(a) Selection of Reviewers. Any complaint alleging a possible violation of the standard of care will be referred to Expert Physician Reviewers who will review all the medical information and records collected by the board and shall report findings in the prescribed format.
  (1) Reviewers shall be randomly selected from among those Expert Panel members who practice in the same specialty as the physician who is the subject of the complaint. The practice area or specialty declared by the subject physician as his area of practice may be the specialty of the expert reviewers.
  (2) If there are no Expert Panel Members in the same specialty or if the randomly selected Reviewer has a potential or apparent conflict of interest that would prevent the Reviewer from providing a fair and unbiased opinion, that Reviewer shall not review the case and another Reviewer shall be randomly selected from among those Expert Panel members who practice in the same or similar specialty as the physician who is the subject of the complaint, after excluding the previously selected Reviewer.
    (A) A potential conflict of interest exists if the selected Reviewer practices medicine in the same geographical medical market as the physician who is the subject of the complaint; and
      (i) is in direct competition with the physician;
      (ii) knows the physician; or
      (iii) has treated or examined any of the patients at issue.
    (B) An apparent conflict of interest exists if the Reviewer:
      (i) has a direct financial interest or relationship with any matter, party, or witness that would give the appearance of a conflict of interest;
      (ii) has a familial relationship within the third degree of affinity with any party or witness; or
      (iii) determines that the Reviewer has knowledge of information that has not been provided by the Board and that the Reviewer cannot set aside that knowledge and fairly and impartially consider the matter based solely on the information provided by the Board.
  (3) Notwithstanding the provisions of subsection (a)(2) of this section, if no Reviewer agrees to review the case who can qualify under the requirements of that subsection, a Reviewer who has a potential conflict may review the case, provided the Expert Reviewers' Report discloses the nature of the potential conflict.
  (4) If any selected Reviewer has a potential or apparent conflict of interest, the Reviewer shall notify board staff of the potential or apparent conflict.
(b) Procedures for Expert Physician Review. The procedure for the use of Reviewers shall comply with §154.0561, Texas Occupations Code. Reviewers shall be specifically informed that they may communicate with other Reviewers selected to review the case and that they should communicate with other Reviewers to attempt to reach a consensus.
(c) Expert Reviewers' Reports. A report shall be prepared by each Expert Physician Reviewer. Each Reviewer's report must include the specialty area of Reviewer. Any other biographical information must be redacted.
  (1) The First Reviewers' report must include:
    (A) relevant facts concerning the medical care rendered;
    (B) applicable standard of care;
    (C) application of the standard of care to the relevant facts;
    (D) a determination of whether the standard of care has been violated;
    (E) the clinical basis for the determinations, including any reliance on peer-reviewed journals, studies, or reports; and
    (F) the summation of the Reviewer opinion.
  (2) The Second Reviewers' must do a complete review of the First Reviewers' report.
  (3) The Second Reviewers' report may:
    (A) concur with and adopt the First Reviewer's report as if it was their own report;
    (B) concur in part and disagree in part with First Reviewers' report and state in writing the basis for the disagreement; or
    (C) disagree with First Reviewers' report, and state in writing the basis for the disagreement.
  (4) In the event of partial disagreement between the first two reviewers, the report will be sent back to the First Reviewer to determine if a consensus can be reached on the differing opinion.
  (5) A Third Reviewers' report will only be required if First and Second Reviewers cannot reach a consensus. The Third Reviewer must do a complete review of the First and Second Reviewer reports; concur with and adopt the First Reviewer's report as if it was their own report;
  (6) The Third Reviewers' report may:
    (A) concur with and adopt either the First Reviewer's or Second Reviewer's report as if it was their own report; or
    (B) write their own concurring report with either the First Reviewer's or Second Reviewer's report. A concurring report must include:
      (i) relevant facts concerning the medical care rendered;
      (ii) applicable standard of care;
      (iii) application of the standard of care to the relevant facts;
      (iv) a determination of whether the standard of care has been violated;
      (v) the clinical basis for the determinations, including any reliance on peer-reviewed journals, studies, or reports; and
      (vi) the summation of the Reviewer opinion.
(d) For each Expert Reviewers' Report that involves Complementary or Alternative Medicine (CAM) issues, Board staff shall insert immediately below Expert Reviewer's specialty in bold letters, "This review involves Complementary or Alternative Medicine."
(e) An Expert Reviewers' Report shall be deemed "investigative information" and an "investigative report" and is privileged and confidential, in accordance with §164.007(c).
(f) Each Expert Reviewer Report shall have the following Notice to Respondent: "PURSUANT TO §164.007 OF THE MEDICAL PRACTICE ACT, THIS DOCUMENT CONSTITUTES INVESTIGATIVE INFORMATION AND IS PRIVILEGED AND CONFIDENTIAL. THE EXPERT REVIEWER REPORTS (REPORTS) ARE STATUTORILY LIMITED FOR USE AT THE INFORMAL PROCEEDING ONLY, UNDER TEXAS OCCUPATIONS CODE, SECTION 164.003(f). THE REVIEWERS' REPORTS ARE REQUIRED TO BE PROVIDED TO THE LICENSEE UNDER SECTION 164.003(f). THE REPORTS REMAIN CONFIDENTIAL AND PRIVILEGED UNDER SECTION 164.003(h) AND 164.007(c). THE REPORTS CANNOT BE RELEASED TO ANY PERSON OR ENTITY WITHOUT THE CONSENT OF THE BOARD. THE REPORTS CANNOT BE OFFERED, UTILIZED, OR SUBMITTED AS EVIDENCE OR DOCUMENTS IN A CONTESTED CASE PROCEEDING BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS OR IN ANY LEGAL PROCEEDING."

Source Note: The provisions of this §182.8 adopted to be effective January 25, 2006, 31 TexReg 393; amended to be effective January 20, 2009, 34 TexReg 339; amended to be effective September 28, 2014, 39 TexReg 7580; amended to be effective January 16, 2018, 43 TexReg 233; amended to be effective January 5, 2020, 45 TexReg 153