The Texas Medical Board (TMB) licenses and regulates attorneys in Texas. This entity ensures that physicians and other medical professionals follow the rules and laws that govern them. Any violations of those rules or laws can lead to disciplinary proceedings before the TMB. These rules and laws include adherence to state law concerning abortions, which bans all abortion except those in which a physician, in their “reasonable medical judgment,” believes that it is necessary to save the life or protect the health of the pregnant patient.
The TMB recently adopted new guidance as to the state’s abortion law. These new rules went into effect on July 14, 2024. As a licensed medical professional in the state of Texas, you must keep up to date with any changes in the rules and laws that govern your profession. A Texas medical license defense attorney can help if you are facing disciplinary proceedings. Contact the offices of Bertolino LLP at (512) 980-3751 or visit us online today to schedule an appointment.
New Definitions
The TMB added 22 Tex. Admin. Code §165.7, which provides definitions applicable to §165 generally, which addresses medical records. These definitions are specific to abortion and include “abortion,” “reasonable medical judgment,” “medical emergency,” and “major bodily function.”
The definition of abortion mirrors that found in Tex. Health and Safety Code §245.002(1) specifically excludes birth control devices and contraceptives. It also excludes an act done with an intent to:
- save the life or preserve the health of an unborn child;
- remove a dead, unborn child whose death was caused by spontaneous abortion; or
- remove an ectopic pregnancy.
Likewise, the definitions of “reasonable medical judgment” and “medical emergency” are the same as those in the Texas Health and Safety Code. The definition of “major bodily function” is the same as that found in the Texas Labor Code.
Abortion Ban Exception Performance and Documentation
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22 Tex. Admin. Code §165.8 initially reminds physicians that they must follow Tex. Health and Safety Code §§170, 170A, and 171, in addition to all applicable state and federal statutes, rules, and court opinions concerning abortion. This code section then provides guidelines to physicians performing abortions under the exception to the Texas abortion ban, as well as the documentation requirements that physicians must follow in performing abortions.
When performing an abortion, physicians must document the following in the patient’s medical record:
- that the abortion is performed in response to a medical emergency;
- that places the woman in danger of death unless the abortion is performed or induced; or
- to prevent a serious risk of substantial impairment of a major bodily function of the patient unless the abortion is performed or induced;
- the major bodily function(s) at serious risk of substantial impairment;
- what placed the woman in danger of death, or what was the serious risk of substantial impairment;
- how the danger of death or serious risk was determined;
- if applicable, the rationale on why the abortion was performed under §170A.002 (b)(3) of the Texas Health and Safety Code; and
- if applicable, that the treatment was in response to an ectopic pregnancy at any location or a previable premature rupture of membranes, as those terms are used in §74.552 of the Texas Civil Practice and Remedies Code.
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This code section does not require the physician to document the above-listed items contemporaneously with performing the abortion. Rather, the physician may complete the required documentation either before or after performing the abortion, but in any case, no later than seven days after performing the abortion.
Finally, this code section states that “imminence of the threat to life or impairment of a major bodily function is not required.” This language echoes a Texas Supreme Court ruling on the issue.
TMB’s Handling of Complaints Regarding Abortions Performed
22 Tex. Admin. Code §165.9 explains how the TMB handles complaints concerning abortions that physicians have performed. Generally, the TMB will review complaints and perform investigations concerning abortions just as it reviews and investigates other complaints. If the TMB determines that the complaint falls within its jurisdiction, the agency will use independent expert physicians to review all relevant information concerning the complaint and the patient’s medical record, which may include:
- how the decision was made to proceed with an abortion based on reasonable medical judgment, including:
- what diagnostic imaging, test results, medical literature, second opinions, and/or medical ethics committees were used or consulted; and
- what alternative treatments were attempted and failed or were ruled out; and
- whether there was adequate time to transfer the patient to a facility or physician with a higher level of care or expertise to avoid performing an abortion.
This code section also highlights the fact that the TMB’s decision to dismiss the complaint or discipline the physician is independent of any criminal or civil action against the physician. The TMB may defer or delay action based on a pending criminal or civil suit. Based on the outcome of such a suit, the TMB also retains the authority to investigate and potentially take disciplinary action against the physician. However, the TMB may not take any disciplinary action against a physician who exercised reasonable medical judgment in performing an abortion under the exception to the state abortion ban law.
Texas Supreme Court Ruling – Zurawski v. Texas
Despite the TMB’s recent guidance as embodied in these newly added code sections, concern remains about the standard articulated by the Texas Supreme Court in Zurawski v. Texas. In that case, 20 women and two doctors argued that the Texas abortion ban prevented them from getting and/or providing medically necessary care for complicated pregnancies. While a Travis County judge initially issued a temporary injunction allowing women to get abortions if their doctors made a “good faith judgment” of necessity, the Texas Supreme Court disagreed. The Texas Supreme Court overturned the lower court’s ruling in a unanimous decision. It held that the existing exception to the state’s abortion ban was sufficient to allow abortions in medically necessary situations. However, many physicians rightfully remain concerned about performing abortions under the exception, as well as the vague nature of the TMB guidance.
We Are Here to Represent Your Interests Before the TMB
We know how much is at stake if you are facing a disciplinary complaint against your medical license. We invite you to meet with us to discuss your case and learn how we can help. You’ll meet with one of our experienced medical license defense attorneys to discuss the details of the allegations filed against you. If you have received a licensing complaint, BERTOLINO LLP can help. Contact us today or call (512) 980-3751 and schedule a case evaluation.
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