Article by: Nicolas Lund
The Medical Malpractice and Tort Reform Act, passed by the Texas legislature in 2003, changed the face of Texas health care litigation. The Act, which imposed strict procedural requirements on health care liability plaintiffs, and limited non-economic damages to between $250,000 and $750,000, depending upon who was named as defendants, drastically reduced the number of medical malpractice lawsuits filed every year in Texas. With this reduction in the private “check” on physicians and health care providers, the State of Texas determined that increased state action was called for, and began to increase the number of investigations and disciplinary actions taken by the Texas Medical Board, a state administrative agency which regulates the practice of medicine by Texas physicians.
This new wave of Texas Medical Board activity, however, exposed an issue which was inherent in the existing administrative framework— the Board had only two options when faced with a potential violation of Board rules: the outright dismissal of a Board complaint, or a disciplinary order, the latter being reportable to the National Practitioner Data Bank, which can adversely effect a practitioner’s credentials, licensure, insurance, and privileging. Not wanting minor infractions to go unpunished, but seeing the potential harm in issuing disciplinary orders for petty violations, the Board sought respite from the Texas legislature.
In 2011, the legislature answered the Medical Board’s call, promulgating a new statutory framework which introduced the “Remedial Plan.” Under this new statute, and in addition to its existing power to grant a dismissal or impose a disciplinary order, the Board is authorized to issue a non-disciplinary order known as a remedial plan. A remedial plan typically imposes an obligation or penalty against an alleged offender, which can vary broadly from compelled Continued Medical Education (C.M.E.) hours, to requiring practitioners to re-take the Jurisprudence exam. Additionally, remedial plans are almost always accompanied by a fee of $500.00, to cover the costs of administering the plan. Importantly, however, a remedial plan levied by the Texas Medical Board is a non-disciplinary sanction, and is not reportable to the National Practitioner Data Bank, and is not published in the Board’s press releases and newsletters. A remedial plan is, however, reported indefinitely on the Texas Medical Board website’s physician profile page.
Remedial plans are not always available, though, and the Board may be limited to the traditional categories of dismissals and disciplinary orders when a Board complaint involves a patient death, the commission of a felony by the accused, an allegation of inappropriate sexual behavior or contact with a patient, or an allegation of improper personal or financial involvement with a patient. Additionally, remedial plans are not permitted when the accused physician has previously entered into a remedial plan for the resolution of a prior Board complaint. There are also limitations on the scope of available punishments under a remedial plan, including a statutory provision that the terms of a remedial plan cannot revoke, suspend, or limit a practitioner’s licensure or authorization to practice medicine in Texas.
The overall desirability of a Texas Medical Board remedial plan depends largely on the circumstances surrounding each case. On one hand, remedial plans are non-disciplinary orders, and are not reportable to the NPDB. As a result, remedial plans can offer a palatable solution to resolving potential infractions, without the widespread financial and administrative harm. On the other hand, the State Board appears to be somewhat more cavalier in issuing remedial plans than they were with issuing disciplinary orders, which can sometimes result in the allocation of a slight penalty in circumstances where the Board would previously have allowed outright dismissal.
With the addition of the remedial plan to the Texas Medical Board investigatory and disciplinary framework, physicians are now faced with increasingly complex and unfamiliar circumstances in the event of a patient complaint. Physicians are always well-suited to seek the advice and assistance of an experienced health care attorney, who can help them determine whether seeking a remedial plan is right for them.
 See, Tex. Occ. Code Ann. § 164.0015, et seq. (West, 2014)