Board, I would have repelled just like
they might. But I would like to see stakeholders look at it very closely.
And that is the idea of let the administrative law judges make the final
decision in contested cases with the Board.

And I suggest that for a number of reasons. Board members are indeed
uniquely qualified to regulate the profession. Let them sit in informal
settlement conferences and truly realize that this is a great opportunity for
them to come up with a fair agreement, one that everyone can accept, what
will protect the public. And if the physician isn’t willing to accept it, let
those Board members go to that hearing at the state office of
administrative hearings. Let them sit next to that rookie attorney who’s
just trying to find their way into the administrative process. Let them be
the consultant who can sit there and be a true champion of the public and
truly advocate for what’s right in the particular contested case.

One of the things that young attorneys experience is an inability to get a

handle on some of the difficult medical issues. And the administrative law
judges have a wealth of experience in this area. We have panels that are
specialized in dealing with medical board cases, banking cases, and you
name it. They’re as good of judges as any of you are going to find or
elected.

And what I would suggest is let the administrative law judge make the
final decision. Let the board appeal that to district court if they’d like.
That’s how the system should work. Take out that extra step, that extra
costly step of sending it to administrative law judge, the staff attorney, the
respondent’s attorney and the respondent back in front of the full board
many, many months later to present and perhaps, only have it overturned
or modified in such a way that they're going to have to appeal it. Take that
step out. It saves money.

And if you rely on the district courts to do what district courts do best,
which is look at the administrative process to see whether if was fair. Let
the board members or some of the best possible consultants sit next to

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those attorneys and help them along the way. Help them be behind the
scenes, doing what they should do, which is advocate to the public and be
a champion for the public in a way that is unique if you have that situation.

And I know the board staff talked about how across the entire regulatory
front that in most instances the administrative law judges are not the final
decision makers. Contact the general counsel for the state office of
administrative hearings, Kathleen Farsley, and ask her what agencies
allow the administrative law to make the final decision.

Only one comes to mind for me right now and it's Child Protective
Services. I would submit to you that if it's appropriate for Child Protective
Services, for the ALJ to be the final decision makers for our children's
safety when it's some of the most vulnerable people in our society, it
should be fair enough for physicians as well.

That's what expert witnesses are about too. It's not like the Administrative
Law Judge is going to have nothing to work off of. They have experts that
are testifying in great detail about these cases. So I would suggest to you
that if you went that direction, you would save money. You would
basically make the system where the public feels like we have a true
advocate in the members of the Board that are selected by the Governor
and confirmed by the Senate. It's a novel approach, I agree. But it's one
that's worth considering giving everything I've heard today.

The other thing I would suggest to you is this. Experts cost a ton of
money. You get what you pay for frankly. If you want to take some of
the money that's saved from the Administrative Law Judge making the
final decision and channel it over to experts, great. Because that's where
that money should be spent. The experts that they're using right now,
some of them are very nervous. We talked about fear of retribution and
fear of negative influence on folks. I think some of the experts that are
working for the Board are afraid of being shunned by their own colleagues
because they're doing the Board's bidding.

So because of that, they remain confidential at the very early stages. So

going into an informal settlement conference, the ISC that we talked
about, the experts that have been hired by the board are basically cloaked
in secrecy. They stay in the shadows.

As an attorney representing doctors, I don't know whether that person has

a bias against my client because they went to school together, they were in
opposing fraternities. Somebody was dating somebody else's wife before
they got married. I have no idea. I know their basic credentials. But I can
tell you it would help me as an attorney to know whether or not there's a
bias there. It would make my client feel much more comfortable about the

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end results if they knew that there was no potential bias there other than
the bias that comes from different educations, different experience and
background.

The other thing that you'll notice is those experts that are used at the
informal conference settlement level on behalf of the Board are not the
same experts that testify at a contested hearing. That allows some folks to
believe that those experts that stay in the shadows can very easily wield
the poison pen, knowing that they never have to back it up in a court of
law, take an oath and look the doctor in the eye and say, "This is what I
truly belief."

I think it's impractical to suggest that we can have full blown debates in
front of an ISC panel where we bring in those experts that have been
helping out the board. But I do believe that you'll save money if you
require those experts that sit back there before the ISC are the same
experts that testify at the contested hearing.

There'll be times when they're not available. But what you're doing right
now is you have a situation where those experts basically do the reviews,
they get familiar with literally hundreds and hundreds of pages of
documents and then they provide the report. If it doesn't get resolved by
agreement, it goes to a contested case. The Medical Board then is
required to go out and get new experts, educate them in the case, have
them review all those documents and pay them good tax payer's money to
basically do the same thing that's all ready been done by the folks many,
many months ago. So to me it's duplicating the process unnecessarily.

Frankly I think that would be a fix that could go a long way. Let these
people go into court and back up what they're saying at the early stages.
That would raise the comfort level of many doctors that were facing those
expert reviews if it went into ISCs.

A lot of what you're seeing from the physician community is that lack of
transparency. That things are cloaked and they're worried about if they're
cloaked am I really getting a fair shake. My experience as a member of
the staff is that when the physicians thought they had been heard out, if the
physicians thought that things were open, they were more inclined to take
a proposed agreed order that was reasonable and fair and to reject
something that was in nobody's best interest.

I think right now what has happened is not a result of bad intention. It's
not some kind of overriding conspiracy. It is a result of the zeal that is
generated by an over-indulged media and a consumer public that just
doesn't quite understand that doctors aren't perfect either.

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What is happening is you're pushing the Board at one side and you're
pulling on the doctors on the other. You end up in a situation where we're
all going different directions because frankly the fear has taken hold of
everything.

With respect to other ways to go on this, one of the things that works and
works very well that has been discarded for some reason which I don't
understand is pre-filing mediation. Between the informal settlement
conference and the contested hearing, there's a lag time. What you can do
and what has been done successfully by this Board, if you had a pre-filing
mediation before you go public with the complaint, let the Administrative
Law Judges at the state office of Administrative Hearings have a
mediation that takes eight hours instead of the hour that you have for an
informal settlement conference. But eight hours, six hours or whatever the
case might be, without going public, without putting a physician in the
corner, having to fight tooth and nail to clear his record. But letting folks
sit down where they have a luxury of time to go through the case with an
Administrative Law Judge who knows what it's like to sit into a contested
hearing and try to unravel things.

Those folks can be very compelling when they come to you and say, "Mr.
Whites, your client is going to go down in flames." Or "Board member,
the rookie staff attorney just doesn't have the forces to make this case
stick."

Where is the middle ground? That process works well and it doesn't
stigmatize the doctor because it hasn't gone public yet. It saves money
because you don't have those filings, you don't have the initial discovery.
You essentially have an exchange of documentation prior to that. I've
seen it work successfully. Why the Board has backed off, I don't know.
I've never got a satisfactory explanation. Frankly that's one that I would
love to see explored. I'd love to serve on the stakeholders group to look at
that particular mechanism.

Another aspect of this is the confidentiality of the file I understand. It's

important to protect folks. Their files need to be protected from the
general public. I understand protecting complainants. I think that's an
important part of the process. But I believe in the licensure arena and the
disciplinary arena, the respondent or the applicant should have a special
right of access, not just to part of the file, not just to the portions that the
staff thinks is relevant, but the entire investigative file.

If you need to black out identifying information of the patient or the

complainant, great. But let us decide at the defense bar, let us decide as
the respondent, is this exculpatory? By the way, this little piece of
information that doesn't seem to be much to the staff means a lot to me

165
because I'm able to find other pieces that if I had that piece of the puzzle
suddenly you have that ah-ha experience. You can come up with a
defense that's meaningful to everybody and take us off the road to hell and
get us to a rest stop where we can get it worked out.

But if I don’t have the file, I'm walking around in the dark trying to
convince my client of what we should do without having all the pieces of
the puzzle. If it were a criminal forum and we were prosecuting, you
would have access to the entire file. There's a middle ground there of
special right of access for the respondent and for the applicant.

I would encourage the Board and I would encourage this body to look at
that possibly as a way to get the transparency that we need while still
protecting the confidentiality of the complainant, while still being able to
give the Board some comfort level that their work product is not
necessarily going to get disclosed. But open the file some what. We
really need it. It makes the process go faster if it's a licensure arena as
well as a disciplinary process.

With respect to the vagueness issue, this has been brought up before. That
initial letter that comes out is indeed vague. It'll often times say, "We
have problems that you might have engaged in inappropriate behavior
with patient XYZ. That's a violation of provision of the law,
unprofessional dishonorable conduct, likely to harm the public in some
way."

I have found that if I pick up the phone and call the investigator, in a
world where everybody is communicating at the Board and with a
philosophy such of look, we're not trying to “get doctors,” we're trying to
protect the public. I found in that context, with that philosophy, the
investigators will tell me. "Mr. Whites, the allegation is essentially this."

I go back to my client and say, "Doctor, here's the bottom line." No we

don’t have it writing, but generally speaking, I can rely on good faith that
the information that I'm getting either from that investigator or later down
the road from a staff attorney is generally accurate. They're not trying to
hide the ball from me. The system is moving so quickly at such a rapid
pace in order to meet the demands of a legislature, the expectations of the
media, and the demands of the consumer, that we're not getting the detail
that we need to address it early on in the process.

So frankly I think it's more of a cultural shift inside the agency and out in
order to get that vagueness addressed without having to go into infinite
detail in the correspondence. It can be done. I've talked to doctors after
the fact who said they've done that on their own and found that the
investigators were extremely cooperative, extremely professional and very

166
sympathetic. Some of them however have been reluctant because they're
afraid they're going to get in trouble. Others have been saying, "Look, this
is the right thing to do. We're a state agency. I'm here truly with the
government to help."

Of course you get a mix and match, but the philosophical change that the
legislature can drive home to the medical board and raise their comfort
level, give the staff that latitude to do those things. There's been a time
when that latitude existed. It was clearly the marching order. I think in
the zeal to make the numbers, to make up for the change in torte reform,
those kinds of things and those philosophical touch tones have been lost.
Not just with the Board itself, but down in the lower levels and the
trenches when the investigators have to basically make it work.

Along those lines, the identity of the panel and expert reviewers really
shouldn't be withheld. We encourage that to be dealt with in some way.

The standard of care. The standard of care is a moving target. I heard

someone testify that I would never wish my child to be a physician. I
wouldn't want them to be an attorney either. Frankly trying to determine
the standard of care is like me trying to find a way to grab it out of thin air.

If we're dealing with a case in 1994, I will often get an expert that's talking
in terms of 2006. Being able to identify the standard of care needs to be a
little bit more precise than what we've got right now. That means peer
review literature. That means experts that are specifically speaking in
terms of what was going on in 1994.

The problem with dealing with that is there's no statute of limitations

either. At some point the Board staff has got to deal with cases that are
very, very old that simply jam up the system. But they don't have an
ability to make those go away because frankly they've got jurisdiction.
The public expects them to do something with it. Somebody's had a
memory breakthrough. Now we’re trying to go back to 1994 to figure out
is this a bad records keeping case? Or is this truly a violation of the
Medical Practice Act in some subsidize area that really makes a difference
about public safety?

So looking at a statute of limitations. I'm not saying we want to have a

statute of limitations that says two years or forget it. Perhaps seven years
or ten years, something realistically based so that the Medical Board is not
chasing their tail on something that's very, very old and I don’t have
physician clients that are looking back and trying to figure out what the
standard of care for record keeping was in 1994. I cite 1994 just because I
had a case recently and that was really the situation.

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So considering a standard of care I think is something worthy of
consideration by this panel as well as the Board and looking at a statute of
limitations to go into that would be a big help for everyone.

The other thing that you've heard from folks today is the filing of formal
public complaints can be stigmatizing in and of itself. You're left trying to
dig yourself out of a hole that's been created simply by the stigma of a
formal public complaint.

There will be complaints filed in an effort I think to placate the consumer,

the public, the media, the legislature and perhaps even the Governor's
office. There have been complaints filed without a testifying expert listed.
When discovery’s initiated and we asked the identity of the testifying
expert who is going to support these allegations, the response is none is
available at this time. It will be supplemented.

Folks, that's a defense attorney's response. A defense that is Garanfloed in

trying to react. Without knowing who their testifying expert is, I can't
react to pick an expert to go against them. Go to a public forum with a
complaint without having a testifying expert identified is fundamentally
flawed. I think we need to see a change in the law and a change in the
circumstances if you could in fact demand that before you go public with a
complaint, you have a physician in the community, in that specialty area,
going to step up and testify as an expert. I don’t necessarily mean they
have 20 years of experience. I know folks that have had five years of
experience that are superb experts and I know folks that have 20 years of
experience that's really nothing more than five years times four.

So frankly, looking at that area to try to find somebody that's going to step
up so we know how to respond and so you're not stigmatizing physicians
by just basically [inaudible 191:56] weapon with nothing to back it up, if a
testifying expert is identified early on.

I know I've gone long and I apologize. I would suggest you some other
things too. There's an undue emphasis on some of the lower level
complaints. I've often argued and I've heard it argued to me when I was at
the Board and yes I was a young attorney and I turned a deaf ear to it. But
not every violation merits disciplinary action. This is not a criminal
forum. This is not supposed to be punitive in nature. This is regulatory.
Regulation does not necessarily mean punishment. It means deterrents. It
means education. It means protection.

What I would suggest to you is that at the informal settlement conference

level, you can do the same job without stigmatizing a physician with what
you might consider a low level hit, an administrative penalty or a public
reprimand by simply running them through the ringer.

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Believe me, they pay punitive attorney fee. I’m not cheap, but I'm cheaper
than many. I know what it costs to get there. I know the opportunity costs
and I know the cost in stomach lining when physicians have a complaint
that might seem very, very low level to the Board members that have seen
the most extremely gross violations. That to them, yes this is low level.

But to me, I've never been to the principal's office before, it's a big deal.
So if you can find a way to dismiss those cases and let them go preach the
gospel to their colleagues. The Board is indeed firm, but they're fair. Yes,
they ran me through the ringer. I had to pay Mr. Whites some big dollars.
I lost time from my practice. The Board members really ran me over the
coals a few times. But they let me go on this one.

If they come back, they have history there. They know that you've been
through the ringer before. But not every case demands disciplinary action.
I'm talking about the unintentional advertising violations, the unintentional
screw ups with whatever you want to call it on record keeping or I forgot
to get this or I forgot to do that. The perfection standard should not apply.
It's unfair to impose on physicians just like it's unfair to impose it on you,
the Medical Board or anybody else.

With respect to dealing with advertising, as we get into this world of

electronics, the websites are coming up all over the place. The rules are
very precise in many respects. But like the rest of you and I think Miss
Robinson testified to this, we don't read the Medical Practice Act for fun.
Frankly, I don't read it unless I really have to to get back up to speed on
something.

The rules, the administrative code is really, really lengthy. It's longer than
the King James Bible, okay. It's big. The stuff in there gets missed. It
gets missed by public relations officers at clinics. It gets missed by
physicians. It gets missed by attorneys. Violations that are unintentional
should not merit disciplinary action.

Frankly if you take the position that the State Bar takes of, "Look, you
guys are attorneys. We don't necessarily teach you everything you need to
know. Some of it is by the School of Hard Knocks. If you want to
advertise, you get pre-approval first. You submit your advertisement to
the State Bar, they run it through their folks, and they tell you [eh ??], no
good or yes this is fine, go with it."

If you could do that same mechanism with physicians, with the public
relations firms that they hire, with the administrators that work for them,
you're going to eliminate a lot of low level advertising violations that do
nothing more than jam up the system. It's the equivalent of asking an

169
 orthopedic surgeon to look at a low level ankle sprain and jamming his
office with nothing but low level ankle sprains every day.

Chairman: Tim?

Whites: Yes sir, I know I've gone long. I apologize.

[Laughter.]

Male: Tango-langa, yes.

[Applause.]

Male: Thank you. Would you, oh.

Male: I have a question.

Male: You’re not? You can.

Male: No, I just want to say this guy is a real gem. I'll be honest with you, most
people come in here and complain, complain, complain, don't have any
solutions. The other side of the people that come in here and defend,
defend, defend and don't do anything wrong. You're actually in here using
your brain and thinking of solutions. You have no idea how hopeful that
is to legislatures. So I want to thank you for that.

Male: Absolutely. Thank you, Tim.

Male: Mr. Chairman?

[Applause.]

Chairman: Representative Taylor?

Taylor: I did have a question. I also have a comment. I'm a little concerned. So
you're telling me all those lawyer ads I’ve seen on TV have actually been
approved by somebody?

[Laughter.]

Whites: I don't say they always get it right sir.

Taylor: That's scary.

[Laughter.]

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Taylor: I did really have a question though. When you talked about the expert
witnesses, some of them being worried about retribution from their
colleagues.

Whites: Yes sir.

Taylor: What if we have the expert witnesses looking at these cases blind as far as
who the doctor was as well as keeping the expert witness? That takes out
some of this whose girlfriend was who back before, med school,
fraternities. Why don't we redact the name of the physician when the
expert is looking through these cases?

Whites: It might be done. I don't know if that's done or not because we're not
privy to how that's handled.

Taylor: But you've been on both sides. I mean wouldn't that be a workable thing?

Whites: At the time that I was there, I think we were letting them know who the
physician was so that they wouldn't have a conflict of interest of reviewing
a colleague or reviewing a rival. So I think we provided that name to them
at that point.

Taylor: What if you gave them a list of people and said do you have a conflict
with any of these people, like a multiple choice and then you would redact
the name?

Whites: I think that's a pretty good idea. I think it could be applied. It takes more
time and effort but I think in the long run it would save time at the end.
It's a lot of putting time in the front end to save time and expense at the
back end.

Taylor: Mr. Chairman, I'm actually making a list of questions for TMB here at the
end, so. Somewhere in there before dark maybe, I don't know.

Male: Okay. Tim thank you so much, can we get you to write that legislation for
us?

Whites: Yes sir. I've done some in my time. Can I finish on one comment?

Male: Yes, go ahead.

Whites: One area that I did work on is the rehabilitation order, the confidential
rehabilitation order for physicians who turn themselves in for impairment.
That over the years has mutated and evolved. It's time that we look at it
again. One of the things you might want to consider is the diversion
program. Take those initial folks out of the Medical Board system so the

171
 Medical Board is not jammed up with trying to deal with people who are
trying to get the help they need.

The nurses have a program called T-Pap and it's very, very effective. I
believe that a lot of the medical societies, physician health and
rehabilitation committees are looking at that right now. It's been
considered before. But it'll take a great weight off the Board.

Frankly what I've seen lately is because of the fear factor that we've all
been dealing with is that good physicians who have tried to get the help
that they needed have been reluctant to turn themselves into the Board,
self report, in order to enjoy the benefits of the rehabilitation environment
that the Medical Board can create in a confidential setting because they
look at it as an addiction, it's a disease and you should be protected. I
think what you're going to see if you look at statistics that there used to be
about 20% of the compliance program was made up of physicians who
were impaired that came looking for help or some that were reported of
course that didn't realize they were at rock bottom.

I think you'll see that that number has slid below 10%. Either that is a
function of what has happened in this environment right now. They're
afraid that they're going to be over regulated and heavily disciplined rather
than actually helped along the way. If you could look at a possibility of
diversion programs, there are a lot of good people out there, a lot of
experts and a lot of models to look at. That'll take some weight off the
Board staff, the compliance program. What will end up in the compliance
program are those people that still haven't done rock bottom that really
need a club rather than a carrot to get them along the way. So I just
suggest that to you as an option.

Chairman: Do you have a copy of your comments?

Whites: I was not prepared to testify today.

Chairman: Okay.

Whites: This was off the cuff kind of thing.

Chairman: We have a copy of your recommendations and we're going to pass them
out to all our members. But we appreciate very much you being here.

Whites: Well, I'm available to talk and I'd love to sit in on a stakeholders meeting
and I love to put pen to paper if it's necessary.

Chairman: Thank you so much, we appreciate it.

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[Applause.]

Chairman: I've got really good news for everybody. Because of us, you're going to
miss Austin rush hour traffic.

[Laughter.]

Chairman: The Chair calls Dr. Francisco Pena.

[Period of silence.]

Chairman: Speaking neutrally.

Pena: Okay. Listen, thanks for calling me. If I'd waited any longer, I might just
reach the age of retirement.

[Laughter.]

Pena: I really feel compelled really to call the Vatican and talk to the Pope and
really, really feel compelled to recommend the Board and their helpers,
their staff for sainthood for all the good things they've done over the past
few years.

I can just see frankly, [inaudible 200:20] you know? [Santa Kalafut ??],
that would be something. Anyway, my name is [Francisco Indo les Pena
??]. I'm a licensed Texas physician in Laredo.

My story is very simple. Actually in going through it I realize that all the
things that happened to me have been talked about, have been discussed.
If nothing else, I've learned a lot by being here. I've learned how foolish I
was. I've learned that lawyers can be pretty tricky. I’ve learned that it
takes a lot of money to defend yourself. And ultimately, you just give in.

My story begins in August of 2002. I was summoned by Texas Medical

Board to what they called an informal settlement conference in relation to
a failed V-back. A failed V-back, for those who don't know what that is,
is a vaginal delivery after a C-section. I was doing a bunch of steps at that
time. I delivered something like 20, even as many as 30 babies a month.
In the Laredo area there was not enough obstetricians. I'm a family
practitioner, I had to do it.

On this occasion I was covering for somebody else. It turned out that the
lady in question ruptured. This occurs in one in 100, two in 200 cases. It
just happens. I attended that meeting and do believe I was exonerated.
They heard the case in full. I was exonerated. So I went home very
happy.

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Four months later, not 30 days later. Four months later, I inquired to my
lawyer about of the status of my exoneration. Well, I was advised that the
case was going to be reopened again. So I came back, went through the
whole procedure, and I was offered what was described as a simple
reprimand. I didn't know what it meant. But I was told that a simple
reprimand would have nothing to do with my career. Okay, so accept it.
Okay, so they gave me nine to ten days. On the ninth day I said, "Well,
okay I'll accept it, whatever that means."

Well, the order read number one, they described two allegations of
misconduct. First allegation read that I had not evaluated the patient when
ordering pitocin. The second allegation was that I had failed to personally
consult with an obstetrician to be sure that a physician was readily
available to perform the necessary procedure.

Interestingly, both these allegations are false. An obstetrician was called

immediately following the patient's admission because it is part of a
standing hospital order. It is part of a standing hospital protocol. Records
will show and I have them with me, that I actually asked for the consultant
to assist. So that's a lie.

Then the second thing about not following the pitocin protocol. We have,
this was in 1999 by the way. We had even then standing orders to follow
on a pitocin protocol. I followed those to a T.

Nonetheless, I accepted the sanction. Now in retrospect, I realize there

was a fee. I paid with a proverbial pound of flesh. But that was not
nothing because even though I had accepted that so-called simple
reprimand, when I came back, they said, “No, that's not enough. Now I
want you to quit doing obstetrics. You're 67 years old, what business do
you have doing obstetrics?” There is something to that anyway. But at
the time, there was nobody else to do it.

I delivered some in my time some 5000 babies. Some of which bear my

name, Francisco. Anyway, so naturally I refused to accept any proposal. I
stood firm and my case was sent naturally to SOAH. Or no, actually it
was sent for mediation first. The mediation people just simply look at it
and said, "Well, really we have no recourse."

I asked them, “What would you see wrong with my management of the V-
back? What did you see wrong? Wasn't I there two or three minutes after
the disaster occurred?” “Yes.” “Didn't I call an obstetrician?” “Yes.”
“Didn't I follow the routine pitocin orders?” “Yes.” “Wasn't the lady
advised about the possibility of this disaster?” “Yes.”

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Anyway, the mediation was a total fiasco. The case was forwarded to
SOAH. I was advised by my lawyers that listen, SOAH is not going to do
anything for you. They're going to make a recommendation to the Board
wants to suspend your privileges. I'll do them anyway. They might even
revoke your license.

So what do you do? On or about that time, I was advised that I was going
to need by-pass surgery. With all this happening, you can imagine the
impact. Well, to make a long story short, I ultimately accepted. During
the course of the two years, by the way, two plus years my case was
handled, at least three lawyers were involved.

One of the staff lawyers, Steven White who thoroughly acknowledged the
weakness position of the Board’s position in my case, started to dig up as
much dirt as he could. His attitude from the very beginning was vengeful,
coupled with obsessive-compulsive tenacity clearly aimed at intimidation
and outright threats. In fact, what Mr. White did was add two more
allegations of misconduct to my case. First, he alleged that I advertised
that I was Board certified, that I was not Board certified and that I did so.

Secondly he introduced a case in which I had allowed a patient to a

prolonged second stage of labor contrary to established standards. Who
fed this information to Mr. White I'll never know. Mr. White went as far
as to erase pertinent that information from my 2003 licensure application.
He erased it. When confronted about this felonious action, and it's a
felony to mess around with your documents, the informal settlement
which appeared about May of 2004, Mr. White simply stated, well he
thought a $6.00 an hour clerk had put the information about my Board
certification on my application and that that information didn't belong
there anyway, since my Board was not recognized by the state.

The Board members present in the hearing made no comments. They just
took no action. They just simply said, “Well, we'll just add this to the
case. Let SOAH settle it.” I knew that SOAH was not going to settle
anything.

I accepted, in short I accepted the sanction and I've learned to live with it.
I'm still practicing, but I'm not doing obstetrics. In September 15, 2006, I
requested review of my case through still another informal settlement
conference pursuant to Board rule 187-43.

At that time, I brought up the following pertinent facts to the attending

Board members. First of all, number one, my Board certification does and
should be recognized under Board rule 164.4-B. Based on this statute, the
allegation of false advertisement against it cannot be leveled. It cannot be
substantiated. I am Board certified. It's a different Board, but I am Board

175
 certified. According to statutes 164-4-B, I'm entitled to it. My Board may
not be a member of the Osteopathic Board or the other Board, but what is
this, a club?

What is this, a club? I am Board certified and I have been. In fact, I have
been informing the Board since 1996 of my Board certification. What I do
is I put it on the licensure application. What White did was erase that so it
would look like I was saying I am Board certified, then it goes on to say
by the Osteopathic, and that would be a lie. That would be false
advertisement. Isn't that cute? Isn't that clever?

Certainly if there was something improper about this Board of mine, you
would think that since 1996 the State Board would have advised me. They
never did. They never did. Now the interesting thing is that you have two
obstetrical misconduct violations were not even substantiated by either
expert testimony or by [inaudible 311:09] literature.

V-back disasters simply happen. It just happened to me while covering

for somebody else. The obstetrician who had the surgery privileges didn't
show up in time. That's not my problem. That is the hospital’s problem.
In fact, the expert witness by the State Board clearly said that. Dr. Pena
had nothing to do with it. But the Board's position was that I did.

The interesting thing is that I had been exonerated in my first informal

conference. How many times should a case be reviewed? The answer is,
according to the Board, as many times as it takes to establish the fault.
However tenuous or self-serving.

Now, imposing a ten year restriction to my obstetrical privilege, charging

me with false advertising and sending this information to the practitioner’s
national data bank, in my opinion is felonious, irresponsible and a clear
abuse of administrative power. The information on the data bank still says
that I am not to advertise that I’m board certified, but I am. In fact, one of
the things I wanted to do once this thing’s cleared up is get a billboard
here in Austin and put it up Francisco I. Pena, M.D., Board Certified.

[Laughter and applause.]

Pena: And the other thing is that I can afford it.

[Laughter.]

Pena: I married a rather rich lady.

[Laughter.]

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Pena: Another flaw is the agreement itself. The board’s order dated December
10th list [Albeta Pasquale Limb ??] and then she called a defiance to the
facts and allegations. Dr. Chinow, however, was not even a member of
the board at that time. She was no longer a member of the board. How
can she be an affiant? That is to me a flawed order, a very flawed order.
Something’s wrong when somebody testifies to the fact that you’ve done
something wrong and yet the interesting thing with her was Dr. Chinow
actually recommended a simple reprimand. How this thing escalated to a
ten year suspension and then a false advertisement thing, I’ll never know.
But, that is the kind of attitude that we see in the board.

Chairman: Doctor?

Pena: Yes?

Chairman: I’m sorry but you’re almost on double sacral probation here because
you’ve gone double on your time length.

Pena: Okay, just let me finish by saying that I stand before this committee in
defeat, there is no question about it, but I’ve learned to live with it. I’m so
disappointed with the system which is supposed to guarantee justice and
due process. I am [inaudible 4:05] however, by the moral courage. What
brought me and my parents to this country in pursuit of the American
dream - yes, yes, I’m an immigrant. I served in the US Army in the post
Korean Conflict, you know [inaudible 4:35] one time men in Cuba are
guaranteed due process in protection from mental and in physical abuse at
the Geneva Convention. Why was I not afforded the same?

And interestingly, I do have proof of what I’m saying, documents from

people who support me, hospital records. It all began with a simple
acceptance of a simple reprimand which I thought was [innocuous ??] and
from there – and 40 days by the way, 40 days, because those two
accusations that are labeled in the order are not true I had to accept. And
yet, from there they escalated into the sanction that I finally had to finally
accept. Any questions?

[Applause.]

Chairman: Members, doctor we appreciate you traveling all the way up here. We’d
like to have a copy of your…

Pena: You have it.

Chairman: …thank you so much.

Pena: Thank you.

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Chairman: And I hope after all the testimony tonight, I see Dr. Patrick over there.
Either he’s writing his wife a love letter or he’s taking notes on all these
individual cases, which I hope that’s what it is. So, if some of these
change, Dr. Patrick I hope you’ll let us as a board know. Thank you,
doctor.

The Chair calls Ms. Dee [Travenio ??].

Travenio: Thank you.

Chairman: And…

Travenio: I’m Dee Travenio and Dr. Stewart and I are coming together because we
are really dealing with the same case.

Chairman: Okay, let me ask you, you didn’t check either for or against or neutrally on
these so can you tell us.

Travenio: Well, I don’t know whether what I’m going to say is for or against, but it
is certainly part of the whole picture today.

Chairman: Okay.

Travenio: Okay?

Chairman: Go right ahead.

Travenio: We as health professionals, I think, all have the same charge that the state
board does, to protect and enhance the health and safety and welfare of the
people of Texas. We have lived the past three years, my husband, myself
and Dr. Stewart, in a special form of hell because we chose to report the
presence of a pedophile. He was working for us when we chose to have
the investigation done and we got the report of his pedophilia.

Then Dr. Stewart, and he will tell you his process in writing up the
complaint. My husband and Dr. Stewart sought the help of the Texas
Medical Association in knowing what their legal mandate was. They
chose to follow that even though several local attorneys said, put it in a
drawer and bury it. They did not.

Within less than a month after the complaint was filed on September 21,
2004 I got the first phone call telling me that if I did not force the two
physicians to withdraw the complaint in the first 30 days we would all be
ruined. Since that time, we have been investigated by every official
agency there is.

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For two years we have endured an open Medicaid fraud and abuse case,
still hasn’t been closed and they have not been able to find anything in our
charts. The form of the practice changed to a partnership and we had to
get a new provider number. We could not get a Medicaid provider
number until Medicare, who had also done their investigation, let the state
know that the OIG said we had no violation so that finally got us a
provider number. But, we have dealt with every one of the agencies and
continued.

We’ve had charges filed at the sheriff’s department against us that have no
validity. The charges have all been filed against me personally. The FBI
now has a record on me saying that I went across the river, as you know
we all can do to get gifts, and paid $35,000 in cash and another $15,000 to
come after the person who is now facing 57 charges of pedophilia in
[Adalgo ??] County. That I had gone and hired a member of the [desas ??]
to kill him and that was enough to actually bring in the Secret Service as
well.

It sounds like fiction. Unfortunately this is true because the state board,
even though Senate Bill 104 says that they can temporarily suspend people
for things like pedophilia, that was not the only thing that was reported but
Dr. Stewart will deal with that, he had been reported first in the summer of
1999 for pedophilia in a case that had medical documentation.

The report though was not made by the physician who had examined the
child or the physician for whom he worked who was the husband of the
physician who had examined him, or the other physician from whom he
worked. Instead they involved in a cover up and made an agreement that
even when I called them to get a reference, and those are the only two
names I was given to call to get references from when he moved from Hail
County to Adalgo County, all the way across the state. That complaint
was filed by a mother who I suppose did it as most mothers would do it.
“My son was violated by this person.” And, she just got a letter back that
said it had been reviewed and nothing had been done. So, we basically
filed the same thing again in September of 2004.

The state board went through all the things they did and their investigation
pulled up the old medical records and several other things but he was
going to get all of his due process and it was going to go to SOAH and all
of that. Well, after I was shot at five times on the 17th day of July of 2006
and my husband and Dr. Stewart decided at least I needed some protection
and if the local police department got involved in it, the Mission Police
Department, on the 25th of October 2006, that’s all ready well over two
years folks, charged - arrested him and charged him with six counts of
pedophilia. By the time the Adalgo County District Attorney had gone

179
 through the grand jury thing he now has 69 counts facing him, not six as
they went in.

The state board finally, in December of 2006, suspended his right to

practice medicine. He was allowed, with that kind of evidence against
him to continue to practice and abuse boys in Adalgo County. We know
of six specific young men whose lives have been permanently changed.

We also now know from having gone back and investigated that Adalgo
County is the fifth place this occurred. We know that before us it occurred
in Hail County and I know that it occurred in [Newaces ??] County and in
where ever Brian College Station is.

Chairman: Brasos County

Travenio: Brasos County.

Chairman: Yes ma’am.

Travenio: …and one more in the hill country. But, when we chose to finally stand
up to him, we have paid the price. Dr. Stewart will tell you the other
charges and the financial impact and all of that. But, I also want to tell
you all that the three physicians in Hail County that knew it, whose
medical records were used by the state board and posted on their public
thing, who did not report it to CPS or to the State Board of Medicine they
suffered no retribution from him. They, on the 13th of October 1999 after
the medical record from August of 1999, they and their attorneys came to
an agreement with him. He was paid off. They agreed on what he would
say to anyone who called for a reference and they then helped with the
cover up and sent him on to victimize other children. Now, Dr. Stewart.

[Background Noise.]

Dr. Stewart: Hi, I’m Dr. Stewart from Macalon Texas thank you very much for staying
this late.

Male: Doctor, one minute please. I’m just trying to get the whole story as best I
can. This physician previously…

Dr. Stewart: Can I summarize a bit? I think it might answer your question. This is not
a physician. This is a physician assistant. He was our employee. Dee’s
husband, George Travenio and I are partners. We employed him. He was
known to us. He actually did his training in the valley and then he left to
Hail County. When he came back, when we hired him back he had, we
had a good relationship with him to begin with. He was productive. His

180
 patients seemed happy with him. He seemed to do everything that a PA
should do. We were happy with him.

Male: He’s a physician assistant under the jurisdiction of the Texas Medical
Board?

Dr. Stewart: Yeah. The issue cropped up about a month or so before we actually filed
our complaint to the Texas Medical Board. Because we were anticipating
having him become our partner in a non-profit corporation that we were
considering forming, we wanted to do a background check on him before
we did that because he seemed to have little boys around him all the time
and that worried us somewhat.

So, we paid a good bit of money to have a private investigation done in

some of the other places he had been and we had a huge amount of
information. We had testimony from boys. We had lie detectors. We had
all sorts of information regarding his behavior at another place.

In addition to that, at the same time, I started a very thorough study of

some charts going back about, I think I picked two years, and I looked at
some 4,000 records. It took me about 200 hours to do all of this. But, I
compared what was actually written in the records with some pharmacy
records that I had obtained from the next door pharmacy which is where
most of our patients go to get their drugs. And, I found out that the drugs
being dispensed to people were absolutely no relationship to the record in
the chart.

The records in the chart were stand alone records. If you read it from
beginning to end it would look like perfect PA documentation. But then
you’d see all of these drugs coming out of the blue, mostly controlled
substances, prescribed to the same patient on the same day and so I looked
at this very thoroughly and made an enormous spread sheet, with graphs
and formulas and everything that I sent to the state board and they just
totally ignored that.

The point being that we had several hundred thousand dollars invested in
this all ready and gave the information to the board basically gift wrapped
and bow tied and nothing happened with it for years. And when I sat
through all the long hours that you all have endured as well today, I kept
hearing the board talk about it’s all because they are under funded and
understaffed, they don’t know what to do with information when you give
it to them ready to go.

Male: If I may Mr. Chairman. During this time when you, after you sent them
the information, was the physician assistant under your employment?

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Dr. Stewart: No.

Male: He was terminated.

Dr. Stewart: We terminated him when we found the initial information from the….

Male: The initial information. And, did he continue to practice..

Dr. Stewart; Yes, he did.

Male: …in the Adalgo County area? Okay, please continue.

Dr. Stewart: He practiced for another two years.

Male: Okay, and since that time what has happened? Has his…

Dr. Stewart: Ultimately the board did…

Male: …privileges…

Dr. Stewart: …suspend his license two and a half years, two and a quarter years after
the initial complaint after he was arrested.

Male: Was there any action taken against the business or any of the doctors that
were supervised? I mean, after you gave them this information did they
question the business or you individually or…

Dr. Stewart; I worked very closely with the investigators. I thought the investigators
from the board were excellent.

Male: Okay.

Dr. Stewart: I think when they handed it off to legal, legal had no idea of how to
analyze the data and what to do with it.

Male: And, what I’m saying is, I’ve heard a little bit about the case and please
correct me if I’m wrong, but, was any action taken against your husband
or you by the Texas Medical Board based on this physician assistant’s
actions?

Dr. Stewart: This physician assistant actually filed a complaint alleging that we failed
to supervise him and yes, we were investigated by the board for that. We
were ultimately cleared of that, but…

Female: [Inaudible 20:16]

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Male: How did that investigation go, if you don’t mind me asking?

Dr. Stewart: With…

Male: Was it dismissed within the…

Dr. Stewart: …the personal complaint against

Male: …first 30 days? Did you have to go to…

Dr. Stewart: Oh, no, no…

Male: …any…

Dr. Stewart: …they just sat on it throughout the time of the investigation of the PA.

Male: Of the PA, now what I’m saying is how was that case against you…

Dr. Stewart: They just sat on it.

Male: …I understand that, but what I’m saying once they, how was it dismissed
eventually? Was it dismissed?

Dr. Stewart: I think it was part of the…

Male: …was that …

Dr. Stewart: …agreement that the physician assistant finally signed with the board.

Travenio: That is the first of the two complaints that were filed against the two
physicians. The other one was that we had improper management of the
records in our office and that one was resolved when, all of a sudden, one
Thursday investigators from the State Board of Medicine showed up at the
office, asked questions, saw it, went back to…

Dr. Stewart: They did a random audit of the records.

Travenio: …yeah, random audit and cleared that one up themselves.

Dr. Stewart: I think this was a very complicated and convoluted case and I don’t
personally hold anything against the board for the complaints against my
partner and me. I think that they had a lot of things they had to sort out
with this. The problem I have is the number of years it took for them to
take action when we, as a physician community, were actually giving
them the information and policing ourselves. This should have stood out
like a sore thumb as not being competitive people who are back biting

183
 each other. This was a very considered and very detailed complaint with
reams of information.

Male: Were you given any justification why it was taking so long during the
investigation process?

Dr. Stewart: No, that’s secret.

[Laughter.]

Dr. Stewart: That’s another point I’d like to make. I had no problem with them telling
this gentleman that I was the complainant. In fact, I thought their secrecy
to him was impeding his ability to defend himself, however much ability
he may have in a situation like this. But I encouraged them to give him
the information. I don’t believe in all this cloak and dagger stuff. If
you’re going to complain about somebody you should stand up and take
what comes with it, which we did in fact.

Travenio: We did. We took it and we’ve suffered all of the consequences of it.

Male: Now, you mentioned that you were investigated by the FBI the Secret
Service, all..

Dr. Stewart: These were complaints that were filed by the PA…

Male: …by the physician assistant.

Travenio: …by this person himself.

Male: Okay.

Dr. Stewart: But we had everybody from Wage and Hour to OSHA to x-ray…

Male: So he just went on a rampage.

Dr. Stewart: Yeah.

Male: …and just…

Travenio: Yes.

Male: See that concerns, see I don’t have a problem with the complaint that you
failed to manage someone in your office. I mean that’s a legitimate
complaint, but made by the actual person who’s claiming you failed to
manage.

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[Background noise.]

Dr. Stewart: Well, and moreover the evidence…

Male: That’s, that’s you know…

Dr. Stewart: …the evidence I presented in the spread sheet showed that he was
unmanageable. To manage a physician assistant they have to be willing to
be managed.

Male: Right.

Dr. Stewart: If they’re going to lie on three quarters of the charting they do, you cannot
manage them because you do not know what they’re doing.

Travenio: And, here’s and additional thing that I actually thought Dr. Stewart was
going to explain and I am going to give him a chance to explain now. The
legal action, yes Mission PD arrested him for the charges of the
pedophilia…

Dr. Stewart: Yeah, I forgot that.

Travenio: …but they couldn’t find him because he was all ready in jail that day
because…

Dr. Stewart: Because when the board failed to take any action on the prescribing habit
of this particular PA, we actually presented the same information to the
DPS about a month before his arrest and they analyzed it and saw he was
continuing that pattern of behavior and, they’d actually pulled his license
to prescribe. He continued to prescribe anyway, so they arrested him.

Travenio: So, DPS took the same spread sheet and within less than two months had
taken action and arrested him. So he also has to face a trial on the drug
charges.

Dr. Stewart: And my position in the whole incident was that the prescribing was so out
of line that that was probably more dangerous than his other proclivities to
the public, at lease to the public at large.

Male: You know, because of the confidentiality issues that we’re dealing with
it’s hard for us as a group in a public forum to get justification for it. You
know, I’m sure in other cases there’s adequate justification. I would sign
a confidentiality agreement and figure out what happened in this particular
case as a legislator because this is in my backyard. I have family members
that live in the county, first cousins and my wife and I hopefully will have
a family one day and live in the valley and that’s just outrageous.

185
Travenio: And your father probably has as his constituents, some of the families…

Male: Absolutely.

Travenio: …whose children have been harmed.

Male: You’re absolutely right. Well, time will tell. Thank you very much for
your testimony.

Chairman: We want to thank y’all for coming. We really appreciate it.

[Applause.]

Chairman: The Chair calls Dr. Tom Garcia.

Dr. Garcia: Good afternoon.

Chairman: Go right ahead doctor give us…

Dr. Garcia: Thanks very much, Mr. Chairman. I’m Dr. Tom Garcia from Houston,
Texas. Mr. Chairman, members of the committee, I’m Dr. Tom Garcia.
I’m a cardiologist from Houston. I’m President Elect of the Harris County
Medical Society and I also serve as member of the Texas Board of
Trustees of the Texas Medical Association.

I’m testifying today as a representative of both groups. I have three points

and a conclusion. In the interest of full disclosure I want you to know that
in 2005 I was involved in a disciplinary proceeding with the Texas
Medical Board. The reason was for failure to adequately document in the
medical chart a conversation I had with a patient who left the hospital
against medical advice.

I would like to say at the outset that the physicians of Texas, our medical
associations and all Texans need a strong Texas Medical Board, one that
does its job effectively and fairly. The board is charged with licensing
physicians, protecting patient’s safety and maintaining high standards for
the practice of medicine in the state. It is a charge we support without
question. A strong and adequately funded medical board is important for
Texas patients and physicians. In the spirit of maintaining a strong board
we present several suggestions for process improvement.

Point one, a focus of Texas Medical Board disciplinary actions on

directive of Senate Bill 104, giving priority to quality of care, sexual
misconduct and impairment issues. We believe all Texans should have
confidence they are receiving the highest quality of care and that their

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physicians are qualified and competent. We support a well funded Texas
Medical Board to carry out this critical function.

To this end, we urge the Texas Medical Board to refocus its disciplinary
efforts and to give priority to allegations of sexual misconduct, quality of
care and impaired physicians as mandated by Senate Bill 104, which the
Texas Legislature passed in 2003 with our strong support.

Point two, many of our physicians have criticized the manner in with
which the Texas Medical Board processes complaints, notifies physicians
of those complaints and conducts hearings on them. Some of our member
physicians believe that they’ve been treated unfairly in the process.

The Texas Medical Association would like to recommend several process

improvements for the Texas Medical Board to consider. The board should
provide more complete information to the physician about the nature of
the complaint. In a recent survey that was conducted by the County
Medical Society in Harris, members who had been investigated by the
TMB found that 63% felt that they were not given enough information
about the complaint to explain their side of the issue.

The board should report aggregate minor administrative violations by

failure to provide a copy of medical records in a timely manner, for
example, in its new letter, rather than reporting them in the same manner
of physicians that are sanctioned for quality of care or more serious issues.
We do note that the medical board has recently proposed a rule to do just
that while maintaining the orders as public record. We applaud their
action.

We also support a more substantial effort by the board to educate our

physicians about the board’s investigative and settlement process. In the
same county medical society study 66% of those respondents who have
gone to a board investigation did not feel fully informed about the process.

Third, we appreciate the increased funding from the 80th Texas Legislature
to allow the board to explain its ability to process the increasing number of
licenses for our physicians coming into the state of Texas. We know that
in fiscal years 2005 and 2006 the board issued 2,500 new licenses each
year. In 2007 the number of new licenses granted increased to more than
3,300. However, more than 4,000 new applications for each year and it’s
very important for the board to improve its process related to that
licensure. With a growing population, Texas needs these additional
physicians to alleviate access problems for our Texas patients.

We support the legislative directive to the board to improve its systems of

licensure to an average of 51 days from time of application to granting of

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 license. In addition, we strongly support a more robust electronic website
application process to streamline this process. While the legislature voted
a modest increase for the board to hire additional staff to process
applications, we would support additional technology investments to more
quickly achieve efficiency in this largely paper driven process. We believe
that the return on a small investment would benefit the entire state.

In conclusion Mr. Chairman, the Texas Medical Association, at the

request of the Harris County Medical Society, conducted a review of the
Texas Medical Board disciplinary activities. The study was completed
this past spring. Its findings and recommendations have been adopted by
the Texas Medical Association. The report has been shared with the
Texas Medical Board and we are happy to share it for your review as well.

Once again I want to reiterate our unquestioned support for a strong and
fair medical board. The physicians and patients benefit when the board
provides certain fair and principal leadership. I want to thank you for the
opportunity to present this report and participate in these discussions and I
have this review. I was going to give it to the clerk. Do you want me to
just give it to you right here.

Chairman: Doctor, Representative Riddle has a question please.

Riddle: That’s okay. That’s all right.

Dr. Garcia: And there’s more if you want them. Just call Mr. Dan Finch at the Texas
Medical Association.

Riddle: He’s right back there. Dr. Garcia, I want to thank you for being here today
and as a representative for North Harris County and coming from Harris
County I think that your suggestions and those of the Harris County
Medical Society are well taken. Just for the record, I want you to know
that I too support a strong board, but I think that the strength as you said
needs to also be fair. And as someone said earlier, we need a fair board,
not a feared board. I think that in large part we would agree.

Dr. Garcia: You’re very kind and I thank you very much for your comments. Thank
you for those comments.

Brown: Doctor, do you like the idea of this dean express that we talked about
earlier?

Dr. Garcia: You mean at the golf course or being here?

[Laughter.]

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Dr. Garcia: You made that comment at the beginning.

Brown: Well, yeah I’m talking about on these minor infractions about an express
lane, so to speak, that you can get into that wouldn’t put doctors in this
nine month torture from hell.

Dr. Garcia: Representative Brown, I’m just a cardiologist. You know I’m tempted to
say yes, go ahead and get on an express lane but when you hear the report
that you all just heard just a few minutes ago, you need a strong state
board to really look into that, have processes that are fair and really
investigate really tough issues. And confidentiality is important. And I
noticed you were willing to sign that. And if I had family living in - and
I’m originally from [Jim Willis ??] County, you have to have some
confidentiality to it. But, I’m not an expert in that but my temptation is to
say it seems like a good idea if it’s just minor infractions.

Brown: Yes sir.

Chairman: Members any other questions? Doctor thank you so much for coming.

[Applause.]

Dr. Garcia: Thank you very much. And Mr. Finch has a copy of this if you need it.

Chairman: Thank you. The Chair calls Andrew Schlafly. I didn’t notice until just
now that you’re from New York, New York. You’ve got a long commute
home, don’t you?

Schlafly: I avoided the commute there, too.

Chairman: Yes, sir.

Schlafly: Thank you, I’m Andrew Schlafly, general counsel for the Association of
American Physicians and Surgeons or AAPS, which is an independent
national physician’s group founded in 1943. We thank Mr. Chairman and
other committee members for holding this very important hearing today.

We hear from our members all around the country about medical boards,
but by far, the most complaints and the most examples of injustices come
from the Texas Medical Board. This room today is just the tip of the
iceberg. Please allow me to give another example that is not in this room.

We heard from a victim of the abuse of power by the TMB from a doctor
who was serving uninsured patients. He charged only $40.00 for an office
visit. After hurricane Katrina displaced many citizens this doctor was the
only one that many poor patients could afford and they were minorities.

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The doctor prescribed cough syrup to some of these patients for what
became known as Katrina cough. A pharmacy however, did not like
having these poor patients come into his store to fill these prescriptions.
Sometimes the patients would bring in the prescriptions and they didn’t
have the money to pay for it. Sometimes a lot of the patients would come
into the store and the store didn’t like having a lot of these poor minorities
in their store. So apparently the pharmacy filed a complaint against this
doctor with the TMB.

And as we’ve seen in so many examples today, the TMB has a

presumption of guilt against the doctor. The TMB never looked at it
objectively, never wondered why a pharmacy was complaining about
cough syrup. And instead the TMB repeatedly threatened this doctor with
revocation of his license.

They went to the ISC. The ISC was extremely abusive. The board
member on the ISC repeatedly said that he was going to revoke his license
and it was only, apparently because a public member on the ISC stood up
for the doctor, that he was able to save his license but he did lose his
ability to prescribe medication. And he got sanctions and the penalties
and all that stuff texted into the data bank and texted into the insurance list
and then he has to fight being delisted by insurance companies, etcetera.

In addition, after the ISC panel had met and after the public member and
the board member had agreed on a particular penalty, the board member
then added a new requirement so that when the doctor had his final
signature, there was a new requirement that he could no longer supervise a
physician’s assistant. And, that was never brought up at the ISC hearing.

I’d like to comment now on some of the testimony by the board members
and officers earlier today. The board members talk in terms of one
instance of testimony by Dr. Keith Miller. Our information is that Dr.
Keith Miller has testified as a plaintiff’s expert in about 50 case, fifty, five
– zero. Now do you really think that no one on the board knew that one of
their key members testified in 50 malpractice cases as an expert for the
plaintiff? With all the scheduling that they do with ISC hearings, with all
the board meetings, do you really think that no one was aware of that until
April, someone heard about one case? I find that implausible, with all due
respect. I just find it implausible. If it is true, if the board members know
so little about a fellow board member, how can they expect us to believe
that they know so much about a doctor they are trying to discipline?

Why hasn’t the cases that Dr. Miller worked on at the board been
reopened and re-examined? When there is a rogue prosecutor at the
Department of Justice and he’s discovered the Department of Justice will

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then go and look at the cases he handled. Why isn’t the TMB doing that?
Why aren’t they looking at the cases Dr. Keith Miller sat on? He sat on
quite a few. He was the driving force in high discipline on that board for a
number of years. Why hasn’t the TMB initiated a complaint against Dr.
Keith Miller?

Now earlier today the TMB officers used statistics to downplay the misuse
of the complaint process as in the case of insurance companies and
competitors. An insurance company is not going to stamp insurance
company all over its complaint. The TMB really has no idea how many of
those complaints are being initiated by insurance companies. Complaints
are typically filed by an individual. The TMB has no way of knowing
what the relationship between that individual is with a competitor or with
an insurance company. There is no way the insurance - the TMB can say
with any credibility, the insurance companies are responsible for only one
percent of the complaint. They have no idea. In fact we heard testimony
earlier today that one of the key board members of the TMB apparently
initiated a complaint by having her husband file it against a former partner
and yet the fellow TMB members didn’t know that. If they don’t know
what their own board member is doing, how could they possibly know
what these insurance companies are doing in manipulating the process?

You heard earlier today repeated references that somehow anonymous

complaints are required by the legislature. How? There’s no statute that
requires allowing these anonymous complaints in this abusive process.
Apparently there is an administrative code that’s cited, but that’s not a
statute that was passed by this legislature.

One helpful reform would be to require that when someone files a

complaint that person has to disclose his status, his connection with the
competitor or the person he is complaining about. Is he the spouse of a
competitor of the physician? Does he work for an insurance company?
We have all of these campaign finance laws that when you give $100.00 to
a candidate you have to disclose who you work for and that goes into
public records and public disclosure. Well if that’s required for something
as inconsequential as a $100.00 donation to a candidate, why isn’t that
required for a complaint that may end the career of a doctor? We should
know what the status is of the person who is complaining. Is it someone
who works in the office of a competitor? I mean that should be right
there. There is no reason not to require that. It should be under penalty of
perjury. It doesn’t accomplish anything to hide that information.

The ISC panels, we’ve learned a lot today, but we did not learn how those
ISC panels are manipulated and who sits on them. We got all of this data
today from the TMB but they withheld one key piece of data and that is
who is sitting on these ISC panels and with what frequency. Now, what

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 I’ve heard at AAPS is that in virtually every important case I’ve heard
about is either Dr. Kalafut or Dr. Miller who has sat on the ISC panel that
urged discipline for the doctor. I am confident that it is not an even or
random distribution of board members sitting on the ISC panels.

Why isn’t that data disclosed? It is simply a matter of going through those
ISC panels, it would take a clerk a half a day’s effort and you will find,
I’m confident, that those ISC panels are manipulated and that there are just
two or three people who sit on the vast majority of those ISC panels that
are urging discipline to key doctors.

The confidentiality of the ISC panels is misused to conceal the abuse that
occurs in them. The confidentiality is supposed to protect the doctor.
Well if it protects the doctor the doctor should be able to waive it and
there should be some scrutiny by a judge of what’s really happening at
these ISC conferences or hearings. So that would be a good reform, to
allow the doctor of waive the confidentiality, to have a reporter there. If
there is any patient names they can be taken out and have a judge review
and see what really goes on there and those ISC panels would change
overnight. The abuse would immediately stop.

Finally, the patients are the real losers when a medical board abuses its
power. When a doctor is eliminated from the medical profession 1,000
patients are hurt. Please curb the abuse of power by the Texas Medical
Board. Thank you.

[Applause.]

Chairman: Members are there any questions? Could we have a copy of that
testimony if you have that?

Schlafly: I’ll have to type it up.

Chairman: Okay, thank you so much. The Chair calls Dr. James Mahoney.

Dr. Mahoney: Good evening. I will keep it ultra brief. Thank you very much for staying
so late. I am James Mahoney, I am an osteopathic physician from
Southlake, Texas.

In March of 2006 the board sent me a note and said, “Dr. Mahoney, you
have prescribed Vodka drops to a patient with a homeopathic compound
in Everglade, [Rio Gravo ??], lots of foreign countries.” And I thought,
“Wow that’s unusual. I can’t really remember doing that and I think I
might if I had.”

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 So, I retained a lawyer because my colleague said the board will not
behave responsibly. They will act very strangely. So, in response to that I
did and $3,600.00 later and a note that said I really don’t do that, I don’t
prescribe Vodka drops and 30 days later they’re suppose to say, “Well
since you didn’t do it you’re done.” No, not exactly how it happens.

They say, you know that’s really not enough information for us. Even
though you didn’t do that you probably did something. Let’s see all the
records on the patient. So, subsequently I gave them all the records on the
patient and a couple of expert reviewers later they looked at my cases and
they said - the reviewer, one reviewer said, “I’ve practiced five years in a
city clinic,” no name and the other reviewer who was undefined has to be
my peer, said, “The fact that you use intravenous medications on a patient
with a chronic problem is not the standard of care.” Okay, I can
understand we have a difference of opinion and I think the board has a
very hard job to decide what is the standard of care, but I was willing to
provide them with the textbook that I wrote for the board.

[Laughter]

Dr. Mahoney: And I did. I wrote the textbook which is very explanatory, which helped
them to understand it. Because of that, at my ISC, the attorney for the
board, Mr. Mark Martin, handed me a sheet of paper that said, “Dr.
Mahoney, you have met the standard of care, a piece of paper in my lap,
which I have.” Dropped all of the charges at the ISC, except for one thing.
“We don’t think your records are satisfactory to have established the
standard of care.” How can that be, you just said that my records were
adequate to establish the standard of care, I passed the standard of care,
can I go home now? “No, I’m afraid you’ll have to come upstairs.”

This collegial environment that we have is not typical of the ISC at all.
They are not nearly as collegial, pleasant, kind and they dismissed my
charges. They said I was a good guy.

I described my care for about an hour, which they were happy to say,
“Yeah, this is good. This is good care and your textbook that you wrote
for us is correct. That’s good. You’re a good doctor, you do good
competent work.” Then I left the ISC and the attorney for the board, Mark
Martin, said, “We’re going to review a maximum of 30 charts every
quarter on you from now on, unlimited amount of money for the next year
because your records are poor.” I’m thinking, had they read them they
would have been great. They would have figured them right out because
they said once they looked at them that I passed the standard of care.

But, now there’s this new charge for the records so for another year we
want to give you a pretty thorough examination every quarter and take a

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 look at what you are doing so that we can have the same reviewers who
missed it the first time and caused you to have to go through all of this
$15,000 to $18,000 worth of legal to come here, we’re going to have them
review your charts now for the next year.

I’m thinking, this doesn’t sound like a good deal to me. I’m going to
reject their agreed order. So, I rejected their agreed order. When I did
they sent me a new set of charges. You know those standard of care
things that we dismissed you on? We changed our minds. You really are
a bad guy. That textbook, we’re rejecting the textbook. That’s not a
recognized author. We don’t like you. We don’t like your standard of
care. Here’s some new charges. Here’s some new problems. So call your
lawyer, lawyer up and get ready for the next round. So, I had the SOAH
hearing that’s set up. The thing with all of this is it’s frivolous. It’s silly.
I didn’t prescribe Vodka drops for one thing. I may want them now.

[Laughter.]

Chairman: I think we all do.

Dr. Mahoney: And, I would be happy to share.

Chairman: Thank you.

[Laughter.]

Dr. Mahoney: But, my point is, and I think this is the most important thing, as frivolous
as it seems, I’ve got a house that I’m making payments on. I’m working
my tail off to make the practice work. I take care of some really sick
people who need a doctor like me, who understands stuff that’s a little
different. I’m a family doctor but I do pretty tough patients who are really
sick. This little old lady in question had burning leg pain she couldn’t get
rid of for five years. She saw 22 doctors. Nobody could help her do it. I
came up with a good idea that helped her and it wasn’t Vodka drops,
though if it would have helped her I may have used it, and I’m serious
about that, I may have.

But, I had her sign a disclosure and consent that said, you understand
you’re going to do some unorthodox things, but they’re safe and effective
and it makes sense. So I did those things. She got well. The board
investigates me. They decided that this procedure I’m going through is
not really adequate yet. I’m not thoroughly licensed and disciplined yet. I
need more licensure and discipline activity.

So, another day, here I am, it’s frivolous, silly, I can get a job in another
state. I don’t want to go anywhere else. I’ve been in Texas for 2- plus

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 years, I’d like to retire here. But, people like me, doctors who are like me
who are passionate about patient care, who are passionate about medicine,
who are on the cutting edge, who are looking to do something different,
something great for Texas aren’t going to stay. And, the board’s job is
hard I know, but it would be a lot easier if they didn’t mess around with
this frivolous nonsense, where, they said - they testified this morning that
if you can say if what they said you’re doing wrong is not true, you go
home. Not true, not true, not true, repeatedly not true.

I proved I didn’t do it wrong. I didn’t prescribe Vodka drops. My

standard of care was excellent. Yes, yes, yes, review the charge, review
the charge, medical records. And that’s the one that they just wear the
living tar out of doctors with. Everybody gets a records charge at the end
of the day, everybody. You go to ISC they got to get their numbers up,
you get a records charge. And here I am, I’ve got my records, I’ll show
them to you, I’ve got my testimony. I’ve got all my paper it’s all good. I
really tried to like dot the I cross the T, get it done and nonetheless, here
we are tonight.

So, anyway frivolous stuff might look frivolous, but in the big picture
finally the appropriations committee has adopted a side, with the money
you spend on state schools and the board that you spend a lot of money
for, it’s a good board when it handles really tough stuff like rape and
sexual assault and that stuff, you can’t treat a doctor who has medical
records dot the I problem as if he’s a rapist, that’s silly. And the board
does that. They’re condescending, they’re harassing, they’re abusive.
They’re really hard on doctors and good guys. I’m an Eagle Scout, darn
it. I don’t deserve that.

[Laughter.]

Mahoney: I’m a good guy, I’ve never been in a criminal court for any reason, but I
got treated like that and I don’t think that that’s fair or right or appropriate.
And, I’ll tell other doctors like me, “Please practice somewhere else, you
don’t need the harassment.” But, patients in Texas need great doctors and
great doctors will not stay in Texas if greatness is not appreciated. So,
that’s all I’ve got to say.

[Applause.]

Chairman: Representative Riddle.

Riddle: Well first of all, I’ve just got to ask you this question because I know that
those of us who are sitting over here wondering, what are Vodka drops?

Mahoney: I don’t know, actually homeopathic doctors…

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Male: Do they come in other flavors?

[Laughter.]

Mahoney: I think that all of this other stuff that it came in, I think they do Vodka
because it is a preservative that doesn’t have toxin in it, you can drink it.
So, homeopathic doctors use it.

Riddle: Oh, I was just curious about it.

Mahoney: I know they preserve something, it’s like a cocktail, so there you go.

Riddle: Well I…

Mahoney: …it’s like an illegal cocktail.

Riddle: Well, on a little bit more serious side, and I was curious about that, I do
want to thank you for having the courage to step outside the paradigm and
do what is necessary for your patients and not be so worried about staying
within a very narrow border. I think that we do have to have protocol, but
I think that what you say that you’re doing, we need that. And, by the way
I have two sons and I have two Eagle Scouts.

Mahoney: All right.

[Applause and Laughter]

Chairman: Thank you doctor.

Bower: Mr. Chairman.

Chairman: Yes sir.

Bower: May I ask one question?

Chairman: Representative Bower still has a question for you.

Bower: How much in all of that did you spend on legal fees?

Mahoney: I think the total to date is about $18,000.00.

Bower: Okay.

Chairman: Thank you doctor. The Chair calls Dr. Andrew W. Campbell, and doctor
you didn’t check if you’re for, against, or neutrally in your testimony.

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Dr. Campbell: That’s correct.

Chairman: Oh, you haven’t decided yet, or should we decide?

Dr. Campbell: I don’t know how to answer that. I’d love, I mean I’m in agreement for a
strong board an effective one and, my name is Andrew Campbell. I’m
going to prescribe Vodka drops for all of you for having the fortitude to be
here…

Chairman: Thank you.

[Laughter]

Dr. Campbell: ….this long on this day and now that they’ve heard this I’ll probably get a
letter soon.

[Laughter.]

Dr. Campbell: I’m a little bit like the gentleman that just spoke to you. I am very
passionate about my patients and I take pride in that I listen to my patients.
My average appointment is an hour. My average new patient appointment
is four hours.

Male: Wow.

Dr. Campbell: Yes, and that’s why I don’t take insurance payments or assignments
because I tend to spend a lot of time with my patients. They have usually
been to see anywhere from 20 to 30 doctors before the end up in my
office. I’m kind of like this previous doctor, I’m kind of a last resort for
them.

I’ve also had the privilege of seeing patients for the affirmative defense,
better known as the Pentagon, Department of Labor, worked with the
National Institutes of Health, National Institutes of Dental Research,
consulting to the CDC and to various State Health Departments in other
states that send patients from their state for me to see them.

I average about three patients a week from the Mayo that they send to me
because they haven’t been able to figure it out. I follow very standard
methods known in the medical community and I have published over 40
papers and 40 studies in various medical journals and chapters in medical
books, etcetera.

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 So, I heard today here very emphatically about a lot of statistics. I will tell
you that a gentleman known by the name of Mark Twain said that there is
lies, then there’s damn lies and then there’s statistics.

[Laughter and Applause.]

Campbell: …and, the applause was for Mark Twain. I heard a person say here and I
wish they’d been under oath, that not a single case has been whatevered by
the Texas Medical Board that has been derived from a complaint for an
insurance company. That is false and I have it right here. So, having said
that the insurance companies don’t like me.

Chairman: Doctor, if they testified here today, they are under oath because they had
to sign a witness affirmation form that says that they swear that what
testimony that they give before this body will be true and accurate, so…

Dr. Campbell: Well, sir.

Chairman: …if they signed one of these, they’re under oath.

Dr. Campbell: Okay, well I can share with the, with all of you ladies and gentlemen the
documents from, that the insurance company sent the medical board that
generated the complaint. I will also say that the patients in the complaints
wrote the board saying, “Uh-uh. We don’t want Dr. Campbell to be
punished. As a matter of fact we support him. We’re still going to go see
him. We like Dr. Campbell. He’s helped us after all these other doctors
tried. We’re going to continue seeing Dr. Campbell.” But, the board they
used experts for the ISC. Then they used other experts and then other
experts, they’ve changed the complaint a couple of times. etcetera.

And, to be honest with you, everything, I don’t need to repeat to you

everything you have heard at this hearing. I’ve heard about being
anonymous and you’ve heard what everybody else says. I don’t see these
doctors clapping or applauding anything. I can tell you that the medical
board spent over $100,000 in my investigation, almost $150,000 in my
investigation because the insurance companies don’t like me.

I will also tell you that at the ALJ hearing the attorney, lead attorney
representing one of the insurance companies was there for the whole
process, making sure that he was going to get what he wanted. And, by
the way my experts, Ralph Huntington, Chair of Medicine for 22 years
from the University of Southern California School of Medicine, a former
board member who practices in Dallas, that was my other expert, another
expert was the Founder and Head of the Occupational Medicine Training
Program and Residency Program at the University of Arizona School of

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 Medicine and the last one was a Ph.D. who taught medical students at
UCLA for 30 years, and basically these people were ignored.

I was fined $210,000. My license was suspended for about six months is
what I was told and I was told to do the following: “Respondent shall
prepare a paper language to the standard of care for physicians to use
newly available techniques or medications or to use existing techniques
and medications in new ways. The paper shall meet the content and
format requirement for publication in a scholarly medical journal. The
paper must be submitted to the board no later than January 1, 2008 and
shall be accompanied by documents transferring all rights to the paper to
the board including all rights of intellectual property so that the board may
publish the paper as deemed appropriate by the board.”

[Laughter.]

Male: Unbelievable.

Dr. Campbell: The gentleman sitting right here is the one who read this out. So, and
incidentally, my attorney who’s been an attorney for 40 years looked up in
every rule, law, statute in Texas and this has never been done before nor
has this much money been spent on an investigation. So, why is this all
happening? Well I’ve testified in both plaintiff and defense cases as an
expert witness all over the United States in Federal and State courts and so
I’ve been a target by attorneys working for insurance companies because a
lot of the papers that I publish, things that I discuss at the National
Institutes of Health, CDC etcetera, well they don’t always agree with the
insurance industry. As a matter of fact, Canada, the country, has used
some of my papers to adopt into their health system some of my studies
that I’ve published to use in their health system. So, if Canada can use it,
here I get punished for it.

So, I wanted to share that with the panel here today and over the last five
years, this started five years ago by the way and it’s still not quite over, it
has cost me several hundred thousand dollars by now. I liked the fellow
who just spoke who he’s at $18,000. I just keep my fingers crossed
because it’s going to cost him a lot more. And, I can tell you it’s caused
me stress, a huge amount of stress in my personal life and of course they
have these complaints plastered throughout their - and the sanctions
throughout their website so patients who want to look me up all of a
sudden they call me and say, “Dr. Campbell you’re a bad guy. You’ve
been naughty again. You’ve done all of these bad things.”

Now, what’s interesting is that a district court judge said, “Uh-uh.

Temporary injunction against them.” Well that’s grand except that they’re
not supposed to - both, Dr. Patrick and the Medical Board are supposed to

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 keep this information from the public until it’s settled. But, if you go to
their website it still says under my name suspended and then it says active.
Now is that misleading? Yeah, I think it is. My patients think it is and my
patients come from all over the United States. And I have patients in
[Agwodobi ??] and Hong Kong. So I’m getting calls. How and I
supposed to answer these people? Now they put all, the allegations are
still up there, fine and he did this and he did that and he did the other, but,
none of the district court judge’s rulings are up there. I don’t think that’s
transparency. I don’t think that’s balanced. I don’t think that’s fair.

I think you all ought to know what these folks spend your money on. I
think you ought to see, you ought to take into consideration what they say
and I will be happy, really happy to show you the insurance company
complaints to the board, copies of it of course, and the affidavits from
these patients saying, “Please leave Dr. Campbell alone.” One of them
was really angry because she is a woman from Austin, Texas and she did
not like it that these bureaucratic employees are going to be going into her
medical records.

Now, you’ve heard that here before, but she was incensed because she had
a private situation happen to her many years ago and she didn’t want
anybody to know. She begged me not to send the records to the board, but
they’re almighty and they don’t have to answer to anybody and they can
do what they want.

And, I challenge any of you to sit in an ISC with Dr. Roberta Kalafut, who
just came in and sat down behind me who is rude, malicious,
condescending and talks down to doctors. Now I know it’s nice to be
important, but it’s also important to be nice. You don’t get this with this
board. Now, maybe they’re under a lot of stress, God bless them, that’s
stress, but we’re all under stress and its an adversarial type now.

Let’s make it work for everybody because who is going to win in the end
is the people of Texas and that’s what we’re here for, to treat people of all
walks of life, Texans every day just like the previous doctor said and I’m
passionate about what I do in medicine and I love my patients. Thank
y’all.

Chairman: Thank you doctor.

[Applause.]

Chairman: Members, any questions? The Chair calls Joseph C. Roell, Doctor.

Roell: Good afternoon, I’m Dr. Roell [N.B.: pronounced “ROLE”], Beeville,
Texas. Mr. Chairman.

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Chairman: Doctor.

Roell: When I found out that I only had seven minutes, I talked to Steve Holsey
and he said, “Seven minutes, that’s what you have.” I said, “How
Freudian.” I just watched a program last night and that’s how much time
that the average person spends making love for the rest of their life, seven
minutes, and he said, “Your job is not to make love to the State Board of
Medical Examiners.”

Male: Would you call my wife and tell her she’s short changing me?

Roell: I sure will. I saw her last night.

Male: You’d think it would be double for me tonight.

[Laughter.]

Male.: Thank you.

Roell: Anyway, I don’t know why I’m here because if nobody has ever been
disciplined because of a HMO complaint, if that’s the truth then I’m not
here. I don’t have any excuse, but in reality the principal healthcare
turned in something. I crossed words with him and one of their cronies
and I got 129 complaints about mistreating patients. It was brought down
to 30, down to 18, down to 12, finally down to 10 when it met the board.
The board rejected four, the other four I was cleansed of. However, I met
a guy named, I guess I’ve got two first, the other first was that there was a
medical expert, Keith Miller, was his name and he claimed that one of my
patients was supposedly being investigated, even though she died and
stayed in her home for a week in 123 temperature and we scraped her off
the floor, I killed her. The autopsy said she died of natural causes and
that’s when it started.

And then, so he took this on, he added this new case on. [Inaudible off
mic 1:09:36] So anyway he brought this new case up, even though I was
cleared of all the rest at the very last minute I am accused of killing one of
my patients. Had no idea, nobody had any idea, he must have known
something that the coroner didn’t know.

And so we were stumbling through this one but the HMO by this time,
seeing that their cases are a little bit light, there is a physician on their
committee who was sort of adversary to me. He falsified hospital records.
One of his patients came in that I had previously seen. She was having an
acute heart attack. He changed the diagnosis to an acute overdose caused
by Dr. Roell an then while she is having a heart attack, could not validate

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it, but while she is having the heart attack made the diagnosis, all the
paperwork, sent her to a mental hospital under the care of the psychiatrist,
while she is extending a heart attack. And, this is the sentinel event, right
then they knew they had me.

I didn’t even figure it out. I didn’t know what they were saying. The
judge said, “Don’t you know that one of your patients almost died of an
acute heart attack?” And I said, “Your honor, I had no idea.” And so for
the first time I’d ever seen the record their lawyer is putting it up in their
hands and saying, “Don’t you know? Don’t you know?” I didn’t know. I
had never seen the record. And, it wasn’t until after the decision was
made that I was going to be sanctioned that I ever had a chance to look at
the record.

Well, by the time I looked at the record I figured it out. This guy falsified
the whole hospitalization, changed it, almost killed this woman,
transferred the woman to a psych hospital under the direction of the
assistant to the HMO president. The bottom line is, when I took this
evidence back to the board, they told me basically to get out, that I could
not present this information because it was influencing the judges. So
they wouldn’t hear the information, so I ended up getting sanctioned.

I have a brief here that will show you that there was a conspiracy, sham
peer reviews, denial of the due process and everything that everybody has
talked about. I’m the poster child on that one. This all happened from
about 2000 to 2002. In 2001 I had my hearing, 2002 in September I got a
fax with a complete house full of patients, a fax, “Quit practicing medicine
now.” No 30 day warning, 6,000 patients without a physician.

I’ve never had a patient complain to the best of my knowledge, nor have I
ever done anything to cause the demise of a patient. Now, read the
website. Two things come to mind and the newspapers. I’m doctor feel
good. I’m incompetent. I’m not credible. I’m a gold digger. I’m a
murderer now, a drug addict and I’m to old to practice medicine and I’m a
menace to society. So, if I were you guys I’d probably clear out of here.

I’ve been called a lot of things but I’ve never been called a liar, unlike
select members of the board. I spent 20 years in the military, flown over
125 missions over the north, received about 50 some-odd medals of
recommendation and so on. I’ve done volunteer work throughout the
whole free world, spent over $2 million dollars in medical supplies,
equipment support for the local international organizations but I’m still a
blight on the medical practice. I’m inept.

The last seven years I spent not only defending myself and trying to get
back into the good graces of the Texas Board of Medical Examiners but

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 fighting a lawsuit. A lawsuit that was generated by Keith Miller when he
said, “You killed this patient.” Well I’m happy to say Thursday, two days
from now I’ll be standing in district court and Judge Johnson has told me
all ready this was a frivolous lawsuit, has been frivolous from the
beginning and he is sanctioning the opposing attorney.

Economically, I’ve lost a lot. Lost my ranch, my business, my 401, my

savings but I don’t think I’ve ever lost my integrity as some people here
have. I was sort of feeling special there for a while because Keith Miller
told me I was going to lose my license to ever practice medicine again and
have an administrative $500,000 fee and to hear that somebody else got
$750,000 sort of really destroyed my ego. It was only the intersession of
H. Ross Perot that that $500,000 administrative fee was decreased and just
dropped.

I reapplied to the board. The first two years they said, “You can’t even
apply because we’re not going to listen to it.” The third year it was
basically from my attorney to their attorney, “Giving Dr. Roell his license
back is the equivalent of releasing Charles Manson from incarceration and
just as likely.” So, I applied 2005 put the whole system through the
harassment, you can’t imagine the harassment, the loops and the hoops
and so on, until the buzzer went down on 12/31/06 at which they say,
“You’ve taken too much time on your application. You’ve got to start
over. We’ve disposed of your application.” So, I’m in the process of
reapplying.

As I’ve said, I’ve interrupted what I consider a very nice career in the
military and I had places to go, but I’ve always wanted to be a physician
and I did it to make a difference, not a dollar. All I can say is that the
Texas Medical Board is an organization unchecked in its power and
manner equated to that of the Third Reich or recent dictators. To quote
Napoleon, “Who is going to guard the guards?” That’s all I have.

[Applause.]

Chairman: Representative Van Arsdale.

Van Arsdale: How much did you say you spent on legal fees?

Roell: For the board it was about $60,000 if not more and for the actual legal fees
of defending this case about wrongful death, $70,000.

Van Arsdale: And, you made some comment about intervention by Ross Perot?

Roell: Yes.

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Van Arsdale; Tell me about that.

Roell: I, being the fighter pilot I am sort of had an end road to H. Ross Perot
serving pro military. And I called him and he asked me what was going
on. He called me back and I explained it to him and he basically said
there’s no, I can’t use his language, but there’s no organization going to
fine one of my constituents $500,000.00 and he stopped it.

Van Arsdale: Do you know how that happened?

Roell: I have no idea.

Chairman: Representative Lucio.

Lucio: Thank you, Mr. Chairman. Doctor, I just want to thank you for your
service. You speak of your military career with honor and I thank you for
your service. Being in a family that has military background myself, I
know the sacrifice that comes with that and I appreciate what you’ve done
and that you afterwards continued with your education and became a
doctor and I wish you the best and I hope things get resolved and you are
able to continue practicing.

Roell: Thank you very much. Thank y’all very much.

Chairman: Thank you doctor.

[Applause.]

Chairman: Doctor, would you leave testimony for us if you have it available please?
Thank you.

The Chair calls Dr. Billy Mills. Do you testify against the medical board?

Mills: Yes sir, I’m against them. I used to practice in Texas.

Chairman: Doctor would you give your name first, just for the record.

Mills: Billy Mills.

Chairman: Thank you.

Mills: I practiced in Texas for 42 years in Mesquite, Texas. I’m sorry my voice
is about to go. And I had two cases that the board picked up. One a lady
who developed a uterine cancer - I’m a family practitioner by the way.
She had the type insurance that allowed her to have a family practitioner
and a gynecologist. Numerous times I asked her to go to her gynecologist,

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she said, “Okay, okay I will,” but she never did. Eventually she developed
uterine cancer, came to me bleeding and I sent her to a gynecologist. She
didn’t go. She went to an internist and it’s a long story what that internist
went through with her. Anyhow, she eventually filed a lawsuit against
me. The depositions were taken and the lawyers didn’t find any reason to
go forward with it so they dropped it. And in ’02, I was notified by the
insurance company that it had been dropped.

Then I had a guy who was coming to me part time, I was not his family
doctor. He lived out north of Dallas in Plano out that way and he had
doctors there that saw him. But he worked out near Mesquite so he came
to me for convenient stuff, like if he had a sore throat or a rash or different
things, infrequently he came in. He came for several years and on
different occasions I asked him if, I said, “Are you going to be coming
here? Should we do a complete physical on you?” “Oh, no, no, no, my
doctors out in Plano do that.” Okay. So, he developed a urinary tract
symptom and he came in to me and I didn’t like the way it sounded so I
did a PSA on him and checked his prostate and I didn’t like what I found.
So I sent him immediately to a urologist who diagnosed him with prostate
cancer and sent him to an oncologist.

Well, this racked on for a year or so, he called me one day and he said,
I don’t have anything against you, but, I’ve spent my money, my
insurance company has quit paying me so I’m going to file against your
insurance company to get the money.” So, I wanted to tell him that the
insurance companies don’t roll over like that. Anyhow, he filed.

About that time, the board invited me down to talk about those two cases.
They had picked them up somewhere. So, I came down not knowing that
it was an adversarial system down here, but when I was talking to their
attorney I said, “Well, do I need a lawyer or anything?” He said, “Well, I
would recommend that you bring one.” So, I got a guy here in town,
McDonald was his name and went down to the board.

But when I walked into the board there was two guys from this board on
there. One of them was a Dr. Curtsy, he was a cardiologist, and the other
guy was a radiologist, not peers at all. It was obvious when I walked in
there from things they said at first that they were, they had their mind
made up that they were going to nail me. And after a few minutes of
talking this Dr. Curtsy said, “Well we’re just going to take your license.”
I said, “What? I got people in the office I’m supposed to see in the
morning. I’ve got an office. I’ve got people there. I’ve got a wife and
kids and that’s my job.” Well, they were going to take it that day, I just go
back and close my office.

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So, we talked about it. The attorney and I went outside and he said we
might can get them to take a, take a voluntary surrender of your license. I
said, “Well what does that mean?” Well, he said it means you if you do,
they’re not going to take it today, but he said I might can get them to give
you a little time. So anyhow, he went and talked to them and they said
well if he’ll sign voluntary surrender we’ll give him until when we meet
again which was three or four months later, April to make it active. So
they gave me three months. So, this shows I was a pretty bad doctor.
They allowed me to have three more months to go back and work and then
they were going to nail me.

Well, as it turns out, I didn’t realize that when you agreed to something
like that they were going to plaster it all over the world. They sent it to
my other boards where I had licenses and also put in on the national data
bank. And the national data bank it sounds like I actually committed some
bad crime on these two patients. And on the one they printed out, I didn’t
deny it or what have you.

So anyhow, I signed the thing, now I wish I hadn’t of course. But, since
then both of my other state boards, Alabama and Missouri, decided that
they were going to ask me to surrender my license there. Well, I’d learned
my lesson on that so I denied. I had to go to those states, my wife and I
drove to Alabama and I went before the full board by myself. I didn’t take
a lawyer. They had all the same material that Texas had. They had
reviewed it and then I went in there and they’d asked me questions. When
they got through talking to me they said, “Is this all there is?” I said,
“Yeah, that’s it. That’s the whole case.” They said, “Well we don’t see
anything wrong with that and we’re not going to do anything.”

So, then I had to go to Missouri, Jefferson City, Missouri. They had all
the same information. I had to send them everything. So, when I got up
there they went over the whole deal with me and they had the whole
board, it wasn’t two people like I had here. They had the whole board
there. They asked me questions and they said, “Are you sure this is all
there is?” I said, “Yeah, you got the whole file.” They said, “Well we
don’t see anything wrong with what you did. We’re not going to go
against you.” So, they didn’t they let me keep my license in Missouri.

So, then I came back to Texas and had a trial from this guy that had
prostate cancer. Spent a week down in Dallas in the courtroom and they
exonerated me. In fact, they said that the guy that sued me was going to
have to pay court costs and my lawyer fee and everything. So, they totally
exonerated me.

So, here’s two state boards and a court of law that couldn’t find nothing
wrong with what I had done, but the State Board of Texas took my license

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 on account of this. I practiced 42 years and that’s the only two cases I had
in 42 years. In fact they said in their little summary, they said that I had
had no other complaints before the board at all.

I spent 24 years in the United States Air Force Reserve in active duty, was
a medical doctor flight surgeon. I got commendation medals from the Air
Force. I’ve practiced in many of their hospitals including the Air Force
Academy. I was the team doctor for the North Mesquite High School
team for years. I was on the Board of Health there on the staff of the
Presbyterian Hospital in Dallas, on the staff of Mesquite Community
Hospital in Mesquite and like I said, never had anything against me from a
hospital, a board an insurance company, anybody. Never had an arrest for
speeding or anything and yet I got slapped in the face and treated like an
axe murderer by my own state board. I feel like my license should be
reinstated. They should give me an apology for it and expunge my - the
crap they put on the national data bank.

You don’t realize what this costs a doctor. When you go to apply for a
job, right on the application they ask you, “Have you ever voluntarily
surrendered or had a license surrendered or been sanctioned or blah, blah,
blah?” And if you mark yes on there, chances are you’re not going to get
the job. Luckily I found a - after they reinstated my Alabama license, I’m
currently in Alabama working. I flew over here for this meeting.

But, I’m working there five days a week, eight hours a day. My wife and
kids are staying at home here and I’m living in a house trailer over there
and all that just on account of abuse of power by a legislative body. I
think they are out of control. You should take them down. Take the
power away from them. Give them somebody to answer to. They have
nobody to answer to. They answer to themselves.

I was told at that time, they said, “Well you can appeal it. You can appeal
it.” The lawyer I had said, “Well yeah, you can appeal it but it’s more of
the same board.” I said, “What if we go outside of the board?” “Well,” he
said, “the lawyers, the judges in town are leaning for the board.” He said,
“Your chances of winning anything are slim and none.”

So I took the deal and I’ve been screwed by it ever since, big time.
Insurance companies won’t insure you. HMO, I mean you can’t get jobs
with these companies that send you around to different places. They
won’t even talk to you. But, I luckily found a spot over in Alabama and
that’s where I’m working now. Thank you.

Chairman: Thank you doctor, hold on one second.

[Applause.]

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Chairman: Doctor, thank you for coming all this way from Alabama to share your
storey with us, it’s appreciated. Next we have, please forgive me this is
the doctor’s handwriting so it’s hard to read. William Ray, is that correct?
Is that correct? From Dallas, Texas. [Inaudible off mic1:34:40] Thank
you doctor, please state your name for the record.

Ray: I’m Dr. Bill Ray from [Barmill ??] Health Center, Dallas and I’ll be very
brief.

Chairman: Thank you doctor.

Ray: I certainly feel privileged to give this testimony because I’m quite
concerned about the quality of care in the State of Texas as everybody in
this room says they are. I would like to point out that the freedom of
choice for the public to choose medical care has been put at risk by the
Texas Medical Board in my opinion. Many of my friends and
acquaintances have been damaged by their over reaching tactics and snap
judgments, thus decreasing the quality of care for the public because many
physicians are afraid to do what it takes in exceptional cases for the
patient.

My case is a prime example of this. Approximately two years ago I had

an inquiry with the State Medical Board saying I had five anonymous
complaints regarding the standard of care, or I had anonymous complaints
regarding the standard of care of five patients. All patients, incidentally,
were from New York and none of the patients were complaining of my
care and two said that I had saved their lives. Yet there was one thing they
had in common besides being from New York and that was they all had
insurance through the same company. There is no doubt in my mind that
the complaint against me came from an insurance company or their
surrogate, who did not want to pay these patient claims. I don’t take
insurance, so it is between the patient and the company.

My rebuttal to these claims included letters of satisfaction to all five

patients. Nonetheless, an anonymous reviewer not in my specialty,
reviewed these cases without me getting to know who he or she was or
more importantly his or her qualifications. My reply included a step by
step analysis of over 100 patients with 100 accompanying documents.
Apparently no one read this because I was told to appear at an ISC run by
Dr. Keith Miller, who recently resigned from the board and you’ve heard
about him all day.

I introduced not only the letter in support of the five patients in question,
but the reports of 17, unbiased peer reviewers who represented two
medical societies accredited for continuing medical education for licensure

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 in the State of Texas. Many of my colleagues, as well as myself, have
used these credits and have maintained our licensure in the State of Texas
yearly for more than 20 years. Also, there is a recognized board of
environmental medicine which performed a review in my case. This was
also submitted for review by the state board and all found that I met the
standard of care, or actually exceeded it.

My professional background is that I’m a cardiovascular surgeon, a Chief

of Cardiovascular Surgery at the Dallas Veterans Hospital at one time. I
was the assistant professor of cardiovascular surgery at the University of
Texas in Dallas, Chief of Surgery of Brookhaven Hospital Medical Center
and I was the first appointed World Professor of Environmental Medicine
at the Robins Institute, University of Surry in England, and this is a British
toxicology unit.

I have written over a 135 peer review scientific papers published in many
medical journals and written chapters on cardiovascular disease in the
environment and several textbooks. I have written the classic, full volume
textbook personally on chemical sensitivity and lectured to learned
medical societies and universities around the world.

I currently teach the post graduate course for continuing medical education
for physicians for licensure credit, not only in the United States but also in
the State of Texas. This course includes the standard of care for this
particular specialty of environmental medicine. By conclusion, I’m
qualified to know what the standard of care is in my practice.

Unfortunately for me, the reviewer and the staff did not even read my 200
page response and I continue to be subjected to this process as a result of
an anonymous complaint which I believe was initiated by the insurance
company and the board paying the patients’ claim. The Texas Medical
Board needs to be reformed because the citizens in Texas have a right to
medical care of their choice and physicians like me should not be
subjected to anonymous complaints and it violates my due process right.
Thank you very much.

Chairman: Thank you, doctor.

[Applause.]

Chairman: Representative Riddle.

Riddle: Dr. Ray. First of all Dr. Ray, I think that from everything that I’ve heard
about you and from everything that I know, quite honestly I think it’s a
privilege to have you as a physician here in our state. But one of the
things that is making me absolutely furious and I’m just going to say it

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 right here is the people behind you and the expressions on their faces of
such arrogance while a man of your character and of your
accomplishments and your dignity is sitting there testifying. You folks
need to be ashamed.

[Applause.]

Dr. Ray: Thank you.

Chairman: Thank you for your testimony doctor. I appreciate you being here today.
Next we have Steven, is it Hotze? Katy, Texas. Testifying against.

Hotze: Dr. Steven Hotze, Houston, Texas.

Chairman: Thank you for being here.

Hotze: The Texas Medical Board is a poster child for a regulatory agency gone
berserk. Like a mad dog, it’s wounding and destroying the lives of
hundreds of capable and caring physicians, some of whom those stories
you’ve heard today, as well as the lives of thousands, tens of thousands,
hundreds of thousands of their patients.

The corrupt leadership of the TMB is driving a wedge between patients

and physicians. You’ve heard from patients today. Malicious,
anonymous complaints are filed against physicians. Anonymous, so-
called, so-called experts hired by the TMB for the sole purpose of
discrediting those doctors in secretive meetings which are conducted
without due process. The physicians, as you’ve heard today, are
intimidated and forced to sign agreements under the threat of license
revocation. You’re right, Representative Riddle. This board should be
ashamed of itself. I’m ashamed of it.

[Applause.]

Hotze: The fact that these same tactics were used by the Gestapo in Nazi
Germany. Communist regimes intimidate and silence individuals by using
star-chamber tactics, cloaked in secrecy. No notes. No tapes, all
confidentiality because they don’t want to expose treacherous behavior.
I’ve seen it first hand. The accusers and witnesses are anonymous and the
decisions of who determined. This is the way the TMB investigates and
disciplines physicians.

The Texas Medical Board is denying physicians of their Constitutional

right of due process. People are talking about, “We give due process.”
But you can go to an SOAH hearing and get exonerated and go back and
have the Board overturn the whole thing. What is that? Is that legal due

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 process? Is that having the right to talk to your accusers or question the
accuser or question the witness? Is that due process? The hell with this
administrative process. That’s what’s wrong with the thing. It’s the
administrative process. They cloak it in due process.

The TMB allows anonymous complaints by insurance companies. These

anonymous complaints target physicians who oppose insurance companies
like Dr. Ray, like Dr. Campbell, like many of the physicians here, Dr.
Mahoney and myself. Their so-called standards of care which is what?
Limit treatment options, deny claims, increase insurance company profits.
The TMB then destroys the physicians whom the insurance companies
have targeted. This makes a crucial lesson to any physician who would
dare challenge the insurance company’s policies on patient care.

It is unconscionable that the TMB would directly advance the insurance

company’s agenda at the expense of the doctor-patient relationship. Most
egregious is Dr. Ray’s case. You just heard about it. That is – the man
should have a Noble Prize and they want to strip him of his license. I will
fight them to the end. I promise you, Kalafut and Patrick and Mari
Robinson and Bob Johnson and Nancy and the rest are going to be long
gone before Dr. Ray’s license is going to be removed if I have anything to
say about it.

[Applause.]

Hotze: I’ll be on the radio every day. I’ll write an editorial every week. I’ll talk
to every legislator there possibly is. We will be victorious in stopping this
and getting these folks removed from the board. I’m committed to doing
that. When I set my mind to something it gets done. It always has and it
will in this case.

Now, what is the solution? Here’s our goals: Texans for Patients and
Physician’s Rights recommends for consideration by the Texas Legislature
the following goals for adopting legislature which will inform the Texas
Medical Board.

The elimination of anonymous complaints from insurance companies,

hospitals, pharmaceutical companies, attorneys [inaudible 1:45:53]
disgruntled employee, patients. If you’re going to file a complaint stand
up and file the complaint. Put your name on the line. No more
anonymous expert witnesses.

No more star-chamber proceedings held in secret. No more prohibition of

notes and recordings in hearings. Don’t tell me Dr. Kalafut that you can
take notes. You were in my hearing when you intimidated my personal
assistant and told her to shut off her computer. You stood up and made an

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 ass out of yourself. It was horrible. If I hadn’t been in such a precarious
situation I would have given you a good tongue lashing. You deserved it.
Your momma needed to take you over her knee is what she needed to do.

No more denial of due process. Eliminate that. Disseminate discipline

from any trivial findings are going to be eliminated. Elimination of
intimidation tactics. Elimination of manipulation of assignments.
Elimination of forced settlements and conflict of interest. We want the
sacredness of doctor-patient relationship, transparency of charges,
accountability for TMB members, integrity of board members and
acceptance of and giving equal right to the evaluations of physicians cared
by physicians other than those chosen as so-called expert witnesses by the
board.

We’re also recommending that the Texas Legislature establish an

independent public Texas Medical Oversight Committee, the members of
which will be appointed by the Texas Legislature to ensure that the above
legislative changes that we recommend are enacted by the board. This
committee would report its findings to the Texas Legislature. This
committee would also receive and evaluate complaints from patients and
physicians who feel that the TMB has acted unjustly.

As I said before, there can be no truer form or side of that process. It’s
about people. It’s about leadership. There can be no truer form of the
medical board without removing the current leadership. Don Patrick has
got to go. Mari Robinson has got to go. Roberta Kalafut – we all ready
got rid of Miller. He was part of the ball. You’ve got three more that
have got to go. Let me say one last thing. It is wrong for a physician to
use her power on the board to have her husband to file anonymous
complaints against her competitors in her community.

Chairman: Dr. Hotze?

Hotze: Yes?

Chairman: We need to quit personalizing this please.

Hotze: It is personal.

Chairman: I understand, but we agreed we wouldn’t do that. I’ll have to ask you…

Hotze: When they’re getting ready to take away your license and destroy your life
it gets pretty personal Representative Brown. I appreciate you holding this
hearing. Thank you for the opportunity to testify.

Chairman: Yes sir.

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[Applause.]

Chairman: The Chair calls Dr. Chris Kuhne. [Inaudible, off mic1:48:56.]

Kuhne: My name is Dr. Chris Kuhne. I practice in Plano – in Frisco, Texas. I

don’t think I can follow that. There’s no way. I did have written
testimony. I can provide that to you however. I think I’ll just keep my
testimony pretty clean and short.

I’ve been in practice for approximately 17 years, private practice, solo

practice of OB/GYN. I trained at Parkland Hospital in Dallas. I’ve had a
fairly unblemished career. One incident however occurred in 2005 when
an attorney who was a patient of mine requested her records. At the time
my father was also an OB/GYN was getting ready to retire. He’d given
me quite a few charts. Some of his older patients really wanted a doctor
more like him so they requested quite a few charts. So I had quite a time
copying charts. But nevertheless I scanned every chart I’ve ever had on
every patient I’ve ever seen. They were made into .PDF files in computer
hard drives. My charts were all in there.

However, I was getting rather overwhelmed with the number of requests,

excuse me. I looked for some way to cover the cost of my employees
copying these records and so forth. So I found that the hospital had posted
their charges for copying records. I looked at it and it was apparently
based upon the Texas Health and Administrative Code.

So I generated a form. This particular patient who had requested her

records I sent her that form. It calculated the fee for the copy of chart. I
don’t know how many pages it was. I sent her the letter. I didn’t hear
anything back from her and it was our policy to just send the letter, put it
in the chart and refile the chart so we don’t lose it. When we hear they
paid the administrative fee we pull the chart back out and mail it off and
document that we mailed it off.

It seems like a few months went by and I didn’t hear anything from
anybody. I actually had forgotten about the request. She wrote a letter
back to me saying, “I hope you’re not holding my charts for the money I
owe.” Not the money that she owed for copying the records, but the
money that she owed that she didn’t pay on her bill.” So rather than mess
with [inaudible 1:51:53] I quickly sent her her records. I didn’t think I
would hear anything more from it.

It seems like a few months after that I get a letter from the State Board
saying that – very vague as you’ve all ready heard, very vague allegations
of failure to – or violating Health and Practice Act. I explained myself.

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 I didn’t want to go through all of the steps that I went through this. It’s
essentially the same sequence that you heard earlier. They opened a pre-
investigation and did an investigation. They asked me to come down for
an Informal Settlement Conference. I couldn’t believe it, but I did it.
Knowing that the board had – could be quite volatile, even unpredictable, I
hired two attorneys.

When I went for my Informal Settlement Conference it was presided by

this fella named Dr. Keith Miller whom my attorneys tried to [inaudible
1:53:07] essential shut up, that they didn’t want to hear anything from
him. I didn’t get to say much either. Three words and that was it. He was
judge, jury and executioner, fining me $1000. Of course there was going
to be an official posting on the website and so-forth [inaudible 1:53:30].

However the formalities of it is they send you an agreed order because this
is an Informal Settlement Conference. When I got the Agreed Order I just
[inaudible 1:53:45] and didn’t sign it. The next step of the usual course
and referred it to administrative law judge at a SOAH hearing. The judge
heard the whole case, was apparently shocked at how it occurred. He took
an extraordinary step when it came time for the next step in the process
which is to present the case before the full board.

The administrative law judge found in my favor and ruled unequivocally

to dismiss the case. She presented the case in person to the full board.
The full board then met behind closed doors for quite a bit of time, came
back and simply just overruled the judge and raised the fine to $2000 and
required me to take a jurisprudence course and subsequently presented me
a letter telling me I need to pay this fine in the next couple of months.

It was really unbelievable that this is what happens. My case is [inaudible

1:54:56] but it has cost me $20,000 - $30,000 to defend. I don’t know
what’ll happen next but I feel very strongly about standing up for yourself
and not giving up when you’re doing the right thing. Whatever happens
next, happens next. I just made an appeal to district court. I can’t imagine
this has to happen. It seems like a huge waste of taxpayer dollars. But
this is what happened. I don’t have anything further.

Chairman: Members, any questions?

Riddle: Yes, Mr. Chairman. Going back into what happened, he said somewhere
around how much money in attorney fees?

Kuhne: Somewhere between $20,000 - $30,000.

Riddle: Then that doesn’t include your lost time and…

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Kuhne: Lost times. This is a pretty busy obstetrical practice. When you’re
worried about your license being revoked, and especially when they
publish it on their website or in a newsletter it doesn’t do much for your
reputation.

Riddle: What about – didn’t all of this really start over about a $44 discrepancy?

Kuhne: Yes ma’am. I had apparently according to the board’s rules they had
written in 2004. How am I supposed to know that the board is responsible
for legislative or being an authority on copying charges. Of course
they’ve had some rules about transferring records and the time frame for
the transfer, but they had no rule about how much a physician could
charge for records. Those rules were all ready really comprised by that
schedule I used. The board had their own schedule and I was supposed to
know it. So according to the Board’s calculation I had overcharged her by
$40.

Riddle: So you were kind of a menace to society over $40. Okay, thank you.

Chairman: Any other questions members? Thank you doctor.

Kuhne: Thank you very much.

Chairman: We appreciate you being here.

[Applause.]

Chairman: The chair calls Dr. Vicky Trompler.

Trompler: My name is Vicky Trompler. I’m a board certified emergency physician.

I’m a practicing attorney and now that I’m over 50 I’m a patient more than
I would like to be. I come to you speaking with all of those hats. I do
believe in a strong board and I also believe in a level playing field. I’ll be
very short because Tim Whites took care of most of the points that I
wanted to make. But I did want to refer you to the full board meeting
which I attend quite often. The one particularly on June 7, 2007 there was
some discussion regarding expert review. Two statements were made in
this open meeting which were very concerning to me both as a patient and
as a physician and an attorney.

Mari Robinson whom you’ve heard from many, many times today all
ready made the statement that we don’t encourage medical literature
review by our experts. That comment was made in response to some
questions by some of the board members who didn’t understand why the
board experts didn’t have medical literature to back them up.

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 At the same meeting Ms. Fredericks, which she must have stepped out.
She’s hard working and I’ve been in front of her many times. She reads
her records. She made the statement that she gives the heavier weight to
the TMB expert opinion. Again, I want to say that she works very hard
and she reads I think more than a lot of the folks why my physicians are in
front of them. I represent both hospitals and physicians in administrative
and civil law proceedings.

As a patient I would hope and expect the medical board to judge my

physicians based on science and the medical literature when evaluating the
standard of care. I would be concerned that the TMB did not encourage
literature review by the experts.

As a physician I would like the standard of care and I would like my

standard of care to be judged as based on evidence-based medicine and the
medical literature. So I think that’s fairly important to look at that.

As an attorney I would have great concern about a medical board that

automatically gives greater work to the medical board expert opinion
without analyzing the qualifications of both and the backup, the medical
literature that they base their opinion on. I think that’s very important.
I’m not – I think it’s an easy fix and I think it’s a fix that most of the
physicians on the board would want to be judged by evidence-based
medicine.

So basically all I’m asking for today, and I think it’s an easy fix either
internally by the medical board or by the legislature, I think that the
experts, the TMB experts need to be – they need to be known first of all so
that you know their qualifications, and you need to know their reasoning.
All I’m asking for for my physicians that I represent is a level playing
field. That’s all I had.

[Applause.]

Chairman: Any questions members? Dr. Patrick, I think in all fairness, I don’t know
if you’d like to come up and talk about some of the testimony we’ve
heard. There’s always two sides to every story. I want to be fair to you.
Would you…

Dr. Patrick: There would be too much for me to cover fairly. Thank you. [Inaudible
off mic 2:02:50]

Chairman: Dr. Patrick, would anybody else from the medical board want to come
and…? [Inaudible off mic 2:02:00] Mari?

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[Inaudible.]

Robinson: With regard to the comment about insurance companies.

Chairman: Yep. Mari, give your name again.

Robinson: I just want to – I’m sorry, Mari Robinson with the Medical Board,
Director of Enforcement. The materials we submitted and what we said
today, we never said that insurance companies did not file complaints. We
said that it was 1% to an eighth of those complaints. We know that
they’re there, it’s just a small percentage. The groups that we’ve been
asked about, we’ve not been able to find evidence of a pharmaceutical
company filing a complaint. I just wanted to make that clarification since
it seemed to be misunderstood.

Female: Unless it’s anonymous, and then you say you don’t know.

Robinson: Obviously if it’s anonymous and there’s no identifying information we

can’t tell you who filed that. A couple of other very quick things and then
I’ll just turn this over to Doctor, excuse me, Mr. Turner. A few things that
were mentioned I just wanted to let you know that we’re all ready working
on like the diversion program that was mentioned by Mr. Whites. I
actually meant with the TMA on Friday. We have been consecutively
meeting with them. We had a conference with them to try to put together
a potential diversion program to try to increase and address that problem.

The other thing that I would just like to tell you is I believe that you got a
part of the story. But what some of the physicians failed to mention to
you, and that includes Dr. Campbell and Dr. Roell and Dr. Paine and Dr.
Chalifoux is that the ALJ found violations in every single one of those
cases. It wasn’t something that the board overturned. It wasn’t something
that the board instituted different. The ALJ found those violations. Now
the penalty may not have been the one the board instituted, but those
violations were found by the ALJs. Not everything was dismissed. Not
everything was recreated by the board.

And finally with regards to the last physician I believe you heard testify,
Dr. Kuhne? This is a good point in general. The board statutorily is
required to report the orders on its website as well as the formal
complaints as petitions that are filed. If the legislators does not want those
petitions up there after a complaint has been dismissed, we can remove it
if the law is changed. But currently the law requires us to post those
things and the federal law requires us to report to the national practitioner
database. That is not something that’s within our discretion. We have to
follow the law on that.

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 Dr. Kuhne said he had an unblemished record. He had a prior agreed
order with the board for inappropriate comments to patients regarding oral
sex. So it is not – it was not a brand new order of a physician who had
absolutely no history. I just wanted to make sure that you had all of the
complete information.

I’ll certainly turn this over to Mr. Turner. I know that we will be working
very diligently on gathering all of this information for all of you on
everything that you’ve heard today so that you can have all of the
documents and you can see all of the information.

Male: Mr. Chairman? Before she leaves I actually have a question.

Chairman: Mari, would you?

Male: I’m not sure whether or not it’s the appropriate procedure, I just want to
know if it’s done, comparing it to other legal proceedings.

Robinson: Sure.

Male: Lesser sentences, lesser measures are taken against those that settle a case
prior to going through the process.

Robinson: That’s exactly right.

Male: Is that also what happens at this level too?

Robinson: Yes.

Male: We’ll slap you on the hand if you don’t make us go through this entire
process?

Robinson: Well, it’s like any other settlement process. When you go forward and
say, “We will settle this matter with you,” which is what an informal
settlement conference is. “We will settle this matter with you for an X
thing.” For example let’s say we think 20 hours of CME and an admin
penalty would be an appropriate settlement offer in this matter, once this
settlement offer is rejected, that offer is no longer on the table, exactly the
same way it would be in criminal law, exactly the same way it would be in
a civil lawsuit. If you offered to settle for $20,000 and the person doesn’t
take it, then that offer is no longer on the table. Then it is up to whatever
happens at trial.

Male: The difference there though is when you’re talking about a civil matter
you’re trying to settle with an opposing counsel who is not also the [trier
??] of fact or necessarily in the trier of facts realm of authority where here

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 you’re the trier of fact and the opposing counsel, and the judge and the
jury. It just might not lend itself to the same. I could understand if I was a
doctor and I was going and I was meeting with counsel – I know you have
a tough job. I’m just saying it may be something we look at. “We can
settle with you now for $1000 or if you don’t we’re going to go after your
license.” I can understand how that can certainly seem unjust.

Robinson: I certainly understand that. But in small cases we do not seek the
revocation of somebody’s license.

[Several talking off mic.]

Robinson: For example on a case where it was over – for example if it was something
very small like CME or something like that and it had not been resolved.
We are not going to seek the revocation of somebody’s license. We can
certainly give you copies of every single petition we have filed this year so
you don’t have to take my word for it. You can see it for yourself. I am
more than happy to provide all of this information to you…

Male: Yes ma’am.

Robinson: …about everything that you’ve asked for because I believe the
documentation will support what we have told you.

Male: Thank you very much. I look forward to getting that information.

Male: Mari, before you run off… Has there been any discussion about
reopening cases that Dr. Miller set on?

Robinson: No, because Dr. Miller doesn’t have the authority to decide a case on his
own. I can explain to you why that is. At the end of an informal
settlement conference, as I said, an offer may be given to settle a case, but
it is an offer of settlement. If the doctor does not believe it is appropriate,
it can go to the state office of administration and go through additional
mediation. In every order and every dismissal has to be approved by the
board in full. Excuse me, every agreed order has to be approved by the
board in full and every dismissal has to go through the DRC committee.
One doctor cannot make the final decision on any matter. That’s simply
the truth. So the fact of the matter is all of those cases are still how they
are but they’ve all been through board review. Every single board review
has been reviewed by the entire board and voted on by the entire board.

Male: Okay.

Chairman: Senator Van Arsdale.

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Van Arsdale: ISCs where they try to come up with an agreed order, you made some
comment about revocation of license is not – and then I hear all of these
groans back here. You mention a lot about the documents and what the
documents are going to show. It seems to me that what I’ve heard today
and what I’ve seen in correspondence is that a lot of times the revocation
of license which Dr. Patrick said those conversations take place, is done
orally, not necessarily in writing.

Robinson: No.

Van Arsdale: My point is, my point is I’ve heard testimony, I’ve seen correspondence
and I’ve heard where there are oral representations where it’s discussed
about revoking a license.

Robinson: I’m sorry, but I believe that was a miscommunication. I heard the exact
same thing you were talking about. And what it – you were asking what’s
the worst penalty?

Van Arsdale: No, I’m not talking the worst penalty. I’m talking about when you just
made the statement, “No, revoking license is not…” I heard a bunch of
people disagree with you.

Robinson: Yes, I know.

Van Arsdale: Now are they lying?

Robinson: No, I don’t think they’re lying. I think they’re misinformed.

Van Arsdale: Are they delusional?

Robinson: They’re only – again, I don’t think they’re delusional.

Van Arsdale: Or do you think there’s maybe something to what they’re…

Robinson: I think they only know about that particular case. That’s what I think.
That’s why I said earlier that I think if we could get more communication
out that that would be good.

Chairman: Hold on one minute, Mari. Everybody deserves their day to come up here
and speak. We have listened quietly to everybody that’s got up and
testified. I will stop this hearing right now if I hear anything else. We’ll
let one person speak at a time. We’re trying to hear both sides of a story.
We want to help effect change but we can’t do that when the audience
keeps badgering one person. Does everyone understand? Those are the
guidelines that we are going to operate or we will not operate. Go ahead.

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Robinson: Yes sir. Okay. During the ISC they do have a conversation. The ISC
panel discusses what the appropriate penalty would be. That was the
conversation that was being referred to when you asked, “Is revocation
discussed at ISC?” Yes, when the panel goes into deliberations they
discuss what the appropriate penalty would be. That may be revocation.
It may not be revocation. But that is when that discussion takes place.
That is what Dr. Patrick was referring to.

As for this idea that there are oral discussions about revocation I will say
two things. In some of the SOAH complaints we do say, “Up to and
seeking revocation.” I’m not going to be disingenuous about that. What I
said before is in minor violations it is not something that we’re always
seeking revocation for minor violations.

Additionally, if we don’t see it in writing, we can’t seek it. That’s the way
formal complaints work. You have to say what outcome you want, what
thing you’re going to be looking for in your prayer for relief. If we don’t
ask for revocation in that prayer for relief, if we only say we’re seeking a
restriction or an administrative penalty, the judge cannot say, “I think
revocation is appropriate.” Because they go on what the board asks.

Now in cases of standard of care, yes, absolutely. In cases where people

are dying, absolutely.

Chairman: Do you personally attend every ISC?

Robinson: No, of course not. There are 480…

Chairman: Then how can you possibly know what’s said at them?

Robinson: We get a report actually.

Chairman: I understand about reports and documents. I’m a lawyer. I understand

that.

Robinson: Sure.

Chairman: What I’m saying is if you’re not personally there, how do you know what
is said?

Robinson: I cannot say what was said at every ISC.

Chairman: I agree with you. I have about three other random questions. One has to
do with witnesses at these hearings. I’m reading the administrative code.
It looks like it’s called Rule 187.18. It says that the board shall allow

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 presentation of oral or written statements or testimony by witnesses at the
ISC.

Robinson: Right.

Chairman: Do y’all ever exclude witnesses from the ISCs?

Robinson: They’re always allowed to give their statement or make their oral
presentation. They may not be able to be present for the entirety of the
hearing.

Chairman: But they’re allowed to come in for the physician and…

Robinson: Sure. Yes.

Chairman: Another subject here had to do with – this is Rule 107.21 where it
mentions several members of the board or the district review committee
will conduct the ISC.

Robinson: Right.

Chairman: How many board members are there, 19?

Robinson: There are 19.

Chairman: How many district review committee members are there?

Robinson: I think there are 30, 29, 28?

Chairman: 28? And then the subsection beneath that says that board members and
district review committee members are required to serve as representatives
at the ISCs an equal number of times a year. Is that – can you get me or
can someone at TMB get us, the committee, for the past year, show the
distribution of ISC attendances by board members and district review
committee by member?

Robinson: Yes, absolutely.

Chairman: Okay. And then one other thing, the last thing I would like to ask about
has to do – something about the state law that we require y’all to put
things on the web and that needs to be changed that we have to do that. Is
note of disclosure given to the physician that that’s going to take place?
Do y’all disclose to the physician that if you sign this or agree to this
we’re going to put you on the web? Is that…?

Robinson: We tell them that it’s public and it’s reportable.

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Chairman: Does that tell them that it’s not reportable, but required to be reported?

Robinson: Again, I’m not a party to every one of those discussions. I know that
when they try to discuss it they try to be as honest as possible because we
essentially do not want somebody coming back and saying, “You told me
this would not be reported to the National Practitioner’s Data Bank and it
was.” Or, “You told me this wouldn’t be on the website and it was.” So
we try to be as honest about that as possible. I don’t know if those exact
words are said in every case because often times our staff attorney is
dealing with attorneys that deal with the board every day. So those
attorneys know. They know what is reportable.

Chairman: I just heard a couple of people testify that they wouldn’t have agreed to
certain things if they knew that their name was going to – I didn’t know if
that was like a miscommunication or…

Robinson: Well in all honesty if the defense counsel – if they did have a lawyer their
lawyer should be informing them of that. If they ask us about that, we
certainly will. But again, it’s something we could communicate if we can
institute a program where we go out and give people more information
about the board processes, about the effective rules, and even better, the
rules in advance so that people don’t violate them to begin with.

Chairman: Thank you, Mari. Mr. Turner, do you have – would you like to?

Turner: Thanks Mr. Chairman. My name is Tim Turner. I’m a public member on
the board. I really don’t know where to start. I was under the impression
that this hearing was going to be on appropriations and appropriation
matters. If I knew that we were going to this level of discussion I think we
would have invited a number of patient advocates to come and present
before you today to give you their side of the story. The thank you letters
we get from patients doing what we need to do to protect them from
unscrupulous doctors that they have had relationships with in one form or
fashion.

Be that as it may, we have learned a lot today. There have been some very
good suggestions made. There are still other areas where I think we can
improve on. Given the testimony that you’ve heard today, Representative
Lucio I commend you for your willingness to sign a confidentiality
agreement.

I will ask the board staff to send an agreement to every one of the
members that have been presented here today so that you can get – as Paul
Harvey says, “The rest of the story.” You’re not hearing all of the facts.

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You need to see the details in these cases so you understand what we look
at when we make our determination.

I encourage you to do that. Representative Riddle, you as well to do that.

We’ve offered it to Representative Brown to do the same. Every one on
this group that was here today I will assure you, I will personally deliver
the document to you.

I would like to have a similar hearing just like this, no doors closed, no
cameras, with these files and a sample of other files that we have had
where we have spent hours reading the medical records, listening to
testimony, hearing from patients and then doing what we believe is the
right thing to do. We’re talking about 19 volunteers and being berated like
being told that your mother should spank you over her knee? What kind
of response? I have never been to a hearing like this in my professional
career. I’m amazed.

We talk about opening the process. Several other states when a physician
has a complaint filed against them, a board immediately posts it on their
website to state that this physician has a complaint of this matter relating
to that physician. If we’re going to open the process up then I’m going to
see that that’s something we do. Do the physicians in this state want that?
No. I can almost guarantee you that they don’t want it.

Go through the due process and if you find a violation then let the public
beware. I guarantee you’ll get Texas Watch, Citizens Watch, whatever
these patient advocate groups are and they’d jump all over that and say,
“Yes, we want to know that somebody filed a complaint. And it may take
180 days, three, four, six, ten, twelve months, two years, whatever. We
want to know if there’s an issue with this particular physician.” Take that
into consideration.

Representative Brown, you and I have talked about in the past the idea of
deferred adjudication if you will. Keep in mind, this is my personal
opinion, not the board’s. But I like the idea of this fast track concept. Dr.
Patrick came up with a wonderful idea. We fully support it, streamlining
the administrative process.

The other members here, what I mentioned in the past was the idea of
having administrative penalties dealt with in a deferred adjudication
process where they are told, “You finish your CMEs, you get your medical
records transferred in a timely fashion. Do whatever you need to do and
in lieu of us publishing your name and having you sign an order, you go
do community service at the local [FQAC ??] or the CHS or you provide
clinical services at your local office and show us results of no patient
billing or someone signing off on that.” I believe that’s a win-win. Now

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that’s my personal opinion, not that of the board’s. I think that should be
looked into as well.

Finally, there is one last item. Mr. – Representative Van Arsdale, I would
like to clear up. The questioning of Dr. Patrick concerning employees
and/or employers. He did the right thing with Dr. Miller. He went to the
person that we are responsible to and that is the board president. When
employee matters come up and came up before the executive director of
this agency he takes swift action. A year ago, a little over a year ago we
had a financial matter where we found discrepancies by our deputy
director where he’s juggling funds from one account to another trying to
make the thing work. We took exception to that immediately. I don’t
know whether he resigned or we fired him, but he’s gone and he was gone
immediately.

A staff attorney went over and above her superior directors at doing what
she wanted to do, not what our management asked her to do. Our
executive director took swift and immediate action and she was fired.
She’s been hanging around this hearing all day and she’s been actively
involved in some of the communications that you may have received.

I want you to know that he takes swift action. He’s done a number of
great changes to this board, taking applications – the application process
that when he came on was as much as 49 pages long. He’s got it down to
as many as 6. He streamlined that process. We’re very proud of what this
individual has done.

He brings an M.D., J.D. knowledge to this board that I don’t know of any
other state that has that type of qualifications as an E.D. of a medical
board. You rated him at our June meeting. The executive committee of
this board rated him on a scale of one to five, he may not like me saying
this, but I think it was like a 4.7 or a 4.8. He has some areas for
improvement. No one’s perfect. But we stand behind him and we’re very
pleased with the actions he’s taken.

So I don’t want you to be confused as his role as an executive director in

relation to board members because we report to the board president. The
board president takes the action in coordination with the governor’s office.
As far as with employees, he’s quick and very decisive.

I’ll give one other comment about Dr. Patrick. In my four plus years of
being on this board, I have never been asked by Dr. Patrick to change my
views, slant my comments one way, add this to a board order or dismiss it
because I’ve gotten pressure from a legislator or this or that. Never once
have I ever been asked that. Never once have I ever been aware of any
other board member that has been asked that by this executive director.

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I am proud of what he has done. If you have any questions about his
actions, please let me know. I would like to look into them. When I have
heard complaints about Dr. Patrick I brought them up immediately to him
and to our board president to which they were dismissed. There was
nothing there. They were unfounded.

We view what we feel like we’re doing as the right thing. We are
following the laws that you and the senate have put before us. That is
what we’re doing. If they need to be changed, we’re all for it. We would
love to work with you to change the process for the better. I am a strong
advocate for six sigma business process improvement. I don’t know if
you’re familiar with those processes. I would love – I wish Chairman
Isaacs was still here because I would encourage Sunset to start looking
into those types of principles for state agencies to become customer
centric and getting the job done with zero defects. In other words, you
don’t lose mail. You don’t lose correspondence. You get it done in a
timely manner.

Every state agency can improve. There’s not one board member here or
staff person who doesn’t want to do the right thing and who doesn’t want
to see an improvement in the process. To be verbally abused is not the
way to get it done.

So in summary I would like to ask that we have a follow up hearing to this

where we ask each of y’all to sign confidentiality agreements and we will
go through with you some of the facts in any number of the cases you so
choose and talk about the process. “Here’s the letter that went to the
physician. Here’s his response.” And give you a walk from start to finish
of what it is. Because when I receive these packets before an ISC date, I
travel to Austin and get my $30 for, I read these documents.

I’m amazed what is in this stuff and sometimes what’s not in these files. I
go, “Well this guy or lady is guilty as all get out. They ought to be hung.”
We get to the process and the doctor has a thorough explanation for
everything that he did or she did. A lot of it has to do with attitude. You
come in and start ranting and raving about how wonderful you are and
how egregious you are and whatnot, as I gave advice to Dr. Hotze as to
what he needed to do when he was called up here, I said, “Be humble.
Tell the truth. Don’t lie. Be sincere. Give the facts.” His case was
dismissed. He had Dr. Kalafut as an ISC panelist. She doesn’t let cases
go very easily. She didn’t know who he was. He may think otherwise.

We’re doing what we feel is the right thing to do within the purviews of
the statutes given to us. Can we improve? Sure. Do we want to improve?
Absolutely. Do we like to have open discussion as to processes and

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 procedures to improve it? Sure. I’d like to have the patients here so you
could hear their sides of the stories too. I don’t know that we’ve had any
patients here. If we have, I missed it. I’m sorry. I’m very wound up
about this because we work very hard.

I can’t tell you the volume of paper. I’m thrilled that I’ve helped effect
change to get this from paper to a digital format because we get boxes and
boxes of material to read for every ISC or board meeting. Because we
review – we try to review every one of these board orders that are coming
up that the board has to vote on.

It’s a thankless job, I can promise you that. I’ve said enough.

Chairman: One thing. I want to apologize that I wasn’t in here when the verbal abuse
started earlier. I had to take a bathroom break. Those things happen. If I
had been I would have stopped it immediately because that’s not proper.

There are two different fronts I want to talk about. Number one, until I
came in here today I had no idea that you had cut your time in half from
the time it takes to license a doctor. You and I had that discussion during
the appropriations, all of those hearings. We set 51 days is the target date
down from 180. So I applaud you for that. That is amazing in that short
period of time since session has been over, you’ve cut it that dramatically.

Number two, Mari I applaud you and Dr. Patrick and everyone else that is
on this fast track program because that’s what needs to happen. That is so
much of what we have come to talk about today has been about. It’s this
long period of time. I applaud you for coming out with that. I think that
will make a big difference statewide because those are the complaints that
I hear about. I think most of the members up here hear about.

Male: I want to say Mr. Chairman, if you don’t mind, is I do stand ready to meet
with you because I do want the complete picture. I feel that this is an
issue that’s not going to go away and we’re going to address in some
fashion in 2009 so I want every bit of information that I can have. I hope
I’m honored to be back on your committee, Mr. Chairman. I don’t know
if that’ll be the case. They may stick me on an Ag Committee somewhere
in the basement of a basement, but if I’m back here I will be well informed
because I’m dedicating my time to all parties that have interest today to sit
down and know as much as I can when that decision making comes up.

Chairman: I think there’s common ground for both sides. And that’s why we need to
sit down with y’all and go over that.

Male: I appreciate that Representative Lucio and Representative Brown. I would

encourage, and I look forward to a follow up hearing where we can share

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 with you the confidential federally regulated information that we cannot
disclose in a public setting so you can get the full picture.

Riddle: Mr. Chairman?

Chairman: Representative Riddle?

Riddle: I don’t think that anyone up here would disagree, or anyone that has been
up on the [inaudible 2:32:39] time today, that we started off today saying
that your very purpose, the TMB purpose is to keep bad doctors from
doing bad things to good people.

The frustration has come today, and not just today, but from phone calls
and emails and as I shared just a private conversation on an airplane back
to Texas with over and over and over and over being told by good,
reputable doctors that they personally feel like and their experience is not
good with the TMB. They feel like there’s intimidation, that it’s not fair,
that they cannot trust the TMB. I think that we’ve got to fix that.

None of us want to have- I’m a grandmother of nine grandchildren. Seven

of them are five and under. I do not want any of my grandchildren, or my
children, or any of my constituents or anyone in Texas being harmed by a
bad doctor. But on the other hand, I don’t want a good doctor being
chased out of Texas because of some dumb stuff going on.

I think that respect all the way around has to – and the attitude. You spoke
of attitude. I appreciate your attitude. I cannot say that for the facial
expressions and body language and some of that for those back here while
there has been testimony. I agree with you. I think there does need to be
respect back and forth, all the way around. When the attitude of the TMB
is interpreted as being arrogant then the reception is not well received, just
as it is not well received when a doctor comes before you with the same
attitude.

So I think that if we can agree, and I thought we did when we walked in,
as to what the very purpose and the scope of your job is, that we do not
want to be in an adversarial position. but it appears that an adversarial
position is what has been created and that’s what needs to get fixed in my
opinion.

Turner: I’d like to answer one comment if I may, Representative Riddle. I think
one of the facts of the matter here is the expressions that you referenced is
the fact that many of the board members know of the facts of these cases.
When people are up here making comments that are not true and we know
otherwise. That is why I invite you to share in these files and review these
files so that you will see what we know to be facts.

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Riddle: Let me tell you, I got up at 5:00 this morning. I drove here. I have spent
time going through all of this. We have invested a great deal of time,
energy and effort. I think we are going to continue doing what it takes as
the cable guy says to git ‘er done. That’s exactly what we’re going to
need to do.

Turner: Look forward to it.

Riddle: That’s all I have to say Mr. Chairman, thank you.

Chairman: Representative Van Arsdale.

Van Arsdale: Mr. Chairman, I just want to say that the board members on the Texas
Medical Board, Mr. Turner, Tim, is the only one I personally know. I
know Tim to be a straight up, impressive guy. I’ve known him for a long
time. I take his word with a great deal of weight just from a personal
knowledge of him and the kind of man he is. What board members are
still here from the TMB, still here today? What are the names?

[Inaudible, off mic 2:37:16]

Van Arsdale: But I will also say that I agree with you Tim that these hearings don’t ever
get called to talk about – we don’t ever have committee hearings to talk
about all of the right things. Just like our constituents don’t call us and
email us to tell us – I can’t remember the last time I got an email telling
me 10 great things I did as a state rep.

Male: Just ten?

Van Arsdale: We get the calls threatening physical threats and things like that for
converting toll roads and all kinds of things. But anyway this hearing, this
is not meant to be anything in the sense of things TMB is doing right.
That’s not what hearings are about. I can understand why you want to talk
about that. I can understand where we’re basically hearing one side of the
story and we’re not hearing the other side of the story. To the extent that
people have come up here and lied or misrepresented or distorted saying
that will be found out and their credibility will be hurt if they have done
that.

But I will tell you that when I walked in today all I had was allegations.
That’s all I had. I had allegations from people all over this state. I don’t
know who they are. I’ve had allegations from people I know. I’ve
allegations from the Texas Medical Board, what I would consider to be
allegations. I can tell you that the allegations that I heard about some of

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 the individuals involved with TMB at the end of this day are no longer
allegations because they were confirmed for me.

When I saw certain individuals where I’d been alleged to be arrogant,

defiant, on down the line, what happened today confirmed that to me. I
saw that exact demeanor here with legislators. I can only imagine what it
might be with doctors. Because we’re actually appropriators. I mean this
guy is the chairman of the subcommittee.

I think you’re right, we do need to work together to fix this problem. I

think everybody here, I know the people up here. We’re willing to work
and be reasonable. I realize people’s tempers flare when it gets late and
people say hostile things. But this is America.

Even though I think people sometimes mistreat each other, I did, I’m
guilty of it, at the end of the day we have a government where people can
speak their minds. Even though people make mistakes, I’ve lived in a
foreign country and I can tell you that this is the best way to do it. Even
though people do the wrong things and make mistakes, ultimately when
everything’s aired and there’s transparency, the end result is that we get
some really good product.

I’ve personally dealt with some of the staff at TMB. I’ve found them to be
very responsive and very competent, the ones I’ve dealt with. I do think
there are a couple of problems base don things I’ve seen and things I’ve
heard here today. I’m hoping the board, I don’t want to be on the TMB
board. I don’t want to do – when we’re on appropriations in the spring we
have agency after agency after agency come into this room just like we’re
sitting here and do this drill. I don’t want to be on any more of those
agencies and boards. I know you probably don’t want us messing with
your turf. But I do think that there are some things that are going to have
to be addressed. I do have some bad vibes about some things that to me
were confirmed today.

I look forward to working with you and your board. If there are any hard
feelings, I hope we can get past that and move towards something
constructive because I know how good of a guy you are.

Turner: I appreciate that. You’ve got my phone number. Please call me. Thank
you.

Chairman: Thank you Mr. Turner. The Chair calls Kim Patterson. Kim Patterson.
Left? Howard Marcus, M.D. Howard Marcus, M.D. Laura [Bramlive
??]. [Inaudible, off mic 2:41:39]. Yes ma’am, that’s fine. Yes ma’am. I
think we all are. Yes ma’am. Peter J. Dewitt, M.D.?

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Dewitt: Good evening. I’ll be very short. I just want to say that my case pales in
comparison to what I’ve heard here today. I know a lot of the physicians
that have testified here today. Some of them are some of the greatest
physicians in Texas like Dr. Ray, Dr. Mahoney, Dr. Campbell and Dr.
Hotze. These are extraordinary, honorable physicians that hold very, very
high regard, not just in this state but around the world. Those are the
kinds of physicians that I look up to and that I strive to be.

I practice medicine that way too. I spend a lot of time with patients and
don’t take insurance. I don’t work with pharmaceutical companies even
though I still prescribe medications sometimes. I practice a form of
medicine called [endovire 2:43:21] medicine. I see patients from around
the world. But I’m very strongly considering leaving Texas too. As a
matter of fact I have applied for my license in another state. I’m in the
very final stages of getting my license.

By the way, I forgot to introduce myself. I am Dr. Peter Dewitt. As you

can hear, I’m not from Texas originally. I’m a Wilshire farmer. I came
from South Africa recently. My mother was American. So I had an easy
time coming to the States. But I came here because I had a dream. I came
here because I wanted to study holistic medicine which I couldn’t study in
my own country because of the suppression of that type of medicine in my
country. There was not a freedom to practice that way. My father died at
a young age because he tried – because he practiced a form of medicine
that was not recognized called chiropractic. In South Africa that’s
[inaudible 2:44:24].

I want to see the freedoms to practice medicine in the best way possible
continue in Texas. Texas has always been a pioneer state. This has
always been an extraordinary state. They even have a protection act for
the practice of alternative medicine. But because of the way things work,
you can be [inaudible 2:44:48] to death by colleagues and competitors
who don’t like the way you practice.

I was an associate of internal medicine for seven years at the University of

Texas Health Center. I left the University because I wanted to practice
medicine the way I just stated. After I did that I started getting complaints
to the board. I’ve had at least three so far. It’s been nitpicky things. I’ve
never had a patient sue me. I’ve never had any other complaints but these
three things.

Because I haven’t had the money to fight these cases I’ve just had to
settle. Every time I settle I know that that’s another black mark on my
name, another report to the national database. That’s one reason why I’m
getting my license in another state now and why I’m ready to leave,
because I know one of these days I will be unable to get my license in this

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 state. I basically, like a lot of these physicians, is being prevented from
practicing my trade. I ask the board just like some of the previous
speakers to help us to keep Texas up with good physicians and those who
are truly dedicated to their patients. Thank you very much.

[Applause.]

Chairman: Any questions? Thank you doctor. Let the record show that Dr. Howard
Marcus who did not testify was for the Texas Medical Board representing
Texas Alliance for Patient Access. Laura [Bramlive ??]. [Inaudible off
mic 2:46:46] is testifying neutrally. Kim Patterson, who did not testify
was neutral and he represents physicians before the TMB. The Chair calls
Dr. Larry Price.

Price: My name is Larry Price. I’m the Vice President of the Board. I’ve been
on the Texas Medical Board for ten and a half years. It’s been an
interesting day for all of us I think. It’s been also an interesting journey
for the last ten and a half years and the transition that I’ve seen this board
make.

The ISCs when I first came on the board in 1997 were rather brutal. The
ISCs made a decision, it went through the full board pretty much rubber
stamped. There wasn’t a lot of questioning of that. There wasn’t a lot of
instruction on how to be a board member. It took you a couple of years to
figure out how to learn the ropes of that. It was basically learning from
your peers when you showed up at an ISC.

A lot of that has been formalized. A lot of rules and regulations on our
procedural aspects of conducting hearings. We went through Chapter 190
that had to do with disciplinary aspects to try and I think the goal was
consistency in that you had someone who come through with orders that
the fine was $500 and somebody was $5000 and you didn’t quite know
exactly why. So I think the board over the last few years that I have
observed has tried to strive for a consistency so that we don’t get an
egregious order for something that’s a rather minor violation.

The other thing is we have been through three executive directors and
about four general counsels. The management style changes and
sometimes the emphasis changes a little bit as time goes by. We went
through a little valley when the Dallas Morning News had a lot of
criticism of us. This has almost been like a little wave. If you remember,
it wasn’t that many years ago, but it was the fox garden hen house. We
were criticized for being too hard on doctors and then we were criticized
for being too soft on doctors. Now we’re riding the wave again.

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But you can imagine some of the fallout of what happened in 2002 with a
lot of criticism of the board is that we weren’t hard enough. What’s the
board going to do about that? Well, maybe the pendulum has swung.
Maybe the pendulum has swung too far some people would say. I think
there has to be some balance of that and we look towards our legislators
and our statutes and our Medical Practice Act to help us achieve that
balance.

Let me give you an example. You’re a DPS patrolman out there.

Somebody is going down the road and they see they’ve broken the law.
We’ve all done that from time to time. Sometimes we get a warning
ticket. Sometimes we get dismissed. Sometimes we get a ticket that we
deserve.

Breaking the Medical Practice Act and a violation there is a little bit
different when we come to the point of discretion. That patrolman that
stops you on the side of the road has some discretionary ability. When
somebody comes before us it’s kind of black and white. We kind of have
to decide did they break and violate the Medical Practice Act or they
didn’t. There are a lot of things that are considered there. Was it
something that was a pattern or this physician has multiple cases in which
there’s concern or is this a single case, single bad outcome? As physicians
as we look back over our practice we can all see people who may have had
bad outcomes that we wished things had gone better but medical errors are
inherent in medical practice.

So I guess the message is we don’t have any warning tickets. We have

some discretion at the time of ISC. We have some discretion when the
process moves forward. That may be something that as legislative
colleagues can assist us. We don’t have any warning tickets. If you get a
violation you get an order or you get dismissed. We don’t have a lot of
middle of the roads.

There are some states that have what’s called a corrective action program
in that a person may have gone to the wayside a little bit and they just
need a little guidance to get back on track again. It may not necessarily be
a bad doctor, but it’s not something that’s so – it’s something we can
totally dismiss. Because we still have to be responsible to the patients and
responsible to the public, many times it is warranted to take some type of
action.

We all know as physicians that a board order has many other implications
besides just what’s read on the order. There are issues as far as public
disclosure of that. There’s issues as far as insurance being kicked off
insurance panels, hospital privileging and other issues that are far
reaching.

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 I guess my other comment would have to do with a fiscal issue. That has
to do with this committee and in the legislature itself. We’re part of the
executive branch. We get a lot of our direction from you. I had a case a
few years ago of a physician who came for an ISC. We issued a board
order but the legislator contacted us basically wanting the order to go
away. I think in my ten and a half years on the board that the most
difficult decision I’ve ever had to make. The legislator contacted some of
our management staff and I kept getting calls that we wanted this case to
go away.

I didn’t really feel good about that. I didn’t feel appropriate about that, but
we felt a lot of pressure to do that. So it came to a point of a decision,
what’s best for the board? Do we compromise our funding and we
compromised the collegial relationship that we have trying to come up
with laws and regulations to help guide the practice of medicine, or do we
stand by our guns? So we folded on that and we dismissed the case. I
think we’ve all had kind of a bad feeling in our gut about that. So as a
board we met and we discussed that. We considered it a threat to us.
We’ve decided as a board that we won’t be threatened anymore. We’re
just going to do our best job. With the resources we have, whether we’re
fully funded, or partially funded or whatever, we’re going to go forward
and try to do the best job we can.

Thank you.

Chairman: Thank you, Doctor. Any comments?

Male: Yeah. Did I understand you to say that a legislator, that you think, it is
your opinion that a legislator contacts you or the board members to try to
pressure you into doing whatever you want to do that that would be wrong
of you to comply with that legislator if you disagree with them?

Price: I think we make a decision on that and if it’s a legislator that contacts us
and puts pressure that they want this case to go away because it’s one of
their constituents, I don’t feel real good about that. I don’t feel that there’s
integrity in that. You know, I think things are open for negotiation and
things are open for discussion about that. But I think we went forward
with that, learning from it that we’re just not going to take threats anymore
and we’re just going to stick to our guns.

Male: And I agree with you. I guess what I’m trying to find out is did you know
at the time you made the decision that it was wrong?

Price: That it was wrong?

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Male: Yeah.

Price: No, we felt like we made a good decision about…

Male: You said that you dismissed something a legislator asked you to do and
you felt it was wrong…

Price: When we dismissed it, yes. But we had to come to a decision point,
what’s the best thing for the board here? Are we going to compromise and
threaten our funding or are we going to move forward? It was just – like I
say, the most difficult decision that we’ve had to make in probably 10
years.

Male: I’m sure that that’s a tough decision. I will submit that in any given case
when you’re dealing with this position the only question you should ask, it
has nothing to do with the legislature. I understand that is a concern. The
only question you should be asking on that case is did the physician do
something wrong or not? Period. If you can’t make that decision you
probably ought not to be on the board.

Price: Our…

Male: I understand making tough decisions. We’ve got to do them too. But, you
know, I believe that to – this is tough to hear. I understand your position.
You’ve got some legislator or somebody who’s got some ability to do
something to you who’s sort of pressuring you. We deal with that all the
time. I think just personally our obligation, and I don’t always get it right
either, but just if we can have sort of a Kumbaya here, our obligation is to
do what is right based on that case.

Price: I totally agree. And that was our consensus agreement. Rather than let
one or two people shoulder that responsibility, let it be a responsibility of
the entire board whether we go forward with that case or we do not. That
was our consensus. We learned from that. I think it was a mistake. I
think we learned from that.

Male: I appreciate your demeanor and your attitude in this hearing. Mr.
Chairman?

Male: If I could just follow up with that. We’ve gone through a lot of growing
pains as a legislature. If you were to ask you folks who have been around
this building for 25, 30, 40 years, they’ll tell you that committees and the
process and the ways that those got passed and the influence on legislators
was a lot different. I come in brand new. I only have one session under
my belt.

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 What I will say is we are contacted all the time, whether it’s for the funeral
board, the Texas Department of Insurance, I haven’t had any phone calls
regarding your particular – Texas Medical Board. But the way my office
handles it, and I hope it’s not misinterpreted, is we feel a responsibility to
our constituents. When they call us about an issue they have with a state
agency, we call for info, information gathering purposes only. I would
never ask, never, never, never, not even if it was my closest, biggest
supporter who is in front of a state agency who was seen going under any
particular process, I would never ask a state agency for any particular
favor. But I will call to make sure the right policies and procedures are
being followed.

So I hope that in the future phone calls are being made and being
approached in a similar manner as my office approaches it – and I always
tell my staff. It’s usually staff that does it. Rarely will I call unless it’s
just very egregious. I always tell my staff, “Don’t call and ask for any
favors or any particular preferential treatment. Just ask about the facts and
inquire as to whether the policies and procedures of that state agency were
followed.” So I hope that that’s not being confused. If you were being
asked to do something and specifically asked to do something, I apologize
on behalf of those involved in the process. But in the future, I hope that
you understand that we are under an obligation sometimes to contact you.

Price: Absolutely. And that’s how we happen to see our role, is bringing
information to you. As you see we’ve brought all of our staff today who
has all of the facts and figures so that you get the story exactly right.

Male: I look forward to working with you. And we are going to share a lot of
information. Thank you.

Price: Thank you.

Chairman: The Chair calls Dr. Lang Sebring.

Sebring: I’m Lang Sebring. [I’m not going to take my time ??] with what really
happened with me and my dealings with the board. But there is one thing
that is very near and dear to my heart and that’s the ability to practice
alternative medicine. I fear the board in that regard.

Some point in my career, about 10 years ago I realized I didn’t like what I
was doing. I was prescribing prescription medications to people that we
didn’t really know what they did. It was learned here recently that you
can’t trust the FDA to protect us, that’s according to their own director. It
just didn’t make sense to me in my idea of life on Earth and how I saw it.
You don’t need for some sort of molecule that never existed on the planet
prior to the pharmaceutical company making it.

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I started reading, going to conferences and attending physician
conferences. I didn’t like what we did as doctors. After about two days I
realized why, because they like doctors, they just thought they were
misled. I started realizing they’re treating upstream at a causal level
where the problem is. As physicians we’re taught to treat the symptom.
We have a pill for each one.

If you listen to your patients long enough, they’re going to tell you what’s
wrong and you go, “I know what this is. You’ve got four medications.
You need one. It doesn’t have anything to do with the pharmaceutical
company.” Usually nutritionists – and I began learning this. It’s
amazingly powerful. You’ve heard some other physicians that I think
have discovered this as well. There’s another problem because doctors
don’t know this, they don’t know this – we’re shielded from that
information.

The pharmaceutical industries own our medical journals. [Inaudible

3:03:34] she practices there, she teaches there. She said the
pharmaceutical industry owns our medical journals. Nothing gets
published except what they approve. That’s very interesting coming from
her because she’s former editor-in-chief of the New England Journal of
Medicine.

There was a study done in 2005. They looked at the top four English
language medical journals on the planet. They went back 4 years and they
discovered that 90% of the published research had a financial conflict of
interest, either the people who published it or the people who funded the
study had a financial interest. So I guess the answer is it’s done.

And if we don’t allow doctors to get together and to discuss and to use
alternative medicines – by that I mean nutrition. And I do bio-identical
hormone replacement. That means use our own hormones. That’s kind of
a novel concept, using our own hormones for ourselves. We always use
some prescription altered patent version of that. That’s what’s been
improved. But it’s a lot simpler to be healthy than what people realize. I
just, because I practice that I fear the drug – the State board. They don’t
like that type of medication, that type of medicine. So I worry about that.

I’m just here to say that I hope y’all look into this because I want the
ability to do that. It’s very effective. The chance of doing harm is just
about zero. It’s main vitamins. It’s mainly – the food we have doesn’t
have the nutrition it’s supposed to have.

When you study hunter-gatherers, all of a sudden there’s a whole new

paradigm of health that shows up. You find out that they don’t have the

237
 diseases that we have. And by the way, their average workday is two and
a half hours which means yeah, we’ve really improved things a lot. So
they don’t have allergies. They don’t have asthma. They don’t have
irritable bowel.

I’ve had three mothers follow the diet recommendation and all three of
them had babies that lifted their own heads at delivery. Mothers trying to
get pregnant that aren’t able to do that, I just change their diet. I come
from a very long line of very fertile women. So using these techniques we
– I don’t treat diabetes too much anymore. I just change their diet and the
diabetes goes away. It’s really doable and I’m talking about adult type
diabetes.

Some of the physicians here, we can go from a glycohemoglobin of 13

down to 5.0. That’s [inaudible 3:06:24] range from person in an average
blood sugar around 360. It’s this diet. It’s eating food that we’re designed
to eat. And when you learn what those are and what’s not food, then we
can all do it.

Disease began when we started eating food we weren’t designed to eat and
those were grains. Grains aren’t food for anything on the planet. Grains
don’t want to be eaten. They put toxins in it so animals don’t eat it. If
they’re used to feed they can’t reproduce. Vegetables and fruits and
dairies want to be eaten. So they provide animals with nutrition they want
because 10 minutes down the road they’re going to deposit their seed in a
pile of fertilizer on the countryside. So they’ve learned to feed the
animals. Animals learned to live off of that.

Now animals don’t want to be eaten, but too bad. When you eat them you
get everything they’ve got. Brain size doubles when you start eating meat.
If you look at the archaeological records in the history of human beings,
we’re carnivores. I’m just going to say that and I’ll shut up. Everyone
wants to go home. I just want to tell you about this. I think it needs to be
known.

Chairman: Members, are there any questions? Thank you Dr. Sebring.

[Applause.]

Chairman: The Chair calls Alex Winslow, Texas Watch. Is he gone? He was
testifying neutrally. Dr. Harold Lewis?

Lewis: Harold Lewis, family practice in Austin for 30 years. I want to thank the
committee, the chairman for having this meeting. I think it’s been very
helpful and answered many, many questions. I’ve learned a great deal.

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I want to talk tonight specifically about file number 040332 which is on
file and is public information. In 2002 a third year medical student and
myself were in clinic when a young man came in with warts on his hand
that he had had removed. We had cauterized those warts three or four
previous times and they kept coming back. He expressed his frustration to
me that these warts kept coming back, is there anything we could do.

I used electrocautery on the warts as I’d said, three or four times before.
So I talked to the medical student. I said, “Here’s what I think we should
do. Is infiltrate the area and we’ll take a wide margin around this cluster
of warts and do a deep cautery in an attempt to get rid of them.” So we
did that. Unfortunately, I didn’t know at the time that it was against the
board rule. I’ve asked for this board rule to be presented to Dr. Miller but
I never did get to see it. I stepped out of the room twice during the
procedure to take phone calls. I never lost visual contact of the procedure.
I thought I was in compliance with the rules of preceptorship as I
understood them at the time.

A year later I noticed this young man at the front desk. I could tell by his
demeanor that he’s very upset. So after he left I asked the front girl. I
said, “What was that about?” She said, “He came in and paid his bill. He
had been turned over to collections.” I said, “I didn’t know that. He was
upset about something.” She said, “Yeah, he just came in and said he
wanted to pay his bill.” So I knew, sometimes you have a premonition.
There’s more to this. This is not the end of this story.

So sure enough, about a year and a half later I received a request from the
medical board to send his chart. I thought, oh, okay, I know where this is
going. So I sent it. I wasn’t worried. I wasn’t concerned. I didn’t really
even become concerned until I had a conversation with Phyllis Anthony,
which was the investigator that was assigned to the case. She called me at
the clinic one day and said, “Dr. Lewis, whose writing is this on this chart
note on this date?” I said, “It’s mine.” She said, “It’s not yours, you
weren’t in the clinic.” I said, “Yes ma’am, I was in the clinic.” She said,
“No, you weren’t.” I said I was arguing with an investigator with the state
board, this was not good.

So I got the notice to come down to the informal show of compliance. Dr.
Miller and Dr. Starks I believe that’s how you pronounce his name. They
ask you when you first go in to tell a little bit about yourself, so forth. So I
said, “My name’s Harold Lewis. I’m a family physician in Austin, Texas.
South Austin for 30 years.” They said, “Dr. Lewis, are you board certified
in anything?” I said, “Yes sir, I’m board certified in family practice.” He
said, “You better stop right there. You’re getting yourself in more
trouble.” I said something to the effect of, “Well, I didn’t think I was in
trouble. I thought that I was here to show compliance.” I refer to the ISC

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as an informal show of compliance to show that you are in compliance
with the board rules.

He said, “Did you take the ESMLE?” I said, “No sir, I took the AOA
Boards, I’m an osteopath.” He goes, “You cannot say you’re board
certified unless you have taken and passed the ESMLE.” Well, you can
take notes. I was taking notes. So I took notes. On my notepad I said,
“Call David Garza.” He was another D.O. that was on the board, and
“Call the executive director and call the AOA.” So after that little thing, I
think Dr. Starkes kind of knew better, but he didn’t say anything. He just
kind of looked at Dr. Miller. Then we went on. I’m just going through
the whole thing.

They asked me some questions about, “How many cc’s of local did you
use?” I said, “Well, I think it was 2 cc’s.” He said, “Well, you didn’t
write it down in the chart.” Dr. Miller said, “You didn’t write it down on
the chart so you’re going to have to take 10 hours of record keeping and
10 hours of ethics. We’re going to put your complainant, we’re going to
put your accuser on the phone and let him give his statement. Then you
can ask questions if you want to.”

The findings of facts that Dr. Miller presented to me said that on

September 26th of 2002, yadda, yadda, yadda. Number two, “The
respondent was at another office and requested the medical student to
perform the wart removal. The R.D. had never performed such procedure,
requested that the respondent complete the wart removal so she could
watch the procedure.” Response number three, “Respondent never
appeared at the clinic during the procedure.” Number four, “As a result of
this unsupervised wart removal, complainant has experienced significant
scarring that required surgical correction by a plastic surgeon.”

So I found out at this point in time the complaint was because the patient
had to deal with the keloid scar. We tried to talk about the fact that you
can never predict when someone is going to get a keloid scar. He had not
gotten one before, but we had never burned as extensive an area before,
burned as deep and cauterized as deep as we had before. We had talked
about him with this and he had signed an informed consent which included
scarring as a possible side effect of the procedure. Well, we talked about
that.

I said, “Phyllis Anthony has written down these findings of fact that are
incorrect. I’m just praying to God that the complainant is going to tell the
truth.” If the complainant lies and says I wasn’t present at the clinic I’m
cooked. I can present staff, but who’s going to believe you on staff? You
bring them in, I can present charts that I was there right before and right
after, but how am I going to – it’s going to be my word against Phyllis

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Anthony and the complainant that I wasn’t in the clinic that day. So we
had some discussion back and forth and then they put the complainant on
the telephone.

Actually, I have to say this. Dr. Miller asked me, he said, “Did you…” I
can’t remember. One of them specifically asked me, “Dr. Lewis, did you
do any of the wart removal?” I couldn’t remember. It was by now over
two years since the incident. I said, “I normally do, but I have to tell you,
I can’t specifically tell you that I did because I don’t remember. I just
know that I always do. I always ask the student if they feel comfortable.
If they feel comfortable they can go ahead and do it. If at any time during
the procedure they feel uncomfortable then I take over.”

Well the complainant came on, praise God. He just – his version was
exactly the same as mine from his perspective. He didn’t like the fact that
I had left the room. I found out for the first time that while I was out of
the room on the phone the medical student was telling him, “I don’t have
any idea if I’m doing this right. I’m not comfortable doing this. I wish I
wasn’t doing this.” Expressing a lot of nervousness about doing the
procedure.

So, but he did – the complainant then did say, “Yes, Dr. Lewis did the first
procedure, the first wart. Did the local. Did the first wart and then was
called from the room. He asked the student to do the local on another
cluster and she did that. Dr. Lewis came back into the room said, ‘That’s
good, yep, that’s fine.’ We started cauterizing the warts and then Dr.
Lewis was called from the room again for the phone. The medical student
finished the procedure and that was it.” That was his testimony.

Dr. Miller said, “Do you want to ask any questions through us? You don’t
talk directly to the complainant.” I said, “Yeah, I have a few questions.
Number one, did the medical student ever express any uncertainty or
nervousness or reluctance to do the procedure? Because I had asked her
specifically and she had said she was comfortable. Number two, you
always ask the patient if they’re comfortable. At any time did you ask,
‘You know what? Stop the procedure and let Dr. Lewis finish?” His
answer was, “No. She only talked about how nervous she was when he
was not in the room. Number two, I never said anything about the
procedure, about having Dr. Lewis finish the procedure.”

So I felt real good. I was going, “Praise God.” When I was going outside
I was thinking, “I’m going to go downstairs. They’re going to call me
back in, ‘So sorry to bother you.’” I’m even thinking they might
discipline Phyllis Anthony what they now know to be a false findings of
fact. This is I think a pretty serious, blatant abuse of the position of
investigator. I had told them that I had had conflicts with Phyllis Anthony

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personally and we had had some shouting matches on the phone and I
didn’t appreciate the way she talked to me and so on and so forth. I didn’t
think she was a fair investigator to be handling the case.

I came back up. Joyce Smith was the attorney for the board. They tell
me, “You’re guilty. You’re in violation of dishonorable – unprofessional
and dishonorable conduct, failure to practice manage an assistant, failure
to adequately supervise and failure to properly delegate certain medical
duties.” So the board – the charges against me were delegation to an
unqualified person and failure to properly supervise. So it came down to
an issue of walking out of the room to take a phone call without losing
visual contact. I had enclosed pictures of the phone that I was on in the
procedure room where the procedure was done and how you could see. I
don’t know if they ever looked at those or ever saw those or not.

So Dr. Miller goes, “This is what it’s going to be. It’s going to be $1000
and you’re going to take these 10 hours of courses and classes. You’re
going to sign this agreed order.” I told him I didn’t need time to think
about it. “You’re asking me to sign a document that you know is false.
You’re asking me to sign a findings of fact that you actually know is false.
I’m not going to do that. I can tell you right now I’m not going to do it.
So whatever the next step is is going to have to be the next step.”

So they basically said, “Well, okay, go on outside and think about it

anyways.” So I go outside. I come back in and I told them, “Having
students is one of the most pleasurable things, most fulfilling things that I
did in my practice.” I had students from every medical school in Texas
rotate through with me in family practice. So on the way down, after I go
back in and go, “I can tell you I don’t have to think about it. I’m not going
to sign this. You know it’s wrong. I’m not going to sign it.”

So on the way down the elevator Joyce Smith says, “You realize you need
to talk to an attorney. You need to talk to an attorney. You need to get
your attorney to call me so that we can clean up the language of this
complaint.” I’m telling the board, “Look, there was a bad outcome. There
was a scar. As Dr. Price said, sometimes bad outcomes are from
misdeeds, medical mistakes, but not every bad outcome is because of a
medical mistake. Sometimes bad things just happen. They just happen.”
You do everything the way you did it before, you get a keloid scar. I have
no control over that. God’s in control over that.

So on the way down Joyce Smith says, “Do you know that if you don’t
take the informal show compliance offer, we go after your license?” Why
didn’t I – the first time I’d ever heard was today that they couldn’t change
from what they proposed at the informal show compliance. That’s
certainly not the impression they give you. They specifically threaten you

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 with a more severe, as the attorney said they’ll do it but when we went to
SOAH it was basically the same thing. They wanted $1000 and they
wanted me to take 10 hours of medical records and 10 hours of medical
ethics. So a long time went by, a lot of money to attorneys, a lot of
anguish.

Chairman: Doctor, I’m sorry. Can you kind of hit the high points?

Lewis: I’m about through. So we get to SOAH and we’re going for a mediation.
The mediating judge said, “What’s wrong with this informal settlement
offer?” I tell him. I said, “First of all I don’t think you want to say that
third year medical students aren’t qualified to burn off warts. They’re
doing all kinds of things. Number two, I still haven’t seen, and I didn’t
have a peer review, I didn’t have an expert witness review my chart. All I
had was it is a violation of a board rule to take a phone call while the
medical student cauterizes warts.”

So my attorney and I said, “Here’s what happened. If they’ll put down

what happened,” by this point I just want it to be over. I just want it to be
finished.

I had made some remarks. I was the President of the Texas College
Osteopathic Family of Physicians in ’03. That was after this thing had
started. I had made comments to our board of governors during a meeting
at which David Garza and Roberta Kalafut were present that I felt like this
board was just harassing doctors and trying to intimidate doctors and in
my case were trying to intimidate me into signing a document that they
knew was false and not doing anything to the investigator who has written
the false report. After that I started getting complaints in earnest against
me from the board but that’s another story.

Basically I said, “If you write this thing to what happened that day I’ll
give the board their $1000. I won’t take students anymore. They changed
the rules on me and I didn’t even know.” That was it. I paid the $1000,
took the 20 hours. I could take students if I did all this other stuff that they
put in here but I’m just not going to do it. Most family physicians
wouldn’t do it if they knew that they were responsible for every single
thing, that they had to stay in the room with the medical patient – I mean
with the medical student at all times.

Chairman: Members, any questions? Thank you doctor.

[Applause.]

Chairman: The Chair calls [Lease ??] Filler, Citizens Commission on Human Rights,
speaking neutrally.

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Filler: My name is Lease Filler. I’m with the Citizens Commission on Human
Rights. Wow, what a day! If you could do it every now and then, no
matter which side of the medical board you’re on, it’s good for a agency to
have it’s laundry aired every now and then. That’s certainly happened
today.

Now I’ve been on the other side of this. I’ve filed medical board
complaints. I’ll tell you, in two years, after two years it still baffles me as
to what it could take to get a medical board complaint substantiated.

An example would be the Andrea Yates case. We had her records

reviewed by a psychiatrist, a pharmacist, an internist, a
pharmacotoxicologist and wrote a complaint based on their facts and
findings. Every one of them found problems with the antidepressant she
was given like excessive dose, things like that. We sent it up, nothing
happened. So this is a continual thing.

Last year or the year before we sent in a complaint on a young boy who
was given an antipsychotic and developed a blood disorder. In the record
his psychiatrist said, “Yeah, it’s probably caused by this.” He continued
to give it anyway. So we sent in a complaint. Nothing happened. So
unlike a lot of the other people here today that’s maybe gotten nailed too
hard, a lot of times we don’t see action happening. It leads me to believe
that – I don’t know, what would you call it, capricious? It’s hit and miss.
There’s some variable that we don’t understand. That might be one of the
answers is making sure that doctors and the public understand how the
medical board is going to take things.

The other thing that I’ve learned is in Texas if you’re a felon you can’t
vote, you can’t carry a gun, but you can practice medicine. That bothers
me. I’m going to give some examples. Psychiatrist Richard David
Yantes, convicted on 13 counts of fraud, served 23 months in federal
prison. Now this is from the Medical Board’s documents. 23 months in
federal prison and then following his release in 2000 he [inaudible
3:27:31] to get his medical license. Before long he’s able to practice
under restriction. He’s supposed to be on this five year probation where
his practice is under restriction. Within three years his license is free and
clear.

Robert Havely Gross, one charge of criminal contempt, one charge of

healthcare fraud. Spent his time in jail, comes out. It sounds like he’s
going to have quite a bit to do but technically he can practice medicine.
One of the doctors that were involved in the big motorized wheelchair
fraud scheme in Houston got convicted. He got convicted on 20 counts of
healthcare fraud and one count of conspiracy. The medical board said he

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 could practice while his appeal was pending. Today he’s in prison and his
license is under suspension. I assume that means that when he gets out, if
he’s still young enough to practice, he can practice.

There is definitely something wrong with our medical board system. It

beats me how to fix it. I’ve heard some good suggestions today. I think
transparency is key. I think knowing that the decisions of the medical
board are somewhat dependable and somewhat standard would be a good
place to start.

I think not being able to practice medicine if you’re a felon is a good place
to start. Let’s face it, you can do some pretty doggone dangerous things
with drugs, with surgeries. That’s a really big responsibility. You go to
your doctor – who else do you meet for five minutes after meeting them
maybe you’re stripped naked? That’s a pretty big deal.

[Laughter.]

Filler: But a felon can do it? Something’s got to change here. I appreciate what
y’all are doing.

The other issue, another [inaudible 3:29:24] alternative paths here. Over
the years we’ve heard from some alternative doctors that they’re under a
bigger burden than those who do standard medical practice. I would urge
you all to make sure there is a petition for a physician on the board for
people who do practice alternative medicine. If you have bought into the
pharmaceutical literature or whatever, what are the odds you’re going to
give a good decision to somebody who hasn’t?

My own doctor’s a good example of that. He’s real careful because

there’s certain things I don’t want to do. I don’t want to take aspirin every
day. I had to go somewhere else to find out I could take fish oil instead.
He’s like, “Yeah, you can do that.” They ought to feel free to practice
medicine and discuss things with their patients. If it takes an extra layer of
disclosure so the patient knows what they’re getting into, hey, let’s do it.
but let’s make sure that people are treated fairly and that when there’s a
problem that the Medical Board acts and we can depend on them to act
and we can depend on them to act fairly and not capriciously. That’s
about all I had to say. Thanks.

Chairman: Any questions members?

[Applause.]

Chairman: Thank you.

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Filler: Thank you.

Chairman: You were next up? I was just going to ask you first if you can do this in
seven minutes? [Inaudible 3:31:00] after her.

Pigott: My name is Shirley Pigott, M.D. I am a diplomat of the American Board

of Family Medicine. I am a fellow of the American Academy of Family
Physicians. I practice solo family medicine in Victoria, Texas for 24
years.

I’m going to tell you some things that you don’t know that you will never
see unless I tell you. I became interested in bad faith peer reviews because
I experienced it. Otherwise, how would I know about it? Most doctors
who are shammed peer reviews are ashamed and won’t tell anybody. I’m
not ashamed and I’m telling people. That’s the only way I would know
that it exists. I received – the board received a complaint on me in about
March 2006 for an untimely release of a lab report. This is in a patient
who came to me to have me interpret her lab report. She could have
gotten an uninterpreted report from the lab.

Chairman: Do you want to move that mic a little bit closer to you? There you go.

Pigott: Okay. Do I have to start over?

Chairman: No, go ahead.

Pigott: Okay. Now, based on that untimely release of lab report, I didn’t do it
within 15 business days because the patient came to me for the
interpretation. I was given a proposed public disciplinary order signed by
Dr. Roberta Kalafut. If I had signed this order I would have agreed to
false findings of fact. I would have agreed to conclusions of law based on
false findings of fact. I would have agreed to an order based on
conclusions of law based on false findings of fact. I would also have
agreed that I’m a danger to the public. This is because I didn’t release a
lab report? I would have agreed that I was intending – I want to say that I
would love to put myself under oath.

Female: You are.

Pigott: Good. I would love to offer the board to ask me anything that they say
they can’t ask me.

Chairman: You only have seven minutes so you better hurry.

Pigott: You gave everybody else more than that.

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Chairman: Yeah, but it’s after 9:00.

Pigott: You waited till 9:00 to call me. If I had signed that I would be waiving
unspecified rights, rights guaranteed me by the U.S. Constitution and the
Texas Constitution, unspecified. I would be agreeing never to appeal. I
would be agreeing to an administrative penalty to save money for the
people of Texas.

When I was being investigated I asked Mrs. Robinson if this was really an
appropriate expenditure of the taxpayers’ money to investigate me for a
delayed release of a lab report. She never answered by the way.

I would be agreeing to have a doctor appointed by this board, unspecified

credentials, monitor my medical practice a minimum of 30 charts a quarter
paid for at my expense for a year. If this doctor recommended anything
I’m supposed to do it. Now I think I’m a pretty good doctor and I’m not
going to do what some uncredentialed doctor tells me to do. Now at the
end of the year this could be renewed indefinitely.

Now if you would look this up on the board’s website it’s not going to be
there because I didn’t sign it. I’ve got it here. You can see it. I didn’t
sign it. I wrote a letter to Dr. Kalafut telling her that this was so
outrageous I suspected there was another agenda. Dr. Kalafut never
responded.

Now I’m going to go to something else because you’ve heard so many

cases about that. You’ve got to listen for a minute. I’ve got documents
here and .PDF files that I would love to share with y’all. You know .PDF
files cannot be altered.

I’ve got a document here from Chris Kuhne, SOAH judge Wendy Harvell
analyzed. She was an administrative law judge. I’ve got her analysis
here. She recommended complete dismissal of a $40 accidental
overcharge. I heard this lawyer practically get down on his hands and
knees begging this board not to file her recommendation. They went into
executive session for 30 minutes. When they came out they said, “We
didn’t make any conclusion.” Then a minute later some board member
raises his hand and said, “I didn’t understand what was going on. I had to
ask the lawyers afterwards.” But they increased his fine from $1000 to
$10,000. I don’t know if that’s published yet or not so I won’t say that.
I’ve got that SOAH hearing analysis by Judge Wendy Harvell. I attended
that board meeting. I think it made some of the members nervous.

Okay, I’m going to go to what I’ve got next. I’m the one who questioned
Roberta Kalafut about her credentials. I made a complaint to the Texas
Medical Board about her credentials based on what two other doctors have

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 told me because they wouldn’t make the complaint, I would. I’m the one
who plastered her name all over the internet because she wouldn’t
respond.

Chairman: Doctor, let’s don’t get personal.

Pigott: Okay. It’s hard to do.

Chairman: Let’s stop. You’ve only got 25 seconds anyway.

Pigott: Okay. [Regis ??] Hughes is a nurse that works for another former board
member who has admitted on her – to the Texas Nursing Board to over 50
forgeries of schedule two controlled substances. She’s still practicing.

Chairman: That’s a whole other agency so let’s just leave that alone, okay.

Pigott: It’s regarding a board member that they will not investigate.

Chairman: I understand, but that board member is no long a board member.

Pigott: But he’s a physician.

Chairman: I understand.

Pigott: All right.

Chairman: Let’s just stop.

Pigott: All right.

Chairman: Members, do we have any questions?

Pigott: Ask me any questions you want to. I am under oath.

Chairman: We’re all under oath. Everybody’s under oath.

Pigott: I didn’t know that.

Chairman: If you’re in this room you’re under oath, yes ma’am.

Pigott: They are under oath?

Chairman: Yes ma’am.

Pigott: Good.

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Chairman: Representative Van Arsdale.

Van Arsdale: Dr. Pigott, is that right?

Pigott: Yes.

Van Arsdale: To your knowledge has any complaint been filed against Dr. Miller?

Pigott: Yes, I’ve filed about a dozen and Mari Robinson has lost – I’ve got a
receipt from the for filing four complaints by certified mail since the board
– the person who is involved in investigations with this board says that
she’s never gotten the complaint. I’ve got the receipt. She said she loses
too many certified mail. Give her a chance to respond.

Chairman: Do you have anything else, members?

Pigott: I’ve also made complaints about deposition by email, by the board’s
website. I’ve written all of the board members who will give me their
email addresses making complaints about this physician. Do you have it
logged in?

Robinson: I’m sorry, I can’t [inaudible, off mic 3:40:00].

Pigott: Yes you can. I waive.

Chairman: No. Doctor, that’s all right. Let’s – there’s no other questions, thank you.

Pigott: Okay, thank you.

[Applause.]

Chairman: Monica Litticky. The Chair calls Monica Litticky. Thank you. Dr.
Russell Robey. Dr. Russell Robey? Just keep going. He was appearing,
testifying against. Is there anyone else who would like to testify on, for,
against the Texas Medical Board? Hearing no one. Dr. Patrick, Mari,
anybody, y’all want to say anything, any closing?

Robinson: [Inaudible, off mic.]

Chairman: Thank you. I appreciate y’all have been good sports through all this. It
would be hard for me to sit here and have everybody attacking me.

[Laughter.]

Chairman: So I appreciate y’all. I mean y’all have been here just like we have, since
10:00 this morning. Y’all have taken a lot of heat. I sincerely appreciate

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 the changes we talked about earlier and the – I’m flabbergasted that you
went from 180 days down to 86 days, is that what it is? Good job. We’ll
get back together with y’all at a later date.

Do the board members have anything else? We thank y’all for being here
for the day. All the rest of you folks, thank you for staying with us the
way you have. If somebody’s buying margaritas let us know. We’ll be
there.

[Laughter.]

Chairman: There being no further business this hearing is adjourned.

[End of Audio.]

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