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This Year Brought Legal Changes for the Medical Community in Texas

With the end of the year quickly approaching, there is certain to be no shortage of published lists that are meant to summarize the events, trends, and tragedies of 2009.  If you live in Texas, an unfolding of The Austin American-Statesman or The Houston Chronicle will likely provide you some reflective reading along the lines of “Celebrity Deaths,” “Fashion Faux Pas,” or “Top Ten TV Moments.”  While these pieces provide an interesting way to reflect on the twelve months that just passed, the contents are unlikely to have much of an impact beyond the day they are published in the Living section.  On the other hand, the laws that were passed by the Texas State Legislature are only now beginning to have their impact on the people of our state.  Every area of political interest, from abortion to immigration to gun ownership, was affected to some degree by the decisions of our elected officials.  The men and women who are members of our medical community are no exception in their need to adjust to some changes brought by the government.

It is not only medical professionals who must keep current with the expectations and restrictions placed on them by our state government, but also the attorneys who will need to represent doctors and nurses in front of their respective boards should a challenge to their client’s professionalism arise.  This year brought multiple updates to the way in which those involved with medicine must conduct their business, with four of these new laws being as follows:

Doctors cannot have their record follow them forever. HB 732, which took effect on September 1st of this year, requires the Medical Board to remove any record of a formal complaint that was filed with the Office of Administrative Hearings at least five years prior to the updating of records.  This law applies only if the complaint was found to be lacking evidence or otherwise without merit or if no action was taken against a physician’s license.  So, doctors will no longer have a complaint filed by a disgruntled patient be a blemish in their file for the rest of their careers.

Lasers aimed at human pores are now more closely regulated. Laser hair removal facilities must meet new standards under HB 449.  All locations must be certified by the Texas Department of State Health Services and the laser must be operated by a physician or by someone who is acting on the direct order of a physician.  This should come as a relief to those who walk into an office to have their hair removed by electric pulses or potentially dangerous beams of light.  You no longer need to worry that the person approaching you with these devices is simply taking out hairs as a hobby.

Texans in underserved areas of the state will have greater access to medical care. Starting with the first day of 2010, SB 202 will allow those who are waiting for an approval of their medical licensure to obtain a provisional license for 270 days.  This license will be granted if the physician has good professional standing in another state, submits to a criminal background check, and is sponsored by a Texas doctor.  Also, those acting on a provisional basis must practice only at a location designated by the government as a health professional shortage area or as a medically underserved area.

Pharmacists will not always have to decipher the illegible handwriting of a doctor. As of September 1st of this year, doctors can now delegate to pharmacists the authority to sign a prescription drug order and modify a patient’s drug therapy.  This law, SB 381, may make the pharmacist at the local Walgreens just a bit more popular.  The legislation may make for some controversial challenges before the Texas Medical Board in the New Year, however.  Who will be held accountable if a patient encounters adverse effects from a determined dosage or simply the medicine itself?

As with any new piece of legislation, the changes passed by the Texas State Legislature in 2009 that affect the medical community will be tested and interpreted over the next several years.  One way in which the laws likely will be defined is through complaints made to the Texas Medical Board and the case law that results when disagreements reach a courtroom.  When a doctor’s ethics or actions are tested against the laws passed this year, experienced legal representation will be needed.  There are attorneys for whom their primary practice is that of defending doctors in front of the Texas Medical Board, and this first-hand knowledge is of crucial importance.  If you are a doctor in Texas and you have questions concerning how the work of the state legislature will affect you or if you are finding yourself having to answer a complaint filed with the state medical board, the time to contact an attorney is now.  Your professional future may be at stake.

About the Author

Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio, Texas. A member of the Trial and Appellate Litigation Team, Mr. Bertolino’s practice is devoted largely to complex transactions, commercial litigation, business law, entertainment law and family law matters. You can read more about Mr. Bertolino at www.belolaw.com

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