Texas Medical Board, lawmakers push for change after KXAN medical transparency investigations

AUSTIN (KXAN) -- A series of KXAN investigations is leading to changes from the Texas Medical Board after we exposed doctors coming to Texas to escape their problem pasts.

Less than a month after our reporting, the TMB proposed a rule change that, if approved, would require physicians to self-report any criminal convictions, out-of-state disciplinary actions and medical malpractice claims within 30 days. Currently, those potential red flags are only required to be reported when applying for a medical license in Texas or every two years, when licenses are renewed.

It is unclear at this time what disciplinary actions physicians could face, if any, for ignoring the reporting requirements.

The change "seeks to make clear reporting requirements of certain events by physicians to the TMB that are required to be contained in the physician's online profile and better align the Board's physician reporting rule with the existing language in state statute," TMB Board President Dr. Sherif Zaafran wrote.

The rule change will be considered for adoption at the board's June meeting, according to TMB spokesperson Jarrett Schneider. The new measure comes on top of "improved internal processes," including "proactively updating" online physician profiles, he added.

By law, the TMB is required to show out-of-state disciplinary actions on physician online profiles. A KXAN investigation revealed, in at least dozens of cases, that is not happening.

The nonprofit Texas Medical Association, which is based in Austin and represents more than 55,000 physicians, residents and medical students, supports the rule change.

"TMA understands the Texas Medical Board will consider proposed rules to increase reporting and transparency, and we support efforts to remedy this issue," said TMA President Dr. E. Linda Villarreal. "TMA always has supported a fair medical board with the overall goal of achieving the best care for Texas patients."

"The Board's goal as it considers any rulemaking is to improve its processes," Zaafran added in the TMB March bulletin, "while maintaining the right balance of regulation and public safety."

At least one state lawmaker, however, says the proposed changes don't go far enough.

'The Texas Medical Board has completely failed in its job'

State Rep. Julie Johnson (D-Farmers Branch) reacted to KXAN's investigations with plans to draft a bill.

"My immediate reaction was, well, if the Texas Medical Board isn't going to do it on its own, as a member of the legislature, I'm going to file a bill," Johnson said. "I'm going to do something about it."

Speaking to KXAN from her Dallas law office, located around 10 miles from where Dr. Christopher Duntsch once operated, Johnson says she will ask for a hearing. She plans to cite KXAN's investigations as evidence for why the problem needs more than a Band-Aid.

"That would, I think, need to be provided to the committee so people can see this is not just a one-off problem that we're talking about," Johnson said. "This is a chronic problem. And, unfortunately, for [some] patients of Dr. Duntsch, they're now dead. And we don't need to repeat that again."

Duntsch — dubbed "Dr. Death" in media reports — killed or injured more than 30 patients in botched spinal surgeries. He was sentenced to life in prison five years ago in a case that made national headlines and sparked a hugely successful podcast and Peacock miniseries.

For several months, KXAN reviewed thousands of out-of-state disciplinary records from multiple states and found dozens of doctors with suspended or revoked medical licenses. All are either still practicing in Texas — or able to — with "clean" records on the TMB's license lookup portal.

Among the examples KXAN uncovered: A neurosurgeon who operated on the wrong part of the spine, a surgeon who operated while intoxicated, and a doctor who prescribed excessive quantities of Oxycodone leading to a patient's death. In each of these cases, and dozens more, the TMB's website lists "NONE" for out-of-state disciplinary actions.

"That's not going to fly," Johnson said after watching our investigations. "And I intend to do something about it."

"I think that the reporting you did where you uncovered all of the physicians who have lost their licenses in other states and that was not disclosed on the Texas Medical Board's website," she added, "is 'Exhibit A' as to the problem."

In a direct response to KXAN's investigations, Johnson plans to file a bill next session that would force the TMB to be more transparent. Among her proposals:

• Prevent doctors who had licenses revoked in other states from being able to practice in Texas.
• Make it a crime to lie on TMB license applications.
• Require physicians report any discipline for medical negligence or arrests within 30 days, instead of every two years. The TMB is already proposing action that would address this.
• Require an audit of the TMB. The Texas State Auditor's Office had no comment.
• Close a "loophole" that allows hospitals to suspend doctors for less than 30 days to avoid reporting them to the National Practitioner Data Bank.
• Adopt a model similar to North Carolina, which KXAN revealed puts all disciplinary records online indefinitely.

Johnson and others — including Dr. Robert Henderson, who helped stop Duntsch — say the TMB is not meeting its own mission statement to protect the public in addition to not following the law. The Texas Occupations Code requires the TMB to make out-of-state disciplinary records public.

"Patient safety is an important issue and it's something that the legislature needs to take a look at. The Texas Medical Board has completely failed in its job. So, we're going to step in and do it for them."

State Rep. Julie Johnson (D-Farmers Branch)

Johnson met with her former law partner, Kay Van Wey, to discuss ideas for legislation. Wey is a medical malpractice attorney in Dallas who represented victims of Duntsch.

"Somebody needs to take the Texas Medical Board and shake them," said Wey, shaking her hands. "And say, 'Follow your mission statement.'"

"Your mission isn't to protect doctors," she added, as a plea to the TMB. "It's to protect you and me: the patient."

The TMB previously said it would be "staff and time intensive" to post all out-of-state disciplinary records online, even though it is required to do so by law.

'The Board needs to get into compliance with the law immediately'

So how can lawmakers hold the TMB accountable when it's not following the law like it should?

"Well," Johnson said, "we need to look into it and we need to find ways to do that."

Other lawmakers, like State Sen. Borris Miles (D-Houston), also expressed interest in legislation.

"With the largest medical center in the world located in my district, I have more doctors working in my district than any other member of the Legislature," Miles said in a statement in response to our investigations.

"The Texas Medical Board must prioritize patient safety and ensure the public can easily find out the disciplinary history of any doctor," Miles added. "The Board needs to get into compliance with the law immediately by making these disciplinary records available to patients. I am committed to working with my colleagues to close any loopholes that allow doctors and the Board to delay or ignore the release of these records."

State Rep. Terry Meza (D-Irving) told KXAN this "is an issue I would be interested in taking up next session."

KXAN also reached out to members of Texas' Congressional delegation to ask about potential changes on a national level. That could include opening up the National Practitioner Data Bank, which is a national repository of all physician disciplinary and malpractice records. Several members of Congress said they would look into what we uncovered.

Johnson plans to meet with stakeholders and is confident the bill she will draft will get bipartisan support.

"We all go to the doctor," she said. "Healthcare should not be a partisan issue."