When a big point of legal contention arises – “big” meaning impactful for Texas physicians and their patients – the Texas Medical Association responds big. That’s been the case for decades, including in the courts.
For instance, when TMA’s Board of Trustees foresaw the extremely negative consequences for physicians trying to get appropriate payment under an unfair rule provision implementing the federal “surprise billing” law, the board decided the nation’s largest state medical society would respond in massive kind: TMA would sue the federal government.
“This [was] going to cut straight into our ability to care for patients in a proper way,” said Houston internist and board member Lisa Ehrlich, MD. “It gave all the power to insurance companies, which lays our patients just completely bare when the whole congressional bill actually was to protect patients. This needed to be fixed.”
In fact, then-TMA Board of Trustees Chair (now TMA President-Elect) Rick Snyder, MD, says defending physicians against a rule that gave health plans an unfair advantage became an obligation for the board in a way that rivaled TMA’s battle for the state medical liability reforms of 2003 to defend Texas physicians against frivolous lawsuits, and unaffordable liability insurance.
“We looked at it as a tort-type of situation in terms of the impact TMA could have for the physician community as a whole,” said Dr. Snyder, a Dallas cardiologist. “This was going to be a unifying type of event everyone could rally around and could put TMA in a very good position.
“This is the type of the thing TMA should do,” he added. “We need to be the tip of the spear – and not just legislatively, but in the judicial branches and in the executive branches as well. We really need to be ahead of things and boldly lead.”
TMA’s success thus far in the No Surprises Act lawsuit – in which a federal judge ruled in medicine’s favor in February 2022 and invalidated the rule provision at issue – is only the latest example of TMA’s legal prowess producing a pivotal court win. And TMA’s defenses of medicine in the courts haven’t just come through lawsuits of its own. Defending Texas physicians may mean filing a brief on behalf of a physician or an organization involved in a lawsuit representing medicine’s best interests.
TMA picks its battles with a consistent, deliberate process, with the Board of Trustees ultimately choosing medicine’s legal fights based on House of Delegates-approved, standing TMA policy. At the same time, that tried-and-true process allows medicine to act in a timely fashion.
“It’s not just on a whim – ‘Let’s take this to court.’ It is very mindful, very well-thought out,” said Lubbock pulmonologist Cynthia Jumper, MD, a member of the Board of Trustees. “We look back at our TMA mission and policy. It’s not just something that [board members have] a passion for. Everything’s got to be tied back to our mission, our policy, and we go from there.”
The history of TMA’s legal department dates back to its first hiring of an in-house attorney in 1979, with grand legal wins along the way. (See “Big Legal Wins in TMA History” previous page.) For example, TMA worked to help secure federal reforms in the 1980s after the U.S. Health and Human Services Department Office of Inspector General (OIG) started kicking physicians – including many rural ones – out of Medicare without due process. TMA’s then-new Committee on Patient-Physician Advocacy helped drive that legal win. The committee evaluates regulatory, legislative, and legal matters involving the standard of care and advises TMA’s board on those matters.
Its first chair, Nancy Dickey, MD, recently told Texas Medicine the committee was created “to try to provide a vehicle whereby people who had some experience and knowledge of what the standard of care was could provide input.” The committee’s early work was similar to a peer review committee, she said: “It sounds pretty straightforward now, but 35 years ago it was a novel concept.”
Whether the impetus for TMA to consider a case comes from within association leadership, TMA staff, or a TMA physician member requesting help, two TMA bodies generally become part of the decision: the Board of Trustees and TMA’s Committee on Patient-Physician Advocacy, which makes recommendations to the board.
After the association initially receives information on the underlying issue in a suit, the Patient-Physician Advocacy Committee considers it first. If it’s a physician-driven request for legal involvement, for instance, the committee listens to a presentation from either the physician or the physician’s attorney, with TMA legal counsel present. The physician’s opposition is allowed an opportunity to present its side of the story as well.
TMA also may step in to defend a single physician who approaches the association about harm he or she has already endured that carries implications for the whole physician community.
“It could be a [negligence] suit, it could be an anticompetitive lawsuit. It could be [a lawsuit involving] the Texas Medical Board,” said Majid Basit, MD, chair of the Patient-Physician Advocacy Committee. “We’re looking at it as, is this something where the physician is being targeted or treated unfairly?”
Once the committee sends a recommendation to the board, TMA’s legal counsel drafts a memo that includes information on six criteria:
• Whether the physician’s county medical society has weighed in with a recommendation requested by TMA (if multiple county medical societies are involved, TMA will request a recommendation from them all);
• Whether involvement in the case is of value to a significant portion of TMA membership;
• Estimated costs through all probable phases of the case, including appeals;
• The probability of success in the case based on several factors, including TMA counsel’s understanding of relevant laws and regulations, the projected opposition, and its strength;
• Optional courses of action, such as pursuing legislative action; and
• Consideration of the case in the context of any other projected litigation, as well as availability of funds.
The board considers the case and votes. The board chair has the authority to decide unilaterally on the filing of a friend-of-the-court brief, but a lawsuit filed by TMA must be approved by the full board.
TMA policy – voted on annually by TMA’s House of Delegates at TexMed, the association’s largest annual conference – is what guides the decision, board members say.
TMA policy: The ultimate guide
That laser focus on policy – not politics – is what led the Board of Trustees to approve TMA’s involvement in two recent hot-button cases via friend-of-the-court briefs.
TMA filed a brief to support a challenge to Senate Bill 8, passed during the 2021 regular session of the Texas Legislature. That case was pending in the U.S. Court of Appeals for the 5th Circuit at press time. SB 8 bars abortion after the detection of a fetal heartbeat and gives broad latitude for almost any person to sue others for performing or knowingly aiding and abetting a termination of pregnancy in violation of the law. While TMA doesn’t take a position on abortion, its support of the challenge was based on certain association policies, including its opposition to unreasonable interference with the patient-physician relationship.
That position, plus even more recent and specific House of Delegates policy, drove TMA’s opposition to state efforts to criminalize gender-affirming care. TMA also submitted a brief supporting a court challenge to that state order, which was pending in the Texas appellate court system at press time.
“The board and TMA as a whole [are] very mindful of the controversy of some of the subjects,” Dr. Jumper said. “But we are able to distill it down to, ‘What is it that it affects across the membership?’ And across the board, it’s that relationship with our patients that we don’t want lawmakers to legislate.”
Dr. Snyder notes that before deciding to act, the board also sought opinions from other TMA bodies whose work was relevant to both issues. Discussion on SB 8 included an opinion from TMA’s Council on Science and Public Health. For deciding whether to file a brief in the gender-affirming care case, the board garnered input from TMA’s LGBTQ Health Section.
“We were taking policy from the House of Delegates, which is a democratic process,” he said. “We were not creating new policy. We were implementing [existing] policy.”
Over the past year, Dr. Snyder added, the “tenor of the board [has been] to act more boldly.” For example, the board did not take lightly the move to sue federal agencies over part of the surprise-billing rule; nor was it “a hard sell.”
“Suing the federal government is not something we often do. We’ve done it before. But we shouldn’t be shy about it,” he said. “That should be a weapon in our arsenal that we are certainly willing to bring out to support Texas physicians.”