(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."
|
Source Note: The provisions of this §182.8 adopted to be effective January 25, 2006, 31 TexReg 393; amended to be effective January 20, 2009, 34 TexReg 339; amended to be effective September 28, 2014, 39 TexReg 7580; amended to be effective January 16, 2018, 43 TexReg 233; amended to be effective January 5, 2020, 45 TexReg 153 |