AUSTIN (KXAN) — In a direct response to an ongoing series of KXAN investigations, the Texas Medical Board approved a major rule change Friday impacting patient safety and transparency.
“Certainly, your reporting helped expedite that process,” said TMB president Dr. Sherif Zaafran.
The new rule, spurred by our investigation, requires doctors to self-report criminal convictions, out-of-state disciplinary actions and medical malpractice claims within 30 days. Previously, it was every two years. The TMB says it’s now more proactively updating its online profiles of physicians after KXAN found some out-of-state discipline records kept secret.
“It was brought to our attention that there were some gaps,” TMB executive director Stephen Carlton told board members at Friday’s meeting, in a reference to KXAN’s investigations. “Once it was brought to our attention, that this was something to expedite as far as a change, is when we brought this rule to you guys.”
“We’re always looking for ways we can improve. Sometimes we identify the way we can improve, sometimes others bring it to our attention,” Carlton added. “We’re always happy to do our best to improve processes. So, want to thank them [KXAN] for bringing to light an area where we can do better.”
Also, in response to KXAN’s investigations, Zaafran said he wants the legislature to require all doctors — not just new licensees — to be fingerprinted. In addition, the board plans to ask lawmakers for funding to continuously monitor every doctor in the state with the National Practitioner Data Bank. The NPDB charges $2.50 a year to do a “continuous query” of doctors.
“Our mission is to protect patients,” said Zaafran, who read the TMB’s mission statement at the start of the board meeting.
Following the meeting, for the first time, Zaafran sat down to answer KXAN’s questions in a wide-ranging interview. This comes following revelations that doctors with medical licenses revoked in other states were allowed to practice in Texas along with physicians the board deemed to be a “threat” to the public.
“Why allow doctors that you deemed to be a threat to public welfare,” asked KXAN investigator Matt Grant, “including doctors credibly accused of sexual misconduct with patients — minors in some cases — why allow them to keep practicing?”
“You know, you’re absolutely right. That is something that we always want to make sure that the public is aware and protected from instances like that,” Zaafran said. “The struggle we have is when you talk about somebody who’s been accused and somebody who’s actually had a conviction against them.”
The challenge for the board, Zaafran said, is balancing a doctor’s right to due process with evidence available to the board. A difficult task, he said, when there’s not a criminal conviction. Any punishment must also withstand a challenge in court, he added. That has led to disciplinary actions like limiting which patients doctors can treat or whether they can prescribe controlled substances.
“I think the frustration from patients, and the public, is that it seems these doctors, deemed to be a danger, are allowed to keep treating patients and the only way they’re stopped is when they’re in handcuffs,” Grant said. “Shouldn’t it be your responsibility to protect the public?”
“You know, if I was the one who would be able to do things without having to be restricted by statute,” Zaafran replied, “I absolutely would.”
“We do what we can, within our legal authority,” he added, “to prevent them from going out and harming the public.”
Patient safety and politics
Zaafran rejected the notion that the board is political — even though he and a half-dozen of his fellow board members have collectively given nearly $400,000 to Gov. Greg Abbott, who appointed them. He noted “many board members have not contributed” to Abbott.
“At the end of the day,” he said, “we’re all held accountable to what we do.”
Dismissing criticism by Democratic gubernatorial candidate Beto O’Rourke — who called TMB appointments “pay-to-play” — Zaafran said the same argument “could be made on both sides of the aisle.” Asked about O’Rourke’s campaign promise to increase the number of public non-medical board members, in response to KXAN’s investigations, Zaafran said the current structure “is working.”
A KXAN analysis of every state medical board in the country found Texas has among the highest number of public members. However, O’Rourke and patient safety advocates have called for those members to come from public safety and patient advocacy backgrounds. Zaafran touted the need for “a variety of backgrounds” but admitted “yes it would” be helpful to have public members with patient-safety experience.
The board president said he wants to work with lawmakers, from both parties, next session to improve the TMB and better protect patients. However, Zaafran was critical of a legislative proposal by State Sen. Bob Hall (R-Edgewood). Hall wants to eliminate confidential complaints. Zaafran believes that would allow more cases like “Dr. Death.” That’s because physicians may be afraid of retaliation for filing a complaint against another doctor, he said.
“What would you say to people who feel the Texas Medical Board isn’t transparent?,” asked Grant, referencing out-of-state discipline records found by KXAN that were not published on the TMB’s website, contrary to state law.
“And,” Grant asked, referencing doctors deemed a “threat” allowed to still treat patients, “isn’t doing its job?”
“We are as transparent as we can,” Zaafran said. “Can we always do better? Absolutely.”