US Fifth Court Appeals Allows Suit Against Texas Medical Board

December 2nd, 2010 by Jon Porter | Print

The US Fifth Circuit Court of Appeals overturned a lower court ruling and allowed the Association of American Physicians and Surgeons (AAPS) to continue its lawsuit against the Texas Medical Board (the Board).  The lower court had previously found that the AAPS lacked standing (ability of a party to demonstrate to the court connection to and harm from the law or action)  to proceed in a suit against the Board.   The Fifth Circuit has directed the lower court to hear the case. 

 AAPS sued the Board under a federal discrimination statute for declaratory and injunctive relief.  It claimed, among other things that that a board member used anonymous complaints against certain physicians, that an insurance company did the same, that a former Board member was operating at the Board with a significant conflict of interest , by arbitrarily rejecting unfavorable SOAH rulings, by releasing unproven facts and records from disciplinary hearings, and retaliated against physicians who complained about the Board. 

 As the Court concluded “…we express no opinion on whether AAPS will ultimately be able to prove its rather dramatic claims” but AAPS will have an opportunity to try to prove these allegations before a federal judge. 

Regardless of whether these allegations are true, the Board could go a long way in defusing the perception that its makes decisions behind closed doors by stopping all its secretive actions.  For example: Allow licensees to know who they will present before at Informal Settlement Conferences.  Allow licensees access to their investigative file.  Allow licensees to know who the Board consultants are.  Allow the licensees to see that actual consultant report.  Provide the licensee a redacted copy of the complaint.  Don’t have prolonged Executive Sessions, especially when dealing with disciplinary matters.  Accept the rulings from ALJ’s…they heard the case. 

These are all things the Board can do without any legislation.  These are all things that ever other Texas health license board do that I appear before. As Justice Lewis Brandeis famously said “Sunshine is the best disinfectant.”   This would help licensees, the Board and the public. 

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