Senator: Texas Medical Board not doing 'vital job' protecting patients from harm

For more than a year, KXAN investigators told you about doctors with hidden problems in their pasts coming to Texas to practice. Our reporting led to a Texas Medical Board rule change and several bills filed this legislative session to protect patients, including one that seeks to hold the TMB accountable in a new and “unique” way. KXAN brought the findings of our investigations straight to lawmakers amid ongoing concerns for Texas patients.

AUSTIN (KXAN) — On the floor of the Texas Senate, KXAN took patient concerns directly to lawmakers, testifying about what our year-long investigation found: Patients don't have full transparency necessary to make informed healthcare decisions when choosing a doctor.

"The Texas Medical Board's goal is to 'protect and enhance the public's health, safety and welfare,'" KXAN investigative reporter Matt Grant told members of the Senate Health and Human Services Committee on April 19. "But, we've discovered, in case after case, the board has instead prioritized protecting physicians over patients."

For more than a year, KXAN reported on doctors with hidden problems in their pasts coming to Texas to practice. Our investigations revealed nearly 50 doctors practicing, or able to, in Texas despite their medical licenses suspended or revoked in other states. In some cases, patients died.

At the time, we found no record of any out-of-state discipline listed on those doctors' public Texas Medical Board, or TMB, profiles even though it's required by law.

Sen. Bob Hall sits at his desk in the Capitol in 2022 (KXAN Photo/Matt Grant)

Our findings led to a TMB rule change that obligates doctors to report criminal or out-of-state disciplinary actions to the TMB within 30 days, in addition to several bills filed this legislative session aimed at protecting patients.

"This particular problem was originally exposed by some really good investigative reporters from KXAN," said State Sen. Bob Hall, R-Rockwall, during remarks on one of his bills. "We are very grateful to them for their findings."

Hall pledged last summer to look into legislation, in part, because of what KXAN uncovered.

'Unique' accountability

KXAN's investigations helped shape Hall's legislation, he told us.

"I think you've done a great service to the people of Texas with what you've written about and exposed," Hall told KXAN.

Asked if the TMB needs to be held accountable, he responded: "Oh, absolutely."

As part of that accountability, his bill, SB 513, would hold the executive director of the TMB civilly liable if a doctor harms a patient and the board failed to properly vet that doctor and verify the information on their license application.

"We got to have some meaning to this, hold somebody accountable for it," he said. "And I felt that was the right place to do it."

"It would certainly be unique in the state of Texas," said TMB Executive Director Brint Carlton, declining to comment further.

Carlton was named executive director of the agency in 2018.

TMB kept doctor discipline secret

Hall's legislation doesn't address doctors with problematic pasts kept secret. More than a year after our initial reporting, the TMB updated nearly all the 49 doctor profiles we discovered missing out-of-state discipline, which is required by law.

Six were still missing records.

"Upon further review, three additional profiles will be updated," said TMB spokesman Jarrett Schneider when KXAN brought it to his attention. "The remaining did not meet the requirement to appear on the profile."

The TMB did not explain why the final threee profiles were not eligible to be updated.

TMB President Dr. Sherif Zaafran, left, and TMB Executive Director Stephen "Brint" Carlton, right, outside the Texas Capitol. (KXAN Photo/Matt Grant)

While the majority of the physician profiles KXAN brought to the TMB's attention have now been updated, only seven of those doctors were disciplined for their actions in other states. The remaining 42 have yet to face action from the TMB for the circumstances that led to other state boards taking disciplinary action, records show.

Outside the Capitol, on the evening lawmakers discussed Hall's bill related to the TMB, we asked Carlton — the TMB executive director — why none of the 49 doctors we found showed any record of discipline for failing to report their pasts. When it comes to who's to blame for keeping the public in the dark, he said it wasn't the doctors but instead the board itself.

"It wasn't a failure to disclose," Carlton said. "It was more of a failure to put it on the profile."

"So, of the cases we brought to your attention, are you saying all of them, or the majority of them, had originally disclosed their out-of-state actions to you, it just wasn’t made public on the [TMB] website?" Grant asked.

"That's correct, yeah," Carlton said. "We knew about the vast majority of them. ... it was something that was disclosed in the application."

Pressed on whether any of the doctors failed to disclose their pasts during the application process, Carlton declined to say anything more.

"I wouldn't be able to comment any further on any other potential investigations," he said.

It's a clarification on a comment Carlton made to KXAN last year. When we first alerted the TMB to our findings, he said the TMB found out about some of the actions from other organizations, like the Federation of State Medical Boards, or FSMB.

"The vast majority are things the board was aware of already," Carlton told us in February 2022. "Either through a FSMB report, or something the licensee already previously disclosed."

But those disclosures weren't made public for months, or even years. That includes some doctors who were fined and suspended in other states for trying to keep past punishment or crimes hidden there.

To prove a doctor was up front about past problems when applying for a Texas license is tough. The TMB cites "statutory confidentiality" — leaning on a 16-year-old ruling by then-Texas Attorney General Greg Abbott, now governor, who said back then that license applications must remain sealed.

"Licensing documents are not releasable in whole, or in part," Schneider said, "due to statutory confidentiality."

The TMB also notes medical license applications are not public record on its website. That isn't the case elsewhere — showing, as KXAN previously found, transparency often depends on where you live. While other states, like North Carolina -- which KXAN previously highlighted as more transparent with its records -- keeps license applications sealed except to other medical boards, that's not the case in Florida.

In the Sunshine State, "initial license applications and renewals are public record and are available upon request," according to the Florida Department of Health.

For Hall, it's further proof the agency needs an accountability overhaul.

"[The] Texas Medical Board [is] not doing the vital job that it's supposed to be doing," said Hall. "And that is protecting our citizens from doctors who actually do harm."

TMB concerned over bill

Hall's bill, SB 513, which would hold the TMB executive director accountable, was referred to the Health and Human Services committee in February and has not been set for a hearing. His other bill, SB 666, was amended and voted out out of committee in a vote of 6-2. TMB President Dr. Sherif Zaafran says he can't comment on specific legislation but told us he was deeply concerned by measures in that original bill which he believes are not "patient-centric."

The original bill would:

• Lower the statute of limitations for complaints against doctors from seven years to three
• Eliminate confidential complaints
• Limit who can file complaints against doctors to patients and those directly involved in their care
• Limit TMB investigations to only an original allegation, regardless of whatever else may be discovered
• Establish a panel of eight physicians to investigate complaints against doctors and require a majority vote for discipline to be taken

Zaafran worried eliminating confidential complaints would deter victims of sexual misconduct from coming forward.

"Their ability to complain about it confidentially is something that allows them to express that concern in a way that protects their identity and their integrity," Zaafran said. "We do have a lot of concern if that confidentiality is done away with that would make a lot of them shy away from coming forward."

'Frivolous'

Hall disagrees that eliminating confidential complaints would have that impact. He said he introduced Senate Bill 666 to cut down on what he views as "frivolous" investigations by the TMB, instead wanting the agency to focus on more serious cases, like the ones uncovered by KXAN.

One such case, cited by Hall as the inspiration for this bill, involves Dr. Eric Hensen, an ENT surgeon in Palestine, Texas. After Gov. Abbott issued a mask mandate early into the pandemic in July 2020, Hensen — who opposes masks — refused to comply. One of his patients complained to the TMB. The agency sent warning letters to Hensen and the two parties eventually agreed to a resolution that involved Hensen completing a continuing education class and a test on Texas' laws and rules.

Hensen, by all accounts, refused on principle. As a result, the TMB had no choice but to suspend his license, Zaafran said, telling KXAN the board can't "pick and choose" which laws to follow. Even though the governor's mask mandate was rescinded in July 2021, Hensen's license was suspended on March 28, 2023 — nearly three years years later — for less than a week, records show. Zaafran said the board bent over backwards to give Hensen extra time to comply.

"Based on the remedial plan that he agreed to, we had to act on it," Zaafran said. "[After we suspended his license], he immediately took the exam, and as soon as we got that information ... his license was reinstated again."

Dr. Eric Hensen treats a patient without a mask (Courtesy Dr. Eric Hensen)

Henson, and Hall, see the suspension as "unjust," citing KXAN investigations revealing the TMB allowed one doctor to keep practicing after finding he had sex with patients, including a minor, and another doctor the TMB found sold opioids without a legitimate medical purpose. In both cases, the doctors' licenses were briefly suspended and both were allowed to keep practicing, with restrictions, until they were arrested.

"The investigation, and final order, not only affected my livelihood," said Hensen, who also testified in front of lawmakers, "but also my ability to care for my patients and my community.”

Hall said he wants to stop "witch hunts." But his attempt to do so has raised additional alarm with the TMB.

Zaafran estimated hiring eight active physicians to investigate complaints full-time would cost between $20 million to $60 million. He worries limiting who can file complaints against doctors, and confining investigations solely to an original complaint, would make it harder for the board to stop cases like "Dr. Death" — the infamous Dallas surgeon, sentenced to life in prison, after killing and maiming more than 30 patients. Time said the case showed a "surgeon who seem[ed] intent on using his scalpel to destroy the lives of his patients — and a medical system content to let him skate by."

"The worst thing that we would hate to have happen is to have something like that out there that we’re not allowed to touch or look at," Zaafran, who was not on the TMB at the time, said. "And, fast forward to another period of time later on, where that same licensee may have created harm to someone that we may have been able to prevent had we investigated."

Bill changes after KXAN questions

After KXAN pointed out these concerns -- about sexual assault victims possibly being afraid to come forward and if he would consider a "carve out" if the TMB came across criminal behavior — Hall amended his bill. The new committee substitute for SB 666 clarifies and changes a few things, including:

• The TMB can act on information it discovers "involving conduct that constitutes a criminal offense at any time."
• Complaints can be made by anyone who "has direct knowledge of the incident" involving a doctor, not just the patient
• The TMB can redact the name of a complainant in the copy given to a physician if the original complaint has the name, is a sworn affidavit signed under penalty of perjury, notarized and is "based on personal knowledge of the physician's care of a patient identified in the complaint."

"Matt, I am always willing to make changes that would improve a bill," Hall told Grant.

The bill was placed on the intent calendar for May 3 for a vote to be considered by the full Senate.

'We are charged with protecting patients'

Rep. Julie Johnson, left, meets with patient safety advocates (KXAN Photo/Matt Grant)

Another bill, HB 1998, filed in direct response to KXAN's investigations, was recently voted out of the House Public Health Committee in a 9-0 vote. It now goes to the Calendars Committee for consideration by the full House.

The bill was introduced by Rep. Julie Johnson, D-Farmers Branch, who previously told KXAN she believed it would have a "meaningful impact" on patient safety in Texas.

If passed, her bill would:

• Prevent doctors who have had licenses revoked in other states from practicing in Texas
• Make it a crime for doctors to lie on licensure applications
• Require continuous monitoring of all Texas physicians with the National Practitioner Data Bank, or NPDB

A constant monitoring of the NPDB — called a "continuous query" — would allow the TMB to be quickly alerted if a doctor has been disciplined out-of-state or facing criminal charges. It costs $2.50 per doctor per year.

Zaafran supports that measure and said he asked the legislature for funding to do that. It would help the board keep better tabs on its doctors — and stop potentially dangerous ones, he said.

"A lot of the concerns you had raised in the past about physicians out there potentially violating the law and us not acting on it in time — this would help take care of that by us knowing about it in real time," Zaafran said.

"My mission is to protect patients," Zaafran said. "We are charged with protecting the public."

Photojournalist Mariano Garza, Graphic Artist Wendy Gonzalez, Director of Investigations & Innovation Josh Hinkle, Photojournalist Chris Nelson and Digital Director Kate Winkle contributed to this report.