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The Texas Medical Board & You

By Kenneth Alan Totz, DO, JD, FACEP

I would like to begin a series of articles introducing our members to the history of The Texas Medical Board (TMB), where it derives its powers, and the rules that they have developed to guide our medical practices. Unfortunately, due to where we went to medical school or a simple paucity of time in medical education, there is a vast void of medical-legal knowledge that we should all have as physicians. My goal is to present relevant, bite sized sections of Texas Law in each of my newsletters that I hope will empower you to be a better physician. I will include hyperlinks to the laws and resources where applicable, so you can review any further details at your discretion.

In 1837, The Congress of the Republic of Texas created the Board of Medical Censors for the purpose of granting medical licenses. During this initial governance, The Medical Practice Act was written by Dr. Anson Jones and adopted by the Board. The initial Board underwent several legislative iterations in the coming decades until 1907 when The Texas State Board of Medical Examiners (TSBME) was formed. The TSBME maintained a fairly stable appearance over the next 100+ years until 2005 when it underwent its most recent name change to The Texas Medical Board (TMB). Today, by statute, the TMB is composed of nine allopathic physicians, three osteopathic physicians, and seven public members.

The Texas Legislature enacted The Medical Practice Act, which governs the actions of all practicing physicians in Texas. The Medical Practice Act can be found in the Texas Occupations Code, Chapters 151-170. (https://statutes.capitol.texas.gov/?link=OC). A legal code is a consolidation of laws into similar subject matters. The executive branch of government enforces the Medical Practice Act through one of its established agencies, the TMB. The TMB in turn, develops its own set of rules and regulations, which are housed in the Texas Administrative Code Title 22, Part 9. The Texas Administrative Code (TAC) is a compilation of rules established by all State agencies.

Now, let’s look into one of the subparts of the TAC; Title 22, Part 9, Chapter 165, Section (§) 165.1 (medical records). The TMB requires that each licensed physician of the board shall maintain an adequate medical record for each patient that is complete, contemporaneous and legible. An "adequate medical record" should meet the following standards (I have included all of the relevant EM related documentation mandates):

  1. The documentation of each patient encounter should include:
    1. The reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;
    2. An assessment, clinical impression, or diagnosis;
    3. Plan for care (including discharge plan if appropriate); and
    4. The date and legible identity of the observer.
  2. The rationale for and results of diagnostic and other ancillary services should be included in the medical record.
  3. The patient's progress, including response to treatment, change in diagnosis, and patient's non-compliance should be documented.
  4. Relevant risk factors should be identified.
  5. The written plan for care should include when appropriate:
    1. Treatments and medications (prescriptions etc.) specifying amount, frequency, number of refills, and dosage;
    2. Any referrals and consultations;
    3. Patient/family education; and,
    4. Specific instructions for follow up.
  6. Include any written consents for treatment or surgery requested from the patient/family by the physician.
  7. Include a summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made regarding the patient.
  8. Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.
  9. All non-biographical populated fields, contained in a patient's electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician.
  10. Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.
  11. Salient records received from another physician or health care provider involved in the care or treatment of the patient shall be maintained as part of the patient's medical records.

As I noted earlier, the TMB has the ability to define the rules upon which we practice medicine. They also have been granted the authority to enforce those rules through various penalties and sanctions. To demonstrate their authority, the TMB puts out a quarterly newsletter entitled The TMB Bulletin. (http://www.tmb.state.tx.us/showdoc/tmb-bulletins). Inside each edition the TMB passes along issues related to the Board such as rule changes and other matters in Texas health care. They also publicly announce the names of physicians that have violated Board rules along with their prescribed punishment(s). Needless to say, this is not a publication you want to include on your CV! Here are some of the ways you can end up on the list:

  1. Issues related to quality of care
  2. Unprofessional conduct
  3. Nontherapeutic prescribing
  4. Improper prescribing
  5. Peer review actions
  6. Impairment
  7. Inadequate medical records

Since The TMB Bulletin is a public document, I will include some specific examples of how the TMB has disciplined physicians for inadequate medical records. The following three examples (of many) in the current issue of The TMB Bulletin illustrate the vivid format in which the TMB publicizes physician rule violation(s):

  1. Horndeski, Gary Michael, M.D., Lic. No. G2390, Sugar Land
    On June 15, 2018, the Board and Gary Michael Horndeski, M.D., entered into an Agreed Order requiring him to within one year complete the medical recordkeeping course offered by the University of California San Diego Physician Assessment and Clinical Education (PACE) program; and within one year complete at least eight hours of CME, divided as follows: four hours in patient communication and four hours in risk management. The Board found Dr. Horndeski failed to perform and document an adequate physical exam, history, assessment and plan, and note the rationale behind the ensuing course of action for one patient.
  2. Salvato, Patricia, M.D., Lic. No. G0049, Houston
    On June 15, 2018, the Board and Patricia Salvato, M.D. entered into an Agreed Order on Formal Filing requiring her to within one year complete at least 12 hours of CME, divided as follows: four hours in medical recordkeeping and eight hours in risk management. The Board found Dr. Salvato failed to maintain adequate medical records for one patient during the evaluation and treatment of Lyme disease. This order resolves a formal complaint filed at the State Office of Administrative Hearings.
  3. Sanderson, Shawn Christopher, D.O, Lic. No. Q2946, Burleson
    On June 15, 2018, the Board and Shawn Christopher Sanderson, D.O., entered into an Agreed Order requiring him to within one year complete at least 20 hours of CME, divided as follows: eight hours in geriatric emergency medicine, four hours in post-trauma patient care and discharge planning, four hours in medical recordkeeping and four hours in risk management. The Board found Dr. Sanderson failed to document the results of a hip examination, failed to document the patient’s ability to ambulate prior to discharge, and failed to timely update his practice address with the Board.

The medical record is your contemporary documentation and future communication with those who review your patient care. We often think of the medical record as a make-or-break document in medical malpractice litigation, but it can be equally or more important when facing the scrutiny of a TMB complaint or investigation. Take the extra few moments to be thorough in completing your medical records. That extra effort could be the difference between you making the all-star bulletin board in your group or the embarrassing TMB Bulletin in Austin.

Kenneth Alan Totz, DO, JD, FACEP

No information within this report should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances.