Disciplinary Actions against
Joseph McWherter, M.D.
Stephen Barrett, M.D.
Joseph F. McWherter, M.D, who operates the Energy Health Centre in Fort Worth and Colleyville, Texas, has been disciplined twice by the Texas Medical Board. In 2009, he was charged with failing to to perform and/or document an appropriate physical examination on two patients. The case was settled in 2010 with a consent agreement under which the board concluded that one of the records was inadequate and McWherter agreed to take 10 hours of approved continuing medical education courses in recordkeeping and have and to undergo period monitoring of his patient records for at least one year. In 2014, he was charged with improperly advertising that his program "allows women to experience the life-enhancing benefits of hormonal replacement safely while avoiding breast cancer." The case was settled later that year with an order (shown below) under which he agreed to remove the disputed language, pay a $1,000 administrative penalty, and take 4 hours of approved CME credits in risk management.
LICENSE NO. E-8713
IN THE MATTER OF THE
JOSEPH FRANCIS MCWHERTER, M.D.
TEXAS MEDICAL BOARD
MEDIATED AGREED ORDER
On the 7th day of November, 2014, came on to be heard before the Texas Medical Board (the Board), duly in session, the matter of the license of Joseph Francis McWherter, M.D. (Respondent).
On September 26, 2013, Respondent appeared in person, with counsel, Elizabeth Fraley, at an Informal Show Compliance Proceeding and Settlement Conference in response to a letter of invitation from the staff of the Board. The Board's representatives were Carlos Gallardo, a member of the Board, and Leah Mabry, M.D., a member of a District Review Committee (Panel). Ketan Patel represented Board staff. At this ISC the Panel offered Respondent an Agreed Order. Respondent declined the Agreed Order.
On February 28, 2014, a formal complaint was filed at the State Office of Administrative Hearings (SOAH). Prior to the matter going to hearing the matter was referred to SOAH for mediation. On September 12, 2014, the mediation was convened. Timothy Webb represented the Board at the Mediated Settlement Conference. Elizabeth Fraley represented Respondent. Ketan Patel represented Board staff.
Board staff charged that Respondent used false, misleading, or deceptive advertising on his website. Specifically, it was charged that in January 2013, Respondent's website stated "His program allows women to safely experience the life-enhancing benefits of hormonal therapy while avoiding breast cancer." In March of 2013, the language regarding hormone replacement therapy (HR T) while "avoiding breast cancer" was removed from the website. On August 9, 2013, the website again showed the "avoiding breast cancer" language.
Respondent has previously been the subject of disciplinary action by the Board. On June 4, 2010, the Board and Respondent entered into a Mediated Agreed Order (2010 Order) requiring Respondent to be monitored by a physician monitor for eight cycles, as well as take 10 hours of continuing medical education in the topic of medical recordkeeping. The action was based upon Respondent's inadequate medical recordkeeping for a patient with endometriosis. The Order terminated on April 21, 2013 upon Respondent's completion of all the underlying requirements.
Upon the recommendation of the Panel and with the consent of Respondent, the Board makes the following Findings and Conclusions of Law and enters this Agreed Order.
The Board finds the following:
1. General Findings:
- Respondent received all notice required by law. All jurisdictional requirements have been satisfied. Respondent waives any defect in notice and any further right to notice or hearing under the Medical Practice Act, Title 3, Subtitle B, Texas Occupations Code (the Act) or the Rules of the Board.
- Respondent currently holds Texas Medical License No. E-8713. Respondent was originally issued this license to practice medicine in Texas on August 27, 1977. Respondent is not licensed to practice in any other state.
- Respondent is primarily engaged in the practice of Gynecology. Respondent is board certified by the American Board of Obstetrics and Gynecology, a member of the American Board of Medical Specialties.
- Respondent is 63 years of age.
Specific Panel Findings:
The following statement on Respondent's website had the potential to be false, deceptive, and/or misleading if taken out of context, "[h]is program allows women to experience the life-enhancing benefits of hormonal replacement safely while avoiding breast cancer."
- Respondent indicated that prior to the date of the ISC, the website was updated and the "while avoiding breast cancer" language was removed.
- There was no evidence of harm to patients or complaints from Respondent's patients.
- In determining the appropriate sanctions in this matter, the Panel considered that Respondent has cooperated in the investigation of the allegations related to this Agreed Order. To avoid further investigation, hearings, and the expense and inconvenience of litigation, Respondent agrees to the entry of this Agreed Order and to comply with its terms and conditions.
CONCLUSIONS OF LAW
Based on the above Findings, the Board concludes that:
- The Board has jurisdiction over the subject matter and Respondent pursuant to the Act.
- Section 164.051(a)(3) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent's violation of a rule adopted under this Act, specifically Board Rule 164.3, relating to the Board's rules regarding advertising.
- 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.
- Section 164.002(a) of the Act authorizes the Board to resolve and make a disposition of this matter through an Agreed Order.
Based on the above Findings and Conclusions of Law, the Board ORDERS that Respondent shall be subject to the following terms and conditions:
- Respondent must remove the "while avoiding breast cancer" language and provide proof to the Board of such removal within 30 days of the entry of the Order. Respondent shall not restore the "while avoiding breast cancer" language on his website.
- Within one year from the date of the entry of this Order, Respondent shall enroll in and successfully complete at least four hours of continuing medical education (CME) approved for Category I credits by the American Medical Association in the topic of risk management. All CME shall be approved in writing in advance by the Executive Director or their designee. To obtain approval for the course, Respondent shall submit in writing to the Compliance Department information on the course, to include at least a reasonably detailed description of the course content and faculty, as well as the course location and dates of instruction. Respondent shall submit documentation of attendance and successful completion of this requirement to the Compliance Department on or before the expiration of the time limit set forth for completion of the course. The CME requirements set forth in this paragraph shall be in addition to all other CME required for licensure maintenance
- Respondent shall pay an administrative penalty in the amount of $1,000 within 60 days of the date of the entry of this Order. The administrative penalty shall be paid in a single payment by cashier's check or money order payable to the Texas Medical Board and shall be submitted to the Board for routing so as to be remitted to the Comptroller of Texas for deposit in the general revenue fund. Respondent's failure to pay the administrative penalty as ordered shall constitute grounds for further disciplinary action by the Board, and may result in a referral by the Executive Director of the Board for collection by the Office of the Attorney General.
- At all times while Respondent is under the terms of this Order, Respondent shall give a copy of this Order to all hospitals, nursing homes, treatment facilities, and other health care entities where Respondent has privileges, has pending an application for privileges, applies for privileges, or otherwise practices. Within 30 days of being first contacted by the Compliance Division of the Board following entry of this Order, Respondent shall provide to the Compliance Division of the Board documentation, including proof of delivery, that the Order was delivered to all such facilities.
- Respondent shall comply with all the provisions of the Act and other statutes regulating the Respondent's practice.
- Respondent shall fully cooperate with the Board and the Board staff, including Board attorneys, investigators, compliance officers, consultants, and other employees or agents of the Board in any way involved in investigation, review, or monitoring associated with Respondent's compliance with this Order. Failure to fully cooperate shall constitute a violation of this order and a basis for disciplinary action against Respondent pursuant to the Act.
- Respondent shall inform the Board in writing of any change of Respondent's office or mailing address within 10 days of the address change. This information shall be submitted to the Registration Department and the Compliance Department of the Board. Failure to provide such information in a timely manner shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act. Respondent agrees that 10 days notice of a Probationer Show Compliance Proceeding to address any allegation of non-compliance of this Agreed Order is adequate and reasonable notice prior to the initiation of formal disciplinary action. Respondent waives the 30-day notice requirement provided by §164.003(b)(2) of the Medical Practice Act and agrees to 10 days notice, as provided in 22 Texas Administrative Code § 187.44(4).
- Any violation of the terms, conditions, or requirements of this Order by Respondent shall constitute unprofessional conduct likely to deceive or defraud the public, or to injure the public, and shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act.
- Respondent shall be permitted to supervise and delegate prescriptive authority to physician assistants and advanced practice nurses and to supervise surgical assistants.
- This Order shall automatically terminate upon Respondent's submission of sufficient evidence to the Compliance Division of the Board that Respondent successfully completed the requirements ordered in Ordering Paragraph Nos. 1, 2, and 3.
RESPONDENT WAIVES ANY FURTHER HEARINGS OR APPEALS TO THE BOARD OR TO ANY COURT IN REGARD TO ALL TERMS AND CONDITIONS OF THIS AGREED ORDER. RESPONDENT AGREES THAT THIS IS A FINAL ORDER.
THIS ORDER IS A PUBLIC RECORD.
I, JOSEPH FRANCIS MCWHERTER, M.D., HAVE READ AND UNDERSTAND THE FOREGOING AGREED ORDER. I UNDERSTAND THAT BY SIGNING, I WAIVE CERTAIN RIGHTS. I SIGN IT VOLUNTARILY. I UNDERSTAND THIS AGREED ORDER CONTAINS THE ENTIRE AGREEMENT AND THERE IS NO OTHER AGREEMENT OF ANY KIND, VERBAL, WRITTEN OR OTHERWISE.
DATED: September 12, 2014.
JOSEPH FRANCIS MCWHERTER, M.D
SIGNED AND ENTERED by the presiding officer of the Texas Medical Board on this 7th day of November, 2014.
Michael Arambula, M.D., Pharm.D., President
Texas Medical Board
This page was posted on June 10, 2015.