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Tony R. Bertolino

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The Dos and Don'ts When Appearing Before the Texas Medical Board or Texas Board of Nursing
by Tony R. Bertolino   

Last edited: Monday, June 29, 2009
Posted: Monday, June 29, 2009

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No medical professional wants to be brought before a review board to defend his or her practices against the complaints of an unhappy patient, medical professional colleague or employer. However, if you find yourself in that situation, you want to know that you are taking every step possible to insure the best outcome. Your license, livelihood and reputation as a physician or nurse may be at stake. By knowing what to expect before that board notice ever arrives in the mail, you are creating the circumstances for a pleasant resolution to the complaint process.

The number of complaints filed with the Texas Medical Board and Texas Board of Nursing has greatly increased over the past several years. This influx of cases is due largely to Texas legislation that capped the amount of non-economic damages that patients could recover in a medical malpractice lawsuit against physicians, nurses and other health care providers. And while Texas became a more welcoming state for physicians who appreciated the lower malpractice insurance and the lessened threat of a lawsuit, more patients now feel that their grievances are better addressed through the medical or nursing boards instead of the courtroom. Will you be prepared if you receive a written notice of investigation into a complaint?

While your attorney should prepare you for what you can expect when you appear before the medical or nursing board to answer the complaint filed against you, I would like to share my recommendations on what your chosen approach should be from the moment you find out that your day in front of the panel is coming.

The "Dos"

1. Do dress professionally

You may believe you are demonstrating a dedication to your profession by arriving at your hearing in scrubs or wearing a stethoscope, but there will be other opportunities to prove that you are a serious member of the medical community. Instead, the business attire that you would wear in any courtroom setting should be your clothing of choice for this important day.

2. Do be willing to admit to error

The board will be more lenient if you acknowledge that perhaps your best efforts were not demonstrated during the instance in question. As with Americans and their elected leaders, an honest apology goes a long way in mending a wrongdoing. Of course, your legal counsel should be very careful in advising that you to not testify to matters that may be self-incriminating or self-indicting.

3. Do reinforce your position with documentation

The best way to avoid your day in front of a board panel is to be meticulous in your words, actions, and decisions. Nurses need to know everything possible about their responsibilities regarding record keeping, how to provide optimal patient safety, and the procedures to follow when leaving an assignment. Doctors must always be polite and honest with patients, and be thorough in documentation and reporting. A solid paper trail that supports your side of the story is one of the strongest weapons that you have at your disposal.

4. Do accept the decision of the board panel

Once both sides have presented the facts, witnesses have spoken, and you have had a chance to share your recollection of the incident, the board is going to issue its decision. If the panel finds that the complaint has merit, the panel will share its recommendation for your penalty. There will be some room to negotiate, however. And if that fails, you will have the opportunity to appeal the decision to the State Office of Administrative Hearings (SOAH), at which time an administrative law judge will be assigned to the case and a more formal trial system takes over.

The "Don'ts"

1. Don't ignore notices from the boards

Like the electricity bill and those weekly phone calls from your mother, notices that you receive from the medical or nursing board must receive a response. Pretending an allegation against you does not exist is not a wise way to assert your innocence.

2. Do not circumvent the chain of command

Perhaps your favorite cousin is a staffer for your state representative and you think that a good word from the legislator would make this problem disappear. Or, you are considering a phone call to the local newspaper to share the unfair accusations that are being made against you. Do not circumvent the process. Be a strong advocate for yourself, but do so within the legal system.

3. Do not expect your attorney to do most of the talking

The members of the board panel want most of the discussion to be directly with you. You must be thoroughly prepared on the facts of the complaint; the details can be presented on your behalf, and your version of the events that prompted the hearing in the first place. If you constantly defer to your legal counsel, your competence and confidence in your own actions will be questioned and remain under serious scrutiny.

Conclusion

To be certain, no medical professional wants to be brought before a review board to defend his or her practices against the complaints of an unhappy patient, medical professional colleague or employer. However, if you find yourself in that situation, you want to know that you are taking every step possible to insure the best outcome. Your license, livelihood and reputation as a physician or nurse may be at stake. By knowing what to expect before that board notice ever arrives in the mail, you are creating the circumstances for a pleasant resolution to the complaint process.

Web Site: Bertolino LLP



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