| (5) Repeated or recurring meritorious health care liability claims. It shall be presumed that a claim is "meritorious," within the meaning of section 164.051(a)(8) of the Act, if there is a finding by a judge or jury that a licensee was negligent in the care of a patient or if there is a settlement of a claim without the filing of a lawsuit or a settlement of a lawsuit against the licensee in the amount of $50,000 or more. Claims are "repeated or recurring," within the meaning of section 164.051(a)(8) of the Act, if there are three or more claims in any five-year period. The date of the claim shall be the date the licensee or licensee's medical liability insurer is first notified of the claim, as reported to the board pursuant to section 160.052 of the Act or otherwise. (6) Discipline based on Criminal Conviction. The board is authorized by the following separate statutes to take disciplinary action against a licensee based on a criminal conviction: (A) Felonies. (i) Section 164.051(a)(2)(B) of the Medical Practice Act, section 204.303(a)(2) of the Physician Assistant Act, and section 203.351(a)(7) of the Acupuncture Act, (collectively, the "Licensing Acts") authorize the board to take disciplinary action based on a conviction, deferred adjudication, community supervision, or deferred disposition for any felony. (ii) Chapter 53, Tex. Occ. Code authorizes the board to revoke or suspend a license on the grounds that a person has been convicted of a felony that directly relates to the duties and responsibilities of the licensed occupation. (iii) Because the provisions of the Licensing Acts may be based on either conviction or a form of deferred adjudication, the board determines that the requirements of the Act are stricter than the requirements of Chapter 53 and, therefore, the board is not required to comply with Chapter 53, pursuant to section 153.0045 of the Act. (iv) Upon the initial conviction for any felony, the board shall suspend a physician's license, in accordance with section 164.057(a)(1)(A), of the Act. (v) Upon final conviction for any felony, the board shall revoke a physician's license, in accordance with section 164.057(b) of the Act (B) Misdemeanors. (i) Section 164.051(a)(2)(B) of the Act authorizes the board to take disciplinary action based on a conviction, deferred adjudication, community supervision, or deferred disposition for any misdemeanor involving moral turpitude. (ii) Chapter 53, Tex. Occ. Code authorizes the board to revoke or suspend a license on the grounds that a person has been convicted of a misdemeanor that directly relates to the duties and responsibilities of the licensed occupation. (iii) For a misdemeanor involving moral turpitude, the provisions of section 164.051(a)(2) of the Medical Practice Act and section 205.351(a)(7) of the Acupuncture Act, may be based on either conviction or a form of deferred adjudication, and therefore the board determines that the requirements of these licensing acts are stricter than the requirements of Chapter 53 and the board is not required to comply with Chapter 53, pursuant to section 153.0045 of the Act. (iv) The Medical Practice Act and the Acupuncture Act do not authorize disciplinary action based on conviction for a misdemeanor that does not involve moral turpitude. The Physician Assistant Act does not authorize disciplinary action based on conviction for a misdemeanor. Therefore these licensing acts are not stricter than the requirements of Chapter 53 in those situations. In such situations, the conviction will be considered to directly relate to the practice of medicine if the act: (I) arose out of the practice of medicine, as defined by the Act; (II) arose out of the practice location of the physician; (III) involves a patient or former patient; (IV) involves any other health professional with whom the physician has or has had a professional relationship; (V) involves the prescribing, sale, distribution, or use of any dangerous drug or controlled substance; or (VI) involves the billing for or any financial arrangement regarding any medical service; (v) Misdemeanors involving moral turpitude. Misdemeanors involving moral turpitude, within the meaning of the Act, are those that involve dishonesty, fraud, deceit, misrepresentation, deliberate violence, or that reflect adversely on a licensee's honesty, trustworthiness, or fitness to practice under the scope of the person's license. (C) In accordance with section 164.058 of the Act, the board shall suspend the license of a licensee serving a prison term in a state or federal penitentiary during the term of the incarceration regardless of the offense. |
| Source Note: The provisions of this §190.8 adopted to be effective November 30, 2003, 28 TexReg 10496; amended to be effective July 4, 2004, 29 TexReg 6092; amended to be effective January 25, 2006, 31 TexReg 396; amended to be effective July 3, 2007, 32 TexReg 3994; amended to be effective June 24, 2009, 34 TexReg 4124 |
