Legal Legacies: TMA General Counsel Rocky Wilcox Retires After 42 Years of Service
By Amy Lynn Sorrel Texas Medicine April 2022

If you think federal election laws have no impact on medicine, think again. If you think abuses by public and private payers and their regulators can’t be checked, think again. And if you think new liability, scope-of- practice, or peer review protections are out of reach … well, you get the picture. 

But if you think of one person who’s had a hand in the intricacies of all of these kinds of complex legal issues and precedent-setting accomplishments for medicine, that person should be Texas Medical Association General Counsel Donald P. Wilcox – or “Rocky” as he’s known around the legal and legislative halls of Texas.

After nearly five decades of service to organized medicine, this man behind TMA’s storied history of advocating for physicians and their patients through the legal and legislative systems is retiring. But the legacy he leaves behind has put physicians in Texas – even across the nation – on solid legal ground.

Whether through the courts, the Capitol, or the regulatory rule-writing that follows, “I don’t think [members] understand how much our legal team is involved with all of our advocacy efforts,” said TMA President-Elect Gary Floyd, MD. “Rarely is there an issue that comes up that we’ve discussed at the board level that we don’t say, ‘What’s legal think about it?’ There’s probably not a TMA council or committee they don’t touch. And Rocky has built a very formidable legal team. They are there to protect physicians taking care of patients, and Rocky has always been the epitome of that.”

Difference-maker

Indeed, Mr. Wilcox essentially founded TMA’s now-robust legal department when he became its first in-house attorney in 1979. He has seen the association through 20 legislative sessions, seven governors, four sunsets of the Medical Practice Act, four TMA executive vice presidents, and too many court cases to quantify. Not to mention the enduring publications Mr. Wilcox himself has authored to help guide physicians in their day-to-day medical practice.

The decorum and humility of this soft-spoken attorney belie the fact that he has been making a difference for medicine his entire career.

After earning his law degree from Southern Methodist University in 1968, Mr. Wilcox joined the U.S. Air Force, where he began his legal career counseling physicians, hospitals, and medical staffs. His foray into organized medicine began with the American Medical Association, where he served in the general counsel office for six years, including as director of the AMA Health Law Department and legal counsel to AMA’s political action committee, AMPAC, which works to elect medicine-friendly candidates.

During that time, Mr. Wilcox ushered AMPAC through new federal election laws enacted to correct abusive activities such as those uncovered in the Watergate scandal. Also during that time, he met TMA’s then president, executive vice president, and TEXPAC director – fortuitous encounters that helped bring him to TMA as the association’s first general counsel.

“It seemed like every physician in Texas called me every week,” Mr. Wilcox recalled of his early days with TMA.

His first years with the association, and many beyond, would be marked by what he described as “successful skirmishes with payers.” 

For instance, with Mr. Wilcox’ guidance, TMA in the mid-1980s sued the Texas Department of Insurance (TDI) over its determination that an insurer could steer patients to hospitals it owned in conflict with state laws. That suit led to the adoption of the first PPO rules in Texas in 1986 – rules that limited such financial incentives that favored insurers.

Then in the late 1980s, Mr. Wilcox helped secure federal reforms after the U.S. Health and Human Services Department Office of Inspector General (OIG) started kicking physicians – many of them rural – out of Medicare without providing due process. That success was achieved with the help of the newly formed TMA Patient-Physician Advocacy Committee, which to this day evaluates and advises on regulatory, legislative, and legal matters involving the standard of care.

Past TMA and AMA President Nancy Dickey, MD, was the committee’s first chair and likened its early work to that of a peer review committee.

“It sounds pretty straightforward now, but 35 years ago it was a novel concept,” she said. “Without Rocky’s able leadership, we couldn’t possibly have [challenged OIG] because it required us to challenge the [de]selection process. So, the Patient-Physician Advocacy Committee was created to get a second look at those charts and to try to provide a vehicle whereby people who had some experience and knowledge of what the standard of care was could provide input.”

Mr. Wilcox also knew that one physician’s anecdote wasn’t going to be enough to make an impact, Dr. Dickey observed.

“He would ask, ‘Where else is this happening?’ He’s been very good at helping TMA move from anecdotes to collecting data to inform policy, to inform regulation, to inform legislation,” she said. “Rocky is one of those wonderful souls that understands that he has an important task of trying to take care of the physician-patient dyad in a way that protects good patient care.”

Another big coup against payers under Mr. Wilcox’ leadership was the massive collection of 2003-05 settlements in the civil anti-racketeering lawsuits TMA launched with four other state medical societies alleging the nation’s health plans routinely and without justification denied, delayed, and downcoded claims. Those settlements resulted in more than 100 pages of enforcement provisions, $2 billion dollars in relief for physicians, and wholesale changes in health plans’ business practices.

The legacy from a portion of those monies was the creation of The Physicians Foundation and the Physician Advocacy Institute (PAI), whose missions of advocating for physicians and patients carry on today, and with whom TMA remains closely involved.  

Lasting change

Yet another pinnacle in TMA’s long legal history was Mr. Wilcox’ involvement in the creation of the Texas Alliance for Patient Access (TAPA) in 2001 and the coalition’s work to enact medical liability reform in Texas in 2003. Despite numerous attacks over the years, that constitutional amendment establishing a fixed $250,000 noneconomic damages cap in medical liability cases still stands strong.

“The fact that we have been able to maintain those reforms in the courts and still had support in the legislature for addressing needed corrections in our tort system in 2021 are meaningful accomplishments for the TMA, TAPA, and its coalition allies,” he said.  

To be clear, there isn’t enough room in this article let alone the pages of this magazine to cover the decades of other legal victories Mr. Wilcox has contributed to when it comes to scope of practice, peer review, corporate practice, and myriad other protections for physicians and patients in effect today – and yet to come. As this article went to press, a federal court had just dealt TMA a win in its lawsuit challenging an arbitration provision in the federal surprise billing rule, and on the way were TDI’s regulations implementing the “gold card” legislation TMA’s legal and lobby teams helped craft to rein in prior authorizations. (See “TMA Win on Surprise-Billing Rule,” page 14.)

It should be noted that staying out of the courts is a feat in and of itself, and much of the offensive work Mr. Wilcox initiated in the regulatory realm has accomplished just that, for example by keeping careful tabs on rules promulgated by nonphysician boards. When TMA has landed in the courts or the legislature over scope-of-practice battles, TMA’s track record is a winning one.

As just one symbol of the scope of Mr. Wilcox’ accomplishments, in 2016 he was awarded the Distinguished Service Award by the State Bar of Texas Health Law Section, which he at one time chaired. He is also a past chair of The Litigation Center of the AMA and State Medical Societies Executive Committee.

Perhaps the greatest symbol is the lasting change he’s helped bring to Texas physicians and patients.

“He knew that if we wanted tort reform, you go for the constitutional amendment, you get it on the ballot, and if anyone tries to reverse it, they’re going to have to change the constitution. He stayed ahead of the game,” Dr. Floyd said.

Mr. Wilcox won’t – or perhaps can’t – leave it all behind completely. He said he plans to “remain active” with The Physicians Foundation where he has served as legal counsel, “and, if asked, being available for special projects and meaningful causes affecting patients and physicians.” 

“I have worked with incredible physician leaders and staff, many brilliant and caring individuals with education, training, and demonstrated competence matched by few. I have had the opportunity to be part of many successful efforts to make medical practice better for patients and physicians. I thank those who have given me the opportunity to serve and help TMA make a difference in the practice of medicine.”