The U.S. Court of Appeals for the Fifth Circuit ruled, on December 2, 2010, against the Texas Medical Board (TMB), allowing landmark litigation by the Association of American Physicians and Surgeon to proceed to prove wrongdoing by the Board.
Among the claims of “pervasive and continuing violations of … constitutional rights” by the TMB, the Court expressly noted allegations that “the Board manipulated anonymous complaints,” that the former Board president targeted physicians, and that “anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying … for claims.”
The unanimous Court described the allegations as “rather dramatic claims,” and sent the case to the federal trial court so that discovery can proceed. The TMB will no longer be able to conceal its wrongdoing against good physicians.
Physicians brought before a licensure board can be financially ruined by unconstitutional proceedings, even if exonerated, or they can lose their livelihood altogether. Instead of using their enormous power for the purpose of protecting the public, board members can deprive thousands of patients of access to good physicians simply because an anonymous complainant held a grudge against the physician, or dislikes freedom in medicine.
TMB argued that only individual physicians had standing to sue. AAPS noted, however, that individuals could not typically prove a pattern of abuse involving other physicians. Moreover, physicians fear retaliation for complaining about the Board.
The Court ruled that: “If practiced systemically, such abuses may have violated or chilled AAPS members’ constitutional rights. Proof of these misdeeds could establish a pattern with evidence from the Board’s witnesses and files and from a small but significant sample of physicians.”
One Texas physician writes: “I can’t tell you how fearful doctors are of the TMB. Knowing that with each disgruntled employee, angry neighbor, or aggressive competitor, we could lose our license, the practice of medicine has become one of fear. Thank you for your fight, and I hope many physicians will be sleeping more easily…at least in Texas!”
AAPS is a national organization representing physicians in all specialties. The entire decision is available below. The complaint, other documents, and a link to an audiorecording of the oral argument are at http://www.aapsonline.org/hallofshame/tx.php.