AUSTIN (KXAN) — Sitting in a white-walled room, legs crossed and body just out-of-view of the hidden camera he brought along, an undercover officer said his back hurts — but “stronger medication” would help.

“We have to see if you have real pain first,” Dr. James Pierre said in the video, before he is seen giving a physical exam that lasts just 30 seconds.

“I’m going to start you off as acute pain,” Pierre told the Drug Enforcement Administration agent who posed as a patient. “Which, for you, will be no more than twice a day for the pain medication.”

Off camera, Pierre wrote a prescription for 60 hydrocodone pills, according to the DEA in Houston. That is where Pierre owned and operated the West Parker Medical Clinic, which authorities say was nothing more than a cash-only “pill-mill.” Federal authorities arrested Pierre in 2017, the year after the undercover video was recorded.

This past March, Pierre, 52, was convicted of illegally prescribing more than a million opioid pills between 2015 and 2016. Federal investigators said Pierre sold potentially deadly mixtures of pain pills and muscle relaxers — called a “Las Vegas Cocktail” — without any legitimate medical purpose, charging upwards of $500 in cash. The operation, court records show, netted the unlicensed pain management clinic $2.4 million over one year. More than $300,000 of that went to Pierre’s pockets, according to the Department of Justice.

It turns out, the Texas Medical Board was aware he was giving hundreds of patients pain pills they didn’t need — yet still allowed Pierre to practice.

‘A threat to the public welfare’

In 2016, the TMB’s own public records show Pierre’s medical license was suspended. The board said he operated an “unregistered” and “unlicensed pain management clinic” where he “nontherapeutically prescribed controlled substances.” In a one-month period in 2016, the board identified 729 prescriptions written for at least one opioid. In 2015, over the span of nearly nine months, Pierre wrote 8,934 prescriptions — 98% of which were for the highly-abused hydrocodone and carisoprodol — in some cases without any physical exam, the board also found.

“Respondent’s continuation in the practice of medicine would constitute a continuing threat to the public welfare,” the TMB wrote in its suspension order dated Aug. 26, 2016.

As if to put a fine point on it, leaving no room for doubt, the TMB in its suspension order defined “continuing threat” to mean: “a real danger to the health of a physician’s patients or to the public… caused through the physician’s lack of competence…”

Despite that warning, the board lifted Pierre’s suspension 10 months later on June 16, 2017.

In public disciplinary records, the board cited “mitigating factors” in its decision to allow Pierre to keep treating patients. Among them: he “expressed remorse;” had a “genuine misunderstanding” of pain management requirements; and was a “very young and inexperienced physician.” He was 46 years old at the time and had been practicing in Texas for over a decade, records show.

The TMB ruled Pierre could continue seeing patients with certain restrictions: He could not write long-term prescriptions for controlled substances or treat chronic pain patients for five years. Pierre was arrested on July 11, 2017 and released on a $100,000 bond.

More than a month after his federal conviction, Pierre’s license was still listed as “active” on the TMB website with no record of his criminal history.

“TMB is prohibited from discussing the specifics of confidential deliberations,” said TMB spokesperson Jarrett Schneider. “However, the individual was prohibited from treating for chronic pain for a period of five years in 2017. He had additional limitations placed on his practice, the location where he could practice, limits to prescribing controlled substances, and monitoring. The restrictions continue to remain in effect. The conviction you are citing occurred approximately two weeks ago [at the time the statement was issued]. As with all licensees, the Board will review this conviction for appropriate action based on our standard process.”

Pierre could face more than 20 years in prison when sentenced on June 27, according to a DOJ news release. Messages left with his attorney were not returned.

Licensed until law enforcement

Patient advocates worry allowing doctors facing serious misconduct allegations to keep practicing puts patients at risk. Some worry dangerous doctors won’t stop unless they’re in handcuffs.

“We shouldn’t be relying on our police and prosecutors to finally stop these doctors from hurting people,” said Ware Wendell, the executive director of Texas Watch, a nonpartisan organization based in Austin that advocates for patient safety.

Wendell is pushing lawmakers to introduce legislation in response to what KXAN uncovered that would include, among other things, how physicians are disciplined. In response to our investigations, Rep. Julie Johnson (D-Farmers Branch) is drafting a bill and calling for the TMB to be audited.

“We need the medical board to step up and do its job,” Wendell said. “They say their job is safeguarding the public. Do it.”

The TMB declined an on-camera interview. In a statement, Schneider said the board would, generally speaking, “welcome the opportunity” to work with any member of the legislature “to better serve Texans.” He defended the way the board disciplines doctors.

“Each case will have its own set of facts, as well as possible aggravating and mitigating factors,” responded Schneider in a statement. “Active criminal charges can sometimes make it easier to limit a physician whereas criminal charges that are reduced or dismissed can make it more difficult to limit a physician. The same goes for participating and nonparticipating witnesses.”

Schneider said the agency places restrictions on physicians as a way to address an “immediate threat to the public.”

“The Board seeks to take an action based on the evidence available at the the time that it feels can best protect the public in any given case,” he added, “while also providing the physician with statutorily required due process throughout the investigation and administrative proceedings.”

A KXAN investigation found at least eight cases where Texas doctors face multiple complaints — even convictions — yet the TMB allowed them to still practice. Six of those cases were from as recent as TMB’s March 2022 bulletin.

Most involve doctors credibly accused of sexual misconduct with patients.

That’s what happened with Austin family physician Dr. David Butler.

Like Pierre, the TMB labeled Butler a “threat to public welfare.” It suspended his license on Oct. 2, 2019. The board’s own investigation found a “pattern of inappropriate sexual contact” with at least 10 patients including a 17-year-old. For some of those patients, Butler “inappropriately prescribed” controlled substances “without medical justification,” the board determined.

But two months after suspending his medical license and calling him a “threat” to the public, the TMB lifted his suspension on Dec. 6.

“[Y]ou’re referring to a Temporary Suspension, which prescribed in statute, is a ‘temporary’ action until the Board takes a subsequent future action,” Schneider wrote in a statement. “The criminal charges against David Butler came after the Agreed Order was entered, and the Board suspended him again based on the criminal charges. The suspension of his license remains in effect today.”

That “Agreed Order” allowed Butler to keep treating patients again — but only men over 18. Within days of that action, the board warned Austin police about Butler’s “possible criminal violations” as it allowed him to practice.

Butler was only stopped from seeing patients after he was arrested on April 15, 2020 — four months after his license was reinstated — on possession of child pornography charges. Court records describe evidence as “scores” of images on a thumb drive, including some as young as toddlers.

Five days after his arrest, on April 20, the TMB again suspended Butler’s medical license. He was released from the Travis County Jail on a $50,000 bond and ordered not to have contact with minors. He is due back in court on June 8.

Butler declined to comment about the ongoing case.

He “plans to resume his practice in the future,” according to his website.

“In many instances, they’re bending over backwards to give the least harsh penalty so as to not interfere with the doctor’s ability to practice medicine,” said medical malpractice attorney Kay Van Wey, who represented victims of Texas neurosurgeon Dr. Christopher Duntsch. Five years ago Duntsch — dubbed “Dr. Death” in the media — was sentenced to life in prison for killing and maiming his patients.

The case, which gained national attention, highlighted the TMB’s inaction when it comes to stopping dangerous doctors from practicing.

“I honestly think there is some type of philosophical approach that they have where they really don’t want to interfere with the doctor’s ability to practice medicine,” Wey said. “You can’t be an imminent threat to your patients and then not be a few months later.”

Whistleblower: ‘Board is very lax’

According to its mission statement online, the TMB’s role is to “protect and enhance the public’s health, safety and welfare” by maintaining “standards of excellence and ensuring quality care” in part through “discipline.”

The mission is familiar to a TMB insider. KXAN agreed to conceal this current employee’s identity because they are not authorized to speak to the media and could be fired for doing so. This whistleblower, whose identity and employment KXAN has confirmed, isn’t surprised by the cases we uncovered.

“It tells you the board is very lax when it comes to reprimanding physicians,” the insider said.

The TMB employee said complaints from hospitals, doctors and even board members take “priority” over complaints made by patients. The agency, the employee explained, lacks the investigative resources needed to tackle every complaint and the will to take away a doctor’s ability to earn a living.

“Yes, we are here to protect the public,” the employee said. “But, in reality, I don’t think that they [TMB] do enough.”

The TMB declined to comment on this point.

“We do not have a comment regarding remarks from an unnamed individual,” Schneider said.

KXAN looked at physician disciplinary data from 2019-2021 in Texas and compared it to Florida, a state with nearly the same number of physician licenses.

In the last three years, we found 83 Texas medical licenses were taken away or surrendered. That’s less than 2% of all TMB investigations.

In comparison, Florida had 136 licenses revoked or surrendered, equaling more than 5% of all its investigations.

Overall, in Florida, 50-66% of all investigations resulted in disciplinary actions in the last three years compared to just 10% in Texas.

Patient advocates like Wendell say the TMB needs a self-examination.

“If you care about patients, you need to aggressively act on behalf of the patient,” Wendell said. “If there’s a dangerous doctor, that doctor should not be practicing medicine in this state. The ability to practice medicine is a privilege — it’s not a right. And if that privilege is being abused, we need the medical board to step in on behalf of us, the patients, and make sure we are actually protected.”

Graphic Artist Rachel Gale, Director of Investigations & Innovation Josh Hinkle, Photojournalist Chris Nelson, Digital Special Projects Developer Robert Sims and Digital Director Kate Winkle contributed to this report.