Texas lawmaker wants action, even more transparency for patients

AUSTIN (KXAN) — In direct response to a series of KXAN investigations into medical error transparency, a state lawmaker is proposing several fixes and has already drafted a bill to be introduced during the upcoming Texas legislative session.

"Transparency is the key," said State Rep. Julie Johnson (D-Farmers Branch), during a recent visit to Austin. "I think the best thing we can do legislatively is to make sure that we have laws in place that require and mandate transparency."

In Texas, medical malpractice lawsuits can only be made public on the medical board's website after a jury determines a physician was at fault. That excludes cases handled by judges or settled before trial — which accounts for 97% of cases in the last decade here in Texas, analyzed by KXAN. Johnson said if a doctor is found liable by a judge, instead of a jury, that should also be made public.

"Absolutely — that's a loophole," she said. "Right now, the statute only requires for jury trials to be disclosed so a way to skirt that is to say, 'OK, have the parties agree to a bench trial.' Well, that needs to be cleared up for sure."

The Texas Medical Board will investigate malpractice cases when three are filed within five years. Johnson called that "arbitrary" and wants any lawsuit involving patient deaths to trigger an automatic investigation by the board. The president of the TMB, Dr. Sherif Zaafran, said the board enforces existing laws.

"We have to go by what the legislature and what the statute allows us to do," Zaafran said. "If there's opportunities for transparency to be better, and if it needs a statutory change for that to happen, I'm sure the legislature will look at that and have that debate."

Lobbyist groups like the American Medical Association blame lawsuits for malpractice insurance rate hikes and make it harder for doctors to practice medicine.

KXAN found at least four doctors whose malpractice cases — two of which involved a patient's death — are legally required to be disclosed on the TMB website but aren't.

"We have laws on the books and we expect our state agencies to follow those laws," Johnson said. "The medical board is funded by the state. It's provided its resources by the state, and as a legislator, I expect the medical board to follow the laws that the legislature has put in place for them to do."

In response to a series of KXAN investigations, the TMB has already made changes to increase transparency. In June, the board approved a new rule change requiring doctors to self-report criminal convictions, out-of-state disciplinary actions and medical malpractice claims within 30 days. Previously, it was every two years. The following month, the TMB requested $2.5 million to hire more staff and pay for continuous background checks with the National Practitioner Data Bank.

Johnson has drafted a bill based on KXAN's previous reporting and plans to include new measures based on our recent findings related to medical malpractice transparency.

"Hopefully," she added, "we'll have the opportunity to ask the medical board some of these questions in the upcoming legislative session and get some answers as to why they're not following the law."

The president of the TMB said the board is following the law. A spokesperson said the state agency will review the four missing cases we identified to see if any meet the requirements to be made public.

Zaafran said it's not his job to weigh in on whether any laws in Texas should change -- a stance he's previously taken after a KXAN investigation raised questions about the board being too "political."

"In general, transparency is always good and the more we can always relay to the public, I think, is a good thing," Zaafran said. "The more that the public knows about our physicians and licensees, the better."

On that point, Johnson agrees.

"If there's a final adjudication that there was negligence at play, and severe negligence where people were killed or significantly injured, that needs to be disclosed to the public," she said. "So, people can have that information when making decisions about their physicians."

"Transparency is fundamental to the system to keep people safe," she added. "The system is currently not working."

Graphic Artists Rachel Gale and Aileen Hernandez, Director of Investigations & Innovation Josh Hinkle, Investigative Photojournalist Chris Nelson, Digital Special Projects Developer Robert Sims and Digital Director Kate Winkle contributed to this report.