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To Report or Not to Report
When Peers Should Report to the Texas Medical Board (TMB)


Kenneth Alan Totz, DO, JD, FACEP

As I have mentioned in our previous discussions, the Texas legislature enacted The Medical Practice Act, which is a set of laws guiding the practice of medicine. The Medical Practice Act can be found in the Texas Occupations Code (TOC), Chapters 151-170. https://statutes.capitol.texas.gov/?link=OC. The executive branch of Texas Government established the Texas Medical Board (TMB), which is an executive agency that enforces The Medical Practice Act and establishes its own rules and regulations for the practice of medicine in Texas. The rules and regulations of the Texas Medical Board can be found in the Texas Administrative Code (TAC) Title 22, Part 9. https://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=3&ti=22&pt=9 I’d like to switch gears this month to Chapter 160 of the TOC, Sections (§§) 160.002 and 160.003. These are the sections that address reporting requirements by medical peer review committees, hospitals, and medical peers.

Section 160.002 articulates that a medical peer review committee or health care entity shall report in writing to the Board the results and circumstances of a medical peer review that:

  1. Adversely affects the clinical privileges of a physician for a period longer than 30 days;
  2. Accepts a physician's surrender of clinical privileges either:
    1. While the physician is under an investigation by the medical peer review committee relating to possible incompetence or improper professional conduct; or
    2. In return for not conducting an investigation or proceeding relating to possible incompetence or improper professional conduct; or
  3. Adversely affects the membership of a physician in a professional society or association, if the medical peer review is conducted by that society or association.

As an aside, and likely not so coincidentally, all three points noted above correspond with similar mandates by the federal government in the newly released 2018 updates for reporting to the National Practitioner Data Bank (NPDB). Hopefully, it is readily apparent that if you or a colleague gets into some hot water with your group or hospital, limiting privilege actions under this 30-day time period is critical in keeping you or your colleagues off the TMB/NPDB radars. Usually, though, a suspension from clinical privileges for 30 days or longer entails some significantly dangerous clinical or criminal activity that would put a report to the TMB/NPDB at the bottom of a physician’s worry list. You may also observe that the legislative architects added in item number 2 above so as to keep physicians from avoiding TMB reporting by simply relinquishing their clinical privileges before an investigation has begun or concluded. Lastly, re-read item number 3 above and take heed that actions taken by a professional society (i.e. TCEP, ACEP, etc.) towards one of its members for clinical activities that stray from the standard of care for the community, may also be subject to reporting to the TMB.

Section 160.003 is triggered when either a peer review committee or a clinical colleague has adjudged that a “physician poses a continuing threat to the public welfare through the practice of medicine.” A “peer review committee” may refer to a medical executive committee or a traditional peer review committee that evaluates the medical practices of its colleagues. A “clinical colleague” may signify a vast number of associates such as: another physician, medical student, or a nurse practitioner. The “threat to public welfare” can be consequent to a licensee’s clinical competence, or more often, a clinician’s mental or physical impairment from drugs or alcohol. Once the knowledge of impairment becomes apparent, the statute obligates a report to the Board. Failure to report subjects all parties to loss of peer review privileges, fines, and/or civil liabilities should any patient harm arise. In closing, it should be comforting the TMB has routinely reiterated that a safely rehabilitated physician is an asset to the medical community, the state, and the public.

As I have done in the past, I have identified (below), several representative samples of TMB actions taken against physicians for transgressions contrary to the public welfare. The TMB has intentionally and openly identified these physicians in the The TMB Bulletin for public censure for their acts or omissions.

Weaver, Kevinn Len, M.D., Lic. No. K5024, Dallas On March 1, 2019, the Board and Kevinn Len Weaver, M.D., entered into an Agreed Order requiring him to within 45 days obtain a Board-approved psychiatrist and undergo an Independent Medical Evaluation and follow all recommendations made for care and treatment; abstain from the consumption of prohibited substances as defined by the Order; and participate in the Board’s drug testing program. The Board found Dr. Weaver dis0played unprofessional conduct based on a pattern of disruptive and inappropriate behavior from 2012 to 2018.

Lairmore, Terry C., M.D., Lic. No. M1193, Belton On January 3, 2019, a disciplinary panel of the Texas Medical Board temporarily suspended, without notice, the Texas medical license of Terry C. Lairmore, M.D., after determining his continuation in the practice of medicine poses a continuing threat to public welfare. The suspension was effective immediately. The Board panel found that Dr. Lairmore has potentially participated in patient care while under the influence of controlled substances, and based on his termination by a licensed health care entity, the evidence shows Dr. Lairmore may pose a threat to patient safety. A temporary suspension hearing with notice will be held as soon as practicable with 10 days' notice to Dr. Lairmore, unless the hearing is specifically waived by Dr. Lairmore. The temporary suspension remains in place until the Board takes further action.

O’Brien, Michael Francis, M.D., Lic. No. N5289, Dallas On February 15, 2019, a disciplinary panel of the Texas Medical Board temporarily suspended, without notice, the Texas medical license of Michael Francis O’Brien, M.D., after determining his continuation in the practice of medicine poses a continuing threat to public welfare. The suspension was effective immediately. The Board panel found that Dr. O’Brien is not able to practice medicine due to past medical incidents that impaired his ability to safely practice medicine, and is in violation of his Texas Physician Health Program Monitoring and Assistance Agreement for failing to undergo required drug and alcohol testing and for testing positive on two occasions. A temporary suspension hearing with notice will be held as soon as practicable with 10 days' notice to Dr. O’Brien, unless the hearing is specifically waived by Dr. O’Brien. The temporary suspension remains in place until the Board takes further action.

Kenneth Alan Totz, DO, JD, FACEP

No information within this report should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances.