Disciplinary Actions against Robert M. Battle, M.D.
Stephen Barrett, M.D.
Robert Battle, M.D. does business as the Comprehensive Health Association in Houston, Texas. His Web site states that since 1984 he "has focused attention on treating the cause of disease as opposed to merely treating symptoms." The Texas Medical Board has disciplined him in 1990, 2006, and 2009.
In 1990, the Board concluded that Battle had treated a patient without performing a physical examination, treated patients with an unapproved "auto immune vaccine," and provided handouts about "platelet tests" and chelation therapy that contained misleading information. The Board reprimanded him, placed him on two years probation, and ordered him to take 50 hours of approved continuing education courses.
In 2002, the board charged Battle with inappropriately diagnosing a woman with mercury poisoning and referring her to a dentist to have her silver fillings removed and for refusing to produce his records for two other patients, one of whom had been treated with intravenous hydrogen peroxide. This complaint was dismissed three months later but is still posted on the Board's Web site.
In 2006, Battle was ordered to pay a $1,000 administrative penalty to settle allegations that that he had terminated physician-patient relationship in an unprofessional manner.
In January 2009, the Board accused Battle, M.D., of relying on "junk science" to support his medical diagnosis and treatment. The accusation was related to his management of a patient ("M.S.") who had consulted him for anxiety, depression, and hot flashes. The board's complaint (shown below) stated:
Respondent's action in this case is below the standard of care due to one or more of the following: failure to treat the patient according to the generally accepted standard of care; failure to use diligence in one's practice; failure to perform an appropriate assessment of M.S.'s complaints, failure to maintain adequate medical records, including requirements when using complementary/alternative medicine therapy; and using non-therapeutic treatments. Respondent's medical decision-making and treatment lacks any proven medical basis or general acceptance in the medical/scientific community.
In November 2009, Battle signed a mediated order under which he agreed to (a) obtain 10 hours of continuing medical education in medical recordkeeping and 10 hours CME in family practice; (b) maintain adequate medical records; (c) have one-time monitoring of his charts within one year; (d) create an informed consent form to be provided to complementary and alternative medicine patients that is approved by TMB’s executive director; and (e) provide his patients with a brochure or handout of estimated costs of his treatments.
HEARING CONDUCTED BY THE
TEXAS STATE OFFICE OF ADMINISTRATIVE HEARINGS
SOAH DOCKET NO. 503-09-
TEXAS MEDICAL LICENSE NO. D-2355
IN THE MATTER OF THE
ROBERT McREE BATTLE, M.D.
TEXAS MEDICAL BOARD
TO THE HONORABLE TEXAS MEDICAL BOARD AND THE HONORABLE ADMINISTRATIVE LAW JUDGE TO BE ASSIGNED:
COMES NOW, the Staff of the Texas Medical Board ("the Board"), and files this Complaint against Robert McRee Battle, M.D., ("Respondent"), based on Respondent's alleged violations of the Medical Practice Act ("the Act"), TEX. Occ. CODE ANN., Title 3, Subtitle B, Chapters 151-165, and would show the following:
The filing of this Complaint and the relief requested are necessary to protect the health and public interest of the citizens of the State of Texas, as provided in Section 151.003 of the Act.
II. LEGAL AUTHORITY AND JURISDICTION
1. Respondent is a Texas Physician and holds Texas Medical License No. D-2355, that was in full force and effect at all times material and relevant to this Complaint.
2. Respondent received notice of the Informal Settlement Conference ("ISC") and appeared at the ISC, which was conducted in accordance with §2001.054(c), GOV'T CODE and § 164.004 of the Act. All procedural rules were complied with, including but not limited to, Board Rules 182 and 187, as applicable.
3. No agreement to settle this matter has been reached by the parties.
4. All jurisdictional requirements have been satisfied.
III. FACTUAL ALLEGATIONS
Board Staff has received information and on that information believes that Respondent has violated the Act. Based on such information and belief, Board Staff alleges:
Respondent is a practitioner of Complementary and Alternative Medicine ("CAM"). Respondent violated the standard of care related M.S. by use of non-therapeutic treatments.
1. M.S. presented to Respondent with the chief complaint of anxiety, depression, and hot flashes.
2. Respondent treated the patient with alternative health care therapies such as: injecting the patient with an unknown substance for the patient's allergies and providing nutritional supplements.
3. Respondent utilized a number of unorthodox tests including: pH levels of the blood, saliva, and urine; biological versus chronological age; heart rate variability tracing; and nocturnal pulse oximetry tracing.
4. Respondent failed to appropriately evaluate and treat M.S.'s anxiety disorder.
5. Respondent failed to document conventional medical treatment options, required information related to use of Complementary and Alternative Medicine ("CAM") therapies.
6. Respondent's medical records are inadequate, including but not limited to failure to document an adequate medical history, physical examination, and appropriate diagnostic testing before ordering/prescribing treatment.
7. Respondent prescribed hormone/supplement therapy without any medical support or indication.
8. Respondent's use of nutritional supplements, herbal remedies, and bio-identical hormones are non-therapeutic treatments.
9. ·Respondent made medically and scientifically unsupported findings without any differential diagnosis to rule out other causes of the symptoms. The standard of care requires that a differential diagnosis must be made when trying to fInd a source of a patient's complaint/illness.
10. Respondent ordered treatment such as "Apple Juice" fast, LED laser treatment, allergy shots with "neural peptides." These treatments are not generally accepted in the medical community and are not supported by established scientific evidence.
11. Respondent is making medical decisions based on theories, opinions and analysis that have not been sufficiently tested, or supported by peer-reviewed studies or established science. There is no scientific support, peer reviewed studies, or generally accepted medical studies, literature or testing that has demonstrated the claims or therapeutic value of these "treatments."
12. Respondent relied on junk science to support his medical diagnosis and treatment of illnesses. Respondent made medical decisions or reached medical conclusions regarding treatment that there are unreasonable, and that are not recognized or generally accepted in the medical and scientific community.
13. Respondent's action in this case is below the standard of care due to one or more of the following: failure to treat the patient according to the generally accepted standard of care; failure to use diligence in one's practice; failure to perform an appropriate assessment of M.S.'s complaints, failure to maintain adequate medical records, including requirements when using complementary/alternative medicine therapy; and using non-therapeutic treatments. Respondent's medical decision-making and treatment lacks any proven medical basis or general acceptance in the medical/scientific community.
IV. APPLICABLE STATUTUES, RULES, AND AGENCY POLICY
Respondent's conduct, as described above, constitutes grounds for the Board to revoke or suspend Respondent's Texas medical license or to impose any other authorized means of discipline upon the Respondent. The following Statutes, Rules, and Agency Policy are applicable to this matter:
A. Procedures For Conduct of the Hearing:
1. Section 164.007(a) of the Act requires that the Board adopt procedures governing formal disposition of a contested case before the State Office of Administrative Hearings.
2. 22 TEX. ADMIN. CODE, Chapter 187 sets forth the procedures adopted by the Board under the requirement of Section 164.007(a) of the Act.
3. 1 TEX. ADMIN. CODE §155.3(c) provides that the procedural rules of the state agency on behalf of which the hearing is conducted govern procedural matters that relate to the hearing as required by law, to wit: Section 164.007(a) of the Act, as cited above.
4. 1 TEX. ADMIN. CODE, CHAPTER 155 sets forth the rules of procedure adopted by SOAH for contested case proceedings.
B. Violations Warranting Disciplinary Action:
1. Section 164.051(a)(1) of the Act authorizes the Board to take disciplinary action based on Respondent's commission of an act prohibited under Section 164.052 of the Act
2. Section 164.051(a)(3) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent's violation of a Board Rule: to wit, Board Rule 165, requiring a physician to maintain adequate medical records; and Board Rule 200, related to the requirements for practicing Complementary and Alternative Medicine.
3. Section 164.051(a)(6) of the Act is further defined by Board Rule §190.8 as follows: § 190.8(1 )(A), failure to treat a patient according to the generally accepted standard of care; § 190.8(1 )(B), negligence in performing medical services; § 190.8(1)(C), failure to use proper diligence in one's professional practice; § 190.8(1 )(D), failure to safeguard against potential complications; §190.8(1)(G), failure to disclose reasonably foreseeable side effects of a procedure or treatment; § 190.8(1 )(1), failure to obtain informed consent from the patient or other person authorized by law to consent to treatment on the patient's behalf before performing tests, treatments or procedures; and §190.8(1)(K), providing a prescription or administration of a drug in a manner that is not in compliance with Chapter 200 of this title (relating to Standards for Physicians Practicing Complementary and Alternative Medicine).
4. Section 164.0S2(a)(S) and 164.0S3 of the Act authorizes the Board to take disciplinary action against Respondent based upon Respondent's unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public.
5. Board Rule §190.8(2)(J) defines unprofessional or dishonorable conduct as, but not limited to, providing medically unnecessary services to a patient.
6. Sections 164.0S2(a)(S) and 164.0S3(a)(S) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent prescribing or administering a drug or treatment that is non-therapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed.
C. Sanctions That May be Imposed:
1. Section 164.001 of the Act authorizes the Board to impose a range of disciplinary actions against a person for violation of the Act or a Board rule. Such sanctions include: revocation, suspension, probation, public reprimand, limitation or restriction on practice, counseling or treatment, required educational or counseling programs, monitored practice, public service, and an administrative penalty.
2. Chapter 165, Subchapter A of the Act sets forth statutory requirements for the amount and basis of an administrative penalty.
3. 22 TEX. ADMIN. CODE § 187.39 authorizes the Board to assess, in addition to penalty imposed, costs of the investigation and administrative hearing in the case of a default judgment or upon adjudication that Respondent is in violation of the Act after a trial on the merits.
4. 22 TEX. ADMIN. CODE Chapter 190 provides disciplinary guidelines intended to provide guidance and a framework of analysis in contested licensure and disciplinary matters and to provide guidance as to the types of conduct that constitute violations of the Act or board rules. The Chapter190 guidelines also include a list of aggravating factors that need to be considered in making a sanction recommendation. The aggravating factors present in this case include harm to the patient and severity of harm; economic harm to the patient and the severity increased potential for harm to the public; intentional, knowing, premeditated, or grossly negligent act constituting a violation; prior similar violations; previous disciplinary action by the board; and relevant circumstances increasing the seriousness of the misconduct.
V. NOTICE TO RESPONDENT
IF YOU DO NOT FILE A WRITTEN ANSWER TO THIS NOTICE WITH THE STATE OFFICE OF ADMINISTRATIVE HEARINGS WITHING 20 DAYS OF THE DATE NOTICE OF SERVICE WAS MAILED, A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU, WHICH MAY INCLUDE THE DENIAL OF LICENSURE OR ANY OR ALL OF THE REQUESTED SANCTIONS INCLUDING THE REVOCATION OF YOUR LICENSE. IF YOU FILE A WRITTEN ANSWER, BUT THEN FAIL TO ATTEND THE HEARING, A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU, WHICH MAY INCLUDE THE DENIAL OF LICENSURE OR ANY OR ALL OF THE REQUESTED SANCTIONS INCLUDING THE REVOCATION OF YOUR LICENSE. A COPY OF ANY RESPONSE YOU FILE WITH THE STATE OFFICE OF ADMINISTRATIVE HEARINGS SHALL ALSO BE PROVIDED TO THE HEARINGS COORDINATOR OF THE TEXAS MEDICAL BOARD.
WHEREFORE, PREMISES CONSIDERED, Board Staff requests that an administrative law judge employed by the State Office of Administrative Hearings conduct a contested case hearing on the merits of the Complaint, in accordance with Section 164.007(a) of the Act. Upon final hearing, Board Staff requests that the Honorable Administrative Law Judge issue a Proposal for Decision ("PFD") that reflects Respondent's violation of the Act as set forth in this Complaint. Following issuance of the PFD, Board Staff requests that the Board, pursuant to §164.001 and §165.003 of the Act and Board Rules 187.30, 187.39, 190.8, 190.14, 190.15 and 190.16, enter an Order imposing any and all sanctions or disciplinary measures necessary to protect health and public welfare, including the imposition of SOAH hearing costs on Respondent.
TEXAS MEDICAL BOARD
Scott M. Freshour
State Bar No. 00789299
333 Guadalupe, Tower 3, Suite 610
Austin, Texas 78701
Telephone: (512) 305-7096
Fax: (512) 305-7007
Filed with the Texas Medical Board on this 21st day of Jan., 2009.
Mari Robinson, J.D.
Interim Executive Director
Texas Medical Board
This page was posted on November 16, 2009.