Power Over Privacy

In the closing days of his last term in the Texas House, former state Rep. Bill Zedler, R-Arlington, used his legislative authority to obtain a series of confidential records from the Texas Medical Board, The Texas Tribune has learned. His reason? To defend doctors he believes were wrongly the subjects of misconduct investigations by the board, which licenses the state's physicians. “I intervened on their behalf because you have attempts by the medical board to sanction somebody when there’s clearly no explanation [of] why,” says Zedler, who’s running to reclaim his House District 96 seat this November.

Of the five physicians whose cases Zedler took it upon himself to review, at least two were campaign contributors, campaign finance records show. In a phone interview, Zedler recalled requesting information about Houston anesthesiologist Vladimir Redko and Dallas thoracic surgeon Dr. William Rea, neither of whom were constituents. According to the board's disciplinary orders, both were ultimately sanctioned for “egregious” treatment violations ranging from performing invasive procedures to injecting natural gas and jet fuel into the patients in order to diagnose chemical sensitivities. Records show that the doctors gave Zedler a combined total of $25,000 in the past half-decade and that some contributions were made just weeks before Zedler requested their case files.

Zedler says he obtained the confidential documents because he believes his doctor-donors were unfairly targeted by rival physicians who were “in the pocket” of insurance companies — “doctors who say to insurance carriers, ‘Hey, I’m gonna save you money’ … by denying treatment to the patient,” he explained to a Senate panel in May 2009.

Zedler testified in April 2009 that he used the tactic of requesting confidential records to get the board to drop at least one case. A letter from Zedler, released by the Texas Medical Board through the Public Information Act, shows he asked for the “immediate appeal” of one doctor’s sanction (the doctor’s name was redacted). The former executive director of the Texas Medical Board remembers hearing from Zedler frequently. “He was very active at contacting me about issues he had,” says Dr. Donald Patrick, a neurosurgeon who led the board until 2008. “Let me just say this: The good legislators called up and asked for information. Legislators that I didn’t regard as good called and tried to influence what we did. I knew the difference.”

In spite of findings of fact and disciplinary orders by the state board that his doctor-donors practiced below the standard of care or administered potentially harmful treatment, Zedler, who has no medical degree, maintains that the medical board — an appointed, 19-member panel mostly made up of licensed physicians — is “corrupt” and sanctioned the doctors improperly. “The worst abuse is using the power of the state to go after somebody inappropriately,” Zedler says of the medical board. “You ought to be investigating the medical board. That’s the problem.”

Zedler believes his experience as a medical equipment salesman gives him the knowledge to determine whether doctors were violating standards of care, or, as he argues, wrongly investigated. “I know what appropriate treatment is and isn’t,” he says. “I sold equipment, so a lot of times my customers were doctors. I’ve been inside surgical suites before — that kind of stuff.”

Confidentiality agreements

As a legislator, Zedler had authority to obtain and review private patient and physician records. The Texas Medical Board provides such records — which also detail patient treatment — only by special request and solely for official legislative purposes. Under the medical board's rules, individual lawmakers who request the information must pledge that they will not share the records or divulge their contents for anything other than official purposes. But the board concedes that it doesn’t track how the records are used. “If a legislator says, ‘I am requesting this information on behalf of this committee that I belong to,’ we don’t quiz them about whether they’re really doing that,” says Leigh Hopper, a spokeswoman for the Texas Medical Board. “We just hand over the information.” 

In an interview with the Tribune, Zedler said he wasn’t able to use the private medical records for a legislative purpose, such as writing a bill, because he got involved in the issue following the 2007 session and he lost his 2008 re-election bid. Under Texas law, using confidential medical board information for non-legislative purposes is a misdemeanor that constitutes official misconduct and carries a fine of up to $1,000 or jail time. In addition to his April 2009 testimony, in which he said he succeeded in getting the board to drop at least one case, Zedler also said publicly that he used the records to find out who was filing complaints against certain doctors. “I was seeking not the [patient] records but who was filing complaints. They were not complaints coming from the patient,” Zedler says. “They were coming from insurance doctors. Doctors who were making a living denying patients care.”

Physician investigators at a separate agency, the Division of Workers’ Compensation of the Texas Department of Insurance, recall that Zedler also took great interest in doctors who were under investigation at workers’ comp. Dr. Bill Nemeth, the division's former medical advisor, says Zedler had some success in stopping investigations of the doctors on whose behalf he intervened. “He was extremely aggressive. He was the first one to start creating problems,” Nemeth says. Nemeth says direct contact with leadership at the workers' comp division by both Zedler and state Rep. Leo Berman, R-Tyler, led to two shutdowns in the division's enforcement process; former Commissioner Albert Betts halted enforcement actions in 2005, and Commissioner Rod Bordelon's similarly stopped the enforcement process in January, which spiked at least nine cases against doctors that had already reached the enforcement level.

“He created enough of a stink that people backed off of pushing these physicians through the investigative process. That’s happened consistently," Nemeth says. "It would absolutely not surprise me if he did this at the Medical Board. I would expect that he would.”

For his part, Zedler says he “never, ever, ever stopped an investigation.”

“If the board stopped [an investigation], they saw that someone was overseeing what they were doing, and what they were doing was inappropriate,” Zedler says. In a series of conversations with the Tribune, Zedler insisted that insurance companies were “coming after” him for standing up for certain doctors. “You get them into a room with me, and I’ll take ‘em on,” he said. “There are powerful interests who have tried to shut me down.” He named the Texas Mutual Insurance Company as a group possibly trying to discredit him.

“To say that we’re coming after him — it’s preposterous,” says Terry Frakes, a senior vice president at Texas Mutual. “I don’t know how he means. I don’t know how we would come after him. To say that those doctors on the [workers' comp] quality review panel — 50, 60 or more doctors — are in the pockets of the insurance carriers, I think that’s an insult to those doctors.”

Private records, public officials

Some physicians and consumer advocates worry about a broader issue: the fact that patient records can wind up in the hands of lawmakers at all. All that’s required of lawmakers is a signature on a confidentiality agreement before records are released. “We really can’t police it," says Hopper, the medical board's spokeswoman. "We just hope that they’ll do the right thing with it.” She adds that the legislative privilege to access confidential documents applies to all state agencies, not just to the medical board. Under statute, governmental bodies are required to provide confidential information “if the requesting member” says the information requested is “for legislative purposes.”

“I never really understood what legislative purpose a lawmaker would have for gaining confidential patient information. It doesn’t serve any public policy goals,” says Alex Winslow, the executive director of the consumer advocacy group Texas Watch. “This is the most sensitive and private information that an individual has. The interaction between physician and themselves is sacrosanct. The Legislature has no business getting in between a doctor and a patient.”

Nemeth, a longtime Austin-based orthopedic surgeon, agrees. “We try very hard not to violate our professional and personal relationships and integrity with our patients,” he says. “A lot of that investigation information would involve patient information that they should not have access to. It really opens [a] Pandora’s box in terms of ethics.”

It’s unclear how many other lawmakers besides Zedler have made requests for similar information confidential records. After the board provided a total number of Zedler’s requests, the Tribune asked for a listing of all lawmakers who had signed agreements to obtain confidential medical records in the last few years. Hopper responded by saying the agency is unsure whether the lawmaker agreements are themselves confidential and therefore not subject to release under open records law. The matter is now under review by the Texas attorney general's office.