The Victory in Texas Was Not Enough...

Opinion by Consumer Advocate  Tim Bolen 

Monday, June 27th, 2011

There is a story circulating around the internet based on an article originating from the American Association of Physicians and Surgeons (AAPS) website, talking about the legislative victory in Texas recently.  I don't disagree with the story.  Yes, it was a victory - but it simply wasn't enough.

It was a compromise solution which left the corrupt system in Texas in place.   More needs to be done.

In short, our bill HB 1030 passed the House 147 to 0 - but was blocked in the Senate.  The compromise bill, which DID pass both houses was called HB 680.  I'll explain more below.

For reference on this issue read my earlier article "In Texas..."

Here is what the AAPS said:

1. Establish a 7-year statute of limitations on complaints filed with the medical board.

2. End anonymous complaints.

3. Require disclosure to the physician when a complaint is filed by an insurance or pharmaceutical company.

4. Allow recording the informal settlement conferences with board officials, which will reduce their abuse of power.

5. Require the medical board to accept the findings of fact and law by the Administrative Law Judge.

However, here is what Steve Hotze MD, down in Houston says:

"Modest Reform of Texas Medical Board Achieved - Elimination of confidential complaints blocked by TMA

You can read the entire Hotze commentary by clicking here.

All this was a nose-to-nose confrontation with the Texas Medical Association (TMA).

Our people in Texas did not get everything they wanted THIS TIME, but let me put what happened into perspective.

The TMA has been a power house in Texas medical politics since the Alamo - but that power base is pretty much destroyed after this year's campaign.  Why?  Because the Texas House of Representatives gave TMA lobbying efforts, against HB 1013, the complete cold shoulder - and they passed HB 1013 147 to 0.  Unheard of ever before.

All the TMA had, as a tool to hold back HB 1013, was two Texas State Senators, both of which, for now, are in influential decision positions.  All indications are that, like the House vote, had HB 1013 been allowed out of committee in the Senate, it would have passed there also.  And, the Governor would have signed it.

So, in short, the TMA's power in the Texas legislature has been reduced to the point where they were, like a subservient kiss-up puppy-dog, licking the legs and feet of two female Texas State Senators, just to stay alive.

Here is what Steve Hotze MD also said:

"HB 1013, by Rep. Fred Brown, was the major legislative initiative to secure true and meaningful reform at the TMB. It provided for legal due process for physicians and required transparency and accountability by the TMB. HB 1013 had 87 sponsors and passed the Texas House by a 147-0 margin on May 10^th.

The major opponent to reform of the TMB this session was once again the Texas Medical Association (TMA). At every turn, the TMA opposed legal due process for physicians, and transparency and accountability of the TMB. Even after our overwhelming victory in the Texas House The TMA was able to persuade its allies in the Senate, Senators Joan Huffman and Jane Nelson, to block the block HB 1013 from being heard in the Texas Senate. As head of the Senate Health and Human Services Committee, Senator Nelson refused to give HB 1013 a committee hearing. Lt. Gov. Dewhurst was unsuccessful in his attempts to get Nelson to work with us on this bill.

Because of our work over the past 4 years, the TMA found itself in a position where it had to support some sort of "window dressing" changes to the Texas Medical Practice Act, so that it could boast to its membership that it protected doctors.

In reality the TMA worked full time to oppose legal due process for physicians offered in HB 1013 and put out a flyer to all the state representatives asking them to vote “No” on HB 1013.

The plan to block any meaningful reform of the TMB was developed by the TMA with its key allies in the Texas Senate, Senators Nelson and Huffman."

So, what will happen next?

A lot - and it is already in progress.

Remember that AAPS v Texas Medical Board Federal (TMB) court case?  Well - that case, after the TMB's effort to get it Dismissed failed in the Appeals Court, is in "Discovery."  (insert an evil sounding laugh here).  That process alone is something these people dread the most - shining a light on the corruption.  Here is what I said before:

"Wrong.  This case was a sleeper.  In other words, the strategy, right from the start was to low-profile it.  The fact is this case is a bombshell, designed to rip the quackbuster conspiracy from its roots, and spray Roundup on the stump.  This case is converging quickly with the Doctor's Data v Stephen Barrett Federal Court case.

What?  The two cases are related?

Ah, yup...

Right about now the quackbusters are probably buying Kaopectate by the case.  Certain of them are out clothes-shopping, buying a larger pant size to cover up the constant wearing of Depends.  Here's why...

"AAPS sued the Board on behalf of its members for what it describes as pervasive and continuing violations of members’ constitutional rights. AAPS alleged first that the Board manipulated anonymous complaints. Illustratively, Kalafut targeted physicians using anonymous complaints filed by her husband, and anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying a physician for claims.

Second, AAPS alleged that the Board knew that the former chairman of its Disciplinary Process Review Committee, Keith Miller, was operating with a significant conflict of interest, but it took no corrective action and failed to disclose the conflict to the public or the physicians subject to discipline. Dr. Miller was allegedly an expert witness for plaintiffs in up to fifty malpractice cases during his tenure as chair of the committee and generated business for himself as an expert by improperly disciplining physicians.

Third, AAPS alleged that the Board arbitrarily rejected a decision in favor of a doctor by an administrative law judge from the State Office of Administrative Hearings, and then issued a sanction that damaged the physician’s reputation. Fourth, AAPS asserted that the Board violated AAPS members’ privacy by releasing unproven facts and records concerning disciplinary cases.

Finally, AAPS alleged that the Board has retaliated against physicians who have complained about the Board by subjecting them to disciplinary proceedings and derogatory public comments. AAPS alleged violations of the confrontation clause and the due process, equal protection, and free speech provisions of the Constitution, and violation of federal statutory privacy requirements."

Right about now the TMB's whimpers for help may be being heard in the TMA offices, but that same TMA is licking it's own wounds, afraid of what is going to happen to itself, over the next few years.  Neither of them have a whole lot of friends in the Texas legislature anymore.

I wrote this, below,  last April, about this situation.  It is even more appropriate now:

"So now, probably in mid-January "Discovery" in the case will resume.  Information will be demanded that the Texas Medical Board has hidden for a very long time - and they are going to have to turn it over, like it or not.

And, that's when the fun begins.   Why?

Because the Texas Medical Board has relied on the Anonymous Complaint format to justify spurious attacks on doctors.  AAPS will simply demand two things for sure:  (1)  copies of every complaint filed against its members, and (2)  copies of every complaint filed against EVERY MD in the State for the last five years.

When this info is provided, I suspect, and the Court will demand it, several things will happen, one of which will be the convergence of the two Federal Court cases. 

Why will this converge the two Federal Court cases?  Because we already know, for instance, that Stephen Barrett, himself, filed about five separate Anonymous Complaints against Jesus Caquias MD, mentioned in the Doctor's Data v Stephen Barrett Federal Court case, and offered himself as an expert witness against Caquias.  More, bobbie baratz, Barrett's buddy, and president of the NCAHF, was the ONLY witness against William Rea MD, the Doctor who had six anonymous complaints filed against him by a New York insurance company who didn't want to pay him.

More - when the AAPS gets copies of the complaints filed against EVERY doctor in Texas all they have to do is send a copy of that complaint to the Doctor victim with a questionnaire - and the fur is going to fly - with a major scandal in Texas that's NOT going to settle down for a very long time."