Current through Reg. 49, No. 38; September 20, 2024
(a)
Selection of Reviewers. Any complaint alleging a possible violation of the
standard of care will be referred to Expert Physician Reviewers who will review
all the medical information and records collected by the board and shall report
findings in the prescribed format.
(1)
Reviewers shall be randomly selected from among those Expert Panel members who
practice in the same specialty as the physician who is the subject of the
complaint. The practice area or specialty declared by the subject physician as
his area of practice may be the specialty of the expert reviewers.
(2) If there are no Expert Panel Members in
the same specialty or if the randomly selected Reviewer has a potential or
apparent conflict of interest that would prevent the Reviewer from providing a
fair and unbiased opinion, that Reviewer shall not review the case and another
Reviewer shall be randomly selected from among those Expert Panel members who
practice in the same or similar specialty as the physician who is the subject
of the complaint, after excluding the previously selected Reviewer.
(A) A potential conflict of interest exists
if the selected Reviewer practices medicine in the same geographical medical
market as the physician who is the subject of the complaint; and
(i) is in direct competition with the
physician;
(ii) knows the
physician; or
(iii) has treated or
examined any of the patients at issue.
(B) An apparent conflict of interest exists
if the Reviewer:
(i) has a direct financial
interest or relationship with any matter, party, or witness that would give the
appearance of a conflict of interest;
(ii) has a familial relationship within the
third degree of affinity with any party or witness; or
(iii) determines that the Reviewer has
knowledge of information that has not been provided by the Board and that the
Reviewer cannot set aside that knowledge and fairly and impartially consider
the matter based solely on the information provided by the Board.
(3) Notwithstanding the
provisions of subsection (a)(2) of this section, if no Reviewer agrees to
review the case who can qualify under the requirements of that subsection, a
Reviewer who has a potential conflict may review the case, provided the Expert
Reviewers' Report discloses the nature of the potential conflict.
(4) If any selected Reviewer has a potential
or apparent conflict of interest, the Reviewer shall notify board staff of the
potential or apparent conflict.
(b) Procedures for Expert Physician Review.
The procedure for the use of Reviewers shall comply with §
154.0561,
Texas Occupations Code. Reviewers shall be specifically informed that they may
communicate with other Reviewers selected to review the case and that they
should communicate with other Reviewers to attempt to reach a
consensus.
(c) Expert Reviewers'
Reports. A report shall be prepared by each Expert Physician Reviewer. Each
Reviewer's report must include the specialty area of Reviewer. Any other
biographical information must be redacted.
(1)
The First Reviewers' report must include:
(A)
relevant facts concerning the medical care rendered;
(B) applicable standard of care;
(C) application of the standard of care to
the relevant facts;
(D) a
determination of whether the standard of care has been violated;
(E) the clinical basis for the
determinations, including any reliance on peer-reviewed journals, studies, or
reports; and
(F) the summation of
the Reviewer opinion.
(2) The Second Reviewers' must do a complete
review of the First Reviewers' report.
(3) The Second Reviewers' report may:
(A) concur with and adopt the First
Reviewer's report as if it was their own report;
(B) concur in part and disagree in part with
First Reviewers' report and state in writing the basis for the disagreement;
or
(C) disagree with First
Reviewers' report, and state in writing the basis for the
disagreement.
(4) In the
event of partial disagreement between the first two reviewers, the report will
be sent back to the First Reviewer to determine if a consensus can be reached
on the differing opinion.
(5) A
Third Reviewers' report will only be required if First and Second Reviewers
cannot reach a consensus. The Third Reviewer must do a complete review of the
First and Second Reviewer reports; concur with and adopt the First Reviewer's
report as if it was their own report;
(6) The Third Reviewers' report may:
(A) concur with and adopt either the First
Reviewer's or Second Reviewer's report as if it was their own report;
or
(B) write their own concurring
report with either the First Reviewer's or Second Reviewer's report. A
concurring report must include:
(i) relevant
facts concerning the medical care rendered;
(ii) applicable standard of care;
(iii) application of the standard of care to
the relevant facts;
(iv) a
determination of whether the standard of care has been violated;
(v) the clinical basis for the
determinations, including any reliance on peer-reviewed journals, studies, or
reports; and
(vi) the summation of
the Reviewer opinion.
(d) For each Expert Reviewers' Report that
involves Complementary or Alternative Medicine (CAM) issues, Board staff shall
insert immediately below Expert Reviewer's specialty in bold letters, "This
review involves Complementary or Alternative Medicine."
(e) An Expert Reviewers' Report shall be
deemed "investigative information" and an "investigative report" and is
privileged and confidential, in accordance with §164.007(c).
(f) Each Expert Reviewer Report shall have
the following Notice to Respondent: "PURSUANT TO §164.007 OF THE MEDICAL
PRACTICE ACT, THIS DOCUMENT CONSTITUTES INVESTIGATIVE INFORMATION AND IS
PRIVILEGED AND CONFIDENTIAL. THE EXPERT REVIEWER REPORTS (REPORTS) ARE
STATUTORILY LIMITED FOR USE AT THE INFORMAL PROCEEDING ONLY, UNDER TEXAS
OCCUPATIONS CODE, SECTION
164.003(f).
THE REVIEWERS' REPORTS ARE REQUIRED TO BE PROVIDED TO THE LICENSEE UNDER
SECTION 164.003(f). THE REPORTS REMAIN CONFIDENTIAL AND PRIVILEGED UNDER
SECTION 164.003(h) AND 164.007(c). THE REPORTS CANNOT BE RELEASED TO ANY PERSON
OR ENTITY WITHOUT THE CONSENT OF THE BOARD. THE REPORTS CANNOT BE OFFERED,
UTILIZED, OR SUBMITTED AS EVIDENCE OR DOCUMENTS IN A CONTESTED CASE PROCEEDING
BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS OR IN ANY LEGAL
PROCEEDING."
